I am going to do something new with this blog for a while.
I am accustomed to writing about things which I have considered, and about which I have drawn conclusions. I want to spend done time on issues where I am puzzled to some extent.
Let us begin with the issue of Miranda rights. The Federal Government has decided - for "public safety" reasons, not to read Boston bombing suspect Dzhokhar Tsarnaev his Miranda rights before interrogating him. Dzhokhar is a US citizen arrested for a crime in the United States - a country where spies and saboteurs have long been provided with Constitutional protections.
Dzhokhar has a right to remain silent. However, the government is hoping he is ignorant of that fact and continues to answer questions, even to the point of incriminating himself.
I want to start with the disclaimer that this blog is not concerned with Constitutional law. It is concerned with ethics. The question is not, "What does the Constitution say?" but "What SHOULD the Constitution say on such matters?" We will admit to the possibility that the Constitution is wrong - as it was wrong on the issue of slavery, or that judicial opinions on what the Constitution does are at odds with what the Constitution SHOULD say.
What the Constitution does say, literally, is this . . .
No person shall . . . be compelled to be a witness against himself.
A person can be compelled to come to a court and give testimony on a case, telling the truth, the whole truth, and nothing but the truth, relevant to a criminal matter involving the guilt or innocence of somebody else. But they cannot be compelled to provide evidence that they, themselves, are guilty.
In Dzokhar's case, even though he has not been read his rights, this does not mean that those rights have been violated. It may well be the case that he is providing information without being compelled. His actions could be fully voluntary. The reason for the Miranda ruling was actually aimed at helping us to know that the accused provided information voluntarily. In the absence of such a warning, it may be the case (though by no means is it certainly the case) that the right against compelled evidence has been violated.
Why SHOULD we be concerned about governments compelling accused individuals from giving testimony against themselves. What moral issue is addressed by this requirement?
The most obvious issue involves a case in which those in power arrest a rival or a critic, coerced a confession out of them (through torture or other means), takes that confession to a judge, and sends the rival or critic off to jail. Of course, it may not be the King himself who demands a confession to give the appearance of legitimacy to injustice. It may be a local constable with a grudge or a business owner with connections seeking to eliminate a competitor.
These abuses of state power are to be prevented - and one way to recent them is by prohibiting the State from compelling people to provide evidence against themselves.
However, if this analysis is correct, why is it the case that plea bargaining is not a violation of a prohibition on self-incrimination. "If you confess to this lesser crime, we will drop the more serious charges and reduce your punishment accordingly."
This is functionally equivalent to saying, "If you do not give us information we can use to convict you, we will make your life worse off."
Well - they will attempt to, at any rate. The prosecutor still has to get the higher charges with its greater punishment past a judge and jury - and needs the evidence to do so. Yet, this runs aground on the fact that these types of threats often work - and people often feel compelled to be a witness against themselves. There are people in our prisons who have confessed to lesser crimes of which they are innocent because they were compelled to be a witness against themselves by the threat that efforts would be made to make them worse off.
Sometimes, even the threat of a trial, with all of its discovery and public presentation of private facts, can be coercive even without a guilty verdict.
Consequently, it seems that, with the Miranda ruling, we are prohibiting things that the 5th Amendment - or, more to the point - the moral case behind what the 5th Amendment SHOULD say - permits. While, at the same time, with plea bargaining we are permitting things that the moral case behind the 5th Amendment prohibits.
In the case of Dzhokhar Tsarnaev, the moral question is whether he is being compelled to provide evidence that could lead to injustice - that could lead to misinformation that could lead to his unjust conviction. Is Dzhokhar Tsarnaev being compelled to be a witness against himself - thus being put in a position where it is reasonable to believe that a false admission of guilt would be better for him than a true claim of innocence? That is where the possibility of injustice enters the picture.