On the Bench

Speaker 1:
Major funding for BackStory is provided by an anonymous donor, the National Endowment for the Humanities, and the Joseph and Robert Cornell Memorial Foundation.

Nathan Connolly:
From Virginia Humanities, this is BackStory.

Nathan Connolly:
Welcome to BackStory, the show that explains the history behind today’s headlines. I’m Nathan Connolly. Now, if you’re new to the podcast each week, along with my colleagues, Joanne Freeman, Ed Ayers, and Brian Balogh, we explore a different aspect of American history.

Nathan Connolly:
Since I joined BackStory in 2017, I’ve had the chance to interview a ton of different people. We’ve covered everything from Bruce Lee to bison, but a handful of those conversations have been particularly memorable for me. These are conversations that unpacked issues I care deeply about, and that with people I had a blast in talking to. So in today’s episode, I’m excited to have the chance to share some of my favorite moments. This is part of an ongoing series we’re doing as BackStory starts to wrap up, after more than 12 years. In this episode, you’re going to hear about a very special poetry project conducted at a place you might not expect, and you’ll learn about why some African Americans have developed a unique understanding of experiences with UFOs.

Nathan Connolly:
But first, let’s bring things back to earth. You’ve surely heard of the right to remain silent. It’s known as the Miranda warning, and it’s something people hear when they’re being arrested. But have you heard of the 1963 case from which it came, Miranda v. Arizona? A couple of years ago I spoke with legal scholar, Risa Goluboff about the case and how it fits into a series of cases, aimed at reforming the criminal justice system. Now, what I find so important is Professor Goluboff’s foray into legal history, and the compelling way she links the history of civil rights litigation to the question of civil liberties more broadly. The Warren Courts of the Miranda and Brown decisions rarely get discussed together, but here we effectively get to consider Miranda and Mexican Americans more generally, as central to the course and history of the civil rights movement. Joanne starts us off in this segment. It’s from the show, You Have the Right to Remain Silent: A History of the Miranda Warning.

Joanne Freeman:
In 1963, Gideon v. Wainwright said that every defendant had the right to an attorney, even if they couldn’t afford to hire one. And the next year, the Supreme Court ruled in a case called Escobedo v. Illinois that a defendant must be allowed to consult a lawyer if they wanted to, while in police custody. That decision also said that a suspect had an absolute right to remain silent.

Nathan Connolly:
The Miranda case put those new rights into play. Yes, Ernesto Miranda had been informed that he had constitutional rights, but only after he agreed to confess. he wasn’t told he could have a lawyer present. He also had not been told his rights included the right not to speak with the police. The court decided five-four that the police had a responsibility to explicitly tell a suspect these rights. By this new standard, Miranda’s confession wasn’t considered voluntary, and his conviction was overturned.

Joanne Freeman:
Gideon Escobedo and Miranda were part of a series of decisions in the 1960s, focused on reforming the criminal justice system. The court at the time was known as the Warren Court, after its very active chief justice, Earl Warren.

Risa Goluboff:
Two different arcs of history were converging in the Warren Court’s criminal procedure revolution.

Nathan Connolly:
That’s legal scholar, Risa Goluboff. She says that in order to understand the court’s thinking in cases like Miranda, we’ve got to step outside of the court and into two national debates that were in full swing in 1966: one on policing crime, and the other, about civil rights.

Risa Goluboff:
There had been a belief that legislators write laws, and then police officers enforce them, and that there was no gap between the laws on the books and the laws as enforced, and you had major national surveys into policing and the criminal justice system that revealed actually, the police have a lot of discretion. They can decide not to arrest people, they can arrest people who don’t really deserve to be arrested, and that that kind of discretion was really rampant. It’s rampant at the moment of the first interaction, what we would today think of maybe a stop and frisk, and then it exists at the moment of arrest, and then the moment of charging, and for going to trial, or for allowing for plea bargains, and then there is discrimination, and discretion, and abuse in the gathering of evidence. So coerced confessions, things like that, right?

Risa Goluboff:
And then that’s what the Warren Court was really embracing in the 1960s, and the Miranda is part of, and the idea there was that guilt or innocence wasn’t the only important aspect of the criminal justice system. The criminal justice system also had to ensure that it was treating people with fairness, with dignity, with equality, and I think forced confessions had been an issue for a long time, making statements without lawyers, so just not having a lawyer. So if you think about Miranda, it only comes a few years after Gideon v. Wainwright, where the court required criminal defendants who couldn’t pay for lawyers to be provided lawyers, in felony cases, so that’s a big change. And so, Miranda is part of putting in place safeguards so that the people who are getting processed through the system, are not only guilty, or likely guilty, or will be adjudged guilty, but are also receiving all of the rights and procedural protections that our constitution gets interpreted to provide.

Nathan Connolly:
But that wasn’t the court’s only concern.

Risa Goluboff:
The civil rights movement happens, and you get massive arrests of civil rights activists and demonstrators, and people seeing the police as the frontline of Jim Crow, seeing the police as oppressors in a way that you think of the G-man in earlier decades who are heroes, and suddenly, they don’t look as much like heroes in certain circumstances, as well as the recognition that policing is a civil rights issue, that African Americans are being policed differently from whites, and that’s something that goes back to the ’40s and beyond, but it really becomes a much bigger issue during the ’60s as well.

Nathan Connolly:
So would you feel comfortable describing the Miranda decision of ’66 as part of the story of civil rights law, that there’s an actual connection between what we more conventionally think about as the civil rights movement and the Miranda decision?

Risa Goluboff:
Absolutely. One, I think the Warren court clearly understood its criminal procedure revolution as part of the civil rights movement. They understood that policing was racialized, they understood that so many criminal defendants were African American or people of color. So I do think that they had a sense and they understood criminal justice in the context of race, and then-

Nathan Connolly:
Even though this was an Arizona decision, you would say?

Risa Goluboff:
Yep, even though, and actually, I mean, when you look at a lot of the criminal procedure cases, they didn’t always have an African American defendant come out in New York or Chicago. That wasn’t how it worked, and that’s often the case with the court. The best example I can give of that is Ruth Bader Ginsburg, when she was bringing cases for sex discrimination to create the sex discrimination doctrines that we know today. Most of those cases had male plaintiffs. They were discrimination against men, and she was using them as ways of getting rights for women. I actually think the court found it useful and attractive to make universal pronouncements that the justices knew would redound to the benefit of African Americans. So they wanted to be making civil rights change, but there were times when they wanted to be able to do it without saying that’s what they were doing.

Nathan Connolly:
Risa Goluboff is Dean of the University of Virginia School of Law. She’s also the author of Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s.