CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, November 23, 2020

Kinports on Pretrial Custody and Miranda

Kit Kinports (Penn State Law (University Park)) has posted Pretrial Custody and Miranda (Washington and Lee Law Review, Forthcoming) on SSRN. Here is the abstract:
 
In two recent opinions, Maryland v. Shatzer and Howes v. Fields, the Supreme Court concluded that inmates serving prison sentences were not in custody for purposes of Miranda, in Shatzer’s case while he was living among the general prison population and in Fields’ case while he was undergoing police interrogation. The question addressed in this Article is one that has divided the lower courts in the wake of those two decisions: the impact of the Court’s rulings on the hundreds of thousands of pretrial detainees in this country, many of whom are poor, Black, and Brown.

The Article maintains that the Court’s language and reasoning in Shatzer and Fields, as well as the relevant policy considerations, call for limiting the reach of those opinions to prisoners serving time. The Article therefore concludes that pretrial detainees should be deemed to be in Miranda custody for the duration of their confinement prior to trial. Any other result would allow gamesmanship on the part of prosecutors in making charging decisions and bail recommendations and would enable law enforcement to trade on the coerciveness of pretrial detention to elicit unwarned confessions from suspects who are especially susceptible to the threats and promises that are a leading cause of false confessions and who disproportionately represent communities of color and financially vulnerable populations.

https://lawprofessors.typepad.com/crimprof_blog/2020/11/kinports-on-pretrial-custody-and-miranda.html

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