Why The Future Of Policing Depends On Judicial Diversity  


Dylan Abrokwa-Jassor


Criminal Justice

CREDIT: Shutterstock/sirtravelalot

CREDIT: Shutterstock/sirtravelalot

During oral arguments in the Supreme Court case Vega v. Tekoh, Justice Elana Kagan offered a grim warning about the wide-ranging consequences that would occur if the Supreme Court undercut Americans’ Miranda rights. “If… [the Court] overturned [Miranda] or undermined it…it would … have a … unsettling effect not only on people’s understanding of the criminal justice system but people’s understanding of the Court itself and the legitimacy of the Court….” Justice Kagan was referring to the familiar words that police and investigators declare to suspects during an arrest to ensure they understand their Fifth Amendment right against self-incrimination. Given the professional background of the current justices on the Court, Miranda’s doomed fate is no surprise.

A closer examination of the professional diversity of the Supreme Court, or lack thereof, speaks volumes as to why the Court has jumped through constitutional hoops to protect the police. Currently, three of the nine Supreme Court justices are former prosecutors, and until Justice Ketanji Brown Jackson was sworn in, there had never been a public defender on the Supreme Court. That means that until now, we haven’t had a single justice with significant legal experience advocating for everyday Americans accused of crimes.

As Sarah Fair George, a prosecutor herself, once wrote, the Supreme Court has and continues to disproportionately “reflect the viewpoints of the most powerful institutions and individuals in our country.” While only 7% of federal judges are former public defenders, the bulk of the federal bench includes those who are former prosecutors. Prosecutors are required to maintain close relationships with police officers, which means they are more likely to carry that law enforcement mindset to the bench. Those on the Supreme Court who haven’t been prosecutors disproportionately represented large business interests as corporate litigators and have little experience defending individuals.

The 1966 case Miranda v. Arizona established the requirement that individuals be informed of their right against self-incrimination before their statements could be admitted in court. Since then, the “Miranda warning” has become common parlance in the American criminal justice system: “You have the right to remain silent. Anything you say can (and will) be used against you in a court of law. You have the right to the presence of an attorney, and if you cannot afford an attorney, one will be appointed for you prior to any questioning.”

Almost 60 years after Miranda, some suspects still aren’t made aware of their Fifth Amendment rights. In March 2014, Mr. Tekoh was working at a Los Angeles medical center as a nursing assistant when a female patient accused Mr. Tekoh of sexually assaulting her. Deputy Carlos Vega came to the scene and questioned Mr. Tekoh for over an hour. Mr. Tekoh alleged that Deputy Vega refused to let him leave the room, denied his request to call an attorney, and, while Vega’s hand was on his gun, threatened to call immigration services to deport Mr. Tekoh until he finally gave Deputy Vega a confession. Furthermore, Deputy Vega failed to inform Mr. Tekoh of his Miranda rights, which should have meant that his confession was not admissible in court, but the trial judge in Mr. Tekoh’s case denied his motion to exclude it.

Coerced confessions like these are oftentimes detrimental to a defendant’s case. By failing to exclude coerced confessions, courts are actively contributing to the power imbalance between law enforcement and civilians. Even being arrested and accused of a crime can uproot people’s livelihoods and make it increasingly difficult to find or keep a job. Coerced confessions can also lead to putting innocent Americans behind bars, a majority of whom are poor, marginalized people of color who might not be able to post bail or retain an expensive lawyer to adequately defend their case.

Mr. Tekoh was eventually acquitted and then filed suit under 42 U.S. Code § 1983, a federal statute that allows people to sue local and state agents for specific infringements of rights protected by the U.S. Constitution or federal statutes. Mr. Tekoh’s suit was initially successful, with the Ninth Circuit ruling that holding un-mirandized statements against a defendant violates the Fifth Amendment and may support a §1983 claim. But on June 23, 2022, the Supreme Court ruled 6-3 to overturn the Ninth Circuit and test Justice Kagan’s warning, effectively holding that there is no remedy — not for Terrence Tekoh, or any American.

Writing for the Court, Justice Samuel Alito issued a scathing anti-Miranda majority opinion, arguing that §1983 claims are reserved for violations of constitutional rights and Miranda is not a constitutional right but a “prophylactic rule,” a judicial measure that helps protect a constitutional right — or, as Justice John Paul Stevens once wrote, to “prevent even the appearance of wrongdoing.” According to Justice Alito, because Miranda is not in itself a constitutional right nor is its infringement synonymous with a violation of the Fifth Amendment, Mr. Tekoh’s case and others like it are not subject to remedy under §1983. In other words: Though his rights were violated, the law offers him no recourse for that violation.

The debate over whether Miranda is a constitutional right, as opposed to a prophylactic rule, stretches back most notably to 2000 in Dickerson v. United States, a case that re-established Miranda rights as the law of the land. In Dickerson, Chief Justice Rehnquist stated that Miranda “announced a constitutional rule,” not a prophylactic one, and argued at length as to the constitutional basis upon which Miranda rests. Justice Kagan, in dissent of Vega, frequently cited Dickerson in support of recognizing Miranda as a constitutional rule that “grants a corresponding right” against self-incrimination, secured under §1983.

Additionally, Justice Kagan argued that the Court has allowed plaintiffs to sue under §1983 for prophylactic-like rules before. In Dennis v. Higgins the Court held that a violation to the Commerce Clause is able to be remedied by §1983, even though the clause might be viewed as simply designating powers between State and Federal Governments over interstate commerce, instead of “confer[ring] rights.”­ To the Court, the distinction had no effect on the plaintiff’s ability to seek a §1983 claim, so, prophylactic or not, Mr. Tekoh should have been able to seek relief and Deputy Vega should have been held liable.

This leaves many remaining questions. What happens when police fail to read a suspect their Miranda rights before taking and using their statement in court? What accountability is there for someone whose Fifth Amendment rights are violated because of police officers’ neglect? The Court’s answer is: There is no accountability.

When the Court denies such recourse, it leaves police officers unable to be held responsible. They can neglect — or refuse — to Mirandize suspects without fear of consequences or accountability, giving them undue power to abridge the rights of the accused, who, again, are oftentimes poor and marginalized people. Justice Kagan ended on a powerful note on the implications of denying remedy for Miranda violations: “Today, the Court strips individuals of the ability to seek a remedy for violations of the right recognized in Miranda…[a]nd sometimes, as a result, a defendant will be wrongly convicted and spend years in prison. He may succeed, on appeal or in habeas, in getting the conviction reversed. But then, what remedy does he have for all the harm he has suffered?”

Unfortunately, the Supreme Court siding with police power is an all-too-common occurrence. That’s especially true in its strict adherence to what’s called “qualified immunity, ” a form of legal immunity that allows officers to be sued only if the officer “violated a clearly established statutory or constitutional right.” In other words, if a cop is accused of violating someone’s rights in a way no other office has violated someone’s rights before, they can’t be held accountable. Even police officers themselves take notice of the lack of accountability. In a 2017 survey of over 8,000 police officers, 72% said that “poorly performing officers are not held accountable.”

The issue of judicial diversity is a well-studied one and in his new book, Presumed Guilty, Erwin Chemerinsky discusses the role the Supreme Court plays in protecting the police in violations of Miranda, flawed eyewitness identifications, unlawful search and seizure, and several other practices that target the accused. In his Holding Court conversation with AFJ, Chemerinsky also discussed the importance of a progressive and professionally diverse judiciary in combatting excessive police power. In addition, a recent study by Demand Justice shows that professional diversity on appellate benches “influence[s] the perspectives of other judges” and can “affect actual case outcomes and, as a result, the development of legal precedent.”

If we ever hope to see substantial police reform, the Supreme Court, and federal judiciaries, desperately need more civil rights lawyers and public defenders who are dedicated to serving Americans from all walks of life.

Dylan Abrokwa-Jassor is an intern at Alliance for Justice.