# Amicus Curiae Brief — Illinois v. Perkins

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 496 U.S. 292

## Text

Court, U.S,
' FILED
ra
7 NOV 16 8
No. 88-1972 ScpH F. SPANIOL, JR,
CLERK*

In THE

Supreme Court of the United States

OcTOBER TERM, 1989

THE PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,
Vv.

LLOYD PERKINS,
Respondent.

On Writ Of Certiorari To The Appellate Court
Of Illinois For The Fifth Judicial District

BRIEF FOR AMICI CURIAE
THE LINCOLN LEGAL FOUNDATION; LIVINGSTON
COUNTY, ILLINOIS; THE NATIONAL DISTRICT
ATTORNEYS ASSOCIATION; THE ILLINOIS SHERIFFS
ASSOCIATION; AND THE ASSOCIATION
OF STATE CORRECTIONAL ADMINISTRATORS

JOSEPH A. MORRIS,
The Lincoln Legal Foundation,
100 West Monroe Street,
Suite 1600,
Chicago, Illinois 60603,
(312) 606-0951,
Counsel of Record for Amici.

(Additional Counsel listed on inside front cover)

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

uel

(Additional Counsel for Amici)

DONALD D. BERNARDI,
State’s Attorney of Livingston County, Illinois,
County Courthouse,
Pontiac, Illinois 61764,
(815) 842-1550,

FRED L. FOREMAN,
State’s Attorney of Lake County, Illinois, and
Chairman, National District Attorneys Association,
Ww 60085,
(708) 360-6644,

DANIEL M. HARROD,
Counsel to the Illinois Sheriffs Association,
107 East Eureka Street,
Eureka, Illinois 61530,
(309) 467-2381,

NANCY W. OWEN,

State’s Attorney of Coles County, Illinois, and
President, Illinois State’s Attorneys Association,

JACK E. YELVERTON,
National District Attorneys Association,
1033 North Fairfax Street,
Alexandria, Virginia 22314,
(703) 549-9222,

Of Counsel.
November 16, 1989.

—-—

i

TABLE OF CONTENTS

TABLE OF CONTENTS ...............e005:
TABLE OF AUTHORITIES .................
EEE OTT TTT ETTETT TES

The Lincoln Legal Foundation ............
Livingston County, Illinois ...............
National District Attorneys Association ...
Illinois Sheriffs Association ...............

Association of State Correctional
Nee cc ccccce

EUG r ee caacensecctcccceccccces
PREC E GE ehh eaccescccceccececce:

THE DECISION OF THE COURT BELOW
WOULD EFFECTIVELY PROHIBIT THE
NECESSARY AND VALUABLE USE OF
UNDERCOVER AGENTS IN PRESERVING
ORDER AND IN PREVENTING, DETECTING,
INVESTIGATING, AND PROSECUTING
DE ED cccccoccocccececccecs

Il.

THE COURT BELOW HAS MECHANICALLY
APPLIED THE MIRANDA RULE TO A SITU-
ATION IN WHICH THERE WAS NO CUSTO-
DIAL POLICE INTERROGATION, NO DAN-
GER OF COERCION, AND NO COMPELLED
SELF-INCRIMINATION ..................

ii

III.

THE LOWER COURT’S CONFECTION OF A
SWEEPING PRIVILEGE AGAINST SELF-
INCRIMINATION IN THE SETTING OF NON-
INVESTIGATIVE CUSTODY PUTS THE FIFTH
AMENDMENT INTO ASYMMETRY WITH
THIS COURT’S APPLICATION OF THE
FIRST, FOURTH, SIXTH, AND FOURTEENTH
AMENDMENTS IN THE SAME SETTING ... 16

SUE bse Se seccsnscsdacnsdabdenseus 19

TABLE OF AUTHORITIES

Cases PAGE
Bell v. Wolfish, 441 U.S. 520 (1979) .......... 17
Block v. Rutherford, 468 U.S. 576 (1984) ...... 17
Harris v. New York, 401 U.S. 222 (1971) ..... 15
Hudson v. Palmer, 468 U.S. 517 (1984) ...... 16, 17, 18
Jones v. North Carolina Prisoners’ Union, 433 U.S.

See EE K60ck iacsekinsdeasnaeubenetioen< 16
Kuhlmann v. Wilson, 477 U.S. 436 (1986) ...... 17
Mathis v. United States, 391 U.S. 1 (1968) ..... 14
Michigan v. Tucker, 417 U.S. 433 (1974) ...... 15
Minnesota v. Murphy, 465 U.S. 420 (1985) .... 15
Miranda v. Arizona, 384 U.S. 436 (1966) .... passim
New York v. Quarles, 467 U.S. 649 (1984) ..... 15
O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) .. 17

Oregon v. Elstad, 470 U.S. 248 (1985) ........ 15

ili

Pell v. Procianier, 417 U.S. 817 (1974) ........ 16
People v. Carter, Cir.Ct., 11th Jud.Cir., Ill., No.

P.O, ED gnc caccecncasesds 12
People v. Johnson, Cir.Ct., 11th Jud.Cir., Ill., No.

87-CF-111 (Feb. 17, 1989) .............005- 12
People v. Latona, Cir.Ct., 15th Jud.Cir., Ill., No.

PTE £ncdoeddduennsbhubsndekeusdesened< 12
People v. Perkins, 176 Ill.App.3d 443, 531 N.E.2d

141, 126 Ill.Dec. 8 (5th Dist. 1988) ....... passim
Price v. Johnston, 334 U.S. 266 (1948) ........ 17, 18
Procunier v. Martinez, 416 U.S. 396 (1974) ..... 16
Rhode Island v. Innis, 446 U.S. 291 (1980) .... 14
Turner v. Safley, 482 U.S. 78 (1987) .......... 17
Wolff v. McDonnell, 418 U.S. 539 (1974) ...... 18

Constitutions

ae es SEE BD SS ciccccecescosvcese 16, 18
U.S. Const., Amendment IV ................. 16, 18
U.S. Const., Amendment V ................. passim
U.S. Const., Amendment VI ................. 17, 18
U.S. Const., Amendment XIV .............. 9, 16, 18
Ill. Const., Art. I, See. 11 (1970) ............. 2
Ill. Const., Art. VI, Sec. 19 (1970) ............ 4
> GE, GATE, Fae GON ce veccccsivececvescc 4

iv

Other Authorities
Camp, CORRECTIONS YEARBOOK 18 (1989) ......

Carriere, The Dilemma of Individual Violence in
Prisons, 6 NEw ENG. J. ON Prison L. 198
SD beh eUi eee eed eee Eee was

Dix, Undercover Investigations and Police Rule-
Making, 53 Tex.L.Rev. 203 (1975) .........

Engel and Rothman, The Paradox of Prison Re-
form: Rehabilitation, Prisoners’ Rights, and
Violence, 7 Harv. J. L. & Pus. Pou. 413
SU : 60600066440006005065650 6005000060056

Flynn, Jails and Criminal Justice, in PRISONERS
IN AMERICA (Ohlin ed. 1972) ..............

Irwin, The Changing Social Structure of the Men’s
Prison, in CORRECTIONS AND PUNISHMENT
SE GO ED vedic cccnddandcdonnsese

Kamisar, Brewer v. Williams, Massiah, and Miran-
da: What Is “Interrogation”? When Does It
Matter?, 67 GEORGETOWN L.J. 1 (1978) .....

Lauder, FIGHTING VIOLENT CRIME IN AMERICA
RE te ee re eee

McCleery, Communication Patterns and Bases of
Systems of Authority and Power, in THEO.
RETICAL STUDIES IN SOCIAL ORGANIZATION OF
THE PRISON (Cloward et al. eds. 1960) ...

Scacco, RAPE IN PRISON (1975) ...............

Sherman and Hawkins, IMPRISONMENT IN AMERICA
ES Se

Toch, PoLice, PRisons AND THE PROBLEM OF VIO.
St Ee ochnndascnccegadcuadededesés<

Weiss and Friar, TeERRorR IN THE PRISONS (1974) .

White, Interrogation Without Questions: Rhode Is-
land v. Innis and United States v. Henry, 78
AT. GU CUED ceccccccccaccosece

3,9

10

14

No. 88-1972

In THE

Supreme Court of the United States

OCTOBER TERM, 1989

THE PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,
Vv.

LLOYD PERKINS,
Respondent.

On Writ Of Certiorari To The Appellate Court
Of Illinois For The Fifth Judicial District

BRIEF FOR AMICI CURIAE
THE LINCOLN LEGAL FOUNDATION; LIVINGSTON
COUNTY, ILLINOIS; THE NATIONAL DISTRICT
ATTORNEYS ASSOCIATION; THE ILLINOIS SHERIFFS
ASSOCIATION; AND THE ASSOCIATION
OF STATE CORRECTIONAL ADMINISTRATORS

INTRODUCTION

The Lincoln Legal Foundation; Livingston County, IIli-
nois; the National District Attorneys Association; the IIli-
nois Sheriffs Association; and the Association of State Cor-
rectional Administrators; as amici curiae, submit this brief
in support of the Petitioner herein, the People of the State
of Illinois. Amici respectfully urge this Honorable Court
to reverse the decision of the Appellate Court of Illinois in

alien

the case at bar. Neither the United States Constitution
nor this Court’s holding in Miranda v. Arizona, 384 U.S.
436 (1966), commands so absurd a rule as that adopted
in this case below. If imposed as a blanket doctrine upon
correctional institutions, the lower court’s reading of the
Fifth Amendment would significantly impair the ability
of prison administrators to maintain order within their in-
stitutions and to investigate crimes occurring behind bars.

INTERESTS OF AMICI CURIAE

The Lincoln Legal Foundation

The Lincoln Legal Foundation (“LLF’’) is a national,
nonprofit, nonpartisan, public-interest law center which
undertakes litigation, administrative proceedings, legal
studies, and educational activities in matters promoting
political, economic, and civil liberties; preserving constitu-
tional government, including the separation and limitation
of governmental powers; and defending the rights of in-
nocent victims of crime.

LLF has a deep interest in the American criminal jus-
tice system and works to enhance its fairness and efficiency.
LLF is concerned that American prisons and other cor-
rectional facilities be operated so as to serve the objec-
tives of moral instruction, inculcation of respect for legit-
imate authority, and personal rehabilitation that are among
the goals of imprisonment of persons convicted of serious
crimes.! Absent those characteristics, prisons become, at

1 The Illinois Constitution, for example, commands that “All
penalties shall be determined . with the objective of restoring
the offender to useful citizenship.” Ill. Const., Art. I, Sec. 11 (1970).

olin

best, expensive holding pens in which criminals take sab-
baticals from careers in crime. At worst, they degenerate
into graduate schools of crime as, crowded together and
inadequately controlled, inmates prey upon each other,
hardening their hatred and contempt of society, and hon-
ing their criminal skills.2 Prisons should be communities,
not where violent crimes are commonplace, but where—
thanks to the regulation of inmate conduct and the foster-
ing of discipline that custodial conditions allow—the com-
mission of serious crimes is much less likely than in society
at large. Anything else would defeat the purpose of correc-
tion and undermine the criminal justice system as a whole.

Inmates desirous of rehabilitating themselves thus share
with the broad mass of innocent taxpayers a profound in-
terest in seeing to it that extraordinary conditions of
order and discipline prevail in correctional institutions.
Federal and State taxpayers across the land will invest
enormous sums over the course of the next few years to

2 One set of commentators have described the problem as follows:
nn Saen Spe 2 Nemes Spy offenders with

tion, Prisoners

413, 415 rd cing }

ONERS IN AMERICA 5 Oulin ed. 1972); and Seacco, Rape
Prison at 100 (1975). The 5 increasingly commands the at
tention of the general , and is noted by political leaders. See
Lauder, Ficutinc VIoLENT CRIME In America 127 (1985).

enfies

build new facilities ior the housing and correction of our

atin ol atten of eutted cinta 6 ;
tional facilities that are doomed not to correct work a
fraud upon the American people. LLF seeks, therefore, to
voice the public’s interest in opposing the imposition upon
prison administrations of judicial rules that, while safe-
guarding no civil liberty, frustrate penological objectives.

Livingston County, Illinois

The County of Livingston is a political subdivision of,
and a body politic within, the State of Illinois. It is es-
tablished, and derives its corporate powers, pursuant to
Article VII of the Illinois Constitution (1970). It is repre-
sented by its State’s attorney, a constitutional officer of
the State of Illinois chosen by the electors of the county
pursuant to Article V1, Section 19 of the Illinois Constitu-
tion (1970). The State’s attorney is both civil counsel to
the county and the prosecutor of crimes that occur within
it.

Livingston County’s population numbers approximate-
ly 40,000. Located 100 miles southwest of Chicago, it is
home to the Pontiac Correctional Center, a prison oper-
ated by the Department of Corrections of the State of
Illinois. The Pontiac prison is one of Illinois’s larger and
more secure correctional facilities, housing about 1,950 in-
mates, all of whom are adult males convicted of serious
crimes. When crimes are committed at the Pontiac prison,
it is the responsibility of Livingston County to investigate
and prosecute them. This results in a not insubstantial
burden upon the county’s courts, sheriff, and State’s at-
torney, and upon its taxpayers.

==

National District Attorneys Association
The National District Attorneys Association i. a non-
profit corporation and the sole national organization rep-
resenting state and local prosecuting attorneys in America.
Since its founding in 1950, NDAA’s programs of educa-
tion, training, publications, and amicus curiae activity
have carried out its guiding purpose of reforming the
criminal justice system for the benefit of all our citizens.

Illinois Sheriffs Association
The Illinois Sheriffs A tations bershi :
the 102 county sheriffs of the State of Illinois as well as
25,000 private individuals. The Association was organized
to promote and extend assistance to county sheriffs by
providing training seminars, scholarships, and educational

and various other community services.

Association of State Correctional! Administrators

The Association of State Correctional Administrators
(“ASCA”’) is a professional association whose membership
consists of the directors of the fifty State departments
of corrections, the Federal Bureau of Prisons, and the cor-
rectional systems of the District of Columbia, the Com-
monwealth of Puerto Rico, Cook County, Illinois, the City
of New York, New York, and the City and County of
Philadelphia, Pennsylvania. ASCA is concerned that, if the
holding in Perkins is not reversed, there will be grave,
far-reaching consequences for the ability of correctional
administrators to manage our nation’s prisons safely and
effectively.

aG=

STATEMENT

The facts of this case, as found by the courts below,
are set out by the Appellate Court of Illinois in its re-
ported decision, People v. Perkins, 176 Ill.App.3d 443,
444-446, 531 N.E.2d 141, 142-143, 126 Ill.Dec. 8, 9-10 (5th
Dist. 1988). The salient points are these: Respondent Per-
kins, while serving a prison term for a crime unrelated
to the murder at issue here, confided in a fellow inmate
that he had killed a man, and he described the event in
considerable detail. The fellow inmate—believing that
“people should not kill people’ —reported Perkins’s con-
fession to authorities. The confession as reported rang
true; the details corresponded to the knowledge that the
police had of the crime, and their nature was such that
it was unlikely that they could have been known to some-
one who was not, in fact, the killer. To nail down the case
the authorities asked the inmate-informant—who was not
compensated in any way for his cooperation—to return to
Perkins, this time accompanied by a law enforcement of.-
ficer under cover as a friend and fellow prisoner. They
were to seek repetition of the incriminating admissions.
As it turned out, by the time of the reunion Perkins was
housed in a county jail, awaiting trial on yet a third, com-
pletely unrelated charge. When the inmate-informant and
the undercover agent encountered Perkins and began chat-
ting with him, they did not read him his “Miranda
rights”. Perkins, prodded to discuss the murder by a
means no more coercive than being asked if he had ever
“done someone”, proceeded with apparent alacrity and in
great detail to recount the facts of the killing. An indict-
ment followed.

affe

The trial court granted Perkins’s motion to suppress the
evidence of his statements to the inmate-informant and
the undercover officer. The Appellate Court of Illinois af-
firmed, declaring that “{wje cannot permit police to sub-
vert the defendant’s fifth amendment right against self-
incrimination by questioning the defendant, through in-
formants and while he was in custody, without first warn-
ing him of his rights pursuant to Miranda.” Perkins,
supra, 176 Ill.App.3d at 450, 531 N.E.2d at 146, 126
Ill.Dec. at 13 (emphasis added).

That Perkins was “interrogated” while “in custody” ap-
pears to have been central to the Appellate Court’s rea-
soning. As it evaluated the facts of the case, it emphasized
its view that “although the defendant was incarcerated
on other charges at the time [the inmate-informant and
the undercover officer] elicited the incriminating state-
ments, he was ‘in custody’ for purposes of Miranda.”
Perkins, supra, 176 Ill.App.3d at 447, 531 N.E.2d at 144,
126 Ill.Dec. at 10. The Appellate Court also held that
Perkins conversation with the inmate-informant and the
undercover officer amounted to prosecutorial interrogation
under Miranda. Ibid.

Amici submit that the Appellate Court’s error lay in its
understanding of “interrogation” and “custody” within the
framework of Miranda. It is a mistake that, if perpetu-
ated, will do grave injury to the American penal system.

-§—

ARGUMENT

It is clear that Perkins’s self-incriminating statements
were thoroughly voluntary. They were altogether unforced,
and were made in an environment that was entirely free
of coercion. Perkins had not been accused of the murder
and had no reason to believe that he was suspected of
it. He did not believe that he was speaking with repre-
sentatives of authority or even with persons in superior
positions of any kind. He was under no illusions that the
statements he made were protected by any privilege.*

To the contrary, Perkins knew that his conversations
unprotected. Indeed, Perkins thought that the discussions
were themselves part of a criminal enterprise; he was
under the impression that he had joined a three-member
conspiracy to break out of jail. Perkins had puffed that
the jail was “rinky-dink” and that he “could arrange to
have someone smuggle in a gun.” Perkins, supra, 176
Ill.App.3d at 445, 531 N.E.2d at 143, 126 Ill.Dec. at 10.
Perkins made his incriminating statements during a sur-
reptitious, late-night rendezvous held in the jailhouse “af-
ter the other inmates went to sleep.” Jbid. Seen in this
light, Perkins’s utterances regarding the murder were de-
cidedly not a “confession” elicited under any kind of in-
terrogation. They were, instead, the words of a braggart
seeking to impress fellow inmates—in this instance, po-
tential criminal confederates; on another day, perhaps
potential cellblock victims or jail-gang followers—with his

: tres ocemang Ts Nato why for expan sary re
he was discussing with, for example, an attorney re-

~9—

fierceness, brutality, and willingness to go to any lengths
to achieve an end that he desired.

The Appellate Court of Illinois believed that “pressures
of interrogation”, 176 Ill._App.3d at 449, 531 N.E.2d at 145,
126 Ill.Dee. at 11, inhere in “custodial questioning”’, irre-
spective of the context of the custody in which the ques-
tioning takes place. That is a misreading of the teaching
of Miranda to which the facts of Perkins’s case give the
lie. The nature of the custodial circumstances in which
inculpatory admissions are made is crucial to a sound
assessment of the constitutional groundrules that control
their use as evidence. Custody of a non-investigative kind,
in which prisoners are held awaiting trial or while serv-
ing sentences, is as different from the setting of custody
immediately following arrest as is such interrogative sta-
tionhouse custody from normal society. That is a reality
that must be taken into account by the courts as they
apply the strictures of Miranda and of the Self-Incrimi-
nation Clauses of the Fifth and Fourteenth Amendments
to the world that is found behind prison walls.

THE DECISION OF THE COURT BELOW WOULD EF-
FECTIVELY PROHIBIT THE NECESSARY AND VALU-
ABLE USE OF UNDERCOVER AGENTS IN PRESERVING
ORDER AND IN PREVENTING, DETECTING, INVESTI-
GATING, AND PROSECUTING CRIME IN PRISONS.

Violence among prisoners is pandemic in men’s prisons
in contemporary America.‘ It is the prevalent method of

‘ See Engel and Rothman, The Paradox of Prison Reform: Reha
bilitation, Prisoners’ Rights, and Violence, 7 Harv. J. L. & Pus.
Pow. 413 (1985); Sherman and Hawkins, Imprisonment In America
(1981); Carriere, The Dilemma of Individual Violence in Prisons,
6 New Enc. J. Ow Prison L. 198 (1980); Toch, Powice, Prisons
Anp Tue Prosiew Or Vioitence (1977).

=<

ety.® It is also a major factor in the arrangement and re-
arrangement of a prison’s internal structure of authority.*
particularly the murder of—correctional employees repre-
sents the highest level of danger in correctional systems.
In 1988, a total of 18,934 assaults were reported to have
been committed by inmates in Federal and State correc-
tional facilities across America; of these, 1,686 were di-
rected against prison staff and 17,248 were targeted against
fellow inmates. Camp, CoRRECTIONS YEARBOOK 18 (1989).”

While the identities of assailants of both inmates and
correctional personnel are frequently known, it is often
extremely difficult to obtain evidence that will support
nessed by prison staff members or inmates not complicit
in the crime. Because of the nature of the environment
in which such murders and other crimes of violence are
committed, corrections administrators must regularly rely
upon assailants to incriminate themselves by communicat-
ing to others their involvements in the crimes.

==

efforts to bully other inmates into behavior compliant with
the perpetrators’ wishes; at still other times they may
be instances of bragging to impress new inmates with the
perpetrators’ toughness and their immunity from correc-
tional control. Testimony from another inmate, a visitor,
or a person working undercover in a jail or prison is often
essential to the successful prosecution of such crimes—
and to send clear messages to those who might commit
other violent crimes that they will be held accountable
for their deeds.

A case precisely on point arises from the Pontiac prison,
situated within the jurisdiction of Amicus Livingston Coun-
ty, Illinois. On September 3, 1987, within the walls of the
Pontiac prison, someone accosted the superintendent, Robert
Taylor. Brutally beaten and stabbed ten times, Mr. Taylor
died. It fell to the State’s attorney of Livingston County
to investigate the murder and, if possible, to prosecute
those who committed it.

Knowing that a criminal gang had been surreptitious-
ly, but effectively, organized within the prison, and that
it saw itself in competition with prison authorities for con-
trol of the cellblocks, investigators sought intelligence as
to the gang’s connections, if any, with the crime. Knowing,
too, that the gang owed allegiance to gang chieftains re-
maining at large on the streets of Chicago, they arranged
for an inmate from another prison—thought by gang mem-
bers to be a loyal gang lieutenant, but in fact a police
informant—to visit the Pontiac facility, and while “wired”
with a judge’s approval to record conversations, to pose
as a conduit of information to the gang’s outside bosses.
In short order, gang leaders within the prison told the
informant in detail that they had murdered the superin-
tendent and how they had done so.

afin

A Livingston County grand jury handed up indictments
charging the gang leaders who had planned, ordered, and
executed the crime with first degree murder, conspiracy
to commit murder, and solicitation to commit murder. The
indictments were based on the admissions they had made
to the informant, and the informant’s testimony would
have been essential to the prosecution of the case. On
February 17, 1989, however, the trial court in that case—
the Circuit Court for the Eleventh Judicial Circuit of Illi-
nois, which includes Livingston County—ordered the evi-
dence of the admissions suppressed. People v. Johnson,
Cir. Ct., 11th Jud. Cir., Ill., No. 87-CF-111 (Feb. 17, 1989);
People v. Carter, Cir. Ct., 11th Jud. Cir., Ill., No.
87-CF-112 (Feb. 17, 1989). Both cases have been appealed
by the State to the Appellate Court of Illinois for the
Fourth Judicial District, where they now pend as Nos.
489-181 and 489-182.

In explaining its orders of suppression, the trial court
cited the decision of the Appellate Court of Illinois in the
instant case as controlling in those cases. Unless the deci-
sion below is reversed, therefore, the search for truth in
Johnson and Carter will be frustrated and justice in those
cases will be denied. Indeed, unless the decision below
is reversed, the people of Illinois and Livingston County
will be severely handicapped in their battle for the con-
trol of Pontiac prison.* That handicap, in turn, will afflict

® Pontiac prison’s situation is hardly unique. The lower court’s
yp tn —F ee Sp Bae te cont &

case involving an attempt an inmate
of the Dixon Correctional Center in Illinois io tie o killer to
Cir, CL, Lee Con Ill, No & yfriend. In that case, People v. Latona,
Cir. Ct Ill No. 89 CF 114, it is alleged that a man
serving at the Dixon prison after his conviction on charges unre-
lated to the killing he sought from behind bars to cause, solicited

(Footnote continued on following page)

= =

every correctional facility in America. The consequences
for Americans, within our prisons and without, will be
unspeakably tragic.

THE COURT BELOW HAS MECHANICALLY APPLIED
THE MIRANDA RULE TO A SITUATION IN WHICH THERE
WAS NO CUSTODIAL POLICE INTERROGATION, NO DAN-
GER OF COERCION, AND NO COMPELLED SELF-IN-
CRIMINATION.

As the uncontested facts before the Appellate Court of
Illinois make clear, the self-incriminating statements which
are the subject of this case were voluntarily made by Per-
kins during an unforced conversation thac he had with two
men whom he (incorrectly) assumed were simply fellow
inmates, and with whom he felt comfortable enough to
plan a jail escape. The conversation took place, not in
some jailhouse to which Perkins had been forcibly re-
moved for the purpose of interrogation or even trickery,
but in the cell block in which Perkins happened to be liv-
ing. The conversation began and ended in accordance with
his wishes. No visible signs of police or other authorities
were present. No threats or intimidation were used. No
coercion, direct or indirect, physical or psychological, was
applied by Perkins’s companions or felt by him.

It is plain from these facts that Perkins was not subject
to “custodial police interrogation,” if those words are to

8 continued

a fellow inmate whom he believed to be a “hit-man” to carry out
the murder. The “hit-man” turned out to be an undercover police
officer. Talks between the “hit-man” and the convict were recorded
electronically with judicial approval. The inmate, invoking the deci-
sion below in this case, has moved to suppress the evidence of
his statements.

fie

have any meaning which plausibly accords with reality.
Nonetheless, in an application of free-floating doctrine un-
constrained by facts or the necessity of making distinctions,
the lower court managed to hold that Perkins indeed had
been subjected to a “custodial police interrogation” re-
quiring the employment of the procedural safeguards out-
lined in Miranda. \n order that it arrive at that holding,
the court had to cobble together definitions of “‘custody”’
and “interrogation” from various of this Court’s prece-
dents.* Simply adding together these two factors, the
lower court apparently reasoned that

CUSTODY + INTERROGATION = MIRANDA
and thus arrived at its astonishing result.!°

This is a gross caricature of the reasoning behind Mi-
randa, which was that procedural safeguards—its famous

* The Appellate Court seemingly found in Mathis v. United States,
391 U.S. 1 (1968), this Court’s endorsement of the notion that in-
tody’ tor. 4 ot M Ag Perki +—~ + > 176 ill App. 34 at

y for of Mira ns, at
447, 531 NE Dd at 144, 126 Ill.Dec. at 11. Similarly, the Appellate
Court relied on this Court's opinion in Rhode Island wv. Innis, 446
U.S. 291 (1980), for the limi principal that in has
scarred whenever the police doo say anything that y should
know is reasonabl to elicit an incriminating response. No
other authorities were cited by the Appellate Court as helpful in
guiding its analysis on this point.

1© Astonishing is not an i Sa, Three commenta-
tors—each generally favo to a very broad application of the
Miranda have explicitly the kind of situation pre-

sented by Perkins. Each has had no difficulty in concluding that
Miranda would not apply. White, /nterrogation Without Questions:
Rhode Island v. Innis and United States v. Henry, 78 Micu.L.
Rev. 1209, 1246-1248 (1980); Kamisar, Brewer v. Williams

M and Miranda: What is sintervogation”Y When Dove I
67 GEORGETOWN L.J. 1, 45-69 (1 Dix, Undercover In-

vestigations and Police Rulemaking, 53 Tex.L.Rev. 203, 235-6
(1

—15—

warning—may be necessary as a “practical reinforcement”,
Michigan v. Tucker, 417 U.S. 433, 444 (1974), of an indi-
vidual’s Fifth Amendment rights when he is subjected to
“incommunicado interrogation. . . . in a police-dominated
atmosphere” that “carries its own badge of intimidation,”
that “‘exacts a heavy toll in individual liberty and trades
on the weakness of individuals,” and that is inherently
likely “to subjugate the individual to the will of his exam-
iner.”” Miranda, 384 U.S. at 445, 457, 455, and 457. Only
under these particular conditions is Miranda’s per se rule
held to supplant the “totality of the circumstances” re-
quirement that self-incriminating statements actually must
be shown to be involuntary. See, e.g., Minnesota v. Mur-
phy, 465 U.S. 420 (1984).

Of course, none of these “compelling circumstances” that
the Miranda rule was created to combat has been shown
to exist here. Apparently taking the partial overthrow of
the “totality of the circumstances” test literally, the lower
court applied Miranda’s per se rule without undertaking
to inquire whether any of the circumstances surrounding
the “custody” and “interrogation” in cases of this kind
provide reason for Miranda’s application.

This Court’s precedents—especially its more recent deci-
sions—teach that the Miranda rule is to be applied flex-
ibly and intelligently, with some sensible regard for whether
the rule’s application to a particular kind of situation will
do anything to advance the rule’s policies.'' In reversing
the decision below, this Court ought to make clear that
the retreat into formalism and the rote application of per
se rules—“anodynes for the pain of reasoning’’—are not
substitutes for the hard job of judging cases.

sag v. Elstad, 470 U.S. 248 (1985); New York v. Quarles,
467 U.S. 649 (1984); Michigan v. Tucker, 417 U.S. 438 (1974); Har-
ris v. New York, 401 U.S. 222 (1971).

-16—

THE LOWER COURT’S CONFECTION OF A SWEEP-
ING PRIVILEGE AGAINST SELF-INCRIMINATION IN
THE SETTING OF NON-INVESTIGATIVE CUSTODY
PUTS THE FIFTH AMENDMENT INTO ASYMMETRY
WITH THIS COURT’S APPLICATION OF THE FIRST,

FOURTH, SIXTH, AND FOURTEENTH AMENDMENTS IN
THE SAME SETTING.

Although prison gates do not lock out the United States
Constitution, this Court has acknowledged that “imprison-
ment carries with it the circumscription or loss of many
significant rights.”” Hudson v. Palmer, 468 U.S. 517, 524
(1984). In Hudson, supra, 468 U.S. at 526, for example,
the Court held that “society is not prepared to recognize
as legitimate any subjective expectation of privacy that
a prisoner might have in his prison cell and that, accord-
ingly, the Fourth Amendment proscription against unrea-
sonable searches and seizures does not apply within the
confines of the prison cell.”

Protections of the First and Fourteenth Amendments
have been held to avail in prison settings, as in Procunier
v. Martinez, 416 U.S. 396 (1974), where regulations gov-
erning prisoner correspondence touching upon matters of
religion and politics were struck down. But even there
the Court declined to apply the standard of “strict scru-
tiny” with which it would test such governmental activity
in society at large, and instead it examined prison rules—
even in matters as sensitive as religious and political ex-
pression—against the yardstick of “reasonableness”.

Thus, in Pell v. Procunier, 417 U.S. 817 (1974), the
Court upheld prison rules prohibiting inmates from giv-
ing news media interviews inside the institution. In Jones
v. North Carolina Prisoners’ Union, 433 U.S. 119 (1977),

—j]7—

the Court refused to overturn bans imposed by prison ad-
ministrators against union meetings and bulk mail union
solicitations. In Bell v. Wolfish, 441 U.S. 520 (1979), the
Court sustained security rules that prohibited inmates
from receiving hardback books unless they were shipped
directly from publishers, bookstores, or book clubs. In
Block v. Rutherford, 468 U.S. 576 (1984), the Court
reviewed and approved the constitutional validity of prison
rules barring physical contact between prisoners and their
visitors. In Turner v. Safley, 482 U.S. 78 (1987), the Court
upheld regulations on prisoners’ outside correspondence.
And in O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987),
the Court sustained a prison regimen notwithstanding the
fact that it limited the ability of Moslem inmates to take
part in weekly religious ceremonies.

Similarly, in Kuhlmann v. Wilson, 477 U.S. 436 (1986)
this Court found no infringement of the right to counsel
guaranteed by the Sixth Amendment where, after an ac-
cused’s arraignment, a police informant sharing his cell
listened to and reported his incriminating statements. The
Court’s approval of the informant’s evidence in Kuh!mann
is all the more striking in that, although it did not in-
volve interrogative custody, neither did it arise in the con-
text of post-conviction correctional custody.

Cases such as these evidence this Court’s understanding
that the places in which suspects and criminals are held,
not for interrogation but for custody or correction, are
a universe apart from normal society. Their populations
contain high concentrations of the wicked and violent.

Sound, constitutional management of prisons, therefore,
may well include even the “complete withdrawal of cer-
tain rights”, Hudson, supra, 468 U.S. at 524, if “justified
by considerations underlying our penal system.” Price v.

==

Johnston, 334 U.S. 266, 285 (1948). As it was put in Hud-
son, supra, 468 U.S. at 524, “{thhe curtailment of certain
rights is necessary, as a practical matter, to accommodate
a myriad of ‘institutional needs and objectives’ of prison
facilities, Wolff v. McDonnell (418 U.S. 539, 555 (1974),
chief among which is internal security. . . .”

The realities of prison life continue to justify the con-
straints on liberty that this Court has acknowledged as
appropriate. Just as the peculiar circumstances of correc-
tional, as opposed to interrogative, custody entail special
applications of the First, Fourth, Sixth, and Fourteenth
Amendments, so is a distinct—and limited—application of
the Fifth Amendment warranted in the same context. Just
as prisoners have no justifiable expectations of privacy
in their cells, so they have virtually no legitimate expec-
tations of privacy in their uncoerced custodial conversa-
tions. They have no privilege in communication with fellow
inmates, or with persons they believe to be their fellow
inmates. They have every right to be free from coerced
confessions, but no entitlement to blanket insulation of in-
tramural conversations from use in evidence.

~19—

CONCLUSION

When Perkins incriminated himself he was in jail, but
he was not undergoing “custodial police interrogation’’.
Miranda simply does not apply. Perkin’s statements were
entirely uncoerced and uncompelled. Therefore the State
committed no transgression against the strictures of the
Fifth Amendment which, in any event, should confer no
special privilege upon intramural communications by pris-
oners held in non-interrogative custody. Blanket prohibi-
tion of the use of informants and undercover agents in
prison populations would do nothing to protect the right
against self-incrimination. It would, however, demarcate
the end of imprisonment as a noble experiment in correc-
tion and the perfection of its transformation into a Hob-
besian hell, a war of everyone against everyone—inmates,
guards, and staff—unfortunate enough to be found within
prison walls. The judgment of the court below should be
reversed.

Respectfully submitted,

JOSEPH A. MORRIS,
The Lincoln Legal Foundation,*
100 West Monroe Street,
Suite 1600,
(312) 606-0951,
Counsel of Record for Amici.

(Additional Counsel listed on following page)

* The Foundation gratefully acknowledges the assistance of
Daviw R. McCourt, a non-attorney legal scholar, in the prepara-
tion of this brief.

(Additional Counsel for Amici)

DONALD D. BERNARDI,
State’s Attorney of Livingston County, Illinois,
ae age County Courthouse,
Pontiac, Illinois 61764,
(815) 842-1550,

FRED L. FOREMAN,
State’s Attorney of Lake County, Illinois, and
Chairman, National District Attorneys Association,
Miinois
Waukegan, 60085,
(708) 360-6644,

DANIEL M. HARROD,

JACK E. YELVERTON,
National District Attorneys Association,
1033 North Fairfax Street,
Alexandria, Virginia 22314,
(703) 549-9222,
Of Counsel.

November 16, 1989.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0511%3A10. Public record. Not legal advice.