The United States Supreme Court today rewrote an old classic.

The road is long
With many a winding turn
That leads us to we know where
We know when
The Court ain’t strong
Strong enough to uphold our rights
He ain’t heavy, he’s Miranda

So on we go
State’s welfare is their concern
No burden should they bear
We’ll get there, we’ll get there
For I know
He should not encumber me
He ain’t heavy, he’s Miranda

If I’m laden at all
I’m laden with sadness
That everyone’s heart
Isn’t filled with the sadness
Over desecration of our rights

It’s a long, long road
From which there is no return
Once the Constitution’s gone it’s gone
Why not share
And the load
Doesn’t weigh me down at all
He ain’t heavy, he’s Miranda

He’s Miranda
He ain’t heavy, he’s Miranda…

The 1966 case of Miranda v. Arizona ^[1]Miranda v. Arizona, 384 U.S. 436 (1966). — why is it these days anything related to Arizona goes to shit? — laid down a rule intended to provide some backbone to the Fifth Amendment to the United States Constitution.

The relevant portion of the Fifth Amendment states that no one “shall be compelled in any criminal case to be a witness against himself.”  The concern of the Fifth Amendment is “to limit the coercive power of the government.” ^[2]5 Ronald D. Rotunda and John E. Nowak, Treatise on Constitution Law: Substance and Procedure § 23.23, p. 261. (3rd ed. 1999).  The Miranda Court held that this placed a “heavy burden” on the prosecution in criminal cases.

[A] heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. ^[3]Miranda, supra, 384 U.S. at 475.

As Justice Sotomayor points out in a dissent to today’s opinion, the Miranda Court further indicated:

The government must satisfy the “high standar[d] of proof for the waiver of constitutional rights [set forth in] Johnston v. Zerbst, 304 U.S. 458 (1938).” ^[4]Berghuis v. Thompkins, 560 U.S. ___ (2010) (Sotomayor, J., dissenting.), alterations in the original.  This is page 5 of the dissent in the slip opinion.  I’m not used to dealing with slip opinions.  The pagination of the opinion starts anew for the dissent, so it seems incorrect for me to follow the Bluebook, where examples specify a page number, but do not differentiate between “page 5 of the Court’s opinion” and “page 5 of the dissent.”

Still quoting — quoting, not merely citing — Miranda, Justice Sotomayor’s dissent in Thompkins goes on to say:

Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights.  In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so.  It is inconsistent with any notion of a voluntary relinquishment of the privilege. ^[5]Thompkins, supra, 560 U.S. at __, quoting Miranda, supra, 384 U.S. at 475.  This is pages 6-7 of the dissent in the slip opinion.

Since Miranda, as Justice Sotomayor stresses, the United States Supreme Court has repeatedly emphasized the prosecution’s “heavy burden” and has reaffirmed that “a court may not presume waiver from a suspect’s silence or from the mere fact that a confession was eventually obtained.” ^[6]Thompkins, supra, 560 U.S. at ___; page 7 of the dissenting portion of the slip opinion.

The essential facts of Thompkins are that the police had Thompkins in custody.  The police read him his Miranda rights, testifying that they even had him read one of the parts out loud to show that he knew how to read and understand English.  Although they asked him to sign a form indicating he understood, he refused.  Thompkins then remained silent while police attempted to interrogate him for nearly three hours.  Near the end of the three hours, an officer began to ask him about his religious beliefs, hoping that by invoking God, he would obtain a confession.

It worked.  Asked, “Do you pray to God to forgive you for shooting that boy down?,” Thompkins replied “‘yes’ and looked away.” ^[7]Thompkins, supra, 560 U.S. at ___; page 3 of the majority portion of the slip opinion.

As Justice Sotomayor observed:

Rarely do this Court’s precedents provide clearly established law so closely on point with the facts of a particular case. ^[8]Thompkins, supra, 560 U.S. at ___; page 8 of the dissenting portion of the slip opinion.

The majority paid lip service to the idea that the prosecution bore a “heavy burden” of proving a knowing and voluntary waiver of Thompkins’ Miranda rights, a.k.a. his Fifth Amendment right against self-incrimination.  The majority even shared a quote with the dissent:

[A] valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. ^[9]Miranda, supra, 384 U.S. at 475; page 11 of the majority portion of the slip opinion.

In parentheses, in the citation after the above quote, the majority noted:

No effective waiver…can be recognized unless specifically made after the [Miranda] warnings…have been given. ^[10]Page 11 of the majority portion of the slip opinion, citing Miranda, supra, 384 U.S. at 470.  Alteration in the original.

The majority then went on to state that, notwithstanding Thompkins’ silence, or his failure to specifically provide a waiver after the Miranda warnings, he did, in fact, waive his Miranda rights after the warnings were given because a confession was eventually obtained.

No serious explanation is given for why it is permissible to directly abrogate these portions of Miranda, which had been upheld repeatedly throughout the years from 1966 until today.  The Court pretends to address the question of coercion:

Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent. ^[11]Thompkins, supra, 560 U.S. at __; pages 12-13 of the majority portion of the slip opinion.

Thus, the Court impliedly finds that Thompkins’ “confession” was not coerced.  I can see Justice Scalia shrugging his shoulders and lifting his brow as he asks, “What? There was no waterboarding.  And even if there was, it’s probably okay, because they didn’t tell him he had to confess.  So it’s not coercion.” (Okay.  Actually what I see is Jon Stewart doing this while pretending to be Scalia.)

Ironically, the Merriam-Webster Unabridged Dictionary includes the following exemplar in its definition of the word “coerce”:

[R]eligion has in the past tried to coerce the irreligious, by garish promises and terrifying threats — W.R.Inge[.] ^[12]Italics in the original.

The definition doesn’t limit itself to the use of force or threat, as the majority opinion in Thompkins apparently does.  Two different senses of the term both refer to “other pressure” and the definition of “coercion” adds the “use of physical or moral force to compel to act or assent.” ^[13]“coercion.” Webster’s Third New International Dictionary, Unabridged. Merriam-Webster, 2002. http://unabridged.merriam-webster.com (1 Jun. 2010).

I think it’s time to reiterate Justice Sotomayor:

Rarely do this Court’s precedents provide clearly established law so closely on point with the facts of a particular case. ^[14]Thompkins, supra, 560 U.S. at ___; page 8 of the dissenting portion of the slip opinion.

And I concur with Charles Weisselberg, writing on The Huffington Post:

The Court’s opinion is the most important Miranda decision in a decade. The ruling is breathtaking even to those, like me, who believe that Miranda’s safeguards were already eroded. The Court has formally transformed Miranda from a rule aimed at protecting suspects to one that protects police. Miranda’s safeguards for suspects are now mostly symbolic. So long as officers give warnings, their interrogation practices will be largely immune from any legal challenge. As the justices have noted in other cases, if warnings are given and a statement is obtained, it is very difficult for a defendant to contend that his admissions were coerced.

Justice Sotomayor’s conclusion is that

Today’s decision turns Miranda upside down.  Criminal suspects must now unambiguously invoke their right to remain silent — which, counterintuitively, requires them to speak.  At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.

The majority disagrees.  By their words, they continue to reiterate that the burden is on the prosecution.  It’s just that, according to them, the burden ain’t heavy; it’s Miranda.