[Congressional Record Volume 145, Number 84 (Tuesday, June 15, 1999)]
[Senate]
[Pages S7024-S7025]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               33RD ANNIVERSARY OF MIRANDA VERSUS ARIZONA

  Mr. THURMOND. Mr. President, 33 years ago this week, the Supreme 
Court issued possibly its most famous and far-reaching criminal law 
decision of the twentieth century: Miranda v. Arizona. In response, the 
Congress enacted a law, codified at 18 U.S.C. section 3501, to govern 
the admissibility of voluntary confessions in Federal court. The 
Criminal Justice Oversight Subcommittee, which I chair, recently held a 
hearing to discuss the Clinton Justice Department's refusal to use this 
Federal statute to help Federal prosecutors in their work to fight 
crime.
  Issued in 1966, the Miranda decision imposed a code-like set of 
interrogation rules on police officers. Essentially, the Court held 
that before a confession can be admitted against a defendant, 
regardless of whether the confession was voluntary, the police must 
read the defendant the now familiar Miranda warnings, and the defendant 
must affirmatively waive his rights. We will never know how many crimes 
have gone unsolved or unpunished because of Miranda.
  The Miranda decision acknowledged that the warnings were not 
themselves constitutionally protected rights but only procedural 
safeguards designed to protect the Fifth Amendment right against self-
incrimination. Subsequent Supreme Court opinions have repeatedly 
reaffirmed this conclusion. Further, the Miranda court expressly 
invited Congress and the States to develop legislative solutions to the 
problem of involuntary confessions.
  In response to the Court's invitation, the Congress held extensive 
hearings on this issue as part of Federal criminal law reform. A 
bipartisan Congress with my participation and that of many others on 
both sides of the aisle in 1968 passed an omnibus crime bill that 
included a provision that eventually became law as section 3501. That 
statute, of which I was an original co-sponsor, provides that ``In any 
criminal prosecution brought by the United States . . . a confession . 
. . shall be admissible in evidence if it is voluntarily given.'' The 
statute goes on to list five nonexclusive factors that a judge may 
consider in determining whether a confession is voluntary and, hence, 
admissible. One of those factors is whether the Miranda warnings were 
given. Thus, the statute continues to provide police with an incentive 
to deliver the Miranda warnings.
  More than thirty years after the original hearings on Sec.  3501, the 
Senate Judiciary Committee's Subcommittee on Criminal Justice 
Oversight, under my leadership, conducted a hearing to examine the 
statute's enforcement.
  The history of the statute begins with the Johnson Administration. 
Although President Johnson signed Sec.  3501 into law, his 
administration viewed the statute unfavorably and refused to enforce 
it. Then, in 1969, the Nixon Justice Department issued an important 
memorandum setting forth the Department's official policy toward 
section 3501. According to that policy, ``Congress has reasonably 
directed that an inflexible exclusionary rule be applied only where the 
constitutional privilege itself has been violated.'' The memorandum 
also concluded that ``the determination of Congress that an inflexible 
exclusionary rule is unnecessary is within its constitutional power.''
  In 1975, the Department succeeded in enforcing the statute when the 
10th Circuit in United States v. Crocker affirmed a district court's 
decision to apply Sec.  3501 rather than Miranda and upheld the 
constitutionality of the statute.
  The next significant chapter in the history of Sec.  3501 occurred 
during the Reagan Administration. Judge Stephen Markman, who was then 
Assistant Attorney General in charge of the Justice Department's Office 
of Legal Policy, also testified before our Subcommittee. In response to 
an assignment from Attorney General Meese, Judge Markman's team issued 
a comprehensive report on the law of pre-trial interrogation that 
concluded that section 3501 represented a valid, constitutional 
response by the Congress to the Miranda decision. Later, as Judge 
Markman testified, the Reagan Justice Department continued the 
litigation effort to apply section 3501.
  Judge Markman also testified that while he was U.S. Attorney in the 
Bush Administration, he and other U.S. Attorneys attempted to apply the 
statute, although appellate cases did not develop. Certainly, the Bush 
Justice Department never sought to undermine the statute's enforcement.
  During the Clinton Administration, this Committee repeatedly has 
encouraged the Justice Department to enforce the statute. During an 
oversight hearing in 1997, Attorney General Reno indicated to the 
Committee that the Department would enforce it in an appropriate case, 
as did Deputy Attorney General Holder during his nomination hearing the 
same year. However, when such a case clearly arose in United States v. 
Dickerson, the Administration refused.
  In that case, Charles Dickerson was suspected of committing a series 
of armed bank robberies in Virginia and Maryland. During questioning, 
he voluntarily confessed his crimes to the authorities and implicated 
another armed bank robber, but the Miranda warnings were not read to 
him beforehand. The U.S. Attorney's office in Alexandria urged the 
trial court to admit the confession under section 3501, but the Justice 
Department refused to permit the U.S. Attorney to raise it on appeal. 
It was only the intervention of third parties in an amicus brief of 
Professor Cassell and the Washington Legal Foundation, that the issue 
was presented to the Fourth Circuit for its consideration.
  The Fourth Circuit ruled solidly in favor of Sec.  3501's 
constitutionality, holding that this statute, not the Miranda decision, 
governs the admissibility of confessions in Federal court. The court 
criticized the Justice Department for its failure to enforce the 
statute, saying that the Department's prohibition of the U.S. Attorney 
from arguing section 3501 was an elevation of politics over law.
  The administration's actions in the Dickerson case are part of a 
larger pattern by which the Clinton Justice Department has blocked 
opportunities for career prosecutors to raise section 3501. The 
Department has even gone so far as to order career Federal prosecutors 
to withdraw already filed briefs that contained arguments in favor of 
section 3501. The Supreme Court in Davis v. United States expressly 
made note of the Justice Department's decision not to rely on the 
statute in a 1994 case where it was clearly relevant. In a concurring 
opinion in that same case, Justice Scalia wrote that ``[t]he United 
States' repeated refusal to invoke Sec.  3501 . . . may have produced--
during an era of intense national concern about the problem of run-away 
crime--the acquittal and the non-prosecution of many dangerous felons. 
There is no excuse for this.''

  The Executive Branch has a duty under Article II, Section 3, of the 
Constitution to ``take care that the laws be faithfully executed.'' 
Section 3501 is a law like any other. In Davis, Justice Scalia also 
questioned whether the refusal to invoke the statute abrogated this 
duty.
  Our hearing also demonstrated the strong level of support that exists 
for the Justice Department to enforce section 3501, especially in the 
law enforcement community. I have received supportive letters in this 
regard from the Fraternal Order of Police, whose National President 
testified at our hearing, as well as from the National Association of 
Police Organizations, the Federal Law Enforcement Officers Association, 
the Major Cities Chiefs of Police, and others. Former Attorney General 
Ed Meese also expressed his support for our efforts.
  If section 3501 is upheld by the Supreme Court, this will encourage 
the states to enact their own versions of the law in this area. Arizona 
already has a statute almost identical to Sec.  3501, and the Maricopa 
County Attorney in Phoenix, whose predecessor prosecuted Miranda, 
testified at our hearing that he and others could enforce their statute 
in Arizona if the Supreme Court upholds section 3501.
  The Justice Department will not say what position it will take if the

[[Page S7025]]

Dickerson case is considered by the Supreme Court. Unfortunately, they 
refused my invitation to testify at the hearing on section 3501. I 
recognize the Department's reluctance to discuss specifics about 
pending cases, but this is no excuse for its failure to discuss in 
person its refusal to explain its general treatment of the law 
governing voluntary confessions. Even the dissenting judge in Dickerson 
recognized that the Congress could invoke its oversight authority and 
investigate why the law is being ignored. As he stated, the ``Congress 
. . . may legitimately investigate why the executive has ignored Sec.  
3501 and what the consequences are.''
  In my view, the Administration clearly has a duty to defend Sec.  
3501 before the Supreme Court and should be enforcing it in the lower 
Federal courts. The Justice Department has a long-standing policy that 
it has a duty to defend a duly enacted Act of Congress whenever a 
reasonable argument can be made in support of its constitutionality. 
Thus far, all Federal courts that have directly considered Sec.  3501's 
constitutionality have upheld it. Accordingly, reasonable arguments in 
defense of the statute clearly exist and have been accepted by the 
courts--most recently by the Fourth Circuit in Dickerson.
  Indeed, before the Dickerson case, the Fourth Circuit in United 
States v. Leong expressly rejected the Justice Department's argument 
that it was not free to press Sec.  3501 in the lower Federal courts 
unless and until the Supreme Court overrules Miranda. In concluding 
that the Government was ``mistaken'' in this regard, the Leong court 
stated that ``[t]he question of whether Miranda establishes a rule of 
constitutional dimension, and thus whether Congress acted within its 
authority in enacting Sec.  3501, is easily within the compass of the 
authority of lower federal courts.''
  Our subcommittee inquiry into section 3501 is ongoing. America does 
not need its Justice Department making arguments on behalf of 
criminals. On this the 33rd anniversary of Miranda v. Arizona, it is 
appropriate to note the Fourth Circuit's statement in Dickerson that 
``no longer will criminals who have voluntarily confessed their crimes 
be released on mere technicalities.'' I hope the Clinton Justice 
Department will help make this promise a reality.

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