As Dzhokhar Tsarnaev lies in Beth Israel Deaconess Medical Center sedated and in serious condition, legal scholars are debating his rights. The New York Times summarizes:
The capture of the Boston Marathon bombing suspect raises a host of freighted legal issues for a society still feeling the shadow of Sept. 11, including whether he should be read a Miranda warning, how he should be charged, where he might be tried and whether the bombings on Boylston Street last Monday were a crime or an act of war.
In "Why Should I Care That No One’s Reading Dzhokhar Tsarnaev His Miranda Rights?" Slate's Emily Bazelon says "when the law gets bent out of shape for him, it’s easier to bend out of shape for the rest of us." In "Miranda Schmiranda," Jason Mazzone at Balkinization says that in this case it doesn't matter as much as people think:
Police officers I know tell me they hardly ever Mirandize individuals they arrest because cases in which the arrestee's statements are relevant to securing a conviction (especially in a world of plea bargaining) are quite unusual. Indeed, as the Miranda Court obviously understood, when the government doesn't need a suspect's own statements to secure a conviction, it would be foolish to warn the suspect to stay quiet or request counsel. The physical evidence against Tsarnaev is almost certainly so overwhelming that despite the massive media attention during the past few days, on the Miranda issue, his case is quite humdrum: no need to use his own testimony at trial and so no need to warn him to stay quiet or ask for a lawyer. Nothing unconstitutional about that.
That brought a sharp protest about the tone of the post from his fellow Balkinizer, Sandy Levinson:
What Prof. Mazzone has done is to adopt an entirely Holmesian perspective toward the decision; i.e., it simply establishes a "price" that the police have to pay for doing whatever in hell they want to do. If they don't mind having evidence excluded, then they properly feel under no obligation to adhere to the constitutional norm articulated by the SupremeCourt. As most of you know, I'm not a devotee of judicial supremacy, so I'm more than happy to read arguments that the Supreme Court has been mistaken and even that there's no obligation to obey mistaken decisions. But that's not Prof. Mazzone's argument.
As it happens, I think there's a lot of heuristic merit to a Holmesian ("bad man") understanding of the law, but, obviously, its implications go far beyond the duty of police to read suspects their Miranda rights. Does Prof. Mazzone think it's perfectly acceptable for corporations, for example, to do "whatever it takes" to stifle any union-organizing movements so long as they're willing to pay the (unlikely) penalty for doing so? Ditto for our compliance with the tax laws of the United States, a subject of special interest this month? Is it perfectly acceptable for presidents to order the torture of those they deem America's enemies because they are told that any lawsuits challenging this will be dismissed under the "state secret" or "political question" doctrines and thus beyond enforcement, as suggested by the DC Circuit in the Al-Alaki case dealing with targetting assassinations? Is he adopting the well-articulated arguments in Abner Greene's recent book, published by the Harvard University Press and well worth extended discussion, that there is not even a prima facie obligation to obey any law (simply because it's"the law")? All of these are serious questions, that can be debated seriously and courteously.
And that post leads to two more exchanges between Mazzone and Levinson. For even more, see Orin Kerr's post at Volokh Conspiracy, and Amy Davidson's post at New Yorker.
