author: Justice Kennedy Justice Scalia,

text:
    MINNICK v. MISSISSIPPI
    No. 89-6332.
    Argued October 3, 1990
    Decided December 3, 1990

      Kennedy, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, Stevens, and O’Connor, JJ., joined. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, post, p. 156. Souter, J., took no part in the consideration or decision of the ease.

      Floyd Abrams argued the cause for petitioner. With him on the briefs were Anthony Paduano and Clive A. Stafford Smith.

      Marvin L. White, Jr., Assistant Attorney General of Mississippi, argued the cause for respondent. With him on the brief was Mike Moore, Attorney General.

         David W. DeBruin and Donald B. Verrilli, Jr., filed a brief for the Mississippi State Bar as amicus curiae urging reversal.

        Solicitor General Starr, Assistant Attorney General Dennis, Deputy Solicitor General Br-yson, and Nina Goodman filed a brief for the United States as amicus curiae urging affirmance.

   Justice Kennedy

delivered the opinion of the Court.

To protect the privilege against self-incrimination guaranteed by the Fifth Amendment, we have held that the police must terminate interrogation of an accused in custody if the accused requests the assistance of counsel. Miranda v. Arizona, 384 U. S. 436, 474 (1966). We reinforced the protections of Miranda in Edwards v. Arizona, 451 U. S. 477, 484-485 (1981), which held that once the accused requests counsel, officials may not reinitiate questioning “until counsel has been made available” to him. The issue in the case before us is whether Edwards’ protection ceases once the suspect has consulted with an attorney.

Petitioner Robert Minnick and fellow prisoner James Dyess escaped from a county jail in Mississippi and, a day later, broke into a mobile home in search of weapons. In the course of the burglary they were interrupted by the arrival of the trailer's owner, Ellis Thomas, accompanied by Lamar Lafferty and Lafferty’s infant son. Dyess and Minnick used the stolen weapons to kill Thomas and the senior Lafferty. Minnick’s story is that Dyess murdered one victim and forced Minnick to shoot the other. Before the escapees could get away, two young women arrived at the mobile home. They were held at gunpoint, then bound hand and foot. Dyess and Minnick fled in Thomas’ truck, abandoning the vehicle in New Orleans. The fugitives continued to Mexico, where they fought, and Minnick then proceeded alone to California. Minnick was arrested in Lemon Grove, California, on a Mississippi warrant, some four months after the murders.

The confession at issue here resulted from the last interrogation of Minnick while he was held in the San Diego jail, but we first recount the events which preceded it. Minnick was arrested on Friday, August 22, 1986. Petitioner testified that he was mistreated by local police during and after the arrest. The day following the arrest, Saturday, two Federal Bureau of Investigation (FBI) agents came to the jail to interview him. Petitioner testified that he refused to go to the interview, but was told he would “have to go down or else.” App. 45. The FBI report indicates that the agents read petitioner his Miranda warnings, and that he acknowledged he understood his rights. He refused to sign a rights waiver form, however, and said he would not answer “very many” questions. Minnick told the agents about the jailbreak and the flight, and described how Dyess threatened and beat him. Early in the interview, he sobbed “[i]t was my life or theirs,” but otherwise he hesitated to tell what happened at the trailer. The agents reminded him he did not have to answer questions without a lawyer present. According to the report, “Minnick stated ‘Come back Monday when I have a lawyer,’ and stated that he would make a more complete statement then with his lawyer present.” App. 16. The FBI interview ended.

After the FBI interview, an appointed attorney met with petitioner. Petitioner spoke with the lawyer on two or three occasions, though it is not clear from the record whether all of these conferences were in person.

On Monday, August 25, Deputy Sheriff J. C. Denham of Clarke County, Mississippi, came to the San Diego jail to question Minnick. Minnick testified that his jailers again told him he would “have to talk” to Denham and that he “could not refuse.” Id., at 45. Denham advised petitioner of his rights, and petitioner again declined to sign a rights waiver form. Petitioner told Denham about the escape and then proceeded to describe the events at the mobile home. According to petitioner, Dyess jumped out of the mobile home and shot the first of the two victims, once in the back with a shotgun and once in the head with a pistol. Dyess then handed the pistol to petitioner and ordered him to shoot the other victim, holding the shotgun on petitioner until he did so. Petitioner also said that when the two girls arrived, he talked Dyess out of raping or otherwise hurting them.

Minnick was tried for murder in Mississippi. He moved to suppress all statements given to the FBI or other police officers, including Denham. The trial court denied the motion with respect to petitioner’s statements to Denham, but suppressed his other statements. Petitioner was convicted on two counts of capital murder and sentenced to death.

On appeal, petitioner argued that the confession to Den-ham was taken in violation of his rights to counsel under the Fifth and Sixth Amendments. The Mississippi Supreme Court rejected the claims. With respect to the Fifth Amendment aspect of the case, the court found “the Edwards bright-line rule as to initiation” inapplicable. 551 So. 2d 77, 83 (1988). Relying on language in Edwards indicating that the bar on interrogating the accused after a request for counsel applies “‘until counsel has been made available to him,’” ibid., quoting Edwards v. Arizona, supra, at 484-485, the court concluded that “[s]ince counsel was made available to Minnick, his Fifth Amendment right to counsel was satisfied.” 551 So. 2d, at 83. The court also rejected the Sixth Amendment claim, finding that petitioner waived his Sixth Amendment right to counsel when he spoke with Denham. Id., at 83-85. We granted certiorari, 495 U. S. 903 (1990), and, without reaching any Sixth Amendment implications in the case, we decide that the Fifth Amendment protection of Edwards is not terminated or suspended by consultation with counsel.

In Miranda v. Arizona, supra, at 474, we indicated that once an individual in custody invokes his right to counsel, interrogation “must cease until an attorney is present”; at that point, “the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.” Edwards gave force to these admonitions, finding it “inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.” 451 U. S., at 485. We held that “when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Id., at 484. Further, an accused who requests an attorney, “having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id., at 484-485.

Edwards is “designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.” Michigan v. Harvey, 494 U. S. 344, 350 (1990). See also Smith v. Illinois, 469 U. S. 91, 98 (1984). The rule ensures that any statement made in subsequent interrogation is not the result of coercive pressures. Edwards conserves judicial resources which would otherwise be expended in making difficult determinations of voluntariness, and implements the protections of Miranda in practical and straightforward terms.

The merit of the Edwards decision lies in the clarity of its command and the certainty of its application. We have confirmed that the Edwards rule provides “ ‘clear and unequivocal’ guidelines to the law enforcement profession.” Arizona v. Roberson, 486 U. S. 675, 682 (1988). Cf. Moran v. Burbine, 475 U. S. 412, 425-426 (1986). Even before Edwards, we noted that Miranda’s “relatively rigid requirement that interrogation must cease upon the accused’s request for an attorney . . . has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible. This gain in specificity, which benefits the accused and the State alike, has been thought to outweigh the burdens that the decision in Miranda imposes on law enforcement agencies and the courts by requiring the suppression of trustworthy and highly probative evidence even though the confession might be voluntary under traditional Fifth Amendment analysis.” Fare v. Michael C., 442 U. S. 707, 718 (1979). This pre-Edwards explanation applies as well to Edwards and its progeny. Arizona v. Roberson, supra, at 681-682.

The Mississippi Supreme Court relied on our statement in Edwards that an accused who invokes his right to counsel “is not subject to further interrogation by the authorities until counsel has been made available to him . . . .” 451 U. S., at 484-485. We do not interpret this language to mean, as the Mississippi court thought, that the protection of Edwards terminates once counsel has consulted with the suspect. In context, the requirement that counsel be “made available” to the accused refers to more than an opportunity to consult with an attorney outside the interrogation room.

In Edwards, we focused on Miranda's instruction that when the accused invokes his right to counsel, “the interrogation must cease until an attorney is present,” 384 U. S., at 474 (emphasis added), agreeing with Edwards’ contention that he had not waived his right “to have counsel present during custodial interrogation.” 451 U. S., at 482 (emphasis added). In the sentence preceding the language quoted by the Mississippi Supreme Court, we referred to the “right to have counsel present during custodial interrogation,” and in the sentence following, we again quoted the phrase “ ‘interrogation must cease until an attorney is present’” from Miranda. 451 U. S., at 484-485 (emphasis added). The full sentence relied on by the Mississippi Supreme Court, moreover, says: “We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Ibid. (emphasis added).

Our emphasis on counsel’s presence at interrogation is not unique to Edwards. It derives from Miranda, where we said that in the cases before us “[t]he presence of counsel. . . would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the [Fifth Amendment] privilege. His presence would insure that statements made in the government-established atmosphere are not the product of compulsion.” 384 U. S., at 466. See Fare v. Michael C., supra, at 719. Our cases following Edwards have interpreted the decision to mean that the authorities may not initiate questioning of the accused in counsel’s absence. Writing for a plurality of the Court, for instance, then-JusTiCE Rehnquist described the holding of Edwards to be “that subsequent incriminating statements made without [Edwards’] attorney present violated the rights secured to the defendant by the Fifth and Fourteenth Amendments to the United States Constitution.” Oregon v. Bradshaw, 462 U. S. 1039, 1043 (1983) (emphasis added). See also Arizona v. Roberson, supra, at 680 (“The rule of the Edwards case came as a corollary to Miranda’s admonition that ‘[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present’ ”); Shea v. Louisiana, 470 U. S. 51, 52 (1985) (“In Edwards v. Arizona, . . . this Court ruled that a criminal defendant’s rights under the Fifth and Fourteenth Amendments were violated by the use of his confession obtained by police-instigated interrogation — without counsel present — after he requested an attorney”). These descriptions of Edwards’ holding are consistent with our statement that “[preserving the integrity of an accused’s choice to communicate with police only through counsel is the essence of Edwards and its progeny.” Patterson v. Illinois, 487 U. S. 285, 291 (1988). In our view, a fair reading of Edwards and subsequent cases demonstrates that we have interpreted the rule to bar police-initiated interrogation unless the accused has counsel with him at the time of questioning. Whatever the ambiguities of our earlier cases on this point, we now hold that when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney.

We consider our ruling to be an appropriate and necessary application of the Edwards rule. A single consultation with an attorney does not remove the suspect from persistent attempts by officials to persuade him to waive his rights, or from the coercive pressures that accompany custody and that may increase as custody is prolonged. The case before us well illustrates the pressures, and abuses, that may be concomitants of custody. Petitioner testified that though he resisted, he was required to submit to both the FBI and the Denham interviews. In the latter instance, the compulsion to submit to interrogation followed petitioner’s unequivocal request during the FBI interview that questioning cease until counsel was present. The case illustrates also that consultation is not always effective in instructing the suspect of his rights. One plausible interpretation of the record is that petitioner thought he could keep his admissions out of evidence by refusing to sign a formal waiver of rights. If the authorities had complied with Minnick’s request to have counsel present during interrogation, the attorney could have corrected Minnick’s misunderstanding, or indeed counseled him that he need not make a statement at all. We decline to remove protection from police-initiated questioning based on isolated consultations with counsel who is absent when the interrogation resumes.

The exception to Edwards here proposed is inconsistent with Edwards’ purpose to protect the suspect’s right to have counsel present at custodial interrogation. It is inconsistent as well with Miranda, where we specifically rejected respondent’s theory that the opportunity to consult with one’s attorney would substantially counteract the compulsion created by custodial interrogation. We noted in Miranda that “[e]ven preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. Thus the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.” 384 U. S., at 470 (citation omitted).

The exception proposed, furthermore, would undermine the advantages flowing from Edwards’ “clear and unequivocal” character. Respondent concedes that even after consultation with counsel, a second request for counsel should reinstate the Edwards protection. We are invited by this formulation to adopt a regime in which Edwards’ protection could pass in and out of existence multiple times prior to arraignment, at which point the same protection might reattach by virtue of our Sixth Amendment jurisprudence, see Michigan v. Jackson, 475 U. S. 625 (1986). Vagaries of this sort spread confusion through the justice system and lead to a consequent loss of respect for the underlying constitutional principle.

In addition, adopting the rule proposed would leave far from certain the sort of consultation required to displace Edwards. Consultation is not a precise concept, for it may encompass variations from a telephone call to say that the attorney is en route, to a hurried interchange between the attorney and client in a detention facility corridor, to a lengthy in-person conference in which the attorney gives full and adequate advice respecting all matters that might be covered in further interrogations. And even with the necessary scope of consultation settled, the officials in charge of the case would have to confirm the occurrence and, possibly, the extent of consultation to determine whether further interrogation is permissible. The necessary inquiries could interfere with the attorney-client privilege.

Added to these difficulties in definition and application of the proposed rule is our concern over its consequence that the suspect whose counsel is prompt would lose the protection of Edwards, while the one whose counsel is dilatory would not. There is more than irony to this result. There is a strong possibility that it would distort the proper conception of the attorney’s duty to the client and set us on a course at odds with what ought to be effective representation.

Both waiver of rights and admission of guilt are consistent with the affirmation of individual responsibility that is a principle of the criminal justice system. It does not detract from this principle, however, to insist that neither admissions nor waivers are effective unless there are both particular and systemic assurances that the coercive pressures of custody were not the inducing cause. The Edwards rule sets forth a specific standard to fulfill these purposes, and we have de-dined to confine it in other instances. See Arizona v. Roberson, 486 U. S. 675 (1988). It would detract from the efficacy of the rule to remove its protections based on consultation with counsel.

Edwards does not foreclose finding a waiver of Fifth Amendment protections after counsel has been requested, provided the accused has initiated the conversation or discussions with the authorities; but that is not the case before us. There can be no doubt that the interrogation in question was initiated by the police; it was a formal interview which petitioner was compelled to attend. Since petitioner made a specific request for counsel before the interview, the police-initiated interrogation was impermissible. Petitioner’s statement to Denham was not admissible at trial.

The judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Souter took no part in the consideration or decision of this case.

Justice Scalia,

with whom The Chief Justice joins, dissenting.

The Court today establishes an irrebuttable presumption that a criminal suspect, after invoking his Miranda right to counsel, can never validly waive that right during any police-initiated encounter, even after the suspect has been provided multiple Miranda warnings and has actually consulted his attorney. This holding builds on foundations already established in Edwards v. Arizona, 451 U. S. 477 (1981), but “the rule of Edwards is our rule, not a constitutional command; and it is our obligation to justify its expansion.” Arizona v. Roberson, 486 U. S. 675, 688 (1988) (Kennedy, J., dissenting). Because I see no justification for applying the Edwards irrebuttable presumption when a criminal suspect has actually consulted with his attorney, I respectfully dissent.

I

Some recapitulation of pertinent facts is m order, given the Court’s contention that “[t]he case before us well illustrates the pressures, and abuses, that may be concomitants of custody.” Ante, at 153. It is undisputed that the FBI agents who first interviewed Minnick on Saturday, August 23, 1986, advised him of his Miranda rights before any questioning began. Although he refused to sign a waiver form, he agreed to talk to the agents, and described his escape from prison in Mississippi and the ensuing events. When he came to what happened at the trailer, however, Minnick hesitated. The FBI agents then reminded him that he did not have to answer questions without a lawyer present. Minnick indicated that he would finish his account on Monday, when he had a lawyer, and the FBI agents terminated the interview forthwith.

Minnick was then provided with an attorney, with whom he consulted several times over the weekend. As Minnick testified at a subsequent suppression hearing:

“I talked to [my attorney] two different times and — it might have been three different times .... He told me that first day that he was my lawyer and that he was appointed to me and to not to talk to nobody and not tell nobody nothing and to not sign no waivers and not sign no extradition papers or sign anything and that he was going to get a court order to have any of the police — I advised him of the FBI talking to me and he advised me not to tell anybody anything that he was going to get a court order drawn up to restrict anybody talking to me outside of the San Diego Police Department.” App. 46-47.

On Monday morning, Minnick was interviewed by Deputy Sheriff J. C. Denham, who had come to San Diego from Mississippi. Before the interview, Denham reminded Minnick of his Miranda rights. Minnick again refused to sign a waiver form, but he did talk with Denham and did not ask for his attorney. As Minnick recalled at the hearing, he and Denham

“went through several different conversations about— first, about how everybody was back in the county jail and what everybody was doing, had he heard from Mama and had he went and talked to Mama and had he seen my brother, Tracy, and several different other questions pertaining to such things as that. And, we went off into how the escape went down at the county jail . . . .” App. 50.

Minnick then proceeded to describe his participation in the double murder at the trailer.

Minnick was later extradited and tried for murder in Mississippi. Before trial, he moved to suppress the statements he had given the FBI agents and Denham in the San Diego jail. The trial court granted the motion with respect to the statements made to the FBI agents, but ordered a hearing on the admissibility of the statements made to Denham. After receiving testimony from both Minnick and Denham, the court concluded that Minnick’s confession had been “freely and voluntarily given from the evidence beyond a reasonable doubt,” id., at 25, and allowed Denham to describe Minnick’s confession to the jury.

The Court today reverses the trial court’s conclusion. It holds that, because Minnick had asked for counsel during the interview with the FBI agents, he could hot — as a matter of law — validly waive the right to have counsel present during the conversation initiated by Denham. That Minnick’s original request to see an attorney had been honored, that Minnick had consulted with his attorney on several occasions, and that the attorney had specifically warned Minnick not to speak to the authorities, are irrelevant. That Minnick was familiar with the criminal justice system in general or Miranda warnings in particular (he had previously been convicted of robbery in Mississippi and assault with a deadly weapon in California) is also beside the point. The confession must be suppressed, not because it was “compelled,” nor even because it was obtained from an individual who could realistically be assumed to be unaware of his rights, but simply because this Court sees fit to prescribe as a “systemic assurance],” ante, at 155, that a person in custody who has once asked for counsel cannot thereafter be approached by the police unless counsel is present. Of course the Constitution’s proscription of compelled testimony does not remotely authorize this incursion upon state practices; and even our recent precedents are not a valid excuse.

I — I I — I

In Miranda v. Arizona, 384 U. S. 436 (1966), this Court declared that a criminal suspect has a right to have counsel present during custodial interrogation, as a prophylactic assurance that the “inherently compelling pressures,” id., at 467, of such interrogation will not violate the Fifth Amendment. But Miranda did not hold that these “inherently compelling pressures” precluded a suspect from waiving his right to have counsel present. On the contrary, the opinion recognized that a State could establish that the suspect “knowingly and intelligently waived ... his right to retained or appointed counsel.” Id., at 475. For this purpose, the Court expressly adopted the “high standar[d] of proof for the waiver of constitutional rights,” ibid., set forth in Johnson v. Zerbst, 304 U. S. 458 (1938).

The Zerbst waiver standard, and the means of applying it, are familiar: Waiver is “an intentional relinquishment or abandonment of a known right or privilege,” id., at 464; and whether such a relinquishment or abandonment has occurred depends “in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused,” ibid. We have applied the Zerbst approach in many contexts where a State bears the burden of showing a waiver of constitutional criminal procedural rights. See, e. g., Faretta v. California, 422 U. S. 806, 835 (1975) (right to the assistance of counsel at trial); Brookhart v. Janis, 384 U. S. 1, 4 (1966) (right to confront adverse witnesses); Adams v. United States ex rel. McCann, 317 U. S. 269, 275-280 (1942) (right to trial by jury).

Notwithstanding our acknowledgment that Miranda rights are “not themselves rights protected by the Constitution but . . . instead measures to insure that the right against compulsory self-incrimination [is] protected,” Michigan v. Tucker, 417 U. S. 433, 444 (1974), we have adhered to the principle that nothing less than the Zerbst standard for the waiver of constitutional rights applies to the waiver of Miranda rights. Until Edwards, however, we refrained from imposing on the States a higher standard for the waiver of Miranda rights. For example, in Michigan v. Mosley, 423 U. S. 96 (1975), we rejected a proposed irrebuttable presumption that a criminal suspect, after invoking the Miranda right to remain silent, could not validly waive the right during any subsequent questioning by the police. In North Carolina v. Butler, 441 U. S. 369 (1979), we rejected a proposed rule that waivers of Miranda rights must be deemed involuntary absent an explicit assertion of waiver by the suspect. And in Fare v. Michael C., 442 U. S. 707, 723-727 (1979), we declined to hold that waivers of Miranda rights by juveniles are per se involuntary.

Edwards, however, broke with this approach, holding that a defendant’s waiver of his Miranda right to counsel, made in the course of a police-initiated encounter after he had requested counsel but before counsel had been provided, was per se involuntary. The case stands as a solitary exception to our waiver jurisprudence. It does, to be sure, have the desirable consequences described in today’s opinion. In the narrow context in which it applies, it provides 100% assurance against confessions that are “the result of coercive pressures,” ante, at 151; it “‘prevents] police from badgering a •defendant,’ ” ante, at 150 (quoting Michigan v. Harvey, 494 U. S. 344, 350 (1990)); it “conserves judicial resources which would otherwise be expended in making difficult determinations of voluntariness,” ante, at 151; and it provides “‘“clear and unequivocal” guidelines to the law enforcement profession,’” ibid, (quoting Arizona v. Roberson, 486 U. S., at 682). But so would a rule that simply excludes all confessions by all persons in police custody. The value of any prophylactic rule (assuming the authority to adopt a prophylactic rule) must be assessed not only on the basis of what is gained, but also on the basis of what is lost. In all other contexts we have thought the above-described consequences of abandoning Zerbst outweighed by “ ‘the need for police questioning as a tool for effective enforcement of criminal laws,’” Moran v. Burbine, 475 U. S. 412, 426 (1986). “Admissions of guilt,” we have said, “are more than merely ‘desirable’; they are essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.” Ibid, (citation omitted).

Ill

In this case, of course, we have not been called upon to reconsider Edwards, but simply to determine whether its irrebuttable presumption should continue after a suspect has actually consulted with his attorney. Whatever justifications might support Edwards are even less convincing in this context.

Most of the Court’s discussion of Edwards — which stresses repeatedly, in various formulations, the case’s emphasis upon the “right ‘to have counsel present during custodial interrogation.’” ante, at 152, quoting 451 U. S., at 482 (emphasis added by the Court) — is beside the point. The existence and the importance of the Miranda-created right “to have counsel present” are unquestioned here. What is questioned is why a State should not be given the opportunity to prove (under Zerbst) that the right was voluntarily waived by a suspect who, after having been read his Miranda rights twice and having consulted with counsel at least twice, chose to speak to a police officer (and to admit his involvement in two murders) without counsel present.

Edwards did not assert the principle that no waiver of the Miranda right “to have counsel present” is possible. It simply adopted the presumption that no waiver is voluntary in certain circumstances, and the issue before us today is how broadly those circumstances are to be defined. They should not, in my view, extend beyond the circumstances present in Edwards itself — where the suspect in custody asked to consult an attorney and was interrogated before that attorney had ever been provided. In those circumstances, the Edwards rule rests upon an assumption similar to that of Miranda itself: that when a suspect in police custody is first questioned he is likely to be ignorant of his rights and to feel isolated in a hostile environment. This likelihood is thought to justify special protection against unknowing or coerced waiver of rights. After a suspect has seen his request for an attorney honored, however, and has actually spoken with that attorney, the probabilities change. The suspect then knows that he has an advocate on his side, and that the police will permit him to consult that advocate. He almost certainly also has a heightened awareness (above what the Miranda warning itself will provide) - of his right to remain silent — since at the earliest opportunity “any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.” Watts v. Indiana, 338 U. S. 49, 59 (1949) (opinion of Jackson, J.).

Under these circumstances, an irrebuttable presumption that any police-prompted confession is the result of ignorance of rights, or of coercion, has no genuine basis in fact. After the first consultation, therefore, the Edwards exclusionary rule should cease to apply. Does this mean, as the Court implies, that the police will thereafter have license to “badger” the suspect? Only if all one means by “badger” is asking, without such insistence or frequency as would constitute coercion, whether he would like to reconsider his decision not to confess. Nothing in the Constitution (the only basis for our intervention here) prohibits such inquiry, which may often produce the desirable result of a voluntary confession. If and when postconsultation police inquiry becomes so protracted or threatening as to constitute coercion, the Zerbst standard will afford the needed protection.

One should not underestimate the extent to which the Court’s expansion of Edwards constricts law enforcement. Today’s ruling, that the invocation of a right to counsel permanently prevents a police-initiated waiver, makes it largely impossible for the police to urge a prisoner who has initially declined to confess to change his mind — or indeed, even to ask whether he has changed his mind. Many persons in custody will invoke the Miranda right to counsel during the first interrogation, so that the permanent prohibition will attach at once. Those who do not do so will almost certainly request or obtain counsel at arraignment. We have held that a general request for counsel, after the Sixth Amendment right has attached, also triggers the Edwards prohibition of police-solicited confessions, see Michigan v. Jackson, 475 U. S. 625 (1986), and I presume that the perpetuality of prohibition announced in today’s opinion applies in that context as well. “Perpetuality” is not too strong a term, since, although the Court rejects one logical moment at which the Edwards presumption might end, it suggests no alternative. In this case Minnick was reapproached by the police three days after he requested counsel, but the result would presumably be the same if it had been three months, or three years, or even three decades. This perpetual irrebuttable presumption will apply, I might add, not merely to interrogations involving the original crime, but to those involving other subjects as well. See Arizona v. Roberson, 486 U. S. 675 (1988).

Besides repeating the uncontroverted proposition that the suspect has a “right to have counsel present,” the Court stresses the clarity and simplicity that are achieved by today’s holding. Clear and simple rules are desirable, but only in pursuance of authority that we possess. We are authorized by the Fifth Amendment to exclude confessions that are “compelled,” which we have interpreted to include confessions that the police obtain from a suspect in custody without a knowing and voluntary waiver of his right to remain silent. Undoubtedly some bright-line rules can be adopted to implement that principle, marking out the situations in which knowledge or voluntariness cannot possibly be established— for example, a rule excluding confessions obtained after five hours of continuous interrogation. But a rule excluding all confessions that follow upon even the slightest police inquiry cannot conceivably be justified on this basis. It does not rest upon a reasonable prediction that all such confessions, or even most such confessions, will be unaccompanied by a knowing and voluntary waiver.

It can be argued that the same is true of the category of confessions excluded by the Edwards rule itself. I think that is so, but, as I have discussed above, the presumption of involuntariness is at least more plausible for that category. There is, in any event, a clear and rational line between that category and the present one, and I see nothing to be said for expanding upon a past mistake. Drawing a distinction between police-initiated inquiry before consultation with counsel and police-initiated inquiry after consultation with counsel is assuredly more reasonable than other distinctions Edwards has already led us into — such as the distinction between police-initiated inquiry after assertion of the Miranda right to remain silent, and police-initiated inquiry after assertion of the Miranda right to counsel, see Kamisar, The Edwards and Bradshaw Cases: The Court Giveth and the Court Taketh Away, in 5 The Supreme Court: Trends and Developments 153, 157 (J. Choper, Y. Kamisar, & L. Tribe eds. 1984) (“[Ejither Mosley was wrongly decided or Edwards was”); or the distinction between what is needed to prove waiver of the Miranda right to have counsel present and what is needed to prove waiver of rights found in the Constitution.

The rest of the Court’s arguments can be answered briefly. The suggestion that it will either be impossible or ethically impermissible to determine whether a “consultation” between the suspect and his attorney has occurred is alarmist. Since, as I have described above, the main purpose of the consultation requirement is to eliminate the suspect’s feeling of isolation and to assure him the presence of legal assistance, any discussion between him and an attorney whom he asks to contact, or who is provided to him, in connection with his arrest, will suffice. The precise content of the discussion is irrelevant.

As for the “irony” that “the suspect whose counsel is prompt would lose the protection of Edwards, while the one whose counsel is dilatory would not,” ante, at 155: There seems to me no irony in applying a special protection only when it is needed. The Edwards rule is premised on an (already tenuous) assumption about the suspect’s psychological state, and when the event of consultation renders that assumption invalid the rule should no longer apply. One searching for ironies in the state of our law should consider, first, the irony created by Edwards itself: The suspect in custody who says categorically “I do not wish to discuss this matter” can be asked to change his mind; but if he should say, more tentatively, “I do not think I should discuss this matter without my attorney present” he can no longer be approached. To that there is added, by today’s decision, the irony that it will be far harder for the State to establish a knowing and voluntary waiver of Fifth Amendment rights by a prisoner who has already consulted with counsel than by a newly arrested suspect.

Finally, the Court’s concern that “Edwards’ protection could pass in and out of existence multiple times,” ante, at 154, does not apply to the resolution of the matter I have proposed. Edwards would cease to apply, permanently, once consultation with counsel has occurred.

* * *

Today’s extension of the Edwards prohibition is the latest stage of prophylaxis built upon prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction upon law enforcement. This newest tower, according to the Court, is needed to avoid “inconsisten[cy] with [the] purpose” of Edwards’ prophylactic rule, ante, at 154, which was needed to protect Miranda’s prophylactic right to have counsel present, which was needed to protect the right against compelled self-incrimination found (at last!) in the Constitution.

It seems obvious to me that, even in Edwards itself but surely in today’s decision, we have gone far beyond any genuine concern about suspects who do not know their right to remain silent, or who have been coerced to abandon it. Both holdings are explicable, in my view, only as an effort to protect suspects against what is regarded as their own folly. The sharp-witted criminal would know better than to confess; why should the dull-witted suffer for his lack of mental endowment? Providing him an attorney at every stage where he might be induced or persuaded (though not coerced) to incriminate himself will even the odds. Apart from the fact that this protective enterprise is beyond our authority under the Fifth Amendment or any other provision of the Constitution, it is unwise. The procedural protections of the Constitution protect the guilty as well as the innocent, but it is not their objective to set the guilty free. That some clever criminals may employ those protections to their advantage is poor reason to allow criminals who have not done so to escape justice.

Thus, even if I were to concede that an honest confession is a foolish mistake, I would welcome rather than reject it; a rule that foolish mistakes do not count would leave most offenders not only unconvicted but undetected. More fundamentally, however, it is wrong, and subtly corrosive of our criminal justice system, to regard an honest confession as a “mistake.” While every person is entitled to stand silent, it is more virtuous for the wrongdoer to admit his offense and accept the punishment he deserves. Not only for society, but for the wrongdoer himself, “admissio[n] of guilt... , if not coerced, [is] inherently desirable,” United States v. Washington, 431 U. S. 181, 187 (1977), because it advances the goals of both “justice and rehabilitation,” Michigan v. Tucker, 417 U. S., at 448, n. 23 (emphasis added). A confession is rightly regarded by the Sentencing Guidelines as warranting a reduction of sentence, because it “demonstrates a recognition and affirmative acceptance of personal responsibility for . . . criminal conduct,” U. S. Sentencing Commission, Guidelines Manual §3E1.1 (1988), which is the beginning of reform. We should, then, rejoice at an honest confession, rather than pity the “poor fool” who has made it; and we should regret the attempted retraction of that good act, rather than seek to facilitate and encourage it. To design our laws on premises contrary to these is to abandon belief in either personal responsibility or the moral claim of just government to obedience. Cf. Caplan, Questioning Miranda, 38 Vand. L. Rev. 1417, 1471-1473 (1985). Today’s decision is misguided, it seems to me, in so readily exchanging, for marginal, super-Zerbst protection against genuinely compelled testimony, investigators’ ability to urge, or even ask, a person in custody to do what is right.


source: Caselaw Access Project

author: Justice Stevens

license: Public Domain

text:
    GROVES et al. v. RING SCREW WORKS, FERNDALE FASTENER DIVISION
    No. 89-1166.
    Argued October 10, 1990
    Decided December 10, 1990
    Stevens, J., delivered the opinion for a unanimous Court.

      Laurence Gold argued the cause for petitioners. With him on the briefs were Jordan Rossen and George Kaufmann.

      Terence V. Page argued the cause for respondent. With him on the brief was Richard M. Tuyn

      Briefs of amici curiae urging affirmance were filed for the Chamber of Commerce of the United States by Robin S. Conrad; and for the Motor Vehicle Manufacturers Association of the United States, Inc., by James D. Holzhauer, Stephen M. Shapiro, William H. Crabtree, and Edward P. Good.

   Justice Stevens

delivered the opinion of the Court.

The collective-bargaining agreements between the parties provide for voluntary grievance procedures and reserve the parties’ respective rights to resort to economic weapons when the procedures fail to resolve a dispute. The collective-bargaining agreements are silent as to judicial remedies. The question presented is whether, upon failure of the grievance procedures, such contracts should be construed to bar recourse to the courts under § 301 of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U. S. C. § 185. We granted certiorari to resolve a conflict in the Circuits, 494 U. S. 1026 (1990), and we now conclude that the judicial remedy under § 301 is available to petitioners.

r-H

Two almost identical collective-bargaining agreements (CBA’s) between respondent Ring Screw Works (company) and the union prohibit discharges except for “just cause.” Petitioners Groves and Evans contend that they were discharged in violation of this provision.

Both CBA’s provide that the parties will make “an earnest effort” to settle every dispute that may arise under the agreement. App. 16. Both CBA’s also contain a voluntary multistep grievance procedure, but neither includes a requirement that the parties submit disputes to binding arbitration. The CBA’s prohibit strikes or lockouts until the grievance machinery has been exhausted. The no-strike clause provides:

“The Union will not cause or permit its members to cause, nor will any member of the Union take part in any strike, either sit-down, stay-in or any other kind of strike, or other interference, or any other stoppage, total or partial, of production at the Company’s plant during the terms of this agreement until all negotiations have failed through the grievance procedure set forth herein. Neither will the Company engage in any lockout until the same grievance procedure has been carried out.” Id., at 34 (emphasis added); see id., at 69.

The dispute in this case arose out of the company’s decision to discharge petitioners. With the assistance of the union, petitioners invoked the grievance procedures, but without success. At the end of the procedures, the company decided not to call for arbitration, and the union decided not to exercise its right to strike. Instead, petitioners filed this action invoking federal jurisdiction under § 301, 29 U. S. C. §185.

Following the Sixth Circuit’s decision in Fortune v. National Twist Drill & Tool Division, Lear Siegler, Inc., 684 F. 2d 374 (1982), the District Court granted the company’s motion for summary judgment and the Court of Appeals affirmed. 882 F. 2d 1081 (1989). The Sixth Circuit explained:

“We believe that the CBA’s in question do bring about an inference that a strike, or other job action, is the perceived remedy for failure of successful resolution of a grievance absent agreed arbitration. Such resolution, by work ‘stoppage or other interference’ is not a happy solution from a societal standpoint of an industrial dispute, particularly as it relates to the claim of a single employee that he has been wrongfully discharged. Were we deciding the issue with a clean slate, we might be disposed to adopt the rationale of Dickeson [v. DAW Forest Products Co.], 827 F. 2d 627 [(CA9 1987)].” 882 F. 2d, at 1086.

r-H 1 — I

Section 301(a) of the LMRA provides a federal remedy for breach of a collective-bargaining agreement. We have squarely held that § 301 authorizes “suits by and against individual employees as well as between unions and employers,” including actions against an employer for wrongful discharge. Hines v. Anchor Motor Freight, Inc., 424 U. S. 554, 562 (1976). Our opinion in Hines described the strong federal policy favoring judicial enforcement of collective-bargaining agreements. We wrote:

“Section 301 of the Labor Management Relations Act . . . reflects the interest of Congress in promoting ‘a higher degree of responsibility upon the parties to such agreements . . . . ’ S. Rep. No. 105, 80th Cong., 1st Sess., 17 (1947). The strong policy favoring judicial enforcement of collective-bargaining contracts was sufficiently powerful to sustain the jurisdiction of the district courts over enforcement suits even though the conduct involved was arguably or would amount to an unfair labor practice within the jurisdiction of the National Labor Relations Board. Smith v. Evening News Assn., 371 U. S. 195 (1962); Atkinson v. Sinclair Rfg. Co., 370 U. S. 238 (1962); Teamsters v. Lucas Flour Co., 369 U. S. 95 (1962); Charles Dowd Box Co. v. Courtney, 368 U. S. 502 (1962). Section 301 contemplates suits by and against individual employees as well as between unions and employers; and contrary to earlier indications §301 suits encompass those seeking to vindicate ‘uniquely personal’ rights of employees such as wages, hours, overtime pay, and wrongful discharge. Smith v. Evening News Assn., supra, at 198-200. Petitioners’ present suit against the employer was for wrongful discharge and is the kind of case Congress provided for in §301.” Id., at 561-562.

Thus, under §301, as in other areas of the law, there is a strong presumption that favors access to a neutral forum for the peaceful resolution of disputes.

The company correctly points out, however, that a presumption favoring access to a judicial forum is overcome whenever the parties have agreed upon a different method for the adjustment of their disputes. The company argues that the union has agreed that if the voluntary mediation process is unsuccessful, then the exclusive remedy that remains is either a strike or a lockout, depending on which party asserts the breach of contract. According to this view, the dispute is not whether there was “just cause” for the discharge of Groves and Evans, but whether the union has enough muscle to compel the company to rehire them even if there was just cause for their discharge.

In our view, the statute’s reference to “the desirable method for settlement of grievance disputes,” see n. 10, supra, refers to the peaceful resolution of disputes over the application or meaning of the collective-bargaining agreement. Of course, the parties may expressly agree to resort to economic warfare rather than to mediation, arbitration, or judicial review, but the statute surely does not favor such an agreement. For in most situations a strike or a lockout, though it may be a method of ending the impasse, is not a method of resolving the merits of the dispute over the application or meaning of the contract. Rather, it is simply a method by which one party imposes its will upon its adversary. Such a method is the antithesis of the peaceful methods of dispute resolution envisaged by Congress when it passed the LMRA.

In Associated, General Contractors of Illinois v. Illinois Conference of Teamsters, 486 F. 2d 972 (1973), the United States Court of Appeals for the Seventh Circuit was confronted with the same issue presented by this case, albeit with the union, rather than the employer, claiming that the contractual provision foreclosed judicial relief. The Seventh Circuit, in response to the union’s argument that the CBA’s terms provided that deadlocked grievances would be resolved by economic sanctions without resort to the courts, wrote:

“Unquestionably ‘the means chosen by the parties for settlement of their differences under a collective bargaining agreement [must be] given full play.’ See United Steelworkers of America v. American Mfg. Co., 363 U. S. 564, 566 [(I960)]. But it is one thing to hold that an arbitration clause in a contract agreed to by the parties is enforceable. It is quite a different matter to construe a contract provision reserving the Union’s right to resort to ‘economic recourse’ as an agreement to divest the courts of jurisdiction to resolve whatever dispute may arise. This we decline to do.
“In our first opinion in this case we noted that the parties had not agreed to compulsory arbitration and that the Union had expressly reserved the right to ‘economic recourse’ in the event of a deadlock. We therefore held that the . . . right to strike was protected by the Norris-LaGuardia Act. However, we did not, and do not now, construe the agreement as requiring economic warfare as the exclusive or even as a desirable method for settling deadlocked grievances. The plain language of the statute protects the right to strike, but there is no plain language in the contract compelling the parties to use force instead of reason in resolving their differences. In our view, an agreement to forbid any judicial participation in the resolution of important disputes would have to be written much more clearly than this.” Id., at 976 (footnote omitted).

This reasoning applies equally to cases in which the union, an employee, or the employer is the party invoking judicial relief.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

      Compare Fortune v. National Twist Drill & Tool Division, Lear Siegler, Inc., 684 F. 2d 374 (CA6 1982), and Haynes v. United States Pipe and Foundry Co., 362 F. 2d 414 (CA5 1966), with Associated General Contractors of Illinois v. Illinois Conference of Teamsters, 486 F. 2d 972 (CA7 1973); Dickeson v. DAW Forest Products Co., 827 F. 2d 627 (CA9 1987); United Brotherhood of Carpenters & Joiners of America v. Hensel Phelps Construction Co., 376 F. 2d 731 (CA10), cert. denied, 389 U. S. 952 (1967), and Breish v. Ring Screw Works, 397 Mich. 586, 248 N. W. 2d 526 (1976).

       Local 771, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), is one of the three petitioners and serves as collective-bargaining agent for the two employee petitioners, Arthur Groves and Bobby J. Evans.

       Thus, one CBA provides, in part:
      “Section 1. Should a difference arise between the Company and the Union or its members employed by the Company, as to the meaning and application of the provisions of the agreement, an earnest effort will be made to settle it as follows:
      “Step 1. Between the employee, his steward and the foreman of his department. If a satisfactory settlement is not reached, then
      “Step 2. Between the Shop Committee, with or without the employee, and the Company management. If a satisfactory settlement is not reached, then
      “Step 3. The Shop Committee and/or the Company may call the local Union president and/or the International representative to arrange a meeting in an attempt to resolve the grievance. If a satisfactory settlement is not reached, then
      “Step 4. The Shop Committee and the Company may call in an outside representative to assist in settling the difficulty. This may include arbitration by mutual agreement in discharge cases only.” App. 16-17.

       One of the CBA’s contained the following provision:
      “Unresolved grievance (except arbitration decisions) shall be handled as set forth in Article XVI, Section 7.” Id., at 53.
      The referenced provision is the no-strike clause. There has been no claim at any stage of this litigation that this provision justifies a different interpretation of the two otherwise almost identical CBA’s.

       The company terminated petitioner Groves for allegedly excessive, unexcused absences and dismissed petitioner Evans for allegedly falsifying company records.

      There is no dispute that the grievance procedures were properly followed and that the union fairly represented petitioners.

      In Evans’ case, a strike vote was taken by the unit members at the plant at which he worked, but the issue did not receive the required two-thirds majority; in Groves’ case, a strike vote was never taken.

       The Sixth Circuit relied on its reasoning in Fortune, as restated in subsequent opinions:
      “ ‘This circuit has concluded, in essence that regardless of whether the contractual dispute resolution mechanism results in a ‘final and binding' decision, the existence of that mechanism will foreclose judicial review provided we find that it was intended to be exclusive. . . .
      “ While we may question the wisdom of foreclosing judicial review of contracts which fail to provide for either ‘final’ or ‘binding’ peaceful resolution via arbitration, since the absence of such a provision cannot be taken to infer that the union (and thereby its employees) gained anything in its contract negotiations as a result, it is nevertheless well established in this circuit that a panel of this court is bound by the prior decisions of another panel of the same issues.’

        “Mochko v. Acme-Cleveland Corp., 826 F. 2d 1064 (6th Cir. 1987) (unpublished per curiam).” 882 F. 2d, at 1086.
      Given the panel’s expressed doubt about the correctness of the Circuit precedent that it was following, together with the fact that there was a square conflict in the Circuits, it might have been appropriate for the panel to request a rehearing en banc.

       Section 301(a) of the LMRA, 61 Stat. 156, provides:
      “(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.” 29 U. S. C. § 185(a).

       Section 203(d) of the LMRA provides:
      “Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.” 29 U. S. C. § 173(d).

       As we explained in Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574 (1960):
      “The processing of disputes through the grievance machinery is actually a vehicle by which meaning and content are given to the collective bargaining agreement.” Id., at 581.
      Here, the parties’ dispute centers on the question whether there was just cause for the discharges.

       “If unions can break agreements with relative impunity, then such agreements do not tend to stabilize industrial relations. The execution of an agreement does not by itself promote industrial peace. The chief advantage which an employer can reasonably expect from a collective labor agreement is assurance of uninterrupted operation during the term of the agreement. Without some effective method of assuring freedom from economic warfare for the term of the agreement, there is little reason why an employer would desire to sign such a contract.” S. Rep. No. 105, 80th Cong., 1st Sess., p. 16 (1947).


author: Per Curiam. Justice Marshall, Justice Blackmun,

text:
    IN RE SINDRAM
    No. 90-6051.
    Decided January 7, 1991
   Per Curiam.

Pro se petitioner Michael Sindram seeks an extraordinary-writ pursuant to 28 U. S. C. § 1651 and requests permission to proceed in forma pauperis under this Court’s Rule 39. This is petitioner’s 25th filing before this Court in the October 1990 Term alone. Pursuant to our decision in In re McDonald, 489 U. S. 180 (1989), we deny the motion for leave to proceed informa pauperis.

Petitioner is no stranger to this Court. In the last three years, he has filed 43 separate petitions and motions, including 21 petitions for certiorari, 16 petitions for rehearing, and 2 petitions for extraordinary writs. Without recorded dissent, the Court has denied all of his appeals, petitions, and motions. Petitioner has nonetheless persisted in raising essentially the same arguments in an unending series of filings. Like the majority of petitioner’s previous submissions to this Court, the instant petition relates to a speeding ticket that petitioner received on May 17, 1987, in Dorchester County, Maryland. Having already challenged his conviction for speeding in five different state and federal courts on 27 prior occasions, petitioner now requests that the Court issue a writ compelling the Maryland Court of Appeals to expedite consideration of his appeal in order that the speeding ticket may be expunged from his driving record. The petition for mandamus was filed less than three months after he filed his appeal with the Maryland court.

The mandamus petition alleges only that petitioner’s “appeal in the lower court remains pending and unacted upon,” and that “[a]s a direct and proximate cause of this dilatory action, Petitioner is unable to have his driving record expunged.” Pet. for Mandamus 2. The legal bases offered by petitioner for relief were presented in eight prior certiorari petitions and are identical to the claims unsuccessfully presented in at least 13 of petitioner’s rehearing petitions.

As we made clear in McDonald, the granting of an extraordinary writ is, in itself, extraordinary. 489 U. S., at 184-185; see Kerr v. United States District Court for Northern District of California, 426 U. S. 394, 402-403 (1976). On its face, this petition does not even remotely satisfy the requirements for issuance of an extraordinary writ. Petitioner has made no showing that “adequate relief cannot be had in any other form or from any other court” as required by this Court’s Rule 20.1. He identifies no “drastic” circumstance to justify extraordinary relief (see Ex parte Fahey, 332 U. S. 258, 259 (1947)). Instead, he merely recites the same claims that he has presented to this Court in over a dozen prior petitions. Petitioner’s request that we consider these claims yet again is both frivolous and abusive.

In McDonald, supra, we denied in forma pauperis status to a petitioner who filed a similarly nugatory petition for extraordinary writ. As we explained, the Court waives filing fees and costs for indigent individuals in order to promote the interests of justice. The goal of fairly dispensing justice, however, is compromised when the Court is forced to devote its limited resources to the processing of repetitious and frivolous requests. Pro se petitioners have a greater capacity than most to disrupt the fair allocation of judicial resources because they are not subject to the financial considerations — filing fees and attorney’s fees —that deter other litigants from filing frivolous petitions. Id., at 184. The risks of abuse are particularly acute with respect to applications for extraordinary relief, since such petitions are not subject to any time limitations and, theoretically, could be filed at any time without limitation. In order to prevent frivolous petitions for extraordinary relief from unsettling the fair administration of justice, the Court has a duty to deny in forma pauperis status to those individuals who have abused the system. Under the circumstances of this case, we find it appropriate to deny in forma pauperis status to petitioner in this and all future petitions for extraordinary relief.

Accordingly, if petitioner wishes to have his petition considered on its merits, he must pay the docketing fee required by this Court’s Rule 38(a) and submit a petition in compliance with Rule 33 before January 28, 1991. The Clerk is directed not to accept any further petitions from petitioner for extraordinary writs pursuant to 28 U. S. C. §§ 1651(a), 2241, and 2254(a), unless he pays the docketing fee required by Rule 38(a) and submits his petition in compliance with Rule 33. Petitioner remains free under the present order to file in forma pauperis requests for. relief other than an extraordinary writ, if he qualifies under this Court’s Rule 39 and does not similarly abuse that privilege.

It is so ordered.

Justice Marshall,

with whom Justice Blackmun and Justice Stevens join,

dissenting.

To rid itself of the minor inconvenience caused by Michael Sindram, an in forma pauperis litigant, the Court closes its doors to future in forma pauperis filings by Sindram for extraordinary writs and hints that restrictions on other filings might be forthcoming. Because I continue to believe that departures of this sort from our generous tradition of welcoming claims from indigent litigants is neither wise nor warranted by statute or our rules, see In re McDonald, 489 U. S. 180, 185 (1989) (Brennan, J., dissenting, joined by Marshall, Blackmun, and Stevens, JJ.), I dissent.

As the Court documents, Sindram’s filings have been numerous, and many have been frivolous. In my view, however, the Court’s worries about the threats that hyperactive informa pauperis litigants like Sindram pose to our ability to manage our docket are greatly exaggerated and do not support the penalty that the Court imposes upon him. We receive countless frivolous informa pauperis filings each year, and, as a practical matter, we identify and dispense with them with ease. Moreover, indigent litigants hardly corner the market on frivolous filings. We receive a fair share of frivolous filings from paying litigants. Indeed, I suspect that because clever attorneys manage to package these filings so their lack of merit is not immediately apparent, we expend more time wading through frivolous paid filings than through frivolous in forma pauperis filings. To single out Sindram in response to a problem that cuts across all classes of litigants strikes me as unfair, discriminatory, and petty.

The Court’s crackdown on Sindram’s future filings for extraordinary writs is additionally disconcerting when one considers the total absence of any authority for the penalty the Court administers. As Justice Brennan keenly pointed out in In re McDonald, see id., at 185-186, the in forma pauperis statute permits courts only to dismiss an action that is in fact frivolous. See 28 U. S. C. § 1915(d). That statute, however, does not authorize us prospectively to bar an informa pauperis filing on the ground that the litigant’s earlier filings in unrelated actions were frivolous. This Court’s Rules are equally silent on the matter. Rule 39, which governs in forma pauperis proceedings, includes no provision allowing prospective denial of informa pauperis status. While Rule 42.2 permits assessing costs and damages for frivolous filings, it says nothing about saddling an indiscriminate litigant with what amounts to an injunction on future filings.

Some of our in forma pauperis filings are made by destitute or emotionally troubled individuals. As we struggle to resolve vexing legal issues of our day, it is tempting to feel put upon by prolific litigants who temporarily divert our attention from these issues. In my view, however, the minimal annoyance these litigants might cause is well worth the cost. Our longstanding tradition of leaving our door open to all classes of litigants is a proud and decent one worth maintaining. See Talamini v. Allstate Ins. Co., 470 U. S. 1067, 1070 (1985) (Stevens, J., concurring).

Moreover, we should not presume in advance that prolific indigent litigants will never bring a meritorious claim. Nor should we lose sight of the important role informa pauperis claims have played in shaping constitutional doctrine. See, e. g., Gideon v. Wainwright, 372 U. S. 335 (1963). As Justice Brennan warned, “if ... we continue on the course we chart today, we will end by closing our doors to a litigant with a meritorious claim.” In re McDonald, supra, at 187. By closing our door today to a litigant like Michael Sindram, we run the unacceptable risk of impeding a future Clarence Earl Gideon. This risk becomes all the more unacceptable when it is generated by an ineffectual gesture that serves no realistic purpose other than conveying an unseemly message of hostility to indigent litigants.

I dissent.

Justice Blackmun,

with whom Justice Marshall joins,

dissenting.

I join Justice Marshall’s dissent. I write separately simply to emphasize what seems to me to be the inappropriateness of the Court’s action in this particular case. Even if one believes, as I do not, that this Court has the authority prospectively to deny leave for a litigant to proceed informa pauperis, and in some instances may be justified in doing so, I cannot conclude that such action is warranted in this case. Jessie McDonald, the first pro se litigant to whom this Court has barred its doors prospectively, had filed 19 petitions for extraordinary relief when the Court concluded that he had abused the privilege of filing in forma pauperis. See In re McDonald, 489 U. S. 180, 181, and n. 3 (1989). See also Wrenn v. Benson, 490 U. S. 89 (1989). As the Court today acknowledges, however, Michael Sindram has filed only two petitions for extraordinary relief since 1987: a petition for writ of habeas corpus filed in 1988 and the pending petition for mandamus. Ante, at 178, and n. 1.

While it may well be true that each of Sindram’s petitions for extraordinary relief lacked merit, it cannot be, as the Court asserts, that these two petitions have “compromised]” the “goal of fairly dispensing justice,” or “disrupted] the fair allocation of judicial resources.” Ante, at 179-180. Rather, the Court’s order in this case appears to be nothing more than an alternative for punishing Sindram for the frequency with which he has filed petitions for certiorari and petitions for rehearing. Ante, at 177-178. Accordingly, I dissent.

      See Sindram v. Reading, No. 87-5734, cert. denied, 484 U. S. 1013, motion to file late petition for rehearing denied, 488 U. S. 935 (1988); Sindram v. W & W Associates, No. 87-6689, cert. denied, 486 U. S. 1024 (1988); Sindram v. Taylor, No. 88-5386, cert. denied, 488 U. S. 911, rehearing denied, 488 U. S. 987 (1988); Sindram v. Maryland, No. 89-5039, cert. denied, 493 U. S. 857 (1989); In re Sindram, No. 88-6538, petition for writ of habeas corpus denied, 489 U. S. 1064 (1989); Sindram v. Ahalt, No. 89-6755, cert. denied, 494 U. S. 1086 (1990); Sindram v. District of Columbia, No. 89-7266, cert. denied, 496 U. S. 940, rehearing denied, 497 U. S. 1047 (1990); Sindram v. N. Richard Kimmel Prop., No. 89-7847, cert. denied, ante, p. 843, rehearing denied, ante, p. 973; Sindram v. Washington Suburban Sanitary Comm’n, No. 89-7848, cert. denied, ante, p. 843, rehearing denied, ante, p. 974; Sindram v. Garabedi, No. 90-5335, cert. denied, ante, p. 872, rehearing denied, ante, p. 974; Sindram v. Steuben Cty., No. 90-5351, cert. denied, ante, p. 873, rehearing denied, ante, p. 974; Sindram v. Consumer Protection Comm’n of Prince George’s County, No. 90-5371, cert. denied, ante, p. 874, rehearing denied, ante, p. 974; Sindram v. Abrams, No. 90-5373, cert. denied, ante, p. 874, rehearing denied, ante, p. 974; Sindram v. Nissan Motor Corp., No. 90-5374, cert. denied, ante, p. 891, rehearing denied, ante, p. 974; Sindram v. Ryan, No. 90-5410, cert. denied, ante, p. 901, rehearing denied, ante, p. 974; Sindram v. Sweeney, No. 90-5456, cert. denied, ante, p. 903, rehearing denied, ante, p. 974; Sindram v. Wallin, No. 90-5577, cert. denied, ante, p. 944, rehearing denied, ante, p. 973; Sindram v. McKenna, No. 90-5578, cert. denied, ante, p. 944, rehearing denied, ante, p, 973; Sindram v. Lustine Chevrolet, Inc., No. 90-5698, cert. denied, ante, p. 969; Sindram v. Montgomery Cty., No. 90-5699, cert. denied, ante, p. 948, rehearing denied, ante, p. 973; and Sindram v. Moran, No. 90-5885, cert. denied, ante, p. 988, pet. for rehearing pending. A response in Sindram v. Maryland, No. 90-5352, was received on November 19, 1990, and the petition for certiorari is presently pending.

       We have permitted petitioner to proceed informa pauperis in each of these actions based upon his affidavit that he earns only $2,600 per year and has no assets of any value.


author: Chief Justice Rehnquist

text:
    DEMAREST v. MANSPEAKER et al.
    No. 89-5916.
    Argued November 6, 1990
    Decided January 8, 1991

      Rehnquist, C. J., delivered the opinion for a unanimous Court.

      James E. Scarboro, by appointment of the Court, 495 U. S. 928, argued the cause for petitioner. With him on the briefs were Alfred T. McDonnell and David C. Warren.

      Michael R. Lazerwitz argued the cause for respondents. With him on the brief were Solicitor General Starr, Acting Assistant Attorney General Keeney, and Deputy Solicitor General Bryson.

   Chief Justice Rehnquist

delivered the opinion of the Court.

The question presented is whether 28 U. S. C. § 1821 requires payment of witness fees to a convicted state prisoner who testifies at a federal trial pursuant to a writ of habeas corpus ad testificandum. The Court of Appeals for the Tenth Circuit concluded that it does not. We disagree and conclude that it does.

In March 1988, petitioner Richard Demarest, an inmate in a Colorado state correctional facility, was summoned to appear as a defense witness in a federal criminal trial. He was transported by a United States marshal to the Denver County Jail pursuant to a writ of habeas corpus ad testifican-dum which had been issued by the United States District Court for the District of Colorado. Demarest testified on the 8th day of the 11-day trial and remained in the custody of federal marshals throughout that period. After completing his testimony, Demarest sought fees as a “witness ... in attendance,” pursuant to 28 U. S. C. § 1821 for the eight days that he was available to testify and the two days that he spent in transit to and from the Denver County Jail.

In accordance with 28 U. S. C. § 1825(a), petitioner requested that the Clerk of the District Court, respondent James Manspeaker, certify that petitioner was entitled to receive witness fees, and forward that certification to the United States marshal for payment of the fee. Respondent forwarded petitioner’s request to the United States attorney, who in turn denied petitioner’s request for certification on the ground that § 1821(a) does not entitle prisoners to receive witness fees. Demarest subsequently sought a writ of mandamus requesting the District Court to order Manspeaker to certify his request for fees. The District Court dismissed the petition, agreeing with respondent that § 1821 does not authorize the payment of witness fees to prisoners.

The United States Court of Appeals for the Tenth Circuit affirmed by a divided vote. 884 F. 2d 1343 (1989). The court held that while the language of §1821 was “unqualified,” other evidence revealed that Congress did not intend to permit prisoners to receive witness fees. We granted certiorari, 495 U. S. 903 (1990), in order to determine whether a convicted state prisoner brought to testify at a federal trial by virtue of a writ of habeas corpus ad testificandum is entitled to witness fees under § 1821.

In deciding a question of statutory construction, we begin of course with the language of the statute. Section 1821 provides as follows:

“(a)(1) Except as otherwise provided by law, a witness in attendance at any court of the United States . . . shall be paid the fees and allowances provided by this section.
“(b) A witness shall be paid an attendance fee of $30 per day for each day’s attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance.
“(d)(1) A subsistence allowance shall be paid to a witness (other than a witness who is incarcerated) when an overnight stay is required at the place of attendance because such place is so far removed from the residence of such witness as to prohibit return thereto from day to day.
“(e) An alien who has been paroled into the United States for prosecution, pursuant to section 212(d)(5) of the Immigration and Nationality Act (8 U. S. C. 1182(d) (5)), or an alien who either has admitted belonging to a class of aliens who are deportable or has been determined pursuant to section 242(b) of such Act (8 U. S. C. 1252(b)) to be deportable, shall be ineligible to receive the fees or allowances provided by this section.”

Subsection (a)(1) provides that a “witness in attendance at any court of the United States” shall be paid fees. Subsection (b) provides that “a witness shall be paid an attendance fee of $30.” Subsection (d)(1) provides for subsistence fees to witnesses, but excepts those who are incarcerated. Subsection (e) excludes paroled or deportable aliens from eligibility for fees. We think this analysis shows that Congress was thinking about incarcerated individuals when it drafted the statute, since it excluded them from eligibility for subsistence fees. We believe subsection (e) removes all doubt on this question, since Congress expressly excepted another class of incarcerated witnesses — detained aliens — from eligibility for fees. The conclusion is virtually inescapable, therefore, that the general language “witness in attendance at any court of the United States” found in subsection (a)(1) includes prisoners unless they are otherwise excepted in the statute.

Respondents rely on the cognate provisions of 28 U. S. C. § 1825 to sustain the decision below. That section provides:

“(a) In any case in which the United States ... is a party, the United States marshal for the district shall pay all fees of witnesses on the certificate of the United States attorney or assistant United States attorney, . . . except that any fees of defense witnesses, other than experts, appearing pursuant to subpoenas issued upon approval of the court, shall be paid by the United States marshal for the district —
“(2) on the certificate of the clerk of the court upon the affidavit of such witnesses’ attendance given by . . . counsel appointed pursuant to section 3006A of title 18, in a criminal case in which a defendant is represented by such . . . counsel.”

Respondents first argue that Demarest did not satisfy the requirements of 28 U. S. C. § 1825 because he failed to allege that he appeared pursuant to a subpoena or that he had obtained an affidavit regarding his attendance from the defendant’s counsel. Respondents contend that these defects in petitioner’s certification request constitute an independent basis for the Clerk’s decision to withhold certification, and thus we need not reach the question whether petitioner would have been entitled to fees had he made a proper petition. Respondents raised these alleged defects for the first time in this Court, after our grant of certiorari. Respondents did not raise this question in the courts below, and we decline to consider it here for the first time. Lytle v. Household Mfg., Inc., 494 U. S. 545, 551-552, n. 3 (1990).

On the merits, respondents argue that the language of § 1825, considered in pari materia with § 1821, modifies the language of that section in a manner which justifies exclusion of prisoners from the witness fee provisions of that section. While conceding that § 1821 applies to all witnesses in attendance, respondents urge that § 1825(a)’s reference to subpoenas imports a highly particularized meaning to the words “in attendance.” Respondents observe that § 1825(a) requires the clerk of the court to certify and pay attendance fees to defense witnesses “appearing pursuant to subpoenas issued upon approval of the court.” Respondents read this language to be exclusive. Therefore, they reason that since prisoners are technically “produced” under a writ of habeas corpus ad testificandum, rather than summoned by a subpoena, they are not the types of defense witnesses entitled to fees within § 1821.

Although respondents’ reading of these two sections is literally plausible, it is inconsistent with respondents’ own concessions and with our decision in Hurtado v. United States, 410 U. S. 578 (1973). Respondents admit that defense witnesses who appear other than by subpoena — by nothing more than verbal arrangement among the parties — are routinely paid witness fees. And in Hurtado, we upheld the right of material witnesses who were detained pursuant to former Federal Rule of Criminal Procedure 46(b) to receive witness fees. These witnesses were not subpoenaed, but were detained pursuant to the Rule because of their inability to give security for appearance. 410 U. S., at 579, n. 1.

Respondents nonetheless maintain that these are exceptions to the sort of “process” which they conceive to be a necessary element of being “in attendance” at court under § 1821(a)(1). But by this point the concept urged by respondents comes to mean no more than “summoned by means other than a writ of habeas corpus ad testificandum.” Not only is there no support in the statutory language for this view, but respondents’ construction would lead to the anomaly that prisoners summoned to testify for the Government would receive fees — since § 1825(a) does not require such witnesses to appear personally by subpoena — while witnesses summoned by the defendant would not receive fees.

The Court of Appeals, while agreeing that the statutory analysis outlined above was “[o]n its face . . . a,n appealing argument,” 884 F. 2d, at 1345, relied on longstanding administrative construction of the statute denying attendance fees to prisoners, and two Court of Appeals decisions to the same effect, followed by congressional revision of the statute in 1978.

But administrative interpretation of a statute contrary to language as plain as we find here is not entitled to deference. See Public Employees Retirement System of Ohio v. Betts, 492 U. S. 158 (1989). There is no indication that Congress was aware of the administrative construction, or of the appellate decisions, at the time it revised the statute. Where the law is plain, subsequent reenactment does not constitute an adoption of a previous administrative construction. Leary v. United States, 395 U. S. 6, 24-25 (1969).

When we find the terms of a statute unambiguous, judicial inquiry is complete except in rare and exceptional circumstances. Burlington Northern R. Co. v. Oklahoma Tax Comm’n, 481 U. S. 454, 461 (1987); Rubin v. United States, 449 U. S. 424, 430 (1981); TVA v. Hill, 437 U. S. 153, 187 (1978). We do not believe that this is one of those rare cases where the application of the statute as written will produce a result “demonstrably at odds with the intentions of its drafters.” Griffin v. Oceanic Contractors, Inc., 458 U. S. 564, 571 (1982). There may be good reasons not to compensate prisoners for testifying at federal trials; they are seldom gainfully employed in prison, and therefore do not suffer the loss of income from attendance which many other witnesses do. But the same is true of children and retired persons, who are clearly entitled to witness fees under the statute and customarily receive them. We cannot say that the payment of witness fees to prisoners is so bizarre that Congress “could not have intended” it. Id., at 575.

The judgment of the Court of Appeals is

Reversed.

        Meadows v. United States Marshal, Northern District of Georgia, 434 F. 2d 1007 (CA5 1970), cert. denied, 401 U. S. 1014 (1971); In re Grand Jury Matter (Witness RW), 697 F. 2d 103 (CA3 1982).