The news Attorney General Jeff Sessions is re-examining consent decrees aimed at restraining police abuse has reignited the Obama-era debate over which lives matter most: black ones or blue ones.
Civil rights advocates fear Sessions is weighing what an Obama civil rights official called “an alarming retreat away from ensuring that police departments engage in constitutional policing.” But law-and-order conservatives dislike the consent decrees, saying they unfairly paint cops as racially biased and, well, handcuff them from using police tactics that protect them from violent criminals.
But police relations can transcend the current zero-sum public policy morass. Sure, since the Trump Justice Department doesn’t have the Obama Administration’s suspicious (at best) attitude toward America’s police, it will likely reverse consent decrees whenever possible. But it should also reassure civil rights activists that Republicans care about the civil rights of criminal suspects. Here’s an easy way to do that:
Expand the Miranda warning.
As any TV viewer knows, before police questioning begins, suspects in custody must be “read their rights,” which are usually recited in a monotone formula that begins, “You have the right to remain silent…”
The ritual dates to 1966, when the Supreme Court’s Miranda v. Arizona case protected the Fifth Amendment rights of criminal suspects by ensuring they were told they could refuse to self-incriminate. It also guaranteed they knew they could hire a lawyer or have one appointed.
But those Supreme Court-mandated rights are a minimum, not a maximum. Police departments can inform criminal suspects of every single right they have, if they so choose. Policies differ by jurisdiction (though the Constitution is the same everywhere), but here’s an example of a postscript a department could easily append to the standard Miranda warning:
You have the right to communicate via telephone with an attorney, family, friends, or a bondsperson. You have the right to reasonable bail and cannot be subject to cruel and unusual punishment. If charges are brought against you, you have the right to know what they are. Our police department also allows you to record our interaction and to speak with my supervisor if you think any of your rights have been violated. Do you understand these rights as they been read to you?
While the central purpose of both the original and any expanded Miranda texts is to ensure that defendants know their rights, they have another important function: to remind law enforcement officials of their limitations.
Think about it: if a detective, a law professor, a TV cop, or a Supreme Court justice gets arrested, why do the police read them their Miranda rights? Obviously they already know them from their jobs. But police officers must still read the Miranda text so they cannot forget they are ultimately not in charge. The Constitution is in charge.
Expanding Miranda is a rare opportunity to build consensus out of contention. Civil rights activists will like empowering suspects in a vulnerable time, while cementing into the system expanded recognition by cops that their own powers are limited. And conservatives will like seeing the Constitution reinforced.
Best of all, it doesn’t cost any money or require the passage of new legislation. Police departments could implement expanded Miranda warnings tomorrow.
How about it?