Does the Constitution have a 16-hour clause?

April 26th, 2013

In Maryland v. Shatzer, the Supreme Court held that a 14-day gap between when a suspect requests an attorney and when the police resume interrogations, is reasonable:

We think it appropriate to specify a period of time [at which time the clock is reset]. 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.

At the time, Orin Kerr, with some jest, asked: “Have you heard of the “14-Day Clause” of the Constitution? If not, you should take a look at the Supreme Court’s opinion today in Maryland v. Shatzer . . . . It’s particularly notable in that it introduces a very rare (but not unprecedented) numerical rule to implement constitutional protections.“

Why 14 days? Orin opined:

As a matter of policy, I think that’s a pretty good rule. But why precisely 14 days? That is, 336 hours, or exactly 20,160 minutes? There is no 14-day Clause in the Constitution. (I checked.) Why not 15 days? Or 13.491 days? . . . And how did the Justices know that 14 days would be about right? Based on their extensive experience being arrested, perhaps? Presumably not. But no matter. Fourteen days seemed about right, and so the 14-day rule became the law.

If you’re wondering how Justice Scalia could end up writing an opinion that sounds so legislative — picking 14 days out of thin air — you need to know Justice Scalia’s history with Miranda. Justice Scalia intensely dislikes the entire line of Miranda cases.

Imagine if the Supreme Court, for whatever reasons, has occasion to consider if the 16-hour interrogation of Tsarnaev violated the Constitution.

Will the Justices agree with Emily Bazelon and others that 16 hours is too long? Does the Constitution have a 16-hour clause? At what point does the public safety exception to Miranda fade, such that the delay is too long?

Does anyone what is the longest period in which a court sanctioned a delay in reading Miranda warnings under the public safety exception?