Saving Miranda

As the Supreme Court hears oral arguments about the future of arrestees' rights, an IMF protester makes his case.

By Thurston Domina
Published April 19, 2000 3:00PM (EDT)

This weekend, I spent the night in the care of the D.C. Metropolitan Police Department. I had been trapped along with 600 others by a police force that was single-minded in its determination to break up a peaceful and legal protest that began at the Department of Justice and ended stuck between two advancing lines of police in riot gear. Without giving an order to disperse, the police handcuffed us, searched us and packed us into chartered school buses. By the time the dust had settled and I found myself sitting on the bus next to a strikingly convivial police officer, I had plenty of questions.

The officer (A. Hicks was the name on his badge, and if you're reading this, Police Chief Charles Ramsey, the man deserves a raise) was as friendly as he could be, but, unfortunately, he didn't have many answers. He didn't know what we were being charged with; he didn't know where we were being taken; he didn't know how long we'd be there. In fact, he didn't even know for sure whether I was under arrest. "I'd say it looks like you're under arrest" was all he had to say when I asked.

In his defense, I'd say that that was a pretty good answer. I was never formally charged and I left police custody the next morning without entering a plea. The receipt I have for the $50 I paid to the D.C. police says that I forfeited collateral on a "parading without a permit" charge, an offense that is, according to the New York Times, smaller than a misdemeanor. On the other hand, I spent 16 hours handcuffed on a school bus without food, water or access to a restroom. It did look as if I was under arrest -- but I still have no idea whether I really was.

There was one thing that the officer did know: that he had no responsibility to read us our Miranda rights. "That stuff," he said, "is only in the movies." And as of this weekend, he was absolutely correct.

The Miranda warning ("You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.") became the law of the land in 1966 with Supreme Court Chief Justice Earl Warren's decision in Miranda vs. Arizona. Last year the notoriously conservative 4th U.S. Circuit Court of Appeals reversed the Supreme Court decision, saying that it was superseded by a relatively obscure 1968 federal law called Section 3501. On Wednesday, the Supreme Court will consider the court of appeals' decision and, by the end of the summer, vote Miranda up or down.

Having recently spent an evening in our increasingly prosecutorial justice system for doing nothing more than protesting said prosecutorial justice system, I now know that Miranda matters. My brief to the honorable justices of the Supreme Court is simple: Maintain Miranda.

When Miranda was still law, the warning occupied a crucial, if primarily symbolic, position in our legal system. In four simple little sentences, it reminded police officers that the Bill of Rights existed and let the accused know that those crucial amendments to our Constitution (particularly the Fifth, which guarantees due process of law) pertained to them. Today, both the police and the accused need the reminder.

These days, the scales are tipped all the way to the right, and police and prosecutors have a headlock on the power in criminal cases. In New York, a city governed by a mayor who speaks proudly of his professional experience as a prosecutor, kids who jump subway turnstiles routinely spend the night in jail before they are arraigned. You can be tossed into a holding pen for walking next to somebody who is smoking a joint. And, as is well known by now, in certain circumstances a black man reaching for his wallet can become a target for police gunfire. The rest of the country isn't far behind New York on this score. In our zeal to fight crime, we have, as a nation, willfully forgotten about our civil rights. It's time to restore the balance.

Upholding the Miranda decision is one important way to do so. The warning gives the police pause and tells prosecutors that they aren't all powerful. Although between 80 and 90 percent of all defendants waive their Miranda rights, even when they are read, the warning tells people that they shouldn't be tricked or intimidated into making an unwise confession.

Upholding the Miranda decision may also mean that some guilty criminals will get off without serving time, as the law-and-order opponents of the decision maintain. But, of course, nobody gets off if everybody's rights are observed.

Would my experience in D.C. have been any different if my arresting officer had read me the Miranda warning? Probably not. Ramsey had decided that he wanted us off the streets and he was willing to damn the consequences; four annoying sentences weren't about to get in his way. Plus, we were never charged with a crime and were never questioned, so forced confessions were not really an issue.

Another cop I spoke with while I was in custody told me about the 1971 May Day arrests in D.C. He was a rookie on the force then, instructed to arrest anybody he found walking downtown on the day that Vietnam protesters vowed to bring the city to a halt. He and his colleagues arrested 14,000 people, hauled them off to RFK Stadium and held them for three days without charges. Miranda was in effect then, but the protesters went through the same song and dance that I did. Like me, they were pulled off the streets because the police didn't want any trouble and not because they had broken any laws. And, like me, they eventually walked away with nothing more than a deeper understanding of the system's flaws.

But they had been read their rights. They knew that they were under arrest and they knew that the arrest was wrongful. Eventually, they won a $14 million class-action lawsuit against the city. Sounds like the kind of happy ending that happens only in the movies.

Thurston Domina

Thurston Domina is a writer and editor in New York City.

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