Who Will Speak for the Defense on the Supreme Court?

The erosion of Miranda in Berghuis v. Thompkins reflects our legal system's sharp tilt in favor of the prosecution.


But protecting the rights of the accused against the state was a serious preoccupation of the Constitution’s framers. The Fourth Amendment (prohibition against unreasonable searches and seizures), the Fifth Amendment (self-incrimination) and the Sixth Amendment (right to impartial tribunal and jury of peers) are almost entirely concerned with curtailing the excesses of law enforcement and ensuring fairness for criminal defendants. You wouldn’t know this judging by the state of our public discourse about criminal law. Despite the regular spate each year of police abuse cases, reported incidents of prosecutorial misconduct (the Duke rape case was only a drop in the bucket), and wrongly convicted prisoners released after decades in prison, American public discourse about the law unfairly denies the significance of criminal defense work in assuring the effectiveness of our criminal justice system.

Without question, crime is a serious problem in many places in this country. It is a matter of grave concern today, just as it was when Sen. Ervin tried to pigeonhole Justice Marshall to discredit Miranda. But defending the rights of the accused is also a centerpiece of our democracy. Today’s majority decision is a blow to the rights of the accused. But it’s an irony that should make us pause, that it takes a former prosecutor on the Supreme Court to articulate, in dissent, the importance of protecting the criminal detainee from the pressures of the interrogation room.  We should applaud Justice Sotomayor’s dissent in Berghuis, but also recognize that we need the voices and experiences of criminal defense attorneys on the Supreme Court and yes, even on television, to help us fully appreciate and understand what the Constitution demands of our criminal justice system.

Sherrilyn Ifill, who teaches at the University of Maryland, writes about the law for The Root.

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