Pretrial Custody and Miranda

38 Pages Posted: 16 Nov 2020 Last revised: 24 Aug 2021

See all articles by Kit Kinports

Kit Kinports

Penn State Law (University Park)

Date Written: September 26, 2020


In two recent opinions, Maryland v. Shatzer and Howes v. Fields, the Supreme Court concluded that inmates serving prison sentences were not in custody for purposes of Miranda, in Shatzer’s case while he was living among the general prison population and in Fields’ case while he was undergoing police interrogation. The question addressed in this Article is one that has divided the lower courts in the wake of those two decisions: the impact of the Court’s rulings on the hundreds of thousands of pretrial detainees in this country, many of whom are poor, Black, and Brown.

The Article maintains that the Court’s language and reasoning in Shatzer and Fields, as well as the relevant policy considerations, call for limiting the reach of those opinions to prisoners serving time. The Article therefore concludes that pretrial detainees should be deemed to be in Miranda custody for the duration of their confinement prior to trial. Any other result would allow gamesmanship on the part of prosecutors in making charging decisions and bail recommendations and would enable law enforcement to trade on the coerciveness of pretrial detention to elicit unwarned confessions from suspects who are especially susceptible to the threats and promises that are a leading cause of false confessions and who disproportionately represent communities of color and financially vulnerable populations.

Keywords: Criminal Procedure, Miranda, Pretrial Detention

Suggested Citation

Kinports, Kit, Pretrial Custody and Miranda (September 26, 2020). Washington and Lee Law Review, Forthcoming, Penn State Law Research Paper No. 17-2021, Available at SSRN:

Kit Kinports (Contact Author)

Penn State Law (University Park) ( email )

Lewis Katz Building
University Park, PA 16802
United States

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