Baxter v. Palmigiano

Mr. Justice Brennan,

with whom Mr. Justice Marshall joins, concurring in part and dissenting in part.

I agree that consideration of the procedural safeguards necessary where an inmate is deprived only of privileges is premature on this record, and thus I join Part Y of the Court's opinion, which leaves open whether an inmate may be deprived of privileges in the absence of due process safeguards.

*325 Parts II and IV of the Court’s opinion simply reaffirm Wolff v. McDonnell, 418 U. S. 539 (1974). I continue to believe that Wolff approved procedural safeguards short of the minimum requirements of the Due Process Clause, and I dissent from Parts II and IV for the reasons stated by my Brother Marshall, 418 U. S., at 580 .

Part III of the Court’s opinion, however, confronts an issue not present in Wolff 1 and in my view reaches an erroneous conclusion. The Court acknowledges that inmates have the right to invoke the privilege against compulsory self-incrimination in prison disciplinary proceedings, ante, at 316, but nevertheless holds that “permitting an adverse inference to be drawn from an inmate’s silenee at his disciplinary proceedings is not, on its face, an invalid practice,” ante, at 320, and was proper in the circumstances of this case. This conclusion cannot be reconciled with the numerous cases holding that the government is barred from penalizing an individual for exercising the privilege; precedents require the holding that if government officials ask questions of an indi *326 vidual to elicit incriminating information, as happened here, the imposition of any substantial sanction on that individual for remaining silent violates the Fifth Amendment. That principle prohibits reliance on any inference of guilt from the exercise of the privilege in the context of a prison disciplinary hearing.

I

As we have frequently and consistently recognized:

“The constitutional privilege against self-incrimination has two primary interrelated facets: The Government may not use compulsion to elicit self-incriminating statements, see, e. g., Counselman v. Hitchcock, 142 U. S. 547 ; and the Government may not permit the use in a criminal trial of self-incriminating statements elicited by compulsion. See, e. g., Haynes v. Washington, 373 U. S. 503 .” Murphy v. Waterfront Comm’n, 378 U. S. 52 , 57 n. 6 (1964).

Indeed, only weeks ago we said that “the privilege protects against the use of compelled statements as well as guarantees the right to remain silent absent immunity.” Garner v. United States, 424 U. S. 648, 653 (1976) (emphasis supplied). Malloy v. Hogan, 378 U. S. 1 (1964), held/that the Fifth Amendment — the “essential mainstay” of our “American system of criminal prosecution,” id., at 7 — protects “the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence.” Id., at 8 . See Spevack v. Klein, 385 U. S. 511, 514 (1967). As The Chief Justice noted last Term: “This Court has always broadly construed [the Fifth Amendment] protection to assure that an individual is not compelled to produce evidence which later may be used against him as an accused in a criminal action.” Maness v. Meyers, 419 U. S. 449, 461 *327 (1975). Further, “a witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant. Kastigar v. United States, 406 U. S. 441 (1972).” Lefkowitz v. Turley, 414 U. S. 70, 78 (1973). See Maness v. Meyers, supra, at 473 (White, J., concurring in result).

Thus, the Fifth Amendment not only excludes from use in criminal proceedings any evidence obtained from the defendant in violation of the privilege, but also is operative before criminal proceedings are instituted: it bars the government from using compulsion to obtain incriminating information from any person. Moreover, the protected information “does not merely encompass evidence which may lead to criminal conviction, but includes information which would furnish a link in the chain of evidence that could lead to prosecution .... Hoffman v. United States, 341 U. S. 479, 486 (1951).” Maness v. Meyers, supra, at 461 . And it is not necessary that a person be guilty of criminal misconduct to invoke the privilege; an innocent person, perhaps fearing that revelation of information would tend to connect him with a crime he did not commit, also has its protection. “ ‘The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.’ ” Grunewald v. United States, 353 U. S. 391, 421 (1957), quoting Slochower v. Board of Education, 350 U. S. 551, 557-558 (1956). See E. Griswold, The Fifth Amendment Today 10-22 (1955); Ratner, Consequences of Exercising the Privilege Against Self-Incrimination, 24 IT. Chi. L. Rev. 472 (1957).

Accordingly, the fact that no criminal proceedings were pending against Palmigiano, ante, at 317, does not answer the crucial question posed by this case. The evidentiary *328 use of his statements in a criminal proceeding lurked in the background, but the significant element for this case is that the Fifth Amendment also prohibits the government from compelling an individual to disclose information that might tend to connect him with a crime. Maness v. Meyers, supra, pointed up this distinction in its recognition that availability of motions to suppress compelled testimonial evidence do not remedy the Fifth Amendment violation. 419 U. S., at 460, 463 .

II

It was this aspect of the privilege that we relied on in a line of cases beginning with Garrity v. New Jersey, 385 U. S. 493 (1967), and leading up to Lefkowitz v. Turley, supra. The Court says today that “this case is very different,” ante, at 318, but in my view the Garrity-Lefkowitz cases are compelling authority that drawing an adverse inference from an inmate’s exercise of the privilege to convict him of a disciplinary offense violates the Fifth Amendment.

In Garrity policemen were summoned to testify in the course of an investigation of police corruption. They were told that they could claiffi the privilege, but would be discharged if they did. Garrity held that imposition of the choice between self-incrimination and job forfeiture denied the constitutionally required “free choice to admit, to deny, or to refuse to answer.” Lisenba v. California, 314 U. S. 219, 241 (1947). Subsequent criminal convictions were therefore set aside on the ground that the unconstitutionally compelled testimony should not have been admitted in evidence at trial.

In Spevack v. Klein, supra, decided the same day as Garrity , an attorney refused to honor a subpoena calling for production of certain financial records; the sole basis for the refusal was the privilege against self-incrimination. He was disbarred for exercising the privilege, and *329 the disbarment was challenged in this Court as infringing the Fifth Amendment. Relying on Malloy v. Hogan, supra, at 8 , Spevack held that the privilege protects individuals against any penalty for their silence and that its protection bars “the imposition of any sanction which makes assertion of the Fifth Amendment privilege ‘costly.'’ ” 385 U. S., at 515. 2 See Griffin v. California, 380 U. S. 609, 614 (1965). Spevack expressly stated that “[t]he threat of disbarment and the loss of professional standing, professional reputation, and of livelihood are powerful forms of compulsion,” 385 U. S., at 516, and therefore held that by inferring professional misconduct, and penalizing that misconduct, solely on the basis of an invocation of the privilege, the State had violated the Fifth Amendment.

Gardner v. Broderick, 392 U. S. 273 (1968), involved a policeman called to testify before a grand jury investigating police corruption. He was warned of his constitutional right to refuse to give any incriminating information, but was also asked to waive immunity, and told that if he refused to do so, a state statute required that he be discharged. He refused to waive immunity and was discharged. Gardner invalidated the state statute on the ground that the Fifth Amendment does not permit the government to use its power to discharge employees to coerce disclosure of incriminating evidence. Id., at 279 . Sanitation Men v. Sanitation Comm’r, 392 *330 U. S. 280 (1968), decided the same day, turned on the same ground. 3

Lefkowitz v. Turley, supra, the most recent decision involving noneriminal penalties for exercising the privilege, concerned two architects summoned to testify before a grand jury investigating charges of corruption relating to state contracts. They refused to waive the privilege, and a state statute provided that such a refusal would result in cancellation of existing state contracts and ineligibility for future contracts for five years. The architects brought suit, claiming that the statute violated the privilege against compulsory self-incrimination. The Court held that in the absence of a grant of immunity the government may not compel an individual to give incriminating answers. 414 U. S., at 79 . 4 A “substantial economic sanction” in the form of loss of contracts was held sufficient to constitute compulsion within the meaning of the Fifth Amendment. Id., at 82 . The penalty, again imposed in a noncriminal context, was held to infringe the Fifth Amendment.

It follows that settled jurisprudence until today has been that it is constitutionally impermissible for the government to impose noncriminal penalties as a means of compelling individuals to forgo the privilege. The Court therefore begs the question by “declin [ing] to extend the *331 Griffin rule” to prison disciplinary proceedings, ante, at 319. Affirmance of the Court of Appeals' holding that reliance on an inmate’s silence is barred by the Fifth Amendment is required by Spevack, Gardner, Sanitation Men, and Lefkowitz .

The Court’s attempted distinction of those cases plainly will not wash. To be sure, refusal to waive the privilege resulted in automatic imposition of some sanction in all of those cases. The Court reasons that because disciplinary decisions must be based on substantial record evidence, Morris v. Travisono, 310 F. Supp. 857, 873 (RI 1970), 5 and Palmigiano’s silence “at the hearing in the face of evidence that incriminated him . . . was given no more evidentiary value than was warranted by the facts surrounding his case,” ante, at 318, no automatic imposition of a sanction results, and therefore the use of such silence “does not smack of an invalid attempt by the State to compel testimony without granting immunity or to penalize the exercise of the privilege,” ibid.

But the premise of the Garrity-Lefkowitz line was not that compulsion resulted from the automatic nature of the sanction, but that a sanction was imposed that made costly the exercise of the privilege. Plainly the penalty imposed on Palmigiano — 30 days in punitive segregation and a downgraded classification — made costly the exercise of the privilege no less than loss of govern *332 ment contracts or discharge from a state job. Even accepting the Court's assertion that a disciplinary conviction does not automatically follow from an inmate’s silence, in sanctioning reliance on silence as probative of guilt of the disciplinary offense charged, the Court allows prison officials to make costly the exercise of the privilege, something Garrity-Lefkowitz condemned as prohibited by the Fifth Amendment. For it cannot be denied that the disciplinary penalty was imposed to some extent, if not solely, 6 as a sanction for exercising the constitutional privilege. See Griffin v. Cali fornia, supra; United States v. Jackson, 390 U. S. 570, 581-582 (1968). That plainly violates the Fifth Amendment.

It is inconsequential that the State is free to determine the probative weight to be attached to silence. Garrity-Lefkowitz did not consider probative value, and other precedents deny the State power to attach any probative weight whatever to an individual’s exercise of the privilege, as I develop more fully in Part IY.

*333 The compulsion upon Palmigiano is as obvious as the compulsion upon the individuals in Garrity-Lefkowitz. He was told that criminal charges might be brought against him. He was also told that anything he said in the disciplinary hearing could be used against him in a criminal proceeding. 7 Thus, the possibility of self-incrimination was just as real and the threat of a penalty just as coercive. Moreover, the Fifth Amendment does not distinguish among types of degrees of compulsion. It prohibits “ 'inducement of any sort.’ ” Bram v. United States, 168 U. S. 532, 548 (1897). “We have held inadmissible even a confession secured by so mild a whip as the refusal, under certain circumstances, to allow a suspect to call his wife until he confessed.” Malloy v. Hogan, 378 U. S., at 7 . Palmigiano was forced to choose between self-incrimination and punitive segregation or some similar penalty. Since the Court does not overrule the Garrity-Lefkowitz group of decisions, those precedents compel the conclusion that this constituted impermissible compulsion.

Ill

The Court also draws support from the “prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they re *334 fuse to testify in response to probative evidence offered against them.” Ante, at 318. That rule may prevail, but it did not have the approval of this Court until today. Some commentators have suggested that permitting an adverse inference in some civil cases violates the Fifth Amendment. Comment, Penalizing the Civil Litigant Who Invokes the Privilege Against Self-Incrimination, 24 U. Fla. L. Rev. 541 , 546 (1972); Comment, 1968 U. Ill. L. F. 75; Note, Use of the Privilege Against Self-Incrimination in Civil Litigation, 52 Va. L. Rev. 322 (1966). I would have difficulty holding such an inference impermissible in civil cases involving only private parties. But I would hold that compulsion violating the privilege is present in any proceeding, criminal or civil, where a government official puts questions to an individual with the knowledge that the answers might tend to incriminate him. See Garner v. United States, 424 U. S., at 655-656 ; Sanitation Men v. Sanitation Comm’r, 392 U. S., at 284.

Such a distinction is mandated by one of the fundamental purposes of the Fifth Amendment: to preserve our adversary system of criminal justice by preventing the government from circumventing that system by abusing its powers. Garner v. United States, supra, at 655-656. Only a few weeks ago, we said: “That system is undermined when a government deliberately seeks to avoid the burdens of independent investigation by compelling self-incriminating disclosures.” Ibid.

“One of the most important functions of the privilege is to protect all persons, whether suspected of crime or not, from abuse by the government of its powers of investigation, arrest, trial and punishment. It was not solicitude for persons accused of crime but the desire to maintain the proper balance between government and the persons governed that *335 gave rise to the adoption of these constitutional provisions.” Ratner, Consequences of Exercising the Privilege Against Self-Incrimination, 24 U. Chi. L. Rev. 472 , 484 (1957) (footnote omitted).

In a civil suit involving only private parties, no party brings to the battle the awesome powers of the government, and therefore to permit an adverse inference to be drawn from exercise of the privilege does not implicate the policy considerations underlying the privilege. But where the government “deliberately seeks” the answers to incriminatory questions, allowing it to benefit from the exercise of the privilege aids, indeed encourages, governmental circumvention of our adversary system. In contrast, an affirmance of the judgment in Palmigiano’s case would further obedience of the government to the commands of the Fifth Amendment. Cf. United States v. Karathanos, 531 F. 2d 26, 35 (CA2 1976) (Oakes, J., concurring); Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349 (1974).

Nothing in this record suggests that the State does not use the disciplinary procedure as a means to gather evidence for criminal prosecutions. On the contrary, Palmigiano was told that he might be prosecuted, which indicates that criminal proceedings are brought in some instances. And if the State does not intend to initiate criminal proceedings, the Fifth Amendment problem can be readily avoided simply by granting immunity for any testimony given at disciplinary hearings. 8

*336 IY

I would therefore affirm the judgment of the Court of Appeals in No. 74-1187 insofar as that court held that an inmate's silence may not be used against him in a prison disciplinary proceeding. This would make unnecessary addressing the question whether exercise of the privilege may be treated as probative evidence of guilt. Since the Court, however, indicates that invocation of the privilege is probative in these circumstances, ante, at 319, I express my disagreement. For we have repeatedly emphasized that such an inference has no foundation. Indeed, the very cases relied upon by the Court expose its error and support the conclusion that Palmigiano’s silence could not be treated as probative.

United States ex rel. Bilokumsky v. Tod, 263 U. S. 149 (1923), quoted ante, at 319, involved a deportation proceeding in which the deportee failed to deny that he was an alien. But he also failed to claim or attempt to prove that he was a citizen. Alienage was not an element of any crime, and his silence was held probative of his *337 alienage. The inference was plainly permissible since the deportee faced no possibility of incrimination, and there was therefore no implication of the privilege. But Palmigiano's predicament was that answers to the questions put to him by the prison officials could connect him with a crime.

The Court also quotes part of a sentence from United States v. Hale, 422 U. S. 171 (1975). We said in Hale that “[i]n most circumstances silence is so ambiguous that it is of little probative force.” Id., at 176 . We also noted that its probative force increases where a person “would be more likely than not to dispute an untrue accusation.” Ibid. We emphasized that “[fjailure to contest an assertion, however, is considered evidence of acquiescence only if it would have been natural under the circumstances to object to the assertion in question.” Ibid, (emphasis supplied). That was not the case since Hale's silence was in response to notice that he had a right to remain silent, and that any statements he made would be used against him in court. These excerpts from Hale require the conclusion that Palmigiano’s silence also had no probative force.. Palmi-giano was also advised that he had a right to remain silent, that he might be prosecuted, and that anything he said could be used against him in court.

Finally, Grunewald v. United States, 353 U. S. 391 (1957), is particularly persuasive authority that Palmi-giano’s silence is not probative. We there considered whether one Halperin’s exercise of the privilege was probative of guilt, and we concluded that his silence, in the circumstances, was “wholly consistent with innocence.” Id., at 421 . “Halperin repeatedly insisted . . . that he was innocent and that he pleaded his Fifth Amendment privilege solely on the advice of counsel.” Id., at 422 . Similarly, Palmigiano here maintained that he was innocent and that he claimed the privilege on *338 the advice of counsel. Grünewald was a situation where “the Fifth Amendment claim was made before a grand jury where Halperin was a compelled, and not a voluntary, witness; where he was not represented by counsel; where he could summon no witnesses; and where he had no opportunity to cross-examine witnesses testifying against him.” Ibid. That was similar to Palmigiano’s situation; inmates have only a very limited right to call witnesses, and an even more limited right of cross-examination, ante, at 321-322. Grünewald is thus most persuasive authority that Palmigiano’s silence was not probative. See Flint v. Mullen, 499 F. 2d 100, 103 (CA1), cert. denied, 419 U. S. 1026 (1974). 9

To accord silence probative force in these cases overlooks the hornbook teaching “that one of the basic functions of the privilege is to protect innocent men.” Grunewald v. United States, supra, at 421 (emphasis in original). If this Court’s insensitivity to the Fifth *339 Amendment violation present in this ease portends still more erosion of the privilege, state courts and legislatures will remember that they remain free to afford protections of our basic liberties as a matter of state law. See Michigan v. Mosley, 423 U. S. 96, 120-121 (1975) (Brennan, J., dissenting). Contrary to this Court's interpretation of the Federal Constitution’s privilege against compulsory self-incrimination in Harris v. New York, 401 U. S. 222 (1971), the California Supreme Court recently construed California’s constitutional prohibition to forbid use of an accused’s inculpatory statement obtained in violation of custodial interrogation safeguards announced in Miranda v. Arizona, 384 U. S. 436 (1966). The court said, People v. Disbrow, 16 Cal. 3d 101, 113-115 , 545 P. 2d 272, 280 (1976): “We . . . declare that Harris is not persuasive authority in any state prosecution in California. . . . We pause ... to reaffirm the independent nature of the California Constitution and our responsibility to separately define and protect the rights of California citizens despite conflicting decisions of the United States Supreme Court interpreting the federal Constitution.” 10

*340 The fact that Palmigiano is a prison inmate cannot, of course, distinguish this case from the cases hi the Garrity-Lefkowitz line, since "a prisoner does not shed his basic constitutional rights at the prison gate.” Wolff v. McDonnell, 418 U. S., at 581 (Marshall, J., dissenting) ; see Jackson v. Bishop, 404 F. 2d 571, 576 (CA8 1968) (Blackmun, J.). I must therefore view today’s decision as another regrettable disregard of Mr. Justice Frankfurter’s admonition that our interpretation of the privilege is not faithful to the Founding Fathers’ purpose when it does not reflect the teaching of history:

“This command of the Fifth Amendment . . . registers an important advance in the development of our liberty — 'one of the great landmarks in man’s struggle to make himself civilized.’ Time has not shown that protection from the evils against which this safeguard was directed is needless or unwarranted. This constitutional protection must not be interpreted in a hostile or niggardly spirit. Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege. Such a view does scant honor to the patriots who sponsored the Bill of Rights as a condition to acceptance of the Constitution by the ratifying States.” Ullmann v. United States, 350 U. S. 422, 426-427 (1956) (footnotes omitted).

I agree that No. 74-1194 is not moot, since the intervening plaintiff (Ferrell) has a personal stake in the outcome of this litigation. But the citation of Indianapolis School Comm’rs v. Jacobs, 420 U. S. 128 (1975), is inapposite. We held that case moot because the named plaintiffs no longer had a personal stake in the outcome, and the action had not been formally certified as a class action. Id., at 129 . We did not, however, hold that without such formal certification “the action is not properly a class action.” Ante, at 311 n. 1. Jacobs applies only to the determination of mootness, and did not deal with whether, for example, a court of appeals may treat an action as a class action in the absence of formal certification by the district court. Moreover, the propriety of the certification need not be addressed, since there is a plaintiff with a personal interest in the outcome. Youakim v. Miller, ante, at 236-237, n. 2.

Although this quotation is from the plurality opinion of four Justices, Mr. Justice Portas, who concurred in the judgment, "agree [d] that Spevack could not be disbarred for asserting his privilege against self-incrimination,” 385 U. S., at 520, thus providing a majority for that proposition. He wrote separately because he was of the view that state employees enjoyed a lesser protection. He agreed with the result, however, because Spevack— like Palmigiano—was not a state employee. Ibid. See Gardner v. Broderick, 392 U. S. 273 (1968).

In Sanitation Men 15 sanitation employees called before the Sanitation Commissioner investigating alleged improprieties were told that a claim of the privilege as a basis for refusing to answer questions concerning their official duties would result in their discharge. Three employees answered and denied the charges, but when later called before grand juries refused to waive immunity and were discharged for doing so. The Court held that to put the employees to a choice between their constitutional rights and their jobs was compulsion that violated the privilege. 392 U. S., at 284.

“[T]he State intended to accomplish what Garrity has specifically prohibited — to compel testimony that had not been immunized.” 414 U. S., at 82 .

Although Morris imposes a substantial-evidence standard for appellate review of findings in disciplinary proceedings, nothing in that case supports the Court’s assumption that an inmate’s silence alone would not meet this evidentiary standard. Ante, at 317; cf. ante, at 313 n. 2. But if silence alone provides an evidentiary premise sufficient for discipline, the Court’s distinction of the Garrity-Lefkowitz cases crumbles. I therefore read the Court’s opinion to imply that the Fifth Amendment bars conviction of a disciplinary violation based solely on an inmate’s silence. In No. 74-1187, petitioners concede that an inmate’s silence, without more, would not be substantial evidence.

As the Court notes, the only evidence, other than Pahnigiano’s silence, before the Disciplinary Board consisted of written reports made by the prison officials who filed the initial charges against Palmigiano. On the whole, the record inspires little confidence that his silence was not the sole basis for his disciplinary conviction. At the hearing a prison official read the disciplinary charges to Palmigiano and then asked him: “What happened here, Nick?” Palmigiano's response was again to request the presence of counsel, which had previously been denied. When the renewed request was denied, Palmigiano stated that he would remain silent on the advice of counsel. The official thereafter asked: “Do you intend to answer any questions for the board?" Consistent with his earlier statement, Palmigiano replied that he did not. The Board excused him from the hearing room; he was called back within five minutes and informed that he had been found guilty and sentenced to 30 days’ punitive segregation, with a possible downgrade in his classification.

In this respect it is not clear that all of the Morris requirements were observed in Palmigiano’s disciplinary hearing. Under the prison's rules, each inmate must be advised that “statements he makes in his defense at a disciplinary hearing are probably not admissible for affirmative use by the prosecution at a trial.” Brief for Petitioners in No. 74-1187, pp. 4-5. Palmigiano, however, was told that anything he said could be used against him at a criminal trial. In any event, the uncertain warning required by the prison rules would hardly satisfy constitutional requirements. See n. 8, infra. In this respect, the Court's holding that the prisoner has no right to counsel exacerbates the difficulty, for surely the advice of counsel is essential in this complex area. See Maness v. Meyers, 419 U. S. 449 (1975).

Although my view is that only transactional immunity can remove the self-incrimination problem, Piccirillo v. New York, 400 U. S. 548, 562 (1971) (Brennan, J., dissenting), that view is not presently the law. See, e. g., Lefkowitz v. Turley, 414 U. S. 70, 84 (1973); Kastigar v. United States, 406 U. S. 441 (1972).

Although Rhode Island prison officials are not authorized by statute to grant immunity, my Brother White has suggested that *336 a witness who fails to persuade a judge that a prospective answer is incriminatory “is nevertheless protected by a constitutionally imposed use immunity if he answers in response' to the [judge’s] order and under threat of contempt.” Maness v. Meyers, 419 U. S., at 474 (concurring in result). See Fowler v. Vincent, 366 F. Supp. 1224, 1228 (SDNY 1973); Sands v. Wainwright, 357 F. Supp. 1062, 1093 (MD Fla. 1973). Although an inmate would not be testifying in response to a court order, his answers in response to questions of prison officials are nevertheless compelled within the meaning of the Fifth Amendment. Thus, there would be immunity for any statements, given. The inmate must, however, be informed of the existence of the immunity. As my Brother White said, “a witness may not be required to answer a question if there is some rational basis for believing that it will incriminate him, at least without at that time being assured that neither it nor its fruits may be used against him.” Maness v. Meyers, supra, at 473 (emphasis in original).

The other cases cited by the Court likewise do not support a holding that Palmigiano’s silence should have probative force. No self-incrimination problem was presented in Gastelum-Quinones v. Kennedy, 374 U. S. 469 (1963). That case involved a deportation proceeding, and the subject of that proceeding remained silent, but not for Fifth Amendment reasons. Moreover, the Court held that “deportation is a drastic sanction” and “must therefore be premised upon evidence . . . more directly probative than a mere inference based upon the alien’s silence.” Id., at 479 . We held that particular deportation order not based on substantial evidence. Id., at 480 . Similarly, the Court did not address any self-incrimination issue relevant to the instant case in Adamson v. California, 332 U. S. 46 (1947), and Twining v. New Jersey, 211 U. S. 78 (1908). Those cases were based on the premise, overruled in Malloy v. Hogan, 378 U. S. 1 (1964), that the Fifth Amendment protection against self-incrimination was not applicable to the States. Finally, whether Raffel v. United States, 271 U. S. 494 (1926), remains law is subject to much doubt. See United States v. Hale, 422 U. S. 171 , 175 n. 4 (1975); United States v. Grunewald, 233 F. 2d 556, 575 (CA2 1956) (Frank, J., dissenting), rev’d, 353 U. S. 391 (1957).

Other state courts have also rejected Harris as a matter of state constitutional law. Commonwealth v. Triplett, 462 Pa. 244 , 341 A. 2d 62 (1975); State v. Santiago, 53 Haw. 254 , 492 P. 2d 657 (1971). In addition, admission of incriminating statements for impeachment purposes can be prohibited by statute notwithstanding the decision in Harris. Butler v. State, 493 S. W. 2d 190 (Tex. Crim. App. 1973). See United States v. Jordan, 20 U. S. C. M. A. 614, 44 C. M. R. 44 (1971). Finally, it should be noted that there need not be a state constitutional counterpart to the Fifth Amendment or a specific statutory prohibition to reach this result; use of incriminating statements can be prohibited by a state court as a matter of public policy in that State. See In re Pillo, 11 N. J. 8, 93 A. 2d 176 (1952); State v. Miller, 67 N. J. 229, 245 n. 1, 337 A. 2d 36 , 45 n. 1 (1975) (Clifford, J., concurring in part and dissenting in part).