Thanks to this week’s Supreme Court ruling, you now have the right to ask for the right to remain silent when placed under arrest.
In another of the Court’s notorious narrowly-split decisions, law enforcement can interrogate a suspect aggressively without informing him of his Miranda right to remain silent.
Think of this as a kind of fast food justice. If you want cutlery when buying a cheeseburger at MacDonald’s, you’d better ask the clerk behind the counter to give it to you. This ruling uses the same logic. If you want to take advantage of your right to remain silent, the Supreme Court has now ruled that it is incumbent on you, the citizen, to say “I want to remain silent,” thereby defusing any further police questioning.
This means less restraint for the arresting officer, and suspects who are more mindful of what Miranda entails. It also means that the writers of shows like “Law and Order” are going to have to change one of their most familiar tag lines: “You have the right to remain silent. Anything that you say can, and will be used against you in a court of law.”
But, lest one think this is the only change to Miranda the Supremes launched this week, here’s another one. The Miranda right to speak with counsel now comes with an expiration date. A suspect now has the right to counsel within 14 days of his arrest.
Justice Sotomayor, President Obama’s recent appointment to the Court, is right when she suggests that these rulings, according to The Washington Post, designed to protect against police overreach, have turned our rights “upside down.”
What delicious irony to think that a suspect must break their silence to inform police that he wants to remain silent.
When Justice Kennedy defends what can only be called a sophomoric argument by saying, in effect, that a defendant who doesn’t say he wants to remain silent, or that he doesn’t want to talk should not be entitled to a right that has been in effect for half a century, he is making a mockery not merely of legal precedent, but of the analytical powers of the Supreme Court, too. That argument is tantamount to saying — if you want a napkin at Burger King, you damn well better ask for one.
This is the judicial equivalent of Creationism, a survival of the fittest approach to criminal justice.
Wouldn’t it be even more delicious if those members of the highest court in the land who have allowed a ruling to stand that will roll back a defendant’s right to access to counsel should themselves face term limits.
JAYNE LYN STAHL is a widely published poet, essayist, playwright, and screenwriter, member of PEN American Center, and PEN USA.