Hatton W. Sumners
Supreme Court Case Book
Fifth Amendment
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Hatton W. Sumners
Supreme Court Case Book
Fifth Amendment Criminal Cases
Miranda v. Arizona (1966) ............................................................................................. 4
Benton v. Maryland (1969) ........................................................................................... 10
California v. Byers (1971) ............................................................................................. 13
Brewer v. Williams (1977) ............................................................................................ 16
Rhode Island v. Innis (1980) ........................................................................................ 21
Hurtado v. California (1984) ......................................................................................... 23
Colorado v. Connelly (1986) ......................................................................................... 25
Kansas v. Hendricks (1997) ......................................................................................... 28
Dickerson v. U.S. (2000) .............................................................................................. 33
McKune v. Lile (2002) .................................................................................................. 36
Missouri v. Seibert (2004) ............................................................................................ 40
U.S. v. Patane (2004) ................................................................................................... 42
Renico v. Lett (2010) ..................................................................................................... 44
Maryland v. Shatzer (2010) ........................................................................................... 47
Berghuis v. Thompkins (2010) ...................................................................................... 50
JDB v. North Carolina (2011) ....................................................................................... 53
Blueford v. Arkansas (2012) .......................................................................................... 55
Salinas v. Texas (2012)................................................................................................. 57
Fifth Amendment Due Process Case
Boling v. Sharpe (1954)................................................................................................ 61
United States v. Windsor (2013) ................................................................................... 62
Fifth Amendment Property Cases
Hawaii Housing Authority v. Midkiff (1984) ................................................................... 70
Lucas v. South Carolina Coastal Council (1992) .......................................................... 75
Kelo v. City of New London (2005) ................................................................................ 79
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ERNESTO MIRANDA v. ARIZONA
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694
Argued Feb. 18, March 1-2, 1966
Decided June 13, 1966
On March 3, 1963, an eighteen-year-old female was walking home from her job at a movie
theater when a man grabbed her, threw her into the back seat of a car and tied her up. After
driving around for about twenty minutes, the man stopped the car and raped her. She was then
driven back to the area where she had been picked up and released.
After investigating the crime for ten days, police arrested 23-year-old Ernesto Miranda in his
Phoenix home. Miranda had been in and out of trouble since he was fourteen. He was asleep
when policemen knocked on the door of his rented house and said they wanted to take him to
headquarters. "I didn't know whether I had a choice ...." he said in a 1973 interview. "I get in
the car and asked them what it was about. They said they couldn't tell me anything."
At the station, Miranda was placed in a four-man lineup. When the victim stepped into the
viewing room, she could not positively identify him. The police then took Miranda into an
interrogation room and questioned him for two hours, after which he confessed to having
committed the crimes.
Detectives said they never threatened Miranda or promised him leniency. Miranda told a
different story: “… I haven’t had any sleep since the day before. I’m tired. I just got off work,
and they have me there interrogating me …. They start badgering you one way or the other …
‘you better tell us … or we’re going to throw the book at you’ … that is what was told to me ….”
Whichever version was true, Miranda admitted to the rape and kidnapping.
After his brief confession, the detectives brought the victim into the room. One of them asked
Miranda if his was the person he had raped. Miranda looked at her and said, “That’s the girl.”
When asked to formalize his confession in a written statement, Miranda agreed. Across the top
of the statement was a typewritten disclaimer saying that the suspect was confessing
voluntarily, without threats or promises of immunity, and “with full knowledge of my legal rights,
understanding any statement I make may be used against me.” He signed the disclaimer.
Miranda said he repeatedly asked for a lawyer during the questioning but was refused. Two
weeks later, at a preliminary hearing, he said he was again denied a lawyer. Finally, when he
was arraigned, an attorney was appointed by the court—a 73-year-old attorney who had
practiced virtually no criminal law for sixteen years. He persuaded Miranda to plead guilty by
reason of insanity.
The written confession was introduced as evidence when Miranda was tried. He was found
guilty of kidnapping and rape and sentenced to twenty to thirty years in prison.
When the case was appealed to the U. S. Supreme Court, Miranda did not appeal on the basis
that his confession was false or coerced. Instead, he argued that he would not have confessed
if he had been advised of his right to remain silent and of his right to an attorney. Lawyers for
the state of Arizona said that Miranda could have asked for an attorney at any time and had not.
They also indicated that his confession had been freely given.
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
ISSUE: Under the Fifth Amendment privilege against self-incrimination and the
Fourteenth Amendment Due Process of Law, what are the rights of a suspect
taken into custody by the police?
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MIRANDA v. ARIZONA (1966)
Decision
The Miranda case was one of four decided together by the Supreme Court, all raising
questions as to whether police methods had violated the constitutional rights of the
defendants. The Supreme Court overturned Miranda's conviction, saying that his
Fourteenth Amendment right not to be deprived of liberty without due process of law
had been violated. Chief Justice Warren wrote the five-to-four opinion in which he was
highly concerned about what goes on in the privacy of interrogation. He wrote:
An understanding of the nature and setting of this in-custody interrogation
is essential to our decisions today. The difficulty in depicting what
transpires at such interrogations stems from the fact that in this country
they have largely taken place incommunicado. From extensive factual
studies undertaken in the early 1930's ... it is clear that police violence and
the "third degree" flourished at that time. In a series of cases decided by
this Court long after these studies, the police resorted to physical
brutality -- beatings, hangings, whipping -- and to sustained and protracted
questioning incommunicado in order to extort confessions ... The use of
physical brutality and violence is not, unfortunately, relegated to the past
or to any part of the country.
Again we stress that the modern practice of in-custody interrogation is
psychologically rather than physically oriented ... this Court has
recognized that coercion can be mental as well as physical, and that the
blood of the accused is not the only hallmark of an unconstitutional
inquisition.... A valuable source of information about present police
practices ... may be found in various police manuals and texts which
document procedures employed with success in the past, and which
recommend various other effective tactics.
From these representative samples of interrogation techniques, the setting
prescribed by the manuals and observed in practice becomes clear. In
essence, it is this: To be alone with the subject is essential to prevent
distraction and to deprive him of any outside support. The aura of
confidence in his guilt undermines his will to resist. He merely confirms
the preconceived story the police seek to have him describe. Patience
and persistence, at times relentless questioning, are employed. To obtain
a confession, the interrogator must "patiently maneuver himself or his
quarry into a position from which the desired object may be obtained."
When normal procedures fail to produce the needed result, the police may
resort to deceptive stratagems such as giving false legal advice. It is
important to keep the subject off balance, for example, by trading on his
insecurity about himself or his surroundings. The police then persuade,
trick, or cajole him out of exercising his constitutional rights....
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In these cases, we might not find the defendants' statements to have been
involuntary in traditional terms. Our concern for adequate safeguards to
protect precious Fifth Amendment rights is, of course, not lessened in the
slightest. To be sure, the records do not evince overt physical coercion or
patented psychological ploys. The fact remains that in none of these
cases did the officers undertake to afford appropriate safeguards at the
outset of the interrogation to insure that the statements were truly the
product of free choice...
Chief Justice Warren explained that in order that a suspect's rights are fully protected,
certain safeguards must be employed:
We hold that when an individual is taken into custody or otherwise
deprived of his freedom by the authorities and is subjected to questioning,
the privilege against self-incrimination is jeopardized.
Procedural
safeguards must be employed to protect the privilege, and unless other
fully effective means are adopted to notify the person of his right of silence
and to assure that the exercise of the right will be scrupulously honored,
the following measures are required. He must be warned prior to any
questioning that he has the right to remain silent, that anything he
says can be used against him in a court of law, that he has the right
to the presence of an attorney, and that if he cannot afford an
attorney one will be appointed for him prior to any questioning if he
so desires (emphasis added). Opportunity to exercise these rights must
be afforded to him throughout the interrogation. After such warnings have
been given, and such opportunity afforded him, the individual may
knowingly and intelligently waive these rights and agree to answer
questions or make a statement. But unless and until such warnings and
waiver are demonstrated by the prosecution at trial, no evidence obtained
as a result of interrogation can be used against him.
The Court indicated that these safeguards were "not intended to hamper the traditional
function of police officers in investigating crime," and that, "There is no requirement that
police stop a person who enters a police station and states that he wishes to confess to
a crime, or a person who calls the police to offer a confession or any other statement he
desires to make."
In his dissenting opinion, Justice Harlan, with whom Justices Stewart and White agreed,
wrote:
While passing over the costs and risks of its experiment, the Court
portrays the evils of normal police questioning in terms which I think are
exaggerated. Albeit stringently confined by the due process standards
interrogation is no doubt often inconvenient and unpleasant for the
suspect. However, it is no less so for a man to be arrested and jailed, to
have his house searched, or to stand trial in court, yet all this may properly
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happen to the most innocent given probable cause, a warrant, or an
indictment. Society has always paid a stiff price for law and order and
peaceful interrogation is not one of the dark moments of the law.
All four of these cases involved here present express claims that
confessions were inadmissible; not because of coercion in the traditional
due process sense, but solely because of lack of counsel or lack of
warnings concerning counsel and silence. For the reasons stated in this
opinion, I would adhere to the due process test and reject the new
requirements inaugurated by the Court.
Justice White, with whom Justices Stewart and Clark joined, also dissented and wrote:
There is the not so subtle overtone of the opinion—that it is inherently
wrong for the police to gather evidence from the accused himself. And
this is precisely the nub of this dissent. I see nothing wrong or immoral,
and certainly nothing unconstitutional, with the police asking a suspect
whom they have reasonable cause to arrest whether or not he killed his
wife or with confronting him with the evidence on which the arrest was
based, at least where he has been plainly advised that he may remain
completely silent. Until today, "the admissions or confessions of the
prisoner, when voluntarily and freely made, have always ranked high in
the scale of incriminating evidence."
The most basic function of any Government is to provide for the security of
the individual and of his property. These ends of society are served by the
criminal law which for the most part is aimed at the prevention of crime.
Without the reasonably effective performance of the task of preventing
private violence and retaliation, it is idle to talk about human dignity and
civilized values.
Justice Stewart also wrote a separate dissenting opinion.
The Court reversed Miranda's conviction and remanded his case to the Arizona courts.
FOLLOW-UP: Miranda was later retried, but the state did not introduce his written
confession since it had been taken without his having voluntarily waived what is now
called "the Miranda rights." Other evidence was sufficient and he was convicted and
resentenced to 20 to 30 years in prison for the crimes, committed in 1963. Miranda also
served a concurrent term for an unrelated $8 robbery of a housewife.
Miranda was paroled in 1972 but was again arrested while on parole in July 1974 on
charges of possession of dangerous drugs (three amphetamine pills) and a firearm.
That arrest came after he was stopped for a routine traffic violation. The charges were
dropped in October 1974 after a Superior Court judge ruled that the search violated
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Miranda's rights because police had no reasonable cause to search the car.
Miranda attempted to capitalize on the Supreme Court decision after being released
from prison. He sold autographed "Miranda cards" around the Maricopa County
Superior Court building. He originally sold the cards for $1.50 but later raised the price
to $2, one officer said.
In 1978 Ernesto Miranda was stabbed to death in Phoenix in a fight over a bar room
card game. When Miranda’s killer fled down a back alley, police caught his accomplice.
As the officers placed the man in the back of their cruiser, one of them pulled out a
small card with words printed in English on one side and Spanish on the other. He
began to read:
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 to assist you prior to
questioning and to be with you during questioning if you so desire.
If you cannot afford an attorney, you have the right to have an attorney appointed
for you prior to questioning.
Do you understand these rights?
Will you voluntarily answer my questions?
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JOHN DALMER BENTON v. STATE OF MARYLAND
395 U. S. 784, 23 L Ed 2d 707, 89 S.Ct. 2056
Reargued March 24, 1969
Decided June 23, 1969
In August 1965, Benton was tried in a Maryland state court on charges of burglary and
larceny. A jury found him not guilty of larceny but convicted him on the burglary charge,
and he was sentenced to ten years in prison. Benton filed an appeal in the Maryland
Court of Appeals shortly after that court had handed down its decision in the case of
Schowgurow v. State (1965). In Schowgurow, the appeals court struck down a section
of the state constitution, which required jurors to swear their belief in the existence of
God. As a result of the Schowgurow decision, Benton’s case was returned for retrial to
the state trial court.
At his second trial, Benton was again charged with both larceny and burglary. He
objected to being retried on the larceny charge because the previous jury had already
found him not guilty on that charge. The trial judge denied Benton’s petition to dismiss
the larceny charge, and this time he was found guilty of both offenses. His sentence by
the judge was fifteen years on the burglary charge and five years for larceny, the
sentences to run concurrently.
Benton appealed to the newly created Maryland Court of Special Appeals on the basis
of double jeopardy, but his claim was rejected. The Maryland Court of Appeals denied
review.

ISSUE: Is the Double Jeopardy Clause of the Fifth Amendment applicable to the
states through the Due Process Clause of the Fourteenth Amendment? If so,
does the Fifth Amendment allow a state to retry a criminal defendant after an
appeal for charges he previously had been found not guilty of committing?
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BENTON v. MARYLAND (1969)
Decision
In an opinion by Justice Marshall expressing the view of six members of the Court, it
was held that the Double Jeopardy Clause of the Fifth Amendment is applicable to the
states through the Fourteenth Amendment. Marshall first examined a 1937 case by the
U.S. Supreme Court and its relation to the current case:
In 1937, this Court decided the landmark case of Palko v. Connecticut.
Palko, although indicted for first-degree murder, had been convicted of
murder in the second degree after a jury trial in a Connecticut state court.
The State appealed and won a new trial. Palko argued that the Fourteenth
Amendment incorporated, as against the States, the Fifth Amendment
requirement that no person “be subject for the same offence to be twice
put in jeopardy of life or limb.” The Court disagreed. Federal double
jeopardy standards were not applicable against the States. Only when a
kind of jeopardy subjected a defendant to “a hardship so acute and
shocking that our policy will not endure it,” did the Fourteenth Amendment
apply. The order for a new trial was affirmed. In subsequent appeals from
state courts, the Court continued to apply this lesser Palko standard.
Justice Marshall then looked to more recent cases in which the Court had examined
specific guarantees of the Bill of Rights in determining whether state criminal trials were
conducted under due process of law. He determined that in an increasing number of
cases the Court “has rejected the notion that the Fourteenth Amendment applies to the
States only a ‘watered-down, subjective version of the individual guarantees of the Bill
of Rights ....’” Marshall concluded:
...[W]e today find that the double jeopardy prohibition of the Fifth
Amendment represents a fundamental ideal in our constitutional heritage,
and that it should apply to the States through the Fourteenth Amendment.
Insofar as it is inconsistent with this holding, Palko v. Connecticut is
overruled.
Palko represented an approach to basic constitutional rights which this
Court’s recent decisions have rejected. It was cut of the same cloth as
Betts v. Brady ..., the case which held that a criminal defendant’s right to
counsel was to be determined by deciding in each case whether the denial
of that right was “shocking to the universal sense of justice.” ... Betts was
overruled by Gideon v. Wainwright.... Our recent cases have thoroughly
rejected the Palko notion that basic constitutional rights can be denied by
the States as long as the totality of the circumstances does not disclose a
denial of “fundamental fairness.” Once it is decided that a particular Bill of
Rights guarantee is “fundamental to the American scheme of justice,” ...
the same constitutional standards apply against both the State and
Federal Government. Palko’s roots had thus been cut away years ago.
We today only recognize the inevitable.
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Thus, the Court concluded, the defendant’s larceny conviction could not stand.
Justice White concurred, stating that there are instances in which the concurrent
sentence rule should be preserved, specifically on direct appeal.
Justice Harlan wrote a dissenting opinion, which was joined by Justice Stewart. He
wrote:
One of the bedrock rules that has governed, and should continue to
govern, the adjudicative processes of this Court is that the decision of
constitutional questions in the disposition of cases should be avoided
whenever fairly possible. Today the Court turns its back on that sound
principle by refusing, for the flimsiest of reasons, to apply the “concurrent
sentence doctrine” so as not to be required to decide the far-reaching
question whether the Double Jeopardy Clause of the Fifth Amendment is
“incorporated” into the Due Process Clause of the Fourteenth, thereby
making the former applicable lock, stock, and barrel to the States. Indeed,
it is quite manifest that the Court has actually been at pains to “reach out”
to decide that very important constitutional issue.
I consider that the concurrent sentence doctrine is applicable here, and that dismissal of
the writ is accordingly called for..
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CALIFORNIA v. JONATHAN TODD BYERS
402 U. S. 424, 29 L. Ed 2d 9, 91 S.Ct. 1535
Argued December 8, 1970
Decided May 17, 1971
The California Vehicle Code statute included a “hit and run” provision that required the
driver of a motor vehicle involved in an accident causing damage to another’s property
to stop at the scene and give his or her name and address to the owner of the damaged
property. Jonathan Byers was involved in such an accident but did not comply with the
requirements of the law. When charged with violation of the statute, he argued that this
“stop and report” provision of the state motor vehicle code forced him to incriminate
himself.
The California Supreme Court agreed that Byers faced “substantial hazards of selfincrimination” as this statute was applied to him. The California Supreme Court then
affirmed the ruling of the lower state court, and the state petitioned the U.S. Supreme
Court for certiorari.

ISSUE: Does a state requirement to stop and report one’s name and address
when involved in an accident causing property damage violate the Fifth
Amendment right against self-incrimination, as made applicable to the states
through the Due Process Clause of the Fourteenth Amendment?
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CALIFORNIA v. BYERS (1971)
Decision
Five members of the Court, although not agreeing upon an opinion, agreed that
California hit-and-run statute did not violate the constitutional privilege against
compulsory self-incrimination. Chief Justice Burger announced the judgment of the
Court, and in an opinion joined by Justices Stewart, White, and Blackmun, expressed
the views that the statute did not infringe the privilege against self-incrimination. The
Chief Justice wrote:
An organized society imposes many burdens on its constituents. It
commands the filing of tax returns for income; it requires producers and
distributors of consumer goods to file informational reports on the
manufacturing process and the content of products, on the wages, hours,
and working conditions of employees. Those who borrow money on the
public market or issue securities for sale to the public must file various
information reports; industries must report periodically the volume and
content of pollutants discharged into our waters and atmosphere.
Comparable examples are legion.
In each of these situations there is some possibility of prosecution—often
a very real one—for criminal offenses disclosed by or deriving from the
information that the law compels a person to supply. Information revealed
by these reports could well be “a link in the chain” of evidence leading to
prosecution and conviction. But under our holdings the mere possibility of
incrimination is insufficient to defeat the strong policies in favor of a
disclosure called for by statutes like the one challenged here.
...
Stopping in compliance with [the statute] therefore does not provide the
State with “evidence of a testimonial or communicative nature” within the
meaning of the Constitution.... It merely provides the State and private
parties with the driver’s identity for, among other valid state needs, the
related purposes, always subject to the driver’s right to assert a Fifth
Amendment privilege concerning specific inquires.
...
After having stopped, a driver involved in an accident is required by [the
statute] to notify the driver of the other vehicle of his name and address. A
name, linked with a motor vehicle, is no more incriminating than the tax
return, linked with the disclosure of income.... It identifies but does not by
itself implicate anyone in criminal conduct.
Justice Harlan, in a concurring opinion, stated that the presence of a “real” and not
“imaginary” risk of self-incrimination was sufficient to extend the privilege against selfincrimination to regulatory schemes, such as the one in this case, for evidence
essentially unrelated to criminal prosecutions.
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Justices Douglas and Brennan joined Justice Black in his dissent. Black expressed his
views that the defendant would have subjected himself to a substantial risk of selfincrimination by complying with the statute. He explained that even assuming that the
Fifth Amendment prohibited the state only from compelling a man to produce
“testimonial” evidence against himself, a man’s statement that he was a person involved
in an accident inflicting property damage must be considered to be “testimonial,” and
the scope of the privilege against self-incrimination should not be subject to a balancing
by the Court of the importance of a defendant’s right not to be forced to help convict
himself against the government’s interest in forcing him to do so.
Justices Douglas and Marshall joined Justice Brennan’s dissent. He stated that under
the facts obtained in the case, the defendant, confronted with a substantial hazard of
self-incrimination, was entitled to rely on the privilege as a defense to prosecution for
failure to stop and report his involvement in the accident. He added that in any event,
the hit-and-run statute could properly be enforced only if those reporting their
involvement in an accident likely to result in criminal prosecution were given immunity
from prosecution.
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BREWER v. WILLIAMS
430 U. S. 387, No. 74-1263
Argued October 4, 1976
Decided March 23, 1977
On the afternoon of December 24, 1968, a ten-year-old girl named Pamela Powers went with
her family to the YMCA in Des Moines, Iowa, to watch a wrestling tournament in which her
brother was participating. When she failed to return from a trip to the restroom, an unsuccessful
search for her began.
Robert Williams, who had recently escaped from a mental hospital, was a resident of the YMCA.
Soon after the girl’s disappearance Williams was seen in the YMCA lobby carrying a large
bundle wrapped in a blanket. A fourteen-year-old boy helped him out of the building with the
bundle and opened the car door for Williams to place it into the front seat. The boy later
testified that he was able to see “skinny and white” legs under the blanket. Williams’ abandoned
car was found the following day in Davenport, Iowa, approximately 160 miles from Des Moines,
and a warrant was issued for his arrest.
Williams surrendered the following morning to the Davenport police. He was charged with the
abduction and given his Miranda warnings. In the presence of the Des Moines chief of police
and a police detective named Leaming, Williams was advised by his attorney that the officers
would be driving him from Davenport to Des Moines but that they would not interrogate or
mistreat him during the trip. After being denied his request to accompany Williams on the
automobile trip, his attorney told Williams not to talk about Pamela Powers to the officers.
The two officers, with Williams in their charge, then set out on the 160-mile drive. At no time
during the trip did Williams express a willingness to be interrogated in the absence of an
attorney. He did, however, indicate that when they got to Des Moines he would tell them the
whole story. During the trip the detective and his prisoner discussed a variety of topics,
including the subject of religion. Detective Leaming said:
I want to give you something to think about while we’re traveling down the
road.... Number one, I want you to observe the weather conditions, it’s
raining, it’s sleeting, it’s freezing, driving is very treacherous, visibility is poor,
it’s going to be dark early this evening. They are predicting several inches of
snow for tonight, and I feel that you yourself are the only person that knows
where this little girl’s body is, that you yourself have only been there once,
and if you get a snow on top of it you yourself may be unable to find it. And,
since we will be going right past the area on the way into Des Moines, I feel
we could stop and locate the body, that the parents of this little girl should be
entitled to a Christian burial for the little girl who was snatched away from
them on Christmas Eve and murdered. And I feel we should stop and locate
it on the way in rather than waiting until morning and trying to come back out
after a snow storm and possibly not being able to find it at all.
Williams then asked Detective Leaming why he thought they would be driving by the
location of the girls’ body, and Leaming responded that he knew the body was in that area.
He also explained to Williams that he did not want him to answer or to discuss the matter
any further, but just wanted Williams to think about what he had said as they rode down the
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road. After about a hundred miles of the trip, Williams asked the officer whether the police
had found the victim’s shoes. When Detective Leaming replied that he was not sure,
Williams directed them to a service station where he said he had left the shoes; a search for
them proved unsuccessful.
Later, Williams asked whether the police had found the blanket; after a negative answer
Williams directed them to a rest area where he said he had thrown the blanket, but again
nothing was found. Williams then said he would show the officers where to find Pamela’s
body, which he did.
Williams was subsequently indicted for first-degree murder. Before the trial, his attorney
moved to suppress all evidence relating to or resulting from any statement Williams had
made during the automobile ride from Davenport to Des Moines, but the judge denied the
motion. A jury found Williams guilty of murder, and the Iowa Supreme Court affirmed the
conviction.
Williams’ attorney then filed a petition in the U.S. District Court for the Southern District of
Iowa. This court concluded that the evidence had been wrongly admitted, and the Court of
Appeals for the Eighth Circuit, with one judge dissenting, affirmed this judgment.

ISSUE: Was Williams coerced by officers and thus denied his Fifth and Fourteenth
Amendment right to the assistance of counsel when he was told he needed to tell
them where to locate the victim’s body in order to provide her with a Christian burial?
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BREWER v. WILLIAMS (1977)
Decision
Justice Stewart, speaking for the five-to-four majority, wrote the decision in the case.
He began by stating that Williams had been deprived of his right to the assistance of
counsel. Stewart continued:
There can be no serious doubt ... that Detective Leaming deliberately and
designedly set out to elicit information from Williams just as surely as--and
perhaps more effectively than--if he had formally interrogated him.
Detective Leaming was fully aware before departing for Des Moines that
Williams was being represented in Davenport.... Yet he purposely sought
during Williams’ isolation from his lawyers to obtain as much incriminating
information as possible....
...
Despite Williams’ express and implicit assertions of his right to counsel,
Detective Leaming proceeded to elicit incriminating statements from
Williams. Leaming did not preface this effort by telling Williams that he
had a right to the presence of a lawyer, and made no effort at all to
ascertain whether Williams wished to relinquish that right.
The
circumstances of record in this case thus provide no reasonable basis for
finding that Williams waived his right to the assistance of counsel.
Noting the senselessness and brutality of the crime for which Williams was convicted,
Justice Stewart concluded nonetheless:
... Although we do not lightly affirm the issuance of a writ of habeas corpus
in this case, so clear a violation of the Sixth and Fourteenth Amendments
as here occurred cannot be condoned. The pressures on state executive
and judicial officers charged with the administration of the criminal law are
great, especially when the crime is murder and the victim a small child.
But it is precisely the predictability of those pressures that makes
imperative a resolute loyalty to the guarantees that the Constitution
extends to us all.
Justice Marshall wrote a concurring opinion to record his “wholehearted” agreement
with the majority and to answer the dissenters. Marshall wrote:
... The dissenters have, I believe, lost sight of the fundamental
constitutional backbone of our criminal law. They seem to think that
Detective Leaming’s actions were properly proper, indeed laudable,
examples of “good police work.” In my view, good police work is
something far different from catching the criminal at any price. It is equally
important that the police, as guardians of the law, fulfill their responsibility
to obey its commands scrupulously. For “in the end life and liberty can be
as much endangered from illegal methods used to convict those thought
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to be criminals as from the actual criminals themselves.” (Quoting Spano
v. New York, 1959)
Justice Powell wrote another concurrence:
I join the opinion of the Court which also finds that the efforts of Detective
Leaming “to elicit information from Williams,” ... were a skillful and
effective form of interrogation. Moreover, the entire setting was conducive
to the psychological coercion that was successfully exploited. Williams
was known by the police to be a young man with quixotic religious
convictions and a history of mental disorders. The date was the day after
Christmas, the weather was ominous, and the setting appropriate for
Detective Leaming’s talk of snow concealing the body and preventing a
“christian burial.” Williams was alone in the automobile with two police
officers for several hours. It is clear from the record ... that there was no
evidence of a knowing and voluntary waiver of the right to have counsel
present beyond the fact that Williams ultimately confessed....
Justice Stevens stated, “the strong language in the dissenting opinions prompts me to
add this brief comment about the Court’s function in a case such as this.” He wrote,
“The emotional aspects of the case make it difficult to decide dispassionately, but do not
qualify our obligation to apply the law with an eye to the future as well as with concern
for the result in the particular case before us.”
Chief Justice Burger wrote in his dissenting opinion:
The result in this case ought to be intolerable in any society which
purports to call itself an organized society. It continues the Court—by the
narrowest margin—on the much-criticized course of punishing the public
for the mistakes and misdeeds of law enforcement officers, instead of
punishing the officer directly, if in fact he is guilty of wrongdoing. It
mechanically and blindly keeps reliable evidence from juries whether the
claimed constitutional violation involves gross police misconduct or honest
human error.
Williams is guilty of the savage murder of a small child; no member of the
Court contends he is not. While in custody, and after no fewer than five
warnings of his rights to silence and to counsel, he led police to the
concealed body of his victim. The Court concedes Williams was not
threatened or coerced and that he spoke and acted voluntarily and with
full awareness of his constitutional rights. In the face of all this, the Court
now holds that because Williams was prompted by the detective’s
statement--not interrogation but a statement—the jury must not be told
how the police found the body.
Today’s holding fulfills Judge (later Mr. Justice) Cardozo’s grim prophecy
that someday some court might carry the exclusionary rule to the absurd
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extent that its operative effect would exclude evidence relating to the body
of a murder victim because of the means by which it was found ....
Justices Blackmun and Rehnquist joined Justice White in his dissent. Addressing the
consequences of the majority decision, White wrote:
... A mentally disturbed killer whose guilt is not in question may be
released. Why? Apparently the answer is that the majority believes that
the law enforcement officers acted in a way which involves some risk of
injury to society and that such conduct should be deterred. However, the
officers’ conduct did not, and was not likely to, jeopardize the fairness of
respondent’s trial or in any way risk the conviction of an innocent man--the
risk against which the Sixth Amendment guarantee of assistance of
counsel is designed to protect....
NOTE: In 2001, the Supreme Court heard another right to counsel case, Texas v. Cobb.
The question the Court had to answer in this case was whether a suspect’s
constitutional right to have an attorney present extends to police interrogation on a
related offense. The Court, by a five-to-four vote, answered “no” to this issue, refusing
to broaden the requirement that police notify counsel before questioning a suspect to
offenses factually related to those that have actually been charged. Dissenters on the
Court said the ruling actually narrows the constitutional right to counsel.
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STATE OF RHODE ISLAND v. THOMAS J. INNIS
446 U. S. 291, 100 S.Ct. 1682, 64 L.Ed 2d 197
Argued October 30, 1979
Decided May 12, 1980
After the discovery of the body of a taxicab driver who had died from a shotgun blast,
another taxicab driver, who had been also robbed by a man with a shotgun, identified
Thomas Innis to police from a picture they showed him. Shortly afterward, a police
officer spotted Innis on the street, arrested him, and read him the Miranda warnings. At
the time of his arrest, the defendant was unarmed. After other police officers (a
sergeant and a captain) arrived, Innis was read his rights a second time, indicated he
understood them, and said he wanted to speak to a lawyer. A squad car with Innis and
three officers inside then left for the police station. While the police car was proceeding
to its destination, two of the officers talked among them, speaking of how the shotgun
used in the murder had not been found. One of the patrolman said he was familiar with
the area and that there were “a lot of handicapped children running around the area”
because a school for them was located nearby. Innis interrupted the officers and asked
them to drive back to the murder scene. Innis was read his rights a third time, indicating
he understood them, but said he wanted to get the gun out of the way before one of the
kids in the area was harmed by it. Innis then led the police to a nearby field where he
pointed out a shotgun.
Innis was subsequently indicted by a grand jury for kidnapping, robbery, and murder.
Before the trial, Innis filed a motion to suppress both his shotgun and his statement
about it. The judge ruled that Innis had waived his right to silence, and Innis was
convicted on all three counts. On appeal, the Rhode Island Supreme Court set aside
the conviction on the ground that police officers had interrogated the defendant after he
said he wanted to speak to a lawyer. Rhode Island then appealed to the U.S. Supreme
Court.

ISSUE: Does a conversation between officers, overheard by a suspect in a
crime, which leads to a self-incriminating response from the suspect undermine
his Fifth Amendment privilege against compulsory self-incrimination?
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RHODE ISLAND v. INNIS (1981)
Decision
In a six-to-three decision, the Supreme Court ruled that the conversation among the
officers was not equivalent to an interrogation, reversing the state Supreme Court. The
majority of the Court felt that the police officers had no way of knowing that Innis would
make a self-incriminating response to their conversation and that there was no express
questioning of him at that time. Justice Stewart wrote for the Court:
The case ... boils down to whether, in the context of a brief conversation,
the officers should have known that the respondent would suddenly be
moved to make a self-incriminating response. Given the fact that the
entire conversation appears to have consisted of no more than a few off
hand remarks, we cannot say that the officers should have known that it
was reasonably likely that Innis would so respond. This is not a case
where the police carried on a lengthy harangue in the presence of the
suspect. Nor does the record support the respondent’s contention that,
under the circumstances, the officers’ comments were particularly
“evocative.” It is our view, therefore, that the respondent was not
subjected by the police to words or actions that the police should have
known were reasonably likely to elicit an incriminating response from him.
Justice Marshall, joined by Justice Brennan, dissented, expressing his view that
Miranda safeguards apply whenever police conduct is intended or likely to produce a
response from a suspect in custody, and that the defendant had been interrogated in
the police car.
Justice Stevens, in his dissent, wrote:
From the suspect’s point of view, the effectiveness of the warnings
depends on whether it appears that the police are scrupulously honoring
his rights. Apparent attempts to elicit information from a suspect after he
has invoked his right to cut off questioning necessarily demean that right
and tend to reinstate the imbalance between police and suspect that the
Miranda warnings are designed to correct. Thus, if the rationale for
requiring those warnings in the first place is to be respected, any police
conduct or statements that would appear to a reasonable person in the
suspect’s position to call for a response must be considered
“interrogation.”
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HURTADO v. CALIFORNIA
110 U. S. 516, 4 S.Ct. 111, 28 L.Ed. 232
1884
In 1879, California dropped the grand jury system. Instead, prosecution of crimes could
be initiated on the basis of an information (a formal accusation drawn up by a
prosecutor) after review by a magistrate. In 1884, a district attorney filed an information
against Hurtado, charging him with murder. He was tried, convicted, and sentenced to
death.
Hurtado appealed, but two state courts upheld the conviction over his objection that
proceedings initiated by an information were forbidden by the Due Process Clause of
the Fourteenth Amendment. Hurtado then petitioned the U. S. Supreme Court for a writ
of error.

ISSUE: Is the Fifth Amendment right to a grand jury applicable to the states
through the Due Process Clause of the Fourteenth Amendment?
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HURTADO v. CALIFORNIA (1884)
Decision
The Supreme Court upheld the death sentence, determining that the grand jury is a
procedure that states can abolish at will. Justice Matthews wrote for the Court:
It follows that any legal proceeding enforced by public authority, whether
sanctioned by age and custom, or newly devised in the discretion of the
legislative power in furtherance of the general public good, which regards
and preserves these principles of liberty and justice, must be held to be
due process of law....
Tried by these principles, we are unable to say that the substitution for a
presentment or indictment by a grand jury of the proceeding by
information after examination and commitment by a magistrate, certifying
to the probable guilt of the defendant, with the right on his part to the aid of
counsel, and to the cross-examination of the witness produced for the
prosecution, is not due process of law. It is ... an ancient proceeding at
common law, which might include every case of an offense of less grade
than a felony, except misprision of treason; and in every circumstances of
its administration, as authorized by the statute of California, it carefully
considers and guards the substantial interest of the prisoner. It is merely
a preliminary proceeding, and can result in no final judgment, except as
the consequence of the regular judicial trial, conducted precisely as in
cases of indictments....
Justice Harlan dissented, writing:
[A]ccording to the settled usages and modes of proceeding existing under
the common and statute law of England at the settlement of this country,
information in capital cases was not consistent with the “law of the land” or
with “due process of law.” Such was the understanding of the patriotic
men who established free institutions upon this continent. Almost the
identical words of Magna Carta were incorporated into most of the state
constitutions before the adoption of our national constitution. When they
declared, in substance, that no person shall be deprived of life, liberty, or
property except by the judgment of his peers or the law of the land, they
intended to assert his right to the same guaranties that were given in the
mother country by the great charter and the laws passed in furtherance of
its fundamental principles....
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COLORADO v. FRANCIS BARRY CONNELLY
479 U. S. 564, 107 S.Ct. 515
Argued October 8, 1986
Decided December 10, 1986
On August 18, 1983, a man, later identified as Francis Barry Connelly, approached a
uniformed police officer in downtown Denver. Without any prompting from the officer,
the man stated that he had murdered someone and wanted to talk about it. The officer
immediately advised him of his Miranda rights, but the man said he understood his
rights and still wanted to talk about the murder because his conscience was bothering
him. When questioned by the officer, Connelly denied that he had been drinking or had
taken any drugs, but admitted that he had been a patient in the past in several mental
hospitals. A police detective then arrived, and Connelly was again advised of his rights.
Connelly, at that time, explained that he had come from Boston to Denver to confess to
the murder of a young girl who had been killed in Denver sometime in November 1982.
The man was then taken to police headquarters, where he detailed his story to several
officers and also agreed to show them the scene of the killing. Connelly then led two
officers to where the murder had been committed and furnished them with incriminating
details. Connelly was held overnight, and the next morning he appeared visibly
disoriented. He began giving confused answers to questions, and for the first time
stated that “voices” had told him to come to Denver to confess what he had done.
Connelly was then sent to a state hospital and evaluated by a psychiatrist who found
him incompetent to assist in his own defense but competent to stand trial.
At a preliminary hearing before a Colorado trial court, Connelly moved to suppress all
his statements to the police. The psychiatrist who had evaluated him testified that
Connelly told him he was following the “voice of God,” and that this voice instructed him
to withdraw money from the bank, to buy an airplane ticket, and to fly from Boston to
Denver. It was the psychiatrist’s opinion that Connelly’s psychotic condition had
motivated his confession but had not impaired his ability to understand his Miranda
rights. The trial court ruled that the initial statements and his confession while in police
custody must be suppressed because they were involuntary, although the police had
done nothing coercive to secure them. This decision was affirmed by the Supreme
Court of Colorado, which added that Connelly’s mental condition had precluded his
ability to make a valid waiver of his Miranda rights.

ISSUE: Without evidence of police coercion, is a confession by a suspect who
claims that mental illness compelled him to waive his Miranda rights admissible
under the Fifth Amendment privilege against self-incrimination and the
Fourteenth Amendment Due Process Clause?
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COLORADO v. CONNELLY (1986)
Decision
In an opinion written by Chief Justice Rehnquist and joined by Justices White, Powell,
O’Connor and Scalia, the U.S. Supreme Court reversed the Colorado Supreme Court’s
decision. Connelly’s conviction was upheld by the majority of the Court that stated
Connelly’s belief that he was confessing because of God’s advice did not automatically
exclude his confession as admissible evidence against him.
Although psychiatric testimony revealed at the trial that Connelly suffered from a
psychosis which substantially interfered with his ability to make free and rational
choices, no constitutional violation occurred when the defendant made detailed
incriminating statements before and after he was given the Miranda warnings and
acknowledged he understood them. The Court was of the opinion that the defendant’s
mental state alone could not be viewed as disposing of an inquiry into voluntary waiver
of the right against self-incrimination. Without any showing that police conduct was
closely related to the confession, there was no basis for concluding that Connelly was
deprived of his due process rights. Rehnquist wrote:
The most outrageous behavior by a private party seeking to secure
evidence against a defendant does not make that evidence inadmissible
under the Due Process Clause.... Moreover, suppressing respondent’s
statements would serve absolutely no purpose in enforcing constitutional
guarantees. The purpose of excluding evidence seized in violation of the
Constitution is to substantially deter future violations of the Constitution...
Only if we were to establish a brand new constitutional right--the right of a
criminal defendant to confess to his crime only when totally rational and
properly motivated--could respondent’s present claim be sustained.
The Court held that:
(1) Coercive police activity is a necessary predicate to the finding that a
confession is not voluntary under the due process clause;
(2) Neither the taking of the man’s statements or their admission into
evidence constituted a violation of due process;
(3) A state that bears the burden of proving waiver of Miranda rights meets
that burden if it proves waiver by a preponderance of the evidence; and
(4) Absent proof of police coercion, the Colorado Supreme Court erred in
holding that the waiver of Miranda was involuntary.
Justice Blackmun concurred in part and concurred in the judgment, expressing the view
that the issue of the level of the state’s burden of proof in showing a waiver of Miranda
rights was not necessary to the decision, since it had neither been raised nor briefed by
the parties.
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Justice Stevens concurred in the judgment in part and dissented in part, expressing the
view that although the precustodial statements were involuntary, their use did not violate
the Fifth Amendment because they were not the products of state compulsion. But, he
concluded, the postcustodial statements were inadmissible since the man’s waiver of
his Miranda rights was not the product of a free and deliberate choice, and thus his
custodial interrogation was presumptively coercive.
Justice Marshall joined Justice Brennan in his dissent. Brennan expressed the view
that the absence of police wrongdoing does not, by itself, determine the voluntariness of
a confession by a mentally ill person. He also suggested that the Colorado Supreme
Court was free on remand to reconsider such issues as whether the requirement of a
knowing and intelligent waiver of Miranda rights was satisfied. Brennan wrote:
Today this Court denies Mr. Connelly his fundamental right to make a vital
choice with a sane mind, involving a determination that could allow the
State to deprive him of liberty or even life. This holding is unprecedented:
“Surely in the present stage of our civilization a most basic sense of justice
is affronted by the spectacle of incarcerating a human being upon the
basis of a statement he made while insane....” (Blackburn v. Alabama,
1960) Because I believe that the use of a mentally ill person’s involuntary
confession is antithetical to the notion of fundamental fairness embodied
in the Due Process Clause, I dissent.
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KANSAS v. LEROY HENDRICKS
No. 1649
LEROY HENDRICKS v. KANSAS
No. 9075
Argued December 10, 1996
Decided June 23, 1997
“Stephanie’s Law” was passed in 1994 by the Kansas legislature after Stephanie
Schmidt, a 19-year-old college student, was raped and murdered by a man on parole
for a prior conviction for rape. The purpose of the law, officially the Sexually Violent
Predator Act, was to protect communities from sex offenders who are deemed likely to
repeat their crimes once released from prison. The Act authorizes the civil confinement
of persons who are found to be sexually violent predators and requires a trial-type
proceeding before confinement. The state has the burden of proving beyond a
reasonable doubt that the person it seeks to confine meets the law’s criteria as a
sexually violent predator. The individual has a right to a lawyer, who may cross
examine witnesses and review the state’s evidence. Once confinement is ordered, a
state court must conduct an annual review to see whether it is still justified. An individual
must meet three criteria to be considered a sexually violent predator under the Act:
(1)
The individual must have been convicted of a sexually violent
crime, acquitted by reason of insanity for such a crime, or found
incompetent to stand trial but later proven to have committed such
a crime;
(2)
The person must have a mental abnormality or a personality
disorder;
(3)
It must be likely that the person will engage in predatory acts of
sexual violence in the future.
The Act defines mental abnormality as a “congenital or acquired condition affecting the
emotional or volitional capacity which predisposes the person to commit sexually violent
offenses in a degree constituting such person a menace to the health and safety of
others.”
Leroy Hendricks had spent half his life in prisons or mental hospitals since committing
his first sex offense against young children in the 1950's. Over a 30-year period,
Hendricks accumulated five convictions for molesting a total of ten children, and he had
resisted treatment in the past. Hendricks was sentenced to a five-to-twenty-year
sentence for taking “indecent liberties” with two boys, both thirteen years old, in an
electronics shop where he worked. Hendricks’ attorney had plea-bargained to spare
Hendricks a 45- to 180-year prison term, but when Hendricks neared the end of his
sentence in 1994, “Stephanie’s Law” was passed. After serving ten years, Hendricks
was sent to Larned State Hospital under “Stephanie’s Law.” Hendricks’ case was the
first time the state had invoked the act. During the commitment hearing, Hendricks told
the trial jury that death was the only guarantee he wouldn’t rape another child.
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He also stated that when he is “stressed out,” he cannot resist the urge to engage in
sexual acts with children.
Hendricks argued that by sending him to a state hospital for the criminally mentally ill
had subjected him unconstitutionally to double jeopardy—two punishments for the same
offense—and to an ex post facto law—new punishment for a previous crime. The
Kansas trial court rejected Hendricks’ claim that the SVPA is unconstitutional, and
Hendricks appealed.
The Kansas Supreme Court declared the law unconstitutional, finding that its vague
definition of “mental abnormality” and its lack of a guarantee of treatment violated the
Fourteenth Amendment guarantee of Due Process of Law. This court did not address
the issue of double punishment. The State of Kansas petitioned the U.S. Supreme
Court to grant certiorari, and Hendricks filed a cross-petition, in which he asserted his
federal double jeopardy and ex post facto claims. Both cases were granted certiorari.

ISSUE: Does the Kansas Sexually Violent Predator Act violate the Constitution’s
prohibition against ex post facto laws?
Does it violate the Fourteenth
Amendment guarantees of Due Process and Equal Protection under the law?
Does it violate the Fifth Amendment Double Jeopardy Clause?
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KANSAS v. HENDRICKS (1997)
Decision
In a five-to-four vote, the Supreme Court approved laws to lock up in mental institutions
“sexually violent predators” who are not mentally ill but remain dangerous after serving
a prison sentence. These justices indicated that such confinements were not
punishment. The opinion, written by Justice Thomas, rejected claims by pedophile
Leroy Hendricks, 62, that his detention was unconstitutional. Chief Justice Rehnquist
and Justices O’Connor, Scalia backed Justice Thomas, and Kennedy, agreeing that the
state’s requirement of a “mental abnormality” satisfied due process requirements.
Thomas wrote:
A finding of dangerousness, standing alone, is ordinarily not a sufficient
ground upon which to justify indefinite involuntary commitment. We have
sustained civil commitment statutes when they have coupled proof of
dangerousness with the proof of some additional factor, such as a “mental
illness” or “mental abnormality.” These added statutory requirements
serve to limit involuntary civil confinement to those who suffer from a
volitional impairment rendering them dangerous beyond their control....
Just because Kansas did not restrict application of the law to those who would
otherwise meet the requirements under Kansas’s law for involuntary commitment as
mentally ill made no difference, according to Justice Thomas. He continued:
Kansas argues that the Act’s definition of “mental abnormality” satisfies
“substantive” due process requirements. We agree. Although freedom
from physical restraint “has always been at the core of the liberty
protected by the Due Process Clause from arbitrary governmental action”
... that liberty interest is not absolute. The Court has recognized that an
individual’s constitutionally protected interest in avoiding physical restraint
may be overridden even in the civil context:
[T]he liberty secured by the Constitution of the U.S. to every
person within its jurisdiction does not import an absolute
right in each person to be, at all times and in all
circumstances, wholly free from restraint.
There are
manifold restraints to which every person is necessarily
subject for the common good. On any other basis organized
society could not exist with safety to its members....
In addressing the question of whether the law applied criminal procedures to a civil
case, Justice Thomas stated, “That Kansas chose to afford such procedural protections
does not transform a civil commitment proceeding into a criminal prosecution.” Thomas
continued that the law does not entail “either of the two primary objectives of criminal
punishment: retribution or deterrence.” Rather, he continued, “incapacitation may be a
legitimate end of the civil law,” even if no treatment is available.
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The majority of the Court also said it is not a double jeopardy for one to be first
imprisoned for a sex crime and then, when his sentence is over, institutionalized
because he is likely to continue engaging in sexual violence. Thomas stated:
... The thrust of Hendricks’ argument is that the Act establishes criminal
proceedings; hence confinement under it necessarily constitutes
punishment.
He contends that where, as here, newly enacted
“punishment” is predicated upon past conduct for which he has already
been convicted and forced to serve a prison sentence, the Constitution’s
Double Jeopardy and Ex Post Facto Clauses are violated. We are
unpersuaded by Hendricks’ argument.... Far from any punitive objective,
the confinement’s duration is instead linked to the stated purposes of the
commitment.
In a concurrence, Justice Kennedy cautioned that civil confinement statutes not be used
to give a sexual predator a longer criminal sentence:
... We should bear in mind that while incapacitation is a goal common to
both the criminal and civil systems of confinement, retribution and general
deterrence are reserved for the criminal system alone.
On the record before us, the Kansas civil statute conforms to our
precedents. If, however, civil confinement were to become a mechanism
for retribution or general deterrence, or if it were shown that mental
abnormality is too imprecise a category to offer a solid basis for
concluding that civil detention is justified, our precedents would not suffice
to validate it.
The justices were almost unanimously in agreement (eight-to-zero) that a dangerous
person with a mental abnormality, as opposed to mental illness, may be held if
procedures and evidence standards are maintained and treatment is the object.
Dissenter Justices Breyer, Stevens, and Souter agreed with the majority on this point,
while Justice Ginsburg did not make her views known. The dissenters went on to
indicate that, while they agreed in principle that states could define sexual predators
who are deemed to be “mentally abnormal,” in this case it appeared that Kansas had
not tried to treat the mental problems of Hendricks. As a result, his institutionalization
was more like a punishment and was therefore unconstitutional.
All the justices disagreed with the Kansas Supreme Court’s analysis of the due-process
question. The dispute on the Court came over how to characterize the confinement
imposed on Hendricks. Justice Breyer wrote:
The statutory provisions before us do amount to punishment primarily
because ... the legislature did not tailor the statute to fit the nonpunitive
civil aim of treatment, which it concedes exists in Hendricks’ case. The
Clause in these circumstances does not stand as an obstacle to achieving
important protections for the public’s safety; rather it provides an
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assurance that, where so significant a restriction of an individual’s basic
freedoms is at issue, a State cannot cut corners. Rather, the legislature
must hew to the Constitution’s liberty-protecting line.
The dissenters concluded that Mr. Hendricks’ confinement was “basically punitive”
because he was being restrained rather than treated for his psychiatric and behavioral
problems. Justice Breyer said the confinement violated the constitutional prohibition
against retroactive imposition of new punishments, but he said the law would not be
unconstitutional if it provided treatment and not simply incarceration.
NOTE: In January 2002, the Supreme Court ruled in the case of Kansas v. Crane that
states must prove convicted sex offenders cannot control themselves if they are to be
confined after prison. The respondent in this case, Michael T. Crane, was released
from prison after the seven-to-two decision was announced and doctors concluded that
he was no longer a threat to society. In March 2003, he was arrested and charged with
rape.
In March 2003, the Supreme Court handed down its decision in the case of Smith v.
Doe, which questioned the Alaska Sex Offender Registration Act. The six-to-three
Court determined that states may demand registration of sex offenders whose crimes
were committed before a “Megan’s Law” was passed.
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CHARLES THOMAS DICKERSON v. U.S.
No. 99-5525
Argued April 19, 2000
Decided June 26, 2000
Historically, the courts of England and then the U.S. recognized that coerced
confessions are not trustworthy. U.S. Supreme Court cases have recognized two
constitutional bases for the requirement that a confession be voluntary to be admitted
into evidence: The Fifth Amendment right against self-incrimination and the Due
Process Clause of the Fourteenth Amendment.
In 1966 (in Miranda v. Arizona), the Supreme Court held that certain warnings must be
given before a suspect’s statements could be admitted into evidence at trial. Two years
after that decision, Congress passed a law that confessions could be admitted as long
as they were given voluntarily, even when Miranda warnings had not been read.
In 1997, Charles Dickerson was indicted for federal crimes of bank robbery, conspiracy
to commit bank robbery and using a firearm in the course of committing a crime of
violence. Before trial, the judge threw out Dickerson’s statements to the FBI,
determining that agents failed to read him his rights. The Fourth Circuit Court of
Appeals said prosecutors could use the statements, calling them legal and voluntary
under the 1968 law.
The U.S. Supreme Court then agreed to hear the case.

ISSUES: Does Congress, under Article I of the Constitution, have the power to
pass a law that permits the admission of a voluntary confession at trial, which
would be contrary to the Supreme Court decision in Miranda?
Is the Miranda ruling, which prohibits confessions from being admitted at trial
unless a suspect in custody was first told of his or her rights, a command of the
Fifth Amendment privilege against self-incrimination and the Fourteenth
Amendment Due Process of Law?
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DICKERSON v. U.S. (2000)
Decision
Chief Justice Rehnquist announced the judgment in this case by beginning, “You have
the right to remain silent. Anything you say can be used against you in a court of law
....” The Chief Justice had been a critic of the Miranda ruling since his 1971
appointment to the Supreme Court. However, the Court, by a vote of seven-to-two,
upheld the 1966 Miranda decision, and Rehnquist wrote the majority opinion. Former
solicitor general, Walter Dellinger, was quoted in USA Today as saying, “The chief
justice’s reading of the Miranda warnings was one of the most dramatic moments I’ve
seen in the courtroom. It made the powerful point of how settled the warnings have
become--even though the fact is, the chief justice in the past has wanted to trim them
back.” Rehnquist explained in the written decision:
Miranda has become embedded in routine police practice to the point
where the warnings have become part of our national culture. While we
have overruled our precedents when subsequent cases have undermined
their doctrinal underpinnings, we do not believe that this has happened to
the Miranda decision. If anything, our subsequent cases have reduced
the impact of the Miranda rule on legitimate law enforcement while
reaffirming the decision’s core ruling that unwarned statements may not
be used as evidence in the prosecution’s case in chief.
Answering the first issue as to whether Congress could impose its own rules on what
defines a voluntary confession, in response to a Supreme Court decision, Rehnquist
wrote:
This Court has supervisory authority over the federal courts, and we may
use that authority to prescribe rules of evidence and procedure that are
binding in those tribunals....
... Congress may not legislatively supersede our decisions interpreting and
applying the Constitution....
Associate Justices Breyer, Ginsburg, Kennedy, O’Connor, Souter and Stevens joined
the majority. Rehnquist concluded:
... Following the rule of stare decisis [Latin for “stand by the decided
matter”], we decline to overrule Miranda ourselves. The judgment of the
Court of Appeals is therefore Reversed.
Justice Scalia, writing for himself and Justice Thomas, observed that Rehnquist, as well
as Justices O’Connor and Kennedy, had suggested in earlier cases that they did not
believe the Court’s 1966 decision was grounded in the Constitution and therefore
irreversible by Congress. Scalia also claimed the current ruling was “not a reaffirmation
of Miranda, but a radical revision of the most significant element of Miranda....” He
attacked the majority opinion, stating:
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It takes only a small step to bring today’s opinion out of the realm of
power-judging and into the mainstream of legal reasoning: The Court need
only go beyond its carefully couched iterations that “Miranda is a
constitutional decision,” that “Miranda is constitutionally based,” that
Miranda has “constitutional underpinnings,” and come out and say quite
clearly: “... We reaffirm today that custodial interrogation that is not
preceded by Miranda warnings or their equivalent violates the Constitution
of the U.S...” It cannot say that, because a majority of the Court does not
believe it. The Court therefore acts in plain violation of the Constitution
when it denies effect to this Act of Congress.
Scalia also disagreed with the Court’s understanding of the issue in the case. He wrote:
The issue is not whether the court rules are “mutable”; they assuredly are.
It is not whether, in the light of “various circumstances,” they can be
“modified”; they assuredly can. The issue is whether, as mutated and
modified, they must make sense. The requirement that they do so is the
only thing that prevents this Court from being some sort of nine-headed
Caesar, giving thumbs-up or thumbs-down to whatever outcome, case by
case, suits or offends its collective fancy. And if confessions procured in
violation of Miranda are confessions “compelled” in violation of the
Constitution, the post-Miranda decisions I have discussed do not make
sense. The only reasoned basis for their outcome was that a violation of
Miranda is not a violation of the Constitution....
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DAVID R. MC KUNE v. ROBERT G. LILE
No. 00-1187
Argued November 28, 2001
Decided June 10, 2002
Robert G. Lile was convicted and sentenced to life in prison for luring a high school
student into his car and raping her at gunpoint in 1982. Although he continued to claim
the act was consensual, both the Kansas Supreme Court and a federal district court
upheld his conviction and sentence.
A few years before he was scheduled to be released, prison officials ordered him to
participate in a prison Sexual Abuse Treatment Program. Inmates who participated in
this program had to acknowledge responsibility for their crimes and disclose any
unreported sex crimes. They had to pass polygraph examinations and face the
possibility of new prosecutions for previously undisclosed crimes. Prison officials were
required to report any uncharged sexual offenses involving minors to law enforcement
authorities. There was no evidence that incriminating information had ever been
disclosed or that any inmate had ever been charged for an offense based on
information disclosed during prison treatment programs.
If Lile did not participate in the treatment program, he would complete his imprisonment
in maximum-security with fewer opportunities to earn money, have visitors and
participate in recreation programs.
Lile refused to participate and brought this action, seeking an injunction to prevent the
prison from withdrawing his privileges and transferring him to a different housing unit.
The district court granted the injunction in favor of Lile, noting that because he had
testified at the trial that the sexual act was consensual, an acknowledgment of
responsibility for the rape on the required forms would open him to a possible charge of
perjury.
The Court of Appeals for the Tenth Circuit affirmed, determining that the program
violated the inmates’ constitutional right against compelled self-incrimination because,
the court found, the consequences of refusing to participate amounted to coercion. The
court did recognize that the Kansas policy served an important interest in rehabilitating
sex offenders and promoting public safety, but it concluded that those interests could be
served without violating the Constitution.

ISSUE: Does the Kansas Sexual Abuse Treatment Program for prison inmates
violate the Fifth Amendment privilege against self-incrimination by forcing
participating inmates to accept responsibility for the crime for which they have
been convicted?
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MC KUNE v. LILE (2002)
Decision
A five-to-four Supreme Court upheld the Kansas prison system’s sexual abuse program,
determining that such programs requiring inmates to reveal undisclosed crimes do not
necessarily violate the constitutional right against compelled self-incrimination. With this
ruling, the circuit court judgment was reversed.
Justice Kennedy, writing for the plurality of four justices, began by stating that “Sex
offenders are a serious threat in this Nation.” He agreed with studies showing that sex
offenders are more likely than any other offender to repeat the same act upon their
release from prison and that it is widely acknowledged that rehabilitation programs help
reduce those incidences. Kennedy also agreed that it is essential for offenders to
accept responsibility for their acts:
The critical first step in the Kansas Sexual Abuse Treatment Program ... is
acceptance of responsibility for past offenses. This gives inmates a basis
to understand why they are being punished and to identify the traits that
cause such a frightening and high risk of recidivism....
It seems that Justice Kennedy was answering a comment in Justice Stevens’ dissent
when he responded:
The privilege against self-incrimination does not terminate at the jailhouse
door, but the fact of a valid conviction and the ensuing restrictions on
liberty are essential to the Fifth Amendment analysis....
On the other hand, wrote Kennedy:
... Since “most offenders will eventually return to society, [a] paramount
objective of the corrections system is the rehabilitation of those committed
to its custody.” Acceptance of responsibility in turn demonstrates that an
offender “is ready and willing to admit his crime and to enter the
correctional system in a frame of mind that affords hope for success in
rehabilitation over a shorter period of time than might otherwise be
necessary.”
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The plurality noted that the Supreme “Court has recognized that lawful conviction and
incarceration necessarily place limitations on the exercise of a defendant’s privilege
against self-incrimination.” Explaining why Lile’s loss of certain privileges for nonparticipation in the rehabilitation program does not show compulsion, Kennedy wrote:
...An essential tool of prison administration ... is the authority to offer
inmates various incentives to behave. The Constitution accords prison
officials wide latitude to bestow or revoke these perquisites as they see
fit....
Continuing, Justice Kennedy explained, “Prison context or not, respondent’s choice is
marked less by compulsion than by choices [that] ... give no rise to a self-incrimination
claim,” and “It is well settled that the government need not make the exercise of the
Fifth Amendment privilege cost free.” He therefore concluded, “It is beyond doubt ... that
respondent would prefer not to choose between losing prison privileges and accepting
responsibility for his past crimes. It is a choice, nonetheless, that does not amount to
compulsion, and therefore one Kansas may require respondent to make.”
Chief Justice Rehnquist and Associate Justices Scalia and Thomas joined Justice
Kennedy’s opinion. Providing a fifth vote for the state, Justice O’Connor disagreed with
the plurality’s basic constitutional analysis. O’Connor explained:
I find the plurality’s failure to set forth a comprehensive theory of the Fifth
Amendment privilege against self-incrimination troubling. But because
this case indisputably involves burdens rather than benefits, and because
I do not believe the penalties assessed against respondent in response to
his failure to incriminate himself are compulsive on any reasonable test, I
need not resolve this dilemma to make my judgment in this case.
But she concluded that because Lile faced only “minor” consequences from his refusal
to participate in the treatment program, no compelling self-incrimination existed.
O’Connor explained, “The text of the Fifth Amendment does not prohibit all penalties
levied in response to a person’s refusal to incriminate himself or herself—it prohibits
only the compulsion of such testimony.”
Justices Souter, Ginsburg and Breyer joined Justice Stevens in his dissent. Calling this
“a watershed case,” Justice Stevens noted that the Court had never before held that “a
person who has made a valid assertion of the privilege may nevertheless be ordered to
incriminate himself and sanctioned for disobeying such an order.” He added, “Prison
inmates—including sex offenders—do not forfeit the privilege at the jailhouse gate.”
In a discussion of previous Fifth Amendment cases by the Supreme Court, Stevens
noted:
... None of our opinions contains any suggestion that compulsion should
have a different meaning in the prison context. Nor is there any support in
our Fifth Amendment jurisprudence for the proposition that nothing short
of losing one’s livelihood is sufficient to constitute compulsion.
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Justice Stevens ended his dissent by posing a question: “What if this is one of those
rare cases in which the jury made a mistake and he is actually innocent?”
NOTE: In an article from The New York Times, Supreme Court reporter, Linda Greenhouse, reported that
it was evident that Justice O’Connor had originally voted the other way in this case and that Justice
Stevens had originally been assigned to write the majority opinion instead of the dissent. Greenhouse
came to this conclusion from the “equivocal tone of Justice O’Connor’s concurring opinion.” She also
took into consideration that during the two-week period when this case was argued, eleven decisions
were produced and Kennedy wrote the majority in two of them, while Stevens wrote none. Since
becoming chief justice, Rehnquist has been persistent in making sure writing assignments for majority
opinions are evenly distributed among the justices.
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MISSOURI v. PATRICE SEIBERT
No. 02-1371
Argued December 9, 2003
Decided June 28, 2004
Patrice Seibert’s twelve-year-old son, Jonathan, had cerebral palsy and could not walk, speak
or feed himself. On February 12, 1997, he died while sleeping. Seibert was afraid that
authorities would think she had neglected the boy because he had bedsores.
In her presence, two of Patrice’s other sons and two of their friends came up with a plan to set
the trailer on fire to cover up Jonathan’s death. Seibert said she did not participate, disagree or
discourage the conversation. It was decided that Donald Rector, a mentally ill teenager living
with the family, should be in the trailer so it would seem like Jonathan had not been left alone.
Seibert knew that Donald was on Prozac, which made him sleepy and that he could die in the
fire.
The boys bought gasoline to set the fire with money Seibert gave them. The $20 was intended
to only buy her cigarettes, Seibert said. She sent her two younger sons to church and left
before the fire. During the fire, Donald had a seizure and started convulsing and suffocated
from the smoke. Seibert’s teenage son, Darian, was injured in the fire.
Five days later, police woke Seibert at 3 a.m. at the hospital where Darian was being treated
and placed her under arrest. Seibert made self-incriminating statements during the initial
interrogation. The interrogating officer said he purposefully did not read Seibert her Miranda
rights because he wanted to get a confession and then would get her to confess on tape after
reading her rights. The officer said he following a two-stage technique that he learned at a
national police-training institute.
Seibert was given her Miranda warnings after a fifteen-to-twenty-minute break.
The
interrogating officer periodically referred to the initial confession during Seibert’s second
interrogation, and she subsequently confessed on tape. Seibert later unsuccessfully tried to
suppress her statements before trial.
Miranda warnings are safeguards against self-incrimination, a right guaranteed by the Fifth
Amendment. The rights, which were established in 1966 in the U. S. Supreme Court case,
Miranda v. Arizona, mandate that people be read their rights prior to arrest and interrogation.
Suspects have the right to remain silent, the right to have an attorney present or have one
appointed if they cannot afford one and the right to know that anything they say or do can be
used against them in a court of law.
With the jury hearing her taped confession, Seibert was convicted of second-degree murder as
an accessory for knowingly killing Donald Rector and received a life sentence. The Missouri
Court of Appeals affirmed the trial court’s ruling.
A divided Missouri Supreme Court threw out Seibert’s conviction, holding that “in the
circumstances here, where the interrogation was nearly continuous ... the second statement,
clearly the product of the invalid first statement, should have been suppressed.”

ISSUE: Does a Fifth Amendment, or Miranda Warning, violation occur when a law
enforcement officer questions an unwarned suspect until getting an admission and then
later reads his or her Miranda rights?
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MISSOURI v. PATRICE SEIBERT (2004)
Decision
The Supreme Court rejected the police interrogation tactic designed to induce suspects
to give incriminating statements after purposely delaying Miranda warnings. In a five-tofour ruling, the Supreme Court determined that the two-step interrogation process
“effectively threatens to thwart” protections against coerced confessions afforded by
Miranda warnings. Writing for himself, Justices Stevens, Ginsburg and Breyer, Souter
wrote:
... The object of question-first is to render Miranda warnings ineffective by
waiting for a particularly opportune time to give them, after the suspect
has already confessed.
Justice Souter said that the practice is worrisome because questioning tactics are
taught at national training sessions. He explained:
... Upon hearing warnings only in the aftermath of interrogation and just
after making a confession, a suspect would hardly think he had a genuine
right to remain silent, let alone persist in so believing once the police
began to lead him over the same ground again....
Justice Kennedy agreed with the other four that the interrogation technique “undermines
the Miranda warning and obscures its meaning.” Kennedy wrote separately in order to
propose a test under which fewer statements would be likely to be excluded than under
the plurality’s approach, explaining that police must be able to prove that the
interrogation was not done “in a calculated way to undermine the Miranda warning.”
While joining the plurality, Justice Breyer also wrote a concurring opinion.
In a dissent, Justice O’Connor said it would be tough for lower courts to determine if
officers had gone too far. “In virtually every two-stage interrogation case … courts will
be forced to conduct the kind of difficult, state-of-mind inquiry that we normally take
pains to avoid,” O’Connor wrote. Rehnquist, Scalia and Thomas joined her.
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UNITED STATES v. SAMUEL FRANCIS PATANE
No. 02-1183
Argued December 9, 2003
Decided June 28, 2004
On June 5, 2001, Samuel Patane was out on bail when his former girlfriend received a
hang-up call that she thought Patane had made. At the time, he was subject to a
temporary restraining order following a previous arrest for threatening her. Police
officers went to his home to arrest him for violating the restraining order.
Officers began giving him his Miranda rights, but only got as far as “the right to remain
silent” when Patane told them he already knew his rights and didn’t need to hear the
rest. Neither officer attempted to complete the warning. Patane then told police they
could find a .40-caliber Glock pistol on a shelf in his bedroom. The discovery of the gun
led to a federal indictment of Patane, who had previous drug convictions, on charges of
possessing a firearm after having been convicted of a felony. Patane denied calling his
former girlfriend but was prosecuted for possession of the firearm.
Patane claimed that the gun, because of the Miranda violation, couldn’t be admitted as
evidence against him. The Tenth Circuit Court ruled in Patane’s favor, concluding that
the confiscated gun could not be used as evidence in court.

ISSUE: May evidence derived from a suspect’s voluntary statement, given
without a Miranda warning, be used against him under the Fifth Amendment SelfIncrimination Clause?
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UNITED STATES v. SAMUEL FRANCIS PATANE (2004)
Decision
Justice Thomas spoke for himself, Rehnquist and Scalia, in announcing the Court’s fiveto- four decision for the United States. Thomas began by explaining, “The Miranda
rule is not a code of police conduct, and police do not violate the Constitution (or even
the Miranda rule, for that matter) by mere failures to warn.” Thomas continued:
...[T]he core protection afforded by the Self-Incrimination Clause is a
prohibition on compelling a criminal defendant to testify against himself at
trial....
The Clause cannot be violated by the introduction of
nontestimonial evidence obtained as a result of voluntary statements....
Thomas explained that “statements taken without Miranda warnings ... can be used to
impeach a defendant’s testimony at trial,” where the statements could be believed or
not. He continued by stating, “Potential violations occur, if at all, only upon admission of
unwarned statements into evidence at trial.”
Justice O’Connor joined Justice Kennedy in his concurrence. He wrote separately to
explain that he found “it unnecessary to decide whether the detective’s failure to give
Patane the full Miranda warnings should be characterized as a violation of the Miranda
rule itself.”
Justices Stevens and Ginsburg joined Justice Souter’s dissent. He wrote, “In closing
their eyes to the consequences of giving an evidentiary advantage to those who ignore
Miranda, the majority adds an important inducement for interrogators to ignore the rule
in that case.” Souter continued:
... There is ... a price for excluding evidence, but the Fifth Amendment is
worth a price, and in the absence of a very good reason, the logic of
Miranda should be followed: A Miranda violation raises a presumption of
coercion, ... and the Fifth Amendment privilege against compelled selfincrimination extends to the exclusion of derivative evidence.... That
should be the end of this case.
A separate dissent was written by Justice Breyer.
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PAUL RENICO, WARDEN v. REGINALD LETT
No. 09-338
Argued March 29, 2010, Decided May 3, 2010
Reginald Lett was charged with first-degree murder and possession of a firearm during
the commission of a felony in connection with a shooting death at a Detroit liquor store.
From jury selection to jury instructions his trial took less than nine hours, spread over six
different days.
During two days of deliberations, the jury sent the judge seven notes containing
questions. At the end of the second day of jury deliberations, a juror asked the judge
what would happen if the jury did not agree. The judge then asked the jury foreperson if
they were going to be able to reach a unanimous verdict. The foreperson eventually
replied, “No, Judge,” and the judge declared a mistrial. She then dismissed the jury and
scheduled a new trial for later that year. Neither the prosecutor not Lett’s attorney made
any objection. Lett was subsequently retried on the same charges, convicted of seconddegree murder and felony-firearm possession, and sentenced to prison.
Lett appealed his conviction to the Michigan Court of Appeals, contending that his retrial
violated the double-jeopardy prohibitions of the Michigan and U.S. Constitutions. The
court agreed and reversed his conviction, but the Michigan Supreme Court dismissed
the appeals court holding, finding that the retrial did not violate double jeopardy because
the record contained "sufficient justification" for declaring a mistrial.
Lett next filed a habeas corpus petition with the U.S. District Court for the Eastern
District of Michigan, which sided with the Michigan Court of Appeals and concluded that
the trial judge's decision to declare a mistrial constituted an abuse of discretion.
A three-judge panel on the Sixth U.S. Circuit Court of Appeals agreed, upholding the
district court's decision.

ISSUE: Does retrying an accused person after the trial judge declares a hung
jury constitute double jeopardy, as forbidden by the Fifth Amendment?
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RENICO v. LETT (2010)
Decision
The Supreme Court reversed and remanded the lower court order in a six-to-three
opinion written by Chief Justice Roberts. Roberts began his decision by explaining the
question before the Court:
… That question is not whether the trial judge should have declared a
mistrial. It is not even whether it was an abuse of discretion for her to
have done so. … The question … is instead whether the determination of
the Michigan Supreme Court that there was no abuse of discretion was
“an unreasonable application of … clearly established Federal law.”
The Chief Justice continued:
… The decision whether to grant a mistrial is reserved to the “broad
discretion” of the trial judge, a point that “has been consistently reiterated
in decisions of this Court.” (Illinois v. Somerville 1973) …
The reasons for “allowing the trial judge to exercise broad discretion” are
“especially compelling” in cases involving a potentially deadlocked jury. …
There, the justification for deference is that “the trial court is in the best
position to assess all the factors which must be considered in making a
necessarily discretionary determination whether the jury will be able to
reach a just verdict if it continues to deliberate.” … In the absence of such
deference, trial judges might otherwise “employ coercive means to break
the apparent deadlock,” thereby creating a “significant risk that a verdict
may result from pressures inherent in the situation rather than the
considered judgment of all the jurors.”
In conclusion, Chief Justice Roberts wrote:
… Lett’s trial was not complex, and there is no reason that the jury would
necessarily have needed more than a few hours to deliberate over his
guilt. The notes the jury sent to the judge certainly could be read as
reflecting substantial disagreement, even if they did not say so outright.
Most important, the foreperson expressly told the judge—in response to
her unambiguous question “are you going to reach a unanimous verdict,
or not?”—that the jury would be unable to agree.
The Court reasoned that while the trial judge in this case should have been more
thorough before declaring a mistrial, she did not unreasonably apply clearly established
federal law. Chief Justice Roberts was joined by Associate Justices Scalia, Kennedy,
Thomas, Ginsburg and Alito.
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In a dissent, Justice Stevens wrote, “Reginald Lett’s constitutional rights were violated
when the trial court terminated his first trial without adequate justification and he was
subsequently prosecuted for the same offense.” Stevens wrote:
This is not to say that we grant absolute deference to trial judges in this
context. … [I]f “the trial judge acts for reasons completely unrelated to the
trial problem which purports to be the basis for the mistrial ruling, close
appellate scrutiny is appropriate.” ….
Justice Stevens, joined by Justice Sotomayor and in part by Justice Breyer, argued that
the trial judge's reasons for declaring a mistrial were insufficient and unreasonably
complied with clearly established federal law. He explained:
No one disputes that a “genuinely deadlocked jury” is “the classic basis”
for declaring a mistrial or that such declaration, under our doctrine, does
not preclude reprosecution; what is disputed in this case is whether the
trial judge took adequate care to ensure the jury was genuinely
deadlocked. …
Agreeing with the majority that Lett’s case was not “especially complex,” Stevens
pointed out that Lett was charged with first-degree murder and “faced a potential
sentence of life imprisonment if convicted.” He determined that:
… Reginald Lett’s constitutional rights were violated when the trial court terminated his
first trial without adequate justification and he was subsequently prosecuted for the
same offense. … Nothing one will find in the United States Code or the United States
Reports requires us to turn a blind eye to this manifestly unlawful conviction.
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MARYLAND v. MICHAEL BLAINE SHATZER, SR.
No. 08-680
Argued October 5, 2009, Decided February 24, 2010
Michael Blain Shatzer was sentenced to a twelve-year prison term in 2002 for sexual
abuse of a child. The next year, police started investigating allegations that he had also
sexually abused his own three-year-old son. When a police officer went over his
Miranda rights with him, Shatzer requested an attorney, and the case was dropped for
the next two years and six months.
In 2006 a police detective and a social worker interviewed Shatzer’s son, then eight
years old, who described the incident in more detail. This detective was aware that Mr.
Shatzer had been under investigation previously but was not aware that he had
previously invoked his Fifth Amendment rights to counsel and to remain silent. When he
questioned Shatzer and advised him of his Fifth Amendment rights, Shatzer waived his
rights and then confessed to specific instances of sexual abuse involving his child.
After he was charged, Shatzer moved to suppress the confessions he made in the 2006
interview, arguing that his 2003 invocation of his Fifth Amendment rights was still
applicable. Under Edwards v. Arizona (1981) the confession was rendered inadmissible.
The motion was denied and a Maryland trial court convicted him of sexual child abuse.
On appeal, the Court of Appeals of Maryland reversed, holding that the Supreme Court
set no time limit in the Edwards case, prohibiting police from continuing to question a
suspect who had requested counsel.

Issue: Is a confession made by a criminal defendant more than two years and
six months after invoking his Fifth Amendment privilege against self-incrimination
admissible in court? Does a time limit exist to the Fifth Amendment prohibition
on police questioning once a suspect invokes a request for counsel?
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MARYLAND v. SHATZER (2010)
Decision
Justice Scalia wrote the opinion of the Court, which six other justices joined in full.
Scalia explained:
When … a suspect has been released from his pretrial custody and has
returned to his normal life for some time before the later attempted
interrogation, there is little reason to think that his change of heart
regarding interrogation without counsel has been coerced. He has no
longer been isolated. He has likely been able to seek advice from an
attorney, family members, and friends. And he knows from his earlier
experience that he need only demand counsel to bring the interrogation to
a halt; and that investigative custody does not last indefinitely. In these
circumstances, it is far fetched to think that a police officer’s asking the
suspect whether he would like to waive his Miranda rights will any more
“wear down the accused,” ,,, than did the first such request at the original
attempted interrogation….
The Court found that a fourteen-day limit exists on the Fifth Amendment prohibition on
police questioning once a suspect invokes a request for counsel. The Court therefore
concluded that Shatzer’s return to his normal pre-interrogation life in the general prison
population for a period of two-and-one-half years before reinterrogation constituted a
sufficient break in custody to end the Edwards presumption and enable him to
voluntarily waive his Miranda rights. Discussing why the Court felt it necessary to
designate a specific time period, Scalia wrote:
…[T]his is a case in which the requisite police action … has not been
prescribed by statute but has been established by opinion of this Court.
We think it appropriate to specify a period of time to avoid the
consequences that continuation of the Edwards presumption “will not
reach the correct result most of the time.” … It seems to us that period is
14 days. That provides plenty of time for the suspect to get reacclimated
to his normal life, to consult with friends and counsel, and to shake off any
residual coercive effects of his prior custody.
In separate concurring opinions, Justices Stevens and Thomas offered different
suggestions for an appropriate time limit. Stevens argued that the two-week break in
custody was not long enough, while Thomas suggested that the fourteen-day standard
was too long. Stevens wrote:
The most troubling aspect of the Court’s time-based rule is that it
disregards the compulsion caused by a second (or third, or fourth)
interrogation of an indigent suspect who was told that if he requests a
lawyer, one will be provided for him…. If they cease questioning and then
reinterrogate the suspect 14 days later without providing him with a
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lawyer, the suspect is likely to feel that the police lied to him and that he
really does not have any right to a lawyer.
Stevens did not join the Court’s opinion but concurred in the judgment. He explained,
“Even if Shatzer could not consult a lawyer and the police never provided him one, the
2½ -year break in custody is a basis for treating the second interrogation as no more
coercive than the first.”
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MARY BERGHUIS, WARDEN v. VAN CHESTER
THOMPKINS
No. 08-1470
Argued March 1, 2010, Decided June 1, 2010
On January 20, 2000, a shooting occurred in Southfield, Michigan, which resulted in the
death of one man and injury to another. Van Chester Thompkins was subsequently
arrested for suspicion of the crime.
Interrogation of the suspect was conducted in a small room, with Thompkins sitting in a
chair that resembled a school desk. At the beginning of the interrogation, Thompkins
was presented with a written form derived from the Miranda rule and was asked to read
the fifth warning out loud, which he did. The fifth warning said, “You have the right to
decide at any time before or during questioning to use your right to remain silent and
your right to talk with a lawyer while you are being questioned.” When asked to sign the
form to demonstrate that he understood his rights, Thompkins declined. At no time did
Thompkins say he wanted to remain silent, that he did not want to talk, or that he
wanted an attorney.
After almost three hours, Thompkins was asked by an officer, “Do you believe in God?,”
to which he replied, “Yes.” He was then asked, “Do you pray to God?” Again,
Thompkins said, “Yes.” Finally, he was asked, “Do you pray to God to forgive you for
shooting that boy down?” Thompkins answered “Yes” and looked away. He refused to
make a written confession, and the questioning ended about fifteen minutes later.
A Michigan state court found Thompkins guilty of first-degree murder, assault with intent
to commit murder, and several firearms related charges. He was sentenced to life in
prison without parole.
After exhausting his remedies in Michigan state court, Thompkins filed suit in federal
district court. The district court denied the petition, reasoning that Thompkins did not
invoke his right to remain silent and was not coerced into making statements during the
interrogation. The Sixth Circuit reversed, ruling for Thompkins on both his Miranda and
ineffective-assistance-of-counsel claims.

ISSUE: Must a suspect give a positive, verbal or written affirmation that he
understands his rights before questioning takes place by the police under the
Fifth Amendment privilege against self-incrimination?
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BERGHUIS v. THOMPKINS (2010)
Decision
In a narrowly split ruling, the Supreme Court said that criminal suspects seeking to
protect their right to remain silent must speak up to invoke it. Justice Kennedy, writing
for the five-to-four majority, said that simply being silent isn’t enough. He wrote:
… If an ambiguous act, omission, or statement could require police to end
the interrogation, police would be required to make difficult decisions
about an accused’s unclear intent and face the consequences of
suppression “if they guess wrong.” Suppression of a voluntary confession
in these circumstances would place a significant burden on society’s
interest in prosecuting criminal activity. …
Thompkins did not say that he wanted to remain silent or that he did not
want to talk with the police. Had he made either of these simple,
unambiguous statements, he would have invoked his “’right to cut off
questioning.;” … Here he did neither, so he did not invoke his right to
remain silent.
Kennedy continued:
… The fact that Thompkins made a statement about three hours after
receiving a Miranda warning does not overcome the fact that he engaged
in a course of conduct indicating waiver. Police are not required to rewarn
suspects from time to time. …
Regarding the question of ineffective counsel, Kennedy explained:
… To establish ineffective assistance of counsel, a defendant “must show
both deficient performance and prejudice.” … To establish prejudice, a
“defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” … There was ample evidence in the record to support
Thompkins’s guilt …, and his jury was instructed to weigh all the evidence
in determining whether there was guilt beyond a reasonable doubt. …
Justice Kennedy was joined in the majority by Chief Justice Roberts and Associate
Justices Scalia, Thomas and Alito.
Justice Sotomayor wrote a strongly worded dissent, in which she explained:
Even when warnings have been administered and a suspect has not
affirmatively invoked his rights, statements made in custodial interrogation
may not be admitted as part of the prosecution’s case in chief “unless and
until” the prosecution demonstrates that an individual “knowingly and
intelligently waive[d] [his] rights.” …” [A] heavy burden rests on the
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government to demonstrate that the defendant knowingly and intelligently
waived his privilege against self-incrimination and his right to retained or
appointed counsel.” …
Justice Sotomayor concluded:
Today’s decision turns Miranda upside down. Criminal suspects must
now unambiguously invoke their right to remain silent—which
counterintuitively, requires them to speak.” At the same time, suspects
will be legally presumed to have waived their rights even if they have
given no clear expression of their intent to do so. Those results, in my
view, find no basis in Miranda or our subsequent cases and are
inconsistent with the fair-trial principles on which those precedents are
grounded. Today’s broad new rules are all the more unfortunate because
they are unnecessary to the disposition of the case before us. …
Sotomayor was joined in her dissent by Justices Stevens, Ginsburg and Breyer.
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J.D.B. v. NORTH CAROLINA
No. 09-11121
Argued March 23, 2011, Decided June 16, 2011
An investigator for the city police department was looking into two home break-ins. His
investigation lead him to J.D.B., a 13-year-old middle school student. The investigating
officer and the officer assigned to the middle school told school officials that they had
information linking J.D.B. to the crimes.
The boy was taken out of class and escorted to a closed-door conference room. His
legal guardian, his grandmother, was not notified. J.D.B. was not told about his rights
and was not told that he was free to leave. An assistant principal told the boy that he
wanted him to “do the right thing” and that “truth always comes out in the end.” J.D.B.
then asked if he would be in trouble if he returned the “stuff.” The officer responded that
returning the stolen items would be helpful, but “this thing is going to court” regardless.
When he was told of the prospect of juvenile detention, J.D.B. confessed that he and a
friend were responsible for the break-ins. Only then was the boy told that he did not
need to talk and that he could leave if he wanted to.
In juvenile court, J.D.B.’s public defender moved to suppress his statements because
J.D.B. had been “interrogated by police in a custodial setting without being” given a
Miranda warning. The trial court denied the motion, ruling that he had not been in
custody at the time of the schoolhouse interrogation and that his statements were
voluntary. J.D.B. was formally ruled a delinquent and placed on probation. Upon
appeal, the North Carolina Supreme Court agreed with the trial court.

Issue: Do children being interviewed by police at school have the right to be
warned about their constitutional rights against self-incrimination under the Fifth
Amendment and Miranda v. Arizona (1966)?
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J.D.B. v. NORTH CAROLINA (2011)
Decision
In a five-to-four decision, the Supreme Court determined that police and courts must
consider a child’s age when determining whether a young person should be read
Miranda rights. Writing for the majority, Justice Sotomayor, a former prosecutor, said,
“It is beyond dispute that children will often feel bound to submit to police questioning
when an adult in the same circumstances would feel free to leave.” She continued:
… We have observed that children “generally are less mature and
responsible than adults,” … that they “often lack the experience,
perspective, and judgment to recognize and avoid choices that could be
detrimental to them,” … that they “are more vulnerable or susceptible to …
outside pressures” than adults, … and so on.
“In short,” Justice Sotomayor wrote, “officers and judges … simply need the common
sense to know that a 7-year-old is not a 13-year-old and neither is an adult.”
The Supreme Court did not determine the question of whether J.D.B. was in custody at
the time of the interrogation, returning the case to the lower court to make that decision.
Sotomayor was joined by Justices Kennedy, Ginsburg, Breyer, and Kagan.
Justice Alito, also a former prosecutor, said in his dissent that the point of Miranda was
that police would have clear, objective guidelines to follow. Opening the door to
considering age probably would mean that other characteristics might soon be added to
the list, such as education level, IQ, and cultural backgrounds, Alito added. He wrote:
I have little doubt that today’s decision will soon be cited by defendants—
and perhaps by prosecutors as well—for the proposition that all manner of
other individual characteristics should be treated like age and taken into
account in the Miranda custody calculus. …
Alito was joined by Chief Justice Roberts and Justices Scalia and Thomas.
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BLUEFORD v. ARKANSAS
566 U. S. __ (2012)
In 2007 a one year old boy suffered a severe head injury while at home with his
mother’s boyfriend, Alex Blueford, and died a few days later in a hospital. The state of
Arkansas charged Blueford with capital murder but waived the death penalty. The
defense argued that the boy’s death was a result of Blueford accidentally knocking the
boy to the ground. The trial court instructed the jury that the charge of capital murder
included three lesser offenses: first degree murder, manslaughter, and negligent
homicide. The court addressed the order in which the jury was to consider the offenses
as follows: “If you have reasonable doubt of the defendant’s guilt of capital murder, then
consider the charge of murder in the first degree; if you have reasonable doubt of the
defendant’s guilt of murder in the first degree, then consider the charge of
manslaughter; if you have reasonable doubt of the defendant’s guilt of manslaughter,
then consider the charge of negligent homicide.” The court gave the jury a set of five
verdict forms, each representing a possible verdict. Four of the forms allowed the jury to
convict on each of the charged offenses, and the fifth form allowed the jury to return a
verdict of acquittal if the jury found the defendant not guilty of any offense.
After the jury deliberated for several hours, it sent out a note saying it could not agree
on any one charge, and the foreperson reported that the jury was hopelessly
deadlocked. In open court, the judge asked the foreperson to disclose the jury’s votes
on each offense. The foreperson responded as follows: on the capital murder charge,
the jury was unanimous against; on the murder in the first degree charge, the jury was
unanimous against; on the manslaughter charge, the vote was 9 for and 3 against; and
on the negligent homicide charge, the jury did not vote. The judge then directed the jury
to continue its deliberations. The jury later returned to the court, and the foreperson
stated that the jury had been unable to reach a verdict. The judge declared a mistrial
and dismissed the jury. The state then sought a retrial. Blueford’s attorney moved to
dismiss the capital murder and first degree murder charges on grounds that the jury had
acquitted the defendant on those two charges, and thus, to retry him on those two
charges would be a violation of the no double jeopardy guarantee of the Fifth
Amendment. The trial judge denied the motion, and the Arkansas Supreme Court,
reasoning that no formal jury verdict had been announced or entered into the record,
later affirmed the trial court’s decision. Blueford appealed to the Supreme Court.
Issue: Does the Fifth Amendment protection against double jeopardy bar retrying
a defendant on the two most serious charges against him after the jury’s
foreperson announced in open court that the jury was unanimous against guilt on
those charges but before the jury completed its deliberations?
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BLUEFORD v. ARKANSAS (2012)
DECISION
The Supreme Court by a 6-3 vote affirmed the judgment of the Arkansas Supreme
Court and thus ruled that trying the defendant again on all the charges did not violate
the no double jeopardy provision of the Fifth Amendment. Chief Justice Roberts
authored the opinion of the Court which Justices Scalia, Kennedy, Thomas, Breyer, and
Alito joined. Justice Sotomayor wrote a dissenting opinion which Justices Ginsburg and
Kagan joined.
Chief Justice Roberts wrote: “The foreperson’s report was not a final resolution of
anything. When the foreperson told the court how the jury had voted on each offense,
the jury’s deliberations had not yet concluded. … The fact that deliberations continued
after the report deprives that report of the finality necessary to constitute an acquittal on
the murder offenses. … The jury in this case did not convict Blueford of any offense,
but it did not acquit him of any either. When the jury was unable to return a verdict, the
trial court properly declared a mistrial and discharged the jury. As a consequence, the
Double Jeopardy Clause does not stand in the way of a second trial on the same
offenses.”
Dissenting, Justice Sotomayor wrote: “In ascertaining whether an acquittal has
occurred, ‘form is not to be exalted over substance.’ Rather, we ask whether the
factfinder has made ‘a substantive determination that the prosecution has failed to carry
its burden.’ … Jeopardy terminates upon a determination, however characterized, that
the ‘evidence is insufficient ‘ to prove a defendant’s ‘factual guilt.’ … Arkansas’ model
jury instructions require a jury to complete its deliberations on a greater offense before it
may consider a lesser. … As a matter of Arkansas law … the jury must, in essence,
acquit the defendant of the greater offense before considering his or her guilt on the
lesser-included offense. … The judge told the jury to proceed past capital murder only
upon a unanimous finding of a ‘reasonable doubt’ as to that offense – that is, upon an
acquittal. … And the forewoman’s colloquy with the judge leave no doubt that the jury
understood the instructions to mandate unanimous acquittal on a greater offense as a
prerequisite to consideration of a lesser.
… In this context, the forewoman’s
announcement in open court that the jury was ‘unanimous against’ conviction on capital
and first degree murder was an acquittal for double jeopardy purposes.”
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SALINAS v. TEXAS
570 U. S. ___ (2013)
Facts: In 1992 two brothers were shot and killed in their Houston, Texas home. There
were no witnesses to the murders, but a neighbor told police that he heard gunshots
and saw someone run out of the house and speed away in a dark-colored car. At the
scene, police discovered six shotgun shell casings. Investigation of the murders led
police to Genovevo Salinas, a guest at a party at the brothers’ home the night before
they were killed. In January, 1993, police went to Salinas’ home where they saw a dark
blue car in the driveway. Salinas agreed to hand over a shotgun which he owned for
ballistics testing and to accompany officers to the police station for questioning. The
police questioned Salinas for about one hour. He was not under arrest when questioned
and was not given Miranda warnings. Salinas answered most of the officers’ questions,
but when asked if his shotgun ‘would match the shells recovered at the scene of the
murder,’ he remained silent and, according to the officers, showed signs of deception.
Police arrested Salinas for outstanding traffic warrants, but prosecutors decided there
was insufficient evidence to charge him for the murders, and he was released. A few
days later, police obtained a statement from a man who claimed that he had heard
Salinas confess to the murders, and prosecutors now decided to charge Salinas with
the murders. By this time, however, Salinas had fled, and it was not until 2007 that he
was found living in the Houston area under an assumed name. At his subsequent
murder trial in a Texas trial court, Salinas did not testify. Over Salinas’ objection, in its
argument to the jury, the prosecution used as evidence of his guilt Salinas’ silence at
the 1993 interview when asked if his shotgun would match the shotgun casings found at
the murder scene. Salinas was convicted and sentenced to twenty years in prison. A
Texas Court of Appeals and the Texas Court of Criminal Appeals affirmed the trial
court’s judgment and rejected Salinas’ argument that the prosecution’s use of his
silence violated the Fifth Amendment’s no self-incrimination clause. The Supreme Court
granted certiorari.
Issue: Does the Fifth Amendment’s no self-incrimination clause forbid a
prosecutor from commenting to a jury about a defendant’s silence in response to
police questioning before he has been arrested or read Miranda warnings?
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SALINAS v. TEXAS (2012)
Decision
By a 5-4 vote, the Supreme Court affirmed the judgment of the Texas Court of Criminal
Appeals and thus answered “No” to the question raised. The Fifth Amendment’s no selfincrimination clause does not forbid a prosecutor from comment to a jury about a
defendant’s silence in response to police questioning before he has been arrested or
read Miranda warnings.
Justice Alito announced the judgment of the Court and authored an opinion
which Chief Justice Roberts and Justice Kennedy joined. Alito writes: “Petitioner’s
Fifth Amendment claim fails because he did not expressly invoke the privilege against
self-incrimination in response to the officer’s question. It has long been settled that the
privilege ‘generally is not self-executing’ and that a witness who desires its protection
‘must claim it.’” Alito notes early in his opinion that, because Salinas did not invoke the
privilege against self-incrimination during his interview with police, the Court has found it
unnecessary to answer the question of whether the prosecution may use a defendant’s
assertion of that privilege during a noncustodial interview against him at trial. …
…insisting that witnesses expressly invoke the privilege ‘assures that the Government
obtains all the information to which t is entitled.’ … We have previously recognized two
exceptions to the requirement that witnesses invoke the privilege, but neither applies
here. … The critical question is whether, under the ‘circumstances’ of this case,
petitioner was deprived of the ability to voluntarily invoke the Fifth Amendment. He was
not. We have before us no allegation that petitioner’s failure to assert the privilege was
involuntary, and it would have been a simple matter for him to say that he was not
answering the officer’s question on Fifth Amendment grounds. Because he failed to do
so, the prosecution’s use of his noncustodial silence did not violate the Fifth
Amendment. … Petitioner urges us to adopt a third exception to the invocation
requirement for cases in which a witness stands mute and thereby declines to give an
answer that officials suspect would be incriminating. Our cases all but foreclose such an
exception, which would needlessly burden the Government’s interests in obtaining
testimony and prosecuting criminal activity. … We have also repeatedly held that the
express invocation requirement applies even when an official has reason to suspect that
the answer to his question would incriminate the witness. … At oral argument, counsel
for petitioner suggested that it would be unfair to require a suspect unschooled in the
particulars of legal doctrine to do anything more than remain silent in order to invoke his
‘right to remain silent.’ … But popular misconceptions notwithstanding, the Fifth
Amendment guarantees that no one may be ‘compelled in any criminal case to be a
witness against himself;’ it does not establish an unqualified ‘right to remain silent.’ A
witness’ constitutional right to refuse to answer questions depends on his reasons for
doing so, and courts need to know those reasons to evaluate the merits of a Fifth
Amendment claim. … Petitioner and the dissent suggest that our approach will ‘unleash
complicated and persistent litigation’ over what a suspect must say to invoke the
privilege … That rule has not proved difficult to apply. … We also reject petitioner’s
argument that an express invocation requirement will encourage police officers to
‘unfairly trick’ suspects into cooperating.”
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Justice Thomas concurred in the judgment and authored a concurring opinion
which Justice Scalia joined. Thomas writes: “The plurality … concludes that Salinas’
Fifth Amendment claim fails because he did not expressly invoke the privilege. I think
there is a simpler way to resolve this case. In my view, Salinas’ claim would fail even if
he had invoked the privilege because the prosecutor’s comments regarding his
precustodial silence did not compel him to give self-incriminating testimony. … A
defendant is not ‘compelled … to be a witness against himself’ simply because a jury
has been told that it may draw an adverse inference from his silence.”
Justice Breyer dissented and authored a dissenting opinion which Justices
Ginsburg, Sotomayor, and Kagan joined. Breyer writes: “In my view the Fifth
Amendment here prohibits the prosecution from commenting on the petitioner’s silence
in response to police questioning. … The plurality believes that the Amendment does
not bar the evidence and comments because Salinas ‘did not expressly invoke the
privilege against self-incrimination’ when he fell silent during the questioning at the
police station. But, in my view, that conclusion is inconsistent with this Court’s case law
and its underlying practical rationale. … To permit a prosecutor to comment on a
defendant’s constitutionally protected silence would put that defendant in an impossible
predicament. He must either answer the question or remain silent. If he answers the
question, he may well reveal, for example, prejudicial facts, disreputable associates, or
suspicious circumstances – even if he is innocent. … If he remains silent, the
prosecutor may well use that silence to suggest a consciousness of guilt. … It is
consequently not surprising that this Court, more than half a century ago, explained that
‘no ritualistic formula is necessary in order to invoke the privilege.’ … Thus, a prosecutor
may not comment on a defendant’s failure to testify at trial – even if neither the
defendant nor anyone else ever mentions a Fifth Amendment right not to do so.
Circumstances, not a defendant’s statement, tie the defendant’s silence to the right. …
Again, it is not any explicit statement, but, instead, the defendant’s deeds (silence) and
circumstances (receipt of the warnings) that tie together silence and constitutional right.
… I would hold that Salinas need not have expressly invoked the Fifth Amendment. The
context was that of a criminal investigation. Police told Salinas that and made clear that
he was a suspect. His interrogation took place at the police station. Salinas was not
represented by counsel. The relevant question – about whether the shotgun from
Salinas’ home would incriminate him – amounted to a switch in subject matter. And it
was obvious that the new question sought to ferret out whether Salinas was guilty of
murder. These circumstances give rise to a reasonable inference that Salinas’ silence
derived from an exercise of his Fifth Amendment rights. … Salinas, not being
represented by counsel, would not likely have used the precise words ‘Fifth
Amendment’ to invoke his rights because he would not likely have been aware of
technical legal requirements, such as a need to identify the Fifth Amendment by name.
… Far better, in my view, to pose the relevant question directly: Can one fairly infer from
an individual’s silence and surrounding circumstances an exercise of the Fifth
Amendment’s privilege? The need for simplicity, the constitutional importance of
applying the Fifth Amendment to those who seek its protection, and this Court’s case
law all suggest that this is the right question to ask here. And the answer to that
question in the circumstances of today’s case is clearly: yes.”
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5th Amendment
Due Process Cases
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BOLING v. SHARPE
347 U. S. 497, 74 S.Ct. 693
Decided May 17, 1954
On the same day the Brown v. Board of Education ruling was handed down (in which
the Supreme Court concluded that state segregated schools were unconstitutional
under the Fourteenth Amendment Due Process Clause), the Court also settled the
issue of segregation in the District of Columbia. This case posed a different problem
from Brown, however. The Fifth Amendment to the U. S. Constitution, which is
applicable to the District of Columbia, does not contain an Equal Protection Clause, as
does the Fourteenth Amendment. So the Supreme Court had to decide whether the
Due Process Clause of the Fifth Amendment made it unconstitutional to refuse to admit
Negro children, solely because of their race, to public schools attended by whites.
With a determination to do for the District of Columbia what it was doing for the states,
the Court outlawed segregation there as well. The reasoning, however, was quite
different. The unanimous opinion of the Court began by emphasizing that the concepts
of Equal Protection of the Laws and Due Process of Law both stem “from our American
ideal of fairness [and] are not mutually exclusive.” True, Equal Protection is “a more
explicit safeguard of prohibited unfairness,” but discrimination may become so
unreasonable and unjustifiable as to become a violation of Due Process of Law. Within
this category could fall classifications based solely on race, “since they are contrary to
our traditions and hence constitutionally suspect.” Since the justices could not use the
Fourteenth Amendment, they invoked the Due Process Clause of the Fifth Amendment,
ruling that all segregation is “a deprivation of liberty.”
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UNITED STATES v. WINDSOR
570 U. S. ___ (2013)
Facts: Edith Windsor married her partner of 44 years, Thea Spyer, in 2007 in Canada.
Their home state of New York considered their marriage to be valid. Spyer died in 2009,
and Windsor inherited her entire estate. Windsor attempted to claim the marital
exemption from the federal estate tax which excludes from taxation “any interest in
property which passes or has passed from the decedent to his surviving spouse.” She
was prohibited from doing so by a federal law, the Defense of Marriage Act (DOMA),
passed by the U. S. Congress in 1996. Section 3 of DOMA defined marriage as only “a
legal union between one man and one woman” and the word “spouse” as only “a person
of the opposite sex who is a husband or a wife.” Windsor paid $363,053 in estate taxes,
but she sought a refund from the Internal Revenue Service which denied the refund
because, under DOMA, Windsor was not “a surviving spouse.” Windsor then brought
suit seeking the refund in a U. S. District Court where she argued that DOMA violates
the equal protection of the laws guarantee applied to the U. S. government by the Fifth
Amendment’s due process of law clause. As this tax refund suit was pending in U. S.
District Court, the Attorney General of the U. S. notified the Speaker of the U. S. House
of Representatives that the Obama administration’s Department of Justice would no
longer defend the constitutionality of Section 3 of DOMA. In response to the Attorney
General’s notification, the Bipartisan Legal Advisory Group (BLAG) of the House of
Representatives decided to intervene in the litigation to defend Section 3. The District
Court ruled against the United States, held that Section 3 was unconstitutional, and
ordered Windsor’s refund to be paid with interest. The U. S. Court of Appeals for the
Second Circuit affirmed the District Court’s judgment and applied “heightened scrutiny”
to classifications based on sexual orientation just as Windsor and the Department of
Justice had urged. The U. S. had not refunded the money. The U. S. Supreme Court
granted certiorari.
Issues: (1) Does the fact that the U. S. agrees with Windsor’s legal position
relative to the constitutionality of Section 3 of DOMA deprive this Court of
jurisdiction since there is no concrete disagreement between opposing parties?
(2) Does the Bipartisan Legal Advisory Group have standing in this case? (3)
Does Section 3 of the Defense of Marriage Act, which defines “marriage” under
federal law as “a legal union between one man and one woman,” deny same-sex
couples who are legally married under state law their Fifth Amendment rights to
equal protection of the laws?
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UNITED STATES v. WINDSOR
Decision
By a 5-4 vote, the Supreme Court affirmed the District Court’s judgment in favor of
Windsor. By the same 5-4 vote, the Court answered the first question “No” and the
second question “Yes.” The Court did have jurisdiction over the case, and BLAG did
have standing. By the same 5-4 vote, the Court answered the third question “Yes.”
Section 3 of DOMA was unconstitutional because it deprived same-sex couples who are
legally married under state laws their Fifth Amendment rights to equal protection of the
laws.
Justice Kennedy authored the opinion of the Court which Justices Ginsburg,
Breyer, Sotomayor, and Kagan joined. Kennedy writes: “In this case the United
States retains a stake sufficient to support Article III jurisdiction on appeal and in
proceedings before this Court. The judgment in question orders the United States to pay
Windsor the refund she seeks. An order directing the Treasury to pay money is ‘a real
and immediate economic injury’ … That the Executive may welcome this order to pay
the refund if it is accompanied by the constitutional ruling it wants does not eliminate the
injury to the national Treasury if payment is made, or to the taxpayer if it is not. … The
Government of the United States has a valid legal argument that it is injured even if the
Executive disagrees with Section 3 of DOMA, which results in Windsor’s liability for the
tax. Windsor’s ongoing claim for funds that the United States refuses to pay thus
establishes a controversy sufficient for Article jurisdiction. … In the case now before the
Court the attorneys for BLAG present a substantial argument for the constitutionality of
Section 3 of DOMA. BLAG’s sharp adversarial presentation of the issues satisfies the
prudential concerns that otherwise might counsel against hearing an appeal from a
decision with which the principal parties agree. … And the capable defense of the law
by BLAG ensures that these prudential issues do not cloud the merits question, which is
one of immediate importance to the Federal Government and to hundreds of thousands
of persons. These circumstances support the Court’s decision to proceed to the merits.
… … New York recognized same-sex marriages performed elsewhere; and then it later
amended its own marriage laws to permit same-sex marriage. New York, in common
with, as of this writing, 11 other states and the District of Columbia, decided that samesex couples should have the right to marry and so live with pride in themselves and their
union and in a status of equality with all other married persons. … Against this
background of lawful same-sex marriage in some states, the design, purpose, and
effect of DOMA should be considered as the beginning point in deciding whether it is
valid under the Constitution. By history and tradition the definition and regulation of
marriage, … has been treated as being within the authority and realm of the separate
states. Yet it is further established that Congress, in enacting discrete statutes, can
make determinations that bear on marital rights and privileges. … DOMA has a far
greater reach; for it enacts a directive applicable to over 1,000 federal statutes and the
whole realm of federal regulations. And its operation is directed to a class of persons
that the laws of New York, and of 11 other states, have sought to protect. … State laws
defining and regulating marriage, of course, must respect the constitutional rights of
persons … but subject to those guarantees, ‘regulation of domestic relations’ is ‘an area
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that has long been regarded as a virtually exclusive province of the states.’ …
Consistent with this allocation of authority, the Federal Government, through our history,
has deferred to state-law policy decisions with respect to domestic relations. … Against
this background, DOMA rejects the long-established precept that the incidents, benefits,
and obligations of marriage are uniform for all married couples within each state, though
they may vary, subject to constitutional guarantees, from one state to the next. … The
state’s power in defining the marital relation is of central relevance in this case quite
apart from principles of federalism. Here the state’s decision to give this class of
persons the right to marry conferred upon them a dignity and status of immense import.
… DOMA, because of its reach and extent, departs from this history and tradition of
reliance on state law to define marriage. … The Federal Government uses this statedefined class for the opposite purpose – to impose restrictions and disabilities. That
result requires this Court now to address whether the resulting injury and indignity is a
deprivation of an essential part of the liberty protected by the Fifth Amendment. What
the state of New York treats as alike the federal law deems unlike by a law designed to
injure the same class the state seeks to protect. In acting first to recognize and then to
allow same-sex marriages, New York was responding ‘to the initiative of those who
sought a voice in shaping the destiny of their own times.’ … These actions were without
doubt a proper exercise of its sovereign authority within our federal system, all in the
way that the Framers of the Constitution intended. … DOMA seeks to injure the very
class New York seeks to protect. By doing so it violates basic due process and equal
protection principles applicable to the Federal Government. … The Constitution’s
guarantee of equality ‘must at the very least mean that a bare congressional desire to
harm a politically unpopular group cannot’ justify disparate treatment of that group. …
DOMA’s unusual deviation from the usual tradition of recognizing and accepting state
definitions of marriage here operates to deprive same-sex couples of the benefits and
responsibilities that come with the federal recognition of their marriages. … As the title
and dynamics of the bill indicate, its purpose is to discourage enactment of state samesex marriage laws and to restrict the freedom and choice of couples married under
those laws if they are enacted. … The Act’s demonstrated purpose is to ensure that if
any state decides to recognize same-sex marriages, those unions will be treated as
second-class marriages for purposes of federal law. This raises a most serious question
under the Constitution’s Fifth Amendment. … DOMA writes inequality into the entire
United States Code. … By this dynamic DOMA undermines both the public and private
significance of state-sanctioned same-sex marriages; for it tells those couples, and all
the world, that their otherwise valid marriages are unworthy of federal recognition. This
places same-sex couples in an unstable position of being in a second-tier marriage. The
differentiation demeans the couple, whose moral and sexual choices the Constitution
protects … and whose relationship the state has sought to dignify. … Under DOMA,
same-sex married couples have their lives burdened, by reason of government decree,
in visible and public ways. … And though Congress has great authority to design laws
to fit its own conception of sound national policy, it cannot deny the liberty protected by
the Due Process Clause of the Fifth Amendment. … The liberty protected by the Fifth
Amendment’s Due Process Clause contains within it the prohibition against denying to
any person the equal protection of the laws. The federal statute is invalid, for no
legitimate purpose overcomes the purpose and effect to disparage and to injure those
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whom the State, by its marriage laws, sought to protect in personhood and dignity.”
Chief Justice Roberts dissented and wrote a short dissenting opinion. Roberts
writes: “I agree with Justice Scalia that this Court lacks jurisdiction to review the
decisions of the courts below. ... I also agree with Justice Scalia that Congress acted
constitutionally in passing the Defense of Marriage Act (DOMA). Interests in uniformity
and stability amply justified Congress’ decision to retain the definition of marriage that,
at that point, had been adopted by every State in our nation, and every nation in the
world. The majority sees a more sinister move, pointing out that the Federal
Government has generally (though not uniformly) deferred to state definitions of
marriage in the past. That is true, of course, but none of those prior state-by-state
variations had involved differences over something – as the majority puts it – ‘thought of
by most people as essential to the very definition of (marriage) and to its role and
function throughout the history of civilization.’ … At least without more convincing
evidence that the Act’s principal purpose was to codify malice, and that it furthered no
legitimate government interests, I would not tar the political branches with the brush of
bigotry. … The dominant theme of the majority opinion is that the Federal Government’s
intrusion into an area ‘central to state domestic relations law applicable to its residents
and citizens’ is sufficiently ‘unusual’ to set off alarm bells. I think the majority goes off
course, as I have said, but it is undeniable that its judgment is based on federalism.”
Justice Scalia dissented and authored a lengthy dissenting opinion which Justice
Thomas joined and part of which Chief Justice Roberts joined. Scalia writes: “This
case is about power in several respects. It is about the power of our people to govern
themselves, and the power of this Court to pronounce the law. Today’s opinion
aggrandizes the latter, with the predictable consequence of diminishing the former. We
have no power to decide this case. And even if we did, we have no power under the
Constitution to invalidate this democratically adopted legislation. The Court’s errors on
both points spring forth from the same diseased root: an exalted conception of the role
of this institution in America. The Court is eager – hungry – to tell everyone its view of
the legal question at the heart of this case. Standing in the way is an obstacle, a
technicality of little interest to anyone but the people of We the People, who created it
as a barrier against judges’ intrusion into their lives. They gave judges, in Article III, only
the ‘judicial power,’ a power to decide not abstract questions but real, concrete ‘Cases’
and ‘Controversies.’ Yet the plaintiff and the Government agree entirely on what should
happen in this lawsuit. They agree that the court below got it right; and they agreed in
the court below that the court below that one got it right as well. What, then, are we
doing here? … The Court says that we have the power to decide this case because if
we did not, then ‘our primary role in determining the constitutionality of a law’ (at least
one that ‘has inflicted real injury on a plaintiff’) would ‘become only secondary to the
President’s.’ But wait, the reader wonders – Windsor won below, and so cured her
injury, and the President was glad to see it. True, says the majority, but judicial review
must march on regardless, lest we ‘undermine the clear dictate of the separation-ofpowers principle that when an Act of Congress is alleged to conflict with the
Constitution, it is emphatically the province and duty of the judicial department to say
what the law is.’ That is jaw-dropping, it is an assertion of judicial supremacy over the
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people’s Representatives in Congress and the Executive. It envisions a Supreme Court
standing (or rather enthroned) at the apex of government, empowered to decide all
constitutional questions, always and everywhere ‘primary’ in its role. This image of the
Court would have been unrecognizable to those who wrote and ratified our national
charter. … … we are quite forbidden to say what the law is whenever (as today’s
opinion asserts) ‘an Act of Congress is alleged to conflict with the Constitution.’ We can
do so only when that allegation will determine the outcome of a lawsuit, and is
contradicted by the other party. The ‘judicial power’ is not, as the majority believes, the
power ‘to say what the law is,’ giving the Supreme Court the ‘primary role in determining
the constitutionality of laws.’ The majority must have in mind one of the foreign
constitutions that pronounces such primacy for its constitutional court and allows that
primacy to be exercised in contexts other than a lawsuit. … We have never before
agreed to speak – to ‘say what the law is’ – where there is no controversy before us. In
the more than two centuries that this Court has existed as an institution, we have never
suggested that we have the power to decide a question when every party agrees with
both its nominal opponent and the court below on that question’s answer. … We should
vacate the decision below and remand to the Court of Appeals for the Second Circuit,
with instructions to dismiss the appeal. Given that the majority has volunteered its view
of the merits, however, I proceed to discuss that as well. There are many remarkable
things about the majority’s merits holdings. The first is how rootless and shifting its
justifications are. For example, the opinion starts with seven full pages about the
traditional power of States to define domestic relations – initially fooling many readers, I
am sure, into thinking that this is a federalism opinion. But we are eventually told that ‘it
is unnecessary to decide whether this federal intrusion on state power is a violation of
the Constitution’… Equally perplexing are the opinion’s references to ‘the Constitution’s
guarantee of equality.’ … Some might conclude that this loaf could have used a while
longer in the oven. But that would be wrong; it is it is already overcooked. The most
expert care in preparation cannot redeem a bad recipe. The sum of all the Court’s
nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds,
maybe on substantive-due-process grounds, and perhaps with some amorphous
federalism component playing a role) because it is motivated by a ‘bare … desire to
harm’ couples in same-sex marriages. It is this proposition with which I will therefore
engage. … It is enough to say that the Constitution neither requires nor forbids our
society to approve of same-sex marriage, much as it neither requires nor forbids us to
approve of no-fault divorce, polygamy, or the consumption of alcohol. However, even
setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex
sex), there are many perfectly valid – indeed, downright boring – justifying rationales for
this legislation. Their existence ought to be the end of this case. For they give the lie to
the Court’s conclusion that only those with hateful hearts could have voted ‘aye’ on this
Act. … But to defend traditional marriage is not to condemn, demean, or humiliate those
who would prefer other arrangements… To hurl such accusations so casually demeans
this institution.”
Justice Alito also dissented and authored a dissenting opinion parts of which
Justice Thomas joined. Alito writes: “Our nation is engaged in a heated debate about
same-sex marriage. That debate is, at bottom, about the nature of the institution of
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marriage. Respondent Edith Windsor, supported by the United States, asks this Court to
intervene in that debate, and although she couches her argument in different terms,
what she seeks is a holding that enshrines in the Constitution a particular understanding
of marriage under which the sex of the partners makes no difference. The Constitution,
however, does not dictate that choice. It leaves the choice to the people, acting through
their elected representatives at both the federal and state levels. I would therefore hold
that Congress did not violate Windsor’s constitutional rights by enacting Section 3 of the
Defense of Marriage Act (DOMA) … I turn first to the question of standing. In my view,
the United States clearly is not a proper petitioner in this case. The United States does
not ask us to overturn the judgment of the court below or to alter that judgment in any
way. Quite to the contrary, the United States argues emphatically in favor of the
correctness of that judgment. We have never before reviewed a decision at the sole
behest of a party that took such a position, and to do so would be to render an advisory
opinion, in violation of Article III’s dictates. For the reasons given in Justice Scalia’s
dissent, I do not find the Court’s arguments to the contrary to be persuasive. Whether
the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) has
standing to petition is a much more difficult question. In my view, both the Hollingsworth
intervenors and BLAG have standing. A party invoking the Court’s authority has a
sufficient stake to permit it to appeal when it has ‘suffered an injury in fact’ that is
caused by ‘the conduct complained of’ and that ‘will be addressed by a favorable
decision.’ … In the present case, the House of Representatives, which has authorized
BLAG to represent its interest in this matter, suffered just such an injury. … Accordingly,
in the narrow category of cases in which a court strikes down an Act of Congress and
the Executive declines to defend the Act, Congress both has standing to defend the
undefended statute and is a proper party to do so. … Same-sex marriage presents a
highly emotional and important question of public policy – but not a difficult question of
constitutional law. The Constitution does not guarantee the right to enter into a samesex marriage. Indeed, no provision of the Constitution speaks to the issue. … The Court
has sometimes found the Due Process Clauses to have a substantive component that
guarantees liberties beyond the absence of physical restraint. And the Court’s holding
that ‘DOMA is unconstitutional as a deprivation of the liberty of the person protected by
the Fifth Amendment of the Constitution’ suggests that substantive due process may
partially underlie the Court’s decision today. But it is well established that any
‘substantive’ component to the Due Process Clause protects only ‘those fundamental
rights and liberties which are, objectively, deeply rooted in this Nation’s history and
tradition’ … as well as ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty
nor justice would exist if they were sacrificed.’ … It is beyond dispute that the right to
same-sex marriage is not deeply rooted in this nation’s history and tradition. In this
country, no state permitted same-sex marriage until the Massachusetts Supreme
Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the
State Constitution. … Nor is the right to same-sex marriage deeply rooted in the
traditions of other nations. No country allowed same-sex couples to marry until the
Netherlands did so in 2000. What Windsor and the United States seek, therefore, is not
the protection of a deeply rooted right but the recognition of a very new right, and they
seek this innovation not from a legislative body elected by the people, but from
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unelected judges. Faced with such a request, judges have cause for both caution and
humility. … Perhaps because they cannot show that same-sex marriage is a
fundamental right under our Constitution, Windsor and the United States couch their
arguments in equal protection terms. They argue that Section 3 of DOMA discriminates
on the basis of sexual orientation, that classifications based on sexual orientation
should trigger a form of ‘heightened’ scrutiny, and that Section 3 cannot survive such
scrutiny. … In my view, the approach that Windsor and the United States advocate is
misguided. Our equal protection framework, upon which Windsor and the United States
rely, is a judicial construct that that provides a useful mechanism for analyzing a certain
universe of equal protection cases. But that framework is ill suited for use in evaluating
the constitutionality of laws based on the traditional understanding of marriage, which
fundamentally turn on what marriage is. … By asking the Court to strike down DOMA as
not satisfying some form of heightened scrutiny, Windsor and the United States are
really seeking to have the Court resolve a debate between two competing views of
marriage. … The Constitution does not codify either of these views of marriage
(although I suspect it would have been hard at the time of the adoption of the
Constitution or the Fifth Amendment to find Americans who did not take the traditional
view for granted). The silence of the Constitution on this question should be enough to
end the matter as far as the judiciary is concerned. … Because our constitutional order
assigns the resolution of questions of this nature to the people, I would not presume to
enshrine either vision of marriage in our constitutional jurisprudence. … To the extent
that the Court takes the position that the question of same-sex marriage should be
resolved primarily at the state level, I wholeheartedly agree. I hope that the Court will
ultimately permit the people of each state to decide this question for themselves. Unless
the Court is willing to allow this to occur, the whiffs of federalism in today’s opinion of
the Court will soon be scattered to the wind. In any event, Section 3 of DOMA, in my
view, does not encroach on the prerogatives of the states …”
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5 Amendment
Property Rights Cases
th
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HAWAII HOUSING AUTHORITY, et al. v. FRANK E.
MIDKIFF, et al.
PORTLOCK COMMUNITY ASSOCIATION (MAUNALUA
BEACH), et al.
v.
FRANK E. MIDKIFF, et al.
KAHALA COMMUNITY ASSOCIATION, INC., et al. v. FRANK E. MIDKIFF, et
al.
467 U.S. 229, 104 S.Ct. 2321
Argued March 26, 1984
Decided May 30, 1984
Polynesian immigrants from the western Pacific originally settled the Hawaiian Islands.
These settlers developed an economy around a feudal land tenure system in which one
island high chief, the ali’i nui, controlled the land and assigned it for development to
certain subchiefs. The subchiefs would then reassign the land to other lower ranking
chiefs, who would administer the land and govern the farmers and other tenants
working it. All land was held at the will of the ali’i nui and eventually had to be returned
to his trust. There was no private ownership of land.
Beginning in the early 1800's, Hawaiian leaders and American settlers repeatedly
attempted to divide the lands of the kingdom among the crown, the chiefs, and the
common people. These efforts proved largely unsuccessful, however, and the land
remained in the hands of a few. In the mid 1960's, after extensive hearings, the Hawaii
Legislature discovered that, while the state and federal governments owned almost 49
percent of the state’s land, another 47 percent was in the hands of only 72 private
landowners. Eighteen landholders, with tracts of 21,000 acres or more, owned more
than 40 percent of this land, and on Oahu, the most urbanized of the islands, 22
landowners owned 72.5 percent of the fee simple (an estate in which the owner is
entitled to the entire property, with unconditional power of disposition). The legislature
concluded that concentrated land ownership was responsible for skewing the state’s fee
simple residential market, inflating land prices, and injuring the public tranquility and
welfare.
The legislature decided it was necessary for large estates to be broken up. It
considered requiring large landowners to sell land that they were leasing to
homeowners, but the landowners strongly resisted this idea, pointing out the significant
federal tax liabilities they would incur. The landowners claimed that, in fact, the federal
tax laws were the primary reason they previously had chosen to lease, and not sell,
their lands.
The Hawaii Legislature then enacted the Land Reform Act of 1967, which created a
means for condemning residential tracts and for transferring ownership of the
condemned fees simple to existing lessees. By condemning the land in question, the
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Hawaii Legislature intended to make the land sales involuntary, thereby making the
federal tax consequences less severe.
The Act specified that tenants living on single-family residential lots within
developmental tracts at least five acres could ask the Hawaii Housing Authority to
condemn the property. When 25 eligible (one who owns a house on a lot, has an intent
to live on the lot or be a resident of the state, shows proof of ability to pay for an interest
in it, and does not own residential land elsewhere nearby) tenants, or tenants on half
the lots in the tract, whichever was less, filed appropriate applications, the Act
authorized HHA to hold a public hearing to determine whether acquisition by the state of
all or part of the tract would “effectuate the public purposes” of the Act. If HHA found
that these public purposes would be served, it was authorized to designate some or all
of the lots in the tract for acquisition. It then acquires the lots, at prices set either by
condemnation trial or by negotiation.
After compensation was set, HHA could sell the land titles to tenants who had applied
for fee simple ownership. HHA was authorized to lend these tenants up to 90 percent of
the purchase price, and it could condition final transfer on a right of first refusal for the
first ten years following the sale. If HHA did not sell the lot to the tenant residing there it
could lease the lot or sell it to someone else, provided that public notice had been given.
However, HHA could not sell to any one purchaser, or lease to any one tenant more
than one lot, and it could not operate for profit.
In April 1977, HHA held a public hearing concerning the proposed acquisition of some
of Frank E. Midkiff’s lands. HHA determined that the acquisition of this land would
achieve the public purposes of the Act. In October 1978, HHA directed Mr. Midkiff to
negotiate with lessees concerning the sale of the properties. The negotiations failed,
and HHA ordered the parties to submit to compulsory arbitration. Rather than comply
with the arbitration order, Midkiff filed suit in February 1979 in the U.S. District Court,
asking that the Act be declared unconstitutional and that its enforcement be enjoined.
The District Court declared the compulsory arbitration and compensation formula
provisions of the Act unconstitutional but refused preliminarily to enjoin the parties from
conducting the statutory designation and condemnation proceedings. Finally, in
December 1979, the court granted partial summary judgment to Midkiff, holding the
remaining portion of the Act constitutional under the Public Use Clause of the Fifth
Amendment. The District Court found that the Act’s goals were within the bounds of the
state’s police powers and that the means the legislature had chosen to serve those
goals were not arbitrary, capricious, or selected in bad faith.
The Court of Appeals for the Ninth Circuit determined that the Act could not pass the
required judicial scrutiny of the Public Use Clause. It found that the transfers
contemplated by the Act were unlike those of takings previously held to constitute
“public uses” by the U.S. Supreme Court. The court concluded that the Act was simply
“a naked attempt on the part of the state of Hawaii to take the private property of A and
transfer it to B solely for B’s private use and benefit.”
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The case was then appealed to the U.S. Supreme Court, and certiorari was granted.

ISSUE: Does the Fifth Amendment Public Use Clause, made applicable to the
states through the Fourteenth Amendment, prohibit the State of Hawaii from
taking, with just compensation, title to real property from lessors and transferring
it to lessees in order to reduce the concentration of ownership of fees simple in
the state?
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HAWAII HOUSING AUTHORITY v. FRANK E MIDKIFF (1984)
Decision
Justice O’Connor wrote the decision for these cases, in which Justice Marshall did not
take part. The Court agreed eight-to-zero with the dissenting judge in the Court of
Appeals, finding for the petitioner, Hawaii Housing Authority. Justice O’Connor used as
a precedent Berman v. Parker (1954), stating that the Court found constitutional the
District of Columbia Redevelopment Act of 1945 in that case. That Act provided for the
use of eminent domain to redevelop slum areas and also for the possible sale or lease
of condemned lands to private interests. Justice O’Connor quoted from that decision:
...”Once the object is within the authority of Congress, the right to realize it
through the exercise of eminent domain is clear. For the power of eminent
domain is merely the means to the end.... Once the object is within the
authority of Congress, the means by which it will be attained is also for
Congress to determine. Here one of the means chosen is the use of
private enterprise for redevelopment of the area. Appellants argue that
this makes the project a taking from one businessman for the benefit of
another businessman. But the means of executing the project are for
Congress and Congress alone to determine, once the public purpose has
been established.”
Justice O’Connor then turned to other precedent cases:
To be sure, the Court’s cases have repeatedly stated that “one person’s
property may not be taken for the benefit of another private person without
a justifying public purpose, even though compensation be paid.”
(Thompson v. Consolidated Gas Corp., 1937).... But where the exercise
of the eminent domain power is rationally related to a conceivable public
purpose, the Court has never held a compensated taking to be proscribed
by the Public Use Clause (Berman v. Parker, 1923).
On this basis, we have no trouble concluding that the Hawaii Act is
constitutional.
The purpose and necessity of the statute were then examined:
The people of Hawaii have attempted, much as the settlers of the original
13 Colonies did, to reduce the perceived social and economic evils of a
land oligopoly traceable to their monarchs. The land oligopoly has,
according to the Hawaii Legislature, created artificial deterrents to the
normal functioning of the State’s residential land market and forced
thousands of individual homeowners to lease, rather than buy, the land
underneath their homes. Regulating oligopoly and the evils associated
with it is a classic exercise of a State’s police powers.... We cannot
disapprove of Hawaii’s exercise of this power.
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Nor can we condemn as irrational the Act’s approach to correcting the
land oligopoly problem. The Act presumes that when a sufficiently large
number of persons declare that they are willing but unable to buy lots at
fair prices the land market is malfunctioning. When such a malfunction is
signaled, the Act authorizes HHA to condemn lots in the relevant tract.
The Act limits the number of lots any one tenant can purchase and
authorizes HHA to use public funds to ensure that the market dilution
goals will be achieved. This is a comprehensive and rational approach to
identifying and correcting market failure.
... When the legislature’s purpose is legitimate and its means are not
irrational, our cases make clear that empirical debates over the wisdom of
takings--no less than debates over the wisdom of other kinds of
socioeconomic legislation--are not to be carried out in the federal courts.
Redistribution of fees simple to correct deficiencies in the market
determined by the state legislature to be attributable to land oligopoly is a
rational exercise of the eminent domain power. Therefore, the Hawaii
statute must pass the scrutiny of the Public Use Clause.
The Court’s decision continued by stating that just because the condemned property
would be used for private, rather than public, purposes makes no difference under the
Public Use Clause because the statute was for the public good. Also considered was
the fact that a state legislature, rather than Congress, passed the law. The Court
indicated that state legislatures are just as capable as the federal legislature in making
determinations within their sphere of authority. Justice O’Connor stated, “...if a
legislature, state or federal, determines there are substantial reasons for an exercise of
the taking power, courts must defer to its determination that the taking will serve a
public use.”
The decision concluded with:
The State of Hawaii has never denied that the Constitution forbids even a
compensated taking of property when executed for no reason other than
to confer a private benefit on a particular private party. A purely private
taking could not withstand the scrutiny of the public use requirement; it
would serve no legitimate purpose of government and would thus be void.
But no purely private taking is involved in these cases. The Hawaii
Legislature enacted its Land Reform Act not to benefit a particular class of
identifiable individuals but to attack certain perceived evils of concentrated
property ownership in Hawaii--a legitimate public purpose. Use of the
condemnation power to achieve this purpose is not irrational. Since we
assume for purposes of these appeals that the weighty demand of just
compensation has been met, the requirements of the Fifth and Fourteenth
Amendments have been satisfied. Accordingly, we reverse the judgment
of the Court of Appeals, and remand these cases for further proceedings
in conformity with this opinion.
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DAVID H. LUCAS v. SOUTH CAROLINA COASTAL
COUNCIL
112 S.Ct. 2886, 120 L.Ed.2d 798
Argued March 2, 1992
Decided June 29, 1992
In 1986 Lucas bought two residential lots on the Isle of Palms in Charleston County,
South Carolina, paying $975,000 for the land. The Isle of Palms is a barrier island
situated eastward of the City of Charleston. The properties were sold frequently at
rapidly escalating prices before Lucas purchased them. One of the lots sold in 1979 for
$96,660, sold in 1984 for $187,500, then in 1985 for $260,000, and finally, to Lucas in
1986 for $475,000. Lucas estimated its worth in 1991 at $650,000. The other lot Lucas
purchased had a similar past.
Lucas intended to build single-family homes such as those on the immediately adjacent
parcels and commissioned architectural drawings for this purpose. At that time these
lots did not fall under the state's coastal zone building permit requirement. In 1988,
however, the state legislature enacted the Beachfront Management Act, which barred
Lucas from erecting any permanent habitable structures on his land. The purpose of
the legislation was to preserve South Carolina bleaches. The Act allowed the
construction of certain nonhabitable improvements, such as "wooden walkways no
larger in width than six feet" and "small wooden decks no larger than 144 square feet."
Lucas filed suit against the state agency contending that, even though the Act may have
been a lawful exercise of the state's police power, the ban on construction deprived him
of economic use of his property and, therefore, effected a "takings" under the Fifth and
Fourteenth Amendments that required the payment of just compensation. In a bench
trial, the state court agreed with Lucas, finding that the ban rendered Lucas's land
valueless and awarded him $1.2 million.
The state Supreme Court reversed the trial court's decision, stating that new
construction in the coastal zone -- such as Lucas intended -- threatened this public
resource. The Court ruled that when a regulation is designed to prevent serious public
harm, no compensation is owed under the Takings Clause regardless of the regulation's
effect on the property's value.

ISSUE:
Does the South Carolina Beachfront Management Act of 1988
accomplish a takings of private property under the Fifth and Fourteenth
Amendments, which requires the payment of compensation?
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LUCAS v. SOUTH CAROLINA COASTAL COUNCIL (1992)
Decision
Justice Scalia delivered the six-to-two opinion of the Court. He stated:
Prior to Justice Holmes' exposition in Pennsylvania Coal Co. v. Mahon (1922), it
was generally thought that the Takings Clause reached only a "direct
appropriation" of property.... Justice Holmes recognized in Mahon, however, that
if the protection against physical appropriations of private property was to be
meaningfully enforced, the government's power to redefine the range of interests
included in the ownership of property was necessarily constrained by
constitutional limits. If, instead, the uses of private property were subject to
unbridled, uncompensated qualifications under the police power, "the natural
tendency of human nature (would be) to extend the qualification more and more
until at last private property disappear(ed)." These considerations gave birth in
that case to the oft-cited maxim that, "while property may be regulated to a
certain extent, if regulation goes too far it will be recognized as a taking."
In 70 odd years ... we have ... described at least two discrete categories of
regulatory action as compensable without case-specific inquiry into the public
interest advanced in support of the restraint. The first encompasses regulations
that compel the property owner to suffer a physical "invasion" of his property. In
general (at least with regard to permanent invasions), no matter how minute the
intrusion, and no matter how weighty the public purpose behind it, we have
required compensation.... The second situation in which we have found
categorical treatment appropriate is where regulation denies all economically
beneficial or productive use of land.... As we have said on numerous occasions,
the Fifth Amendment is violated when land-use regulation "does not substantially
advance legitimate state interests or denies an owner economically viable use of
his land.”...When it is understood that "prevention of harmful use" was merely our
early formulation of the police power justification necessary to sustain (without
compensation) any regulatory diminution in value; and that the distinction
between regulation that "prevents harmful use" and that which "confers benefits"
is difficult, if not impossible, to discern on an objective, value-free basis; it
becomes self-evident that noxious-use logic cannot serve as a touchstone to
distinguish regulatory "takings" -- which require compensation -- from regulatory
deprivations that do not require compensation....
Where the State seeks to sustain regulation that deprives land of all economically
beneficial use, we think it may resist compensation only if the logically
antecedent inquiry into the nature of the owner's estate shows that the proscribed
use interests were not part of his title to begin with. This accords, we think, with
our "takings" jurisprudence, which has traditionally been guided by the
understandings of our citizens regarding the content of, and the State's power
over, the "bundle of rights" that they acquire when they obtain title to property. It
seems to us that the property owner necessarily expects the uses of his property
to be restricted, from time to time, by various measures newly enacted by the
State in legitimate exercise of its police powers.... In the case of land, however,
we think the notion pressed by the Council that title is somehow held subject to
the "implied limitation" that the State may
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subsequently eliminate all economically valuable use is inconsistent with the
historical compact recorded in the Takings Clause that has become part of our
constitutional culture....
In a footnote, Justice Scalia replied to a charge by Justice Blackmun in his dissenting
opinion:
After accusing us of "launch(ing) a missile to kill a mouse," Justice Blackmun
expends a good deal of throw-weight of his own upon a noncombatant, arguing
that our description of the "understanding" of land ownership that informs the
Takings Clause is not supported by early American experience. That is largely
true, but entirely irrelevant. The practices of the States prior to incorporation of
the Takings and Just Compensation Clause ... were out of accord with any
plausible interpretation of those provisions. Justice Blackmun is correct that
early constitutional theorists did not believe the Takings Clause embraced
regulations of property at all, but even he does not suggest (explicitly, at least)
that we renounce the Court's contrary conclusion in Mahon. Since the text of the
Clause can be read to encompass regulatory as well as physical deprivations ...
we decline to do so as well.
Justice Kennedy concurred, and stated:
As I read the Court's opinion, it does not decide the permanent taking claim, but
neither does it foreclose the Supreme Court of South Carolina from considering
the claim or requiring petitioner to pursue an administrative alternative not
previously available....
Among the matters to be considered on remand must be whether petitioner had
the intent and capacity to develop the property and failed to do so in the interim
period because the State prevented him....
The findings appears to presume that the property has no significant market
value or resale potential. This is a curious finding, and I share the reservations of
some of my colleagues about a finding that a beach front lot loses all value
because of a development restriction.... The finding of no value must be
considered under the Takings Clause by reference to the owner's reasonable,
investment-backed expectations....
Here, the state did not act until after the property had been zoned for individual
lot development and most other parcels had been improved, throwing the whole
burden of the regulation on the remaining lots. This too must be measured in the
balance. With these observations, I concur in the judgment of the Court.
The Court thus reversed the decision by the South Carolina Supreme Court and
remanded the case for retrial in state court.
Justice Blackmun began his dissent with the words that Justice Scalia mentioned in his
majority opinion:
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Today the Court launches a missile to kill a mouse.
The State of South Carolina prohibited petitioner Lucas from building a
permanent structure on his property from 1988 to 1990. Relying on an
unreviewed ... state trial court finding that this restriction left Lucas' property
valueless, this Court granted review to determine whether compensation must be
paid in cases where the State prohibits all economic use of real estate.
According to the Court, such an occasion never has arisen in any of our prior
cases, and the Court imagines that it will arise "relatively rarely" or only in
"extraordinary circumstances." Almost certainly it did not happen in this case.
Nonetheless, the Court presses on to decide the issue, and as it does, it ignores
its jurisdictional limits, remakes its traditional rules of review, and creates
simultaneously a new categorical rule.... I protest not only the Court's decision,
but each step taken to reach it. More fundamentally, I question the Court's
wisdom in issuing sweeping new rules to decide such a narrow case....
Petitioner Lucas is a contractor, manager, and part owner of the Wild Dune
development on the Isle of Palms. He has lived there since 1978. In December
1986, he purchased two of the last four pieces of vacant property in the
development. The area is notoriously unstable.... Between 1981 and 1983, the
Isle of Palms issued 12 emergency orders for sandbagging to protect property in
the Wild Dune development. Determining that local habitable structures were in
imminent danger of collapse, the Council issued permits for two rock revetments
to protect condominium developments near petitioner's property from erosion;
one of the revetments extends more than halfway onto one of his lots....
Even more baffling ... the Court decides petitioner has demonstrated injury in
fact. In his complaint, petitioner made no allegations that he had any definite
plans for using his property. At trial, Lucas testified that he ... was "in no hurry" to
build "because the lot was appreciating in value." The trial court made no
findings of fact that Lucas had any plans to use the property from 1988 to 1990....
The Court makes sweeping and, in my view, misguided and unsupported
changes in our taking doctrine. While it limits these changes to the most narrow
subset of government regulation -- those that eliminate all economic value from
land -- these changes go far beyond what is necessary to secure petitioner
Lucas' private benefit. One hopes they do not go beyond the narrow confines the
Court assigns them to today.
In his dissenting opinion, Justice Stevens argued that, even if the property of Lucas was
"rendered valueless" by the South Carolina law, there are risks inherent in investments
of this sort. In addition, "the compelling purposes motivating the South Carolina
Legislature did not result in a taking of the property."
Justice Souter, in a statement, concluded there were unresolved issues in the case,
such as total deprivation of the value of the property, and this made it difficult to decide
the issues or the merits at that time.
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SUSETTE KELO, ET AL., v. CITY OF NEW LONDON,
CONNECTICUT, ET AL.
No. 04-108
Argued February 22, 2005
Decided June 23, 2005
New London was once a center for the whaling industry and later became a
manufacturing hub. The city then began suffering economic woes, with losses of
residents and jobs. In 1998, the city’s unemployment rate was nearly double that of the
state, and its population was at its lowest since 1920.
These conditions prompted state and local officials to reactivate the New London
Development Corporation, a private nonprofit entity established a few years earlier to
assist the city in planning economic development. In January 1998, the state
authorized a $5.35 million bond issue to support these plans and a $10 million bond
issue toward the creation of a state park. A redevelopment plan was drawn up that
would transform Fort Trumbull, a 90-acre working-class neighborhood overlooking the
Thames River in New London.
In 2000, pharmaceutical giant Pfizer decided to build a new global research facility in
Fort Trumbull. The redevelopment plan was then tailored to accommodate the
Pfizer facility. Plans called for the eventual development of a pedestrian river walk,
waterfront hotel, conference center, office spaces and expensive condos, along with
retail space and new homes. Space was reserved for a new U. S. Coast Guard
Museum and a marina. The plan was designed to make the city more attractive and
to create leisure and recreational opportunities on the waterfront and in the park.
The project would undoubtedly generate higher tax revenues for the city, and it was
projected to create more than 1,000 new jobs.
Historically, eminent domain (a “Takings”) has been used to force the sale of private
properties to make way for bridges or highways. But in 1954, the U. S. Supreme
Court (in Berman v. Parker) expanded the definition of “public use,” giving local
governments the right to condemn blighted areas in order to improve them. Since
1980, some state courts have held that job creation and higher tax revenues alone,
rather than the elimination of blight, justify the use of eminent domain for the transfer
of property from one private party to another.
The Fort Trumbull neighborhood was never described as blighted. Wilhelmina Dery,
one of the petitioners, was born in the house she shared with her husband for more
than fifty years. Her grandmother bought the house in 1901, and the family had been in
Fort Trumbull ever since. Ms. Dery’s son, also a petitioner, received the house next
door as a wedding gift.
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Susettte Kelo had lived in the Fort Trumbull area since 1997. She had made extensive
improvements to her house, which she prized for its water view.
Seven property owners, including Kelo and the Derys, took the city of New London to
court to fight the redevelopment plans that would have included tearing down their
homes. They did not seek increased compensation and were not opposed to new
development in the area. They simply objected that the taking of their properties would
violate the “public use” restriction in the Fifth Amendment.
The property owners were granted a permanent restraining order, prohibiting the taking
of their property, by the New London Superior Court. The Supreme Court of
Connecticut reversed, ruling that all the city’s proposed takings were valid.

ISSUE: Is private economic development a public use under the Takings Clause
of the Fifth Amendment?
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KELO v. NEW LONDON (2005)
Decision
A divided Supreme Court gave local governments broad power to seize private property
to generate tax revenue. The five-to-four decision means that homeowners have fewer
rights in dealing with the government in eminent domain cases.
Justice Stevens, writing for the majority, said New London could pursue private
development under the Fifth Amendment, which allows governments to take private
property if the land is for public use. Justice Stevens wrote:
Those who govern the City were not confronted with the need to remove
blight in the Fort Trumbull area, but their determination that the area was
sufficiently distressed to justify a program of economic rejuvenation is
entitled to our deference. The City has carefully formulated an economic
development plan that it believes will provide appreciable benefits to the
community, including—but by no means limited to—new jobs and
increased tax revenue….
“Promoting economic development is a traditional and long accepted function of
government,” Justice Stevens wrote, adding:
In affirming the City’s authority to take petitioners’ properties, we do not
minimize the hardship that condemnations may entail, notwithstanding the
payment of just compensation. We emphasize that nothing in our opinion
precludes any State from placing further restrictions on its exercise of the
takings power.
Indeed many States already impose “public use”
requirements that are stricter than the federal baseline…. This Court’s
authority, however, extends only to determining whether the City’s
proposed condemnations are for a “public use” within the meaning of the
Fifth Amendment to the Federal Constitution.
Justices Kennedy, Souter, Ginsburg and Breyer joined Justice Stevens. Justice
Kennedy, while joining the Court, also wrote a concurring opinion, in which he
explained:
…[W]hile there may be categories of cases in which the transfers are so
suspicious, or the procedures employed so prone to abuse, or the
purported benefits are so trivial or implausible, that courts should presume
an impermissible private purpose, no such circumstances are present in
this case.
In a scathing dissent, Justice O’Connor said the decision bowed to the rich and powerful
at the expense of middle-class Americans. She criticized the majority for abandoning
the principle of individual property rights and handing “disproportionate influence and
power” to the wealthy. O’Connor wrote:
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…Under the banner of economic development, all private property is now
vulnerable to being taken and transferred to another private owner…. To
reason, as the Court does, that the incidental public benefits resulting from
the subsequent ordinary use of private property render economic
development takings “for public use” is to wash out any distinction
between private and public use of property—and thereby effectively to
delete the words “for public use” from the Takings Clause of the Fifth
Amendment….
Justice O’Connor continued by stating that, “The specter of condemnation hangs over
all property. Nothing is to prevent the State from replacing any Motel 6 with a RitzCarlton, any home with a shopping mall, or any farm with a factory.”
Justices Scalia and Thomas joined O’Connor’s dissent.
Justice Thomas also wrote a separate dissent, in which he stated, “Something has gone
seriously awry with this Court’s interpretation of the Constitution. Though citizens are
safe from the government in their homes, the homes themselves are not.”
NOTE: On November 9, 2009, Pfizer announced that it will close the Research
and Development facility that it built on this site.
(http://www.theday.com/article/20091109/BIZ02/911099986/1017)
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