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Expected reversal of Miranda requires states to step up on policing

While all eyes are focused on the recently leaked draft of the Supreme Court opinion on Dobbs v. Jackson Women’s Health Organization, which would end constitutional protections for abortion rights, a lesser-known case looks likely to erode another constitutional precedent—Miranda rights.

This case, Vega v. Tekoh, asks whether a person’s federal constitutional rights are violated if a police officer fails to inform them of their rights to remain silent, to be represented by an attorney, and to be protected against self-incrimination whenever the person is subjected to a custodial interrogation by the police. These warnings, known as Miranda warnings after the 1966 Supreme Court case that first prescribed them, have become critical protections against coercive police interrogations and are routinely recited by officers whenever they make arrests or question suspects in custody.

The Supreme Court now seems poised to reverse its decision in Mirandawhich, much like Dobbs, would give states—and, to a significant extent, individual towns—the power to decide an important question of policy: whether police should be legally required to give these warnings.

Although some state high courts have issued rulings that mirror the Supreme Court’s original decision in Miranda, the future of constitutional policing in a world where Miranda is overruled truly lies with state legislatures, who can decide to enact laws that mirror the original Mirandadecisionor vote to overrule any state high court that already does so, freeing themselves to reshape one of policing’s most central restrictions.

Whether one agrees with the overturning of Miranda’s constitutional protections, the ruling shines a light on the power of each state to reimagine and redefine policing. Yet too many states and towns are ill prepared to take on the responsibility of regulating policing, having long preferred to defer the task to the Supreme Court. Local and state policymaking needs to adapt quickly to this new reality by enacting three critical policies.

First, states should reassert and protect local authority over local police. They can do this by enacting new laws and state constitutional amendments that guarantee local freedom from state preemption on matters of policing and public safety, reserving the state’s role primarily to one that considers and establishes statewide standards for policing. Such protections will help inoculate local governments from the kinds of politicized preemptive actions taken by states like Texas and Georgia, who recently moved to deprive local governments from independently administering the finances of their own police departments.

Second, states should tear down the barriers around policing data. The rapid digitization of policing data in recent years permits police departments to economically track and store substantial repositories of information. However, these data remain largely out of public reach despite their significant potential for improving how law enforcement agencies function at both the departmental and officer levels. For example, a national team of researchers recently identified significant differences in use of force rates among police officers of different races in Chicago, having painstakingly compiled a massive dataset from records that were provided only after the researchers submitted multiple freedom of information requests to the city. Collecting, compiling, and publicly disclosing these data directly at the source could permit researchers to both identify new trends and track and revisit old ones to ensure their continued validity, providing policymakers with crucial information on how to shape policing policy.

Finally, states must take seriously their responsibility to establish statewide minimum standards for policing. This is crucial for improving policing across a state rather than leaving the adoption of best practices to the discretion of individual local departments. To do this, states could use an existing regulatory apparatus: Police Officer Standards and Training councils, or POSTs.

Most commonly, POSTs serve as a central, statewide authority for establishing minimum training standards for law enforcement officers in a state. In many places, like Connecticut, Georgia, and Utah, POSTs certify officers who meet the minimum eligibility requirements for employment as an officer and decertify those who do not. However, states can expand their reach to entire departments, regulating areas like recordkeeping and transparency, officer discipline, and use of emerging technologies. A truly empowered POST could, for example, enact standards for use of force by officers, decertify officers for egregious misconduct, and deem departments ineligible for discretionary state funding for failing abide by statewide training standards for officers. They can also revive any federal constitutional minimum standard that is disavowed by the Supreme Court, including those at risk in Vega.

Regardless of whether states are ready, they will soon have the power to manage and reform policing more than ever. Now is the time to enact realistic and achievable policy changes—and to fulfill a responsibility they have too long neglected.

Jorge Xavier Camacho is a Clinical Lecturer in Law and Policing, Law, and Policy Director of the Justice Collaboratory at Yale University. He is the developer of a policing legislative model that serves as a blueprint for states to implement fundamental policy reforms.  

Tags Miranda rights police reform

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