Solem v. Stumes, 465 U.S. 638 (1984)

Author: Justice STEVENS

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Solem v. Stumes, 465 U.S. 638 (1984)


Respondent Stumes is an acknowledged lawbreaker. His confession, together with other evidence of his guilt, brands him as such. Whether his incarceration for the past dozen or more years is adequate or insufficient punishment for his crime is a matter of no concern to this Court. What is -- or should be -- of concern is the conduct of other lawbreakers.

While respondent was in custody, and after he had requested the assistance of counsel, the police interrogated him on two separate occasions. As the Court held in Edwards v. Arizona, 451 U.S. 477 (1981), such interrogation is unlawful. There is no dispute in this Court that respondent’s constitutional rights were violated.{1} Nevertheless, because the unlawful interrogation took place prior to May 18, 1981, the date Edwards was decided, the Court holds that respondent’s statements are admissible in evidence even though they would have been inadmissible if they had been made after May 18, 1981. In reaching this result, the Court states that the question is whether Edwards "should be applied retroactively," ante at 639, and then answers the question in the negative because Edwards established a "new rule." Ante at 647.

The "new rule" that should concern the Court is the one it announces today, rather than the rule that was applied in Edwards. For it was well settled long before Edwards was decided that police may not interrogate a prisoner after he has asked for the assistance of a lawyer. The case therefore does not present any real "retroactivity" question. It does, however, raise a serious question concerning this Court’s use of its power to create new rules of law.


In 1966, the Court decided to

secure scrupulous observance of the traditional principle, often quoted but rarely heeded to the full degree, that "the law will not suffer a prisoner to be made the deluded instrument of his own conviction."

Johnson v. New Jersey, 384 U.S. 719, 730 (1966). Specifically, in Miranda v. Arizona, 384 U.S. 436 (1966), the Court decided that an individual must be warned prior to custodial interrogation that he has the right to remain silent, the right to have an attorney present during questioning, and the right to have an attorney appointed to represent him free of charge if he cannot afford one. See id. at 467-473. The Court also noted that, once an individual requests the presence of an attorney during questioning, "such [a] request affirmatively secures his right to have one" during questioning, id. at 470 (emphasis supplied).

If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning.

Id. at 444-445 (emphasis supplied). The Court elaborated:

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point, he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.

This does not mean, as some have suggested, that each police station must have a "station house lawyer" present at all times to advise prisoners. It does mean, however, that, if police propose to interrogate a person, they must make known to him that he is entitled to a lawyer and that, if he cannot afford one, a lawyer will be provided for him prior to any interrogation. If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person’s Fifth Amendment privilege so long as they do not question him during that time.

Id. at 473-474 (emphasis supplied) (footnote omitted).

This language is clear and mandatory. The police "must respect" an individual’s request that he be permitted to consult with an attorney prior to custodial interrogation; interrogation "must cease until an attorney is present." Indeed, this language forbids the police even to ask if the individual wishes to waive his rights, since "there can be no questioning." Here respondent made a request to consult with counsel prior to questioning, but the police questioned him anyway, without affording him that opportunity. There is simply nothing in the Miranda opinion that gave the police the slightest reason to believe such conduct was permissible.{2} Even before Edwards, this Court had consistently read Miranda to impose an absolute obligation on the police to respect an individual’s request for counsel. In Michigan v.Mosley, 423 U.S. 96 (1975), the Court held that police may question an individual after he invokes his right to remain silent only if his right to cut off questioning is scrupulously honored. However, the Court expressly distinguished the invocation of the right to consult with counsel from the assertion of the right to remain silent, see id. at 101, n. 7, and explained that this distinction came from Miranda itself:

The dissenting opinion asserts that Miranda established a requirement that once a person has indicated a desire to remain silent, questioning may be resumed only when counsel is present. But clearly the Court in Miranda imposed no such requirement, for it distinguished between the procedural safeguards triggered by a request to remain silent and a request for an attorney and directed that "the interrogation must cease until an attorney is present" only "[i]f the individual states that he wants an attorney."

423 U.S. at 104, n. 10 (citations omitted).{3}

Similarly, in Fare v. Michael C., 442 U.S. 707 (1979), the Court observed that Miranda created a "per se" rule that, upon a request for counsel, interrogation must cease until counsel is provided. See 442 U.S. at 717-719.{4}

The Edwards opinion itself demonstrates the error in the conclusion the Court reaches today. After acknowledging the per se aspect of Miranda,{5} the Court explained how its holding was derived directly from Miranda:

Miranda itself indicated that the assertion of the right to counsel was a significant event, and that once exercised by the accused, "the interrogation must cease until an attorney is present." 384 U.S. at 474. Our later cases have not abandoned that view. In Michigan v. Mosley, 423 U.S. 96 (1975), the Court noted that Miranda had distinguished between the procedural safeguards triggered by a request to remain silent and a request for an attorney and had required that interrogation cease until an attorney was present only if the individual stated that he wanted counsel. 423 U.S. at 104, n. 10; see also id. at 109-111 (WHITE, J., concurring). In Fare v. Michael C., supra, at 719, the Court referred to Miranda’s

rigid rule that an accused’s request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease.

And just last Term, in a case where a suspect in custody had invoked his Miranda right to counsel, the Court again referred to the "undisputed right" under Miranda to remain silent and to be free of interrogation "until he had consulted with a lawyer." Rhode Island v. Innis, 446 U.S. 291, 298 (1980). We reconfirm these views and, to lend them substance, emphasize that it is 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 (emphasis supplied).{6}

Because Edwards itself makes it perfectly clear that the rule that was reconfirmed in that case had been part of our law ever since Miranda was decided in 1966, I find no merit in the Court’s reasoning. The fact that some police departments may have failed to heed the plain language of the Miranda opinion certainly is not a justification for reaching the conclusion that the reconfirmation of what was said in Miranda should be regarded as a new constitutional rule.


The "retroactivity" analysis of today’s majority merits separate scrutiny. The majority makes no attempt to define a "new rule" that gives rise to a retroactivity question, but merely assumes that Edwards created one. Ante at 642-643. Its reasoning for treating Edwards as having created a "new rule" is implicit, however, in its discussion of what it calls the "reliance factor" -- the authorities’ reliance on the "prior rule." The Court states that the police could not be faulted for failing to anticipate Edwards, since prior law could have been understood to permit a case-by-case evaluation of whether a suspect’s decision to speak with police despite an earlier invocation of the right to consult with counsel was a knowing, voluntary, and intelligent waiver of that right.{7} The majority concludes that Edwards can be considered as announcing a new rule because the law prior to Edwards was "unsettled," and cites as evidence the fact that some lower courts had disagreed as to the correct interpretation of Miranda.Ante at 648-649.

This approach to defining a "new rule" for retroactivity purposes is completely unprecedented. The majority concedes that Edwards was not a "clear break" with the past, ante at 646-647, yet that sort of change in the law has normally been required before a retroactivity question is even raised. For example, in Desist v. United States, 394 U.S. 244 (1969), the Court wrote:

However clearly our holding in Katz [v. United States, 389 U.S. 347 (1967),] may have been foreshadowed, it was a clear break with the past, and we are thus compelled to decide whether its application should be limited to the future.

Id. at 248.{8} The fact that the position ultimately rejected by this Court had been previously accepted in some but not all lower courts has never been sufficient to demonstrate that a new rule has been created. UnitedStates v. Estate of Donnelly, 397 U.S. 286, 295 (1970). Until today, it had been clear that no retroactivity arises when a decision is based on principles previously announced by this Court, even though there is no precedent squarely on point. Henderson v. Morgan, 426 U.S. 637, 651-652 (1976) (WHITE, J., concurring). That the principles governing the decision in Edwards were well recognized before that case was decided is amply demonstrated by the host of cases that had previously condemned the police practices at issue.{9}

The curious character of the Court’s new conception of a "new rule" is well illustrated by Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481 (1968). There the question was whether this Court’s endorsement of a rule of antitrust law which had previously been followed only by the Court of Appeals for the Second Circuit constituted the promulgation of a new rule for retroactivity purposes. The Court held that it did not:

Like the Court of Appeals, this Court relies for its conclusions upon existing authorities. These cases make it clear that there was no accepted interpretation of the Sherman Act which conditioned a finding of monopolization under § 2 of the Sherman Act upon a showing of predatory practices by the monopolist. In neither case was there such an abrupt and fundamental shift in doctrine as to constitute an entirely new rule which in effect replaced an older one. Whatever development in antitrust law was brought about was based to a great extent on existing authorities and was an extension of doctrines which had been growing and developing over the years. These cases did not constitute a sharp break in the line of earlier authority or an avulsive change which caused the current of the law thereafter to flow between new banks. We cannot say that, prior to those cases, potential antitrust defendants would have been justified in thinking that then-current antitrust doctrines permitted them to do all acts conducive to the creation or maintenance of a monopoly, so long as they avoided direct exclusion of competitors or other predatory acts.

Id. at 497-499 (footnotes omitted).{10}

The same analysis clearly indicates that Edwards did not create a new rule under the majority’s own description of that case. Edwards did not constitute a fundamental shift in the law. As the Court appears to recognize, it was at most a modest extension of existing doctrine. The majority’s approach is inconsistent with Hanover Shoe.

Less than two years ago the Court considered whether our holding in Payton v. New York, 445 U.S. 573 (1980), that the Fourth Amendment prohibits warrantless arrests of persons in their homes was the announcement of a "new" rule of law. We wrote:

Payton also did not announce an entirely new and unanticipated principle of law. In general, the Court has not subsequently read a decision to work a "sharp break in the web of the law" unless that ruling caused "such an abrupt and fundamental shift in doctrine as to constitute an entirely new rule which, in effect, replaced an older one." Such a break has been recognized only when a decision explicitly overrules a past precedent of this Court, or disapproves a practice this Court arguably has sanctioned in prior cases, or overturns a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.

United States v. Johnson, 457 U.S. 537, 551 (1982) (citations omitted). After noting that the Government had argued that a ruling should not be retroactive if the law had been "unsettled" prior to the ruling, id. at 559, the Court wrote:

[T]he Government’s [position] would reduce its own "retroactivity test" to an absurdity. Under this view, the only Fourth Amendment rulings worthy of retroactive application are those in which the arresting officers violated preexisting guidelines clearly established by prior cases. But as we have seen above, cases involving simple application of clear, preexisting Fourth Amendment guidelines raise no real problems of retroactivity at all. Literally read, the Government’s theory would automatically eliminate all Fourth Amendment rulings from consideration for retroactive application.

Id. at 560.

Of course, a rule of nonretroactivity in all cases has never been the law, and with good reason. Such a rule would immunize police conduct from scrutiny whenever a question can be said to be debatable; thus the authorities would never have an incentive to comply with even the plainest implications of our cases. It is for this reason that Johnson wisely rejected such a rule.{11} Nor does the majority purport to endorse such a rule today. Yet that is the plain import of its holding, since nothing but law that already has been clearly established will ever be applied if, as the majority suggests, cases cannot qualify for "retroactive" application merely because they involve an "unsettled" question, even when this Court has already "strongly indicated," ante at 647 (quoting Edwards, 451 U.S. at 484), what the correct answer to the "unsettled" question is.

As Johnson points out, the majority’s test for "retroactivity" is in reality no test at all. If the law were "settled" prior to Edwards, then no real retroactivity question would arise.{12} Respect for the orderly development of the law should require more faithful adherence to a recent precedent such as Johnson than is evidenced today, especially inasmuch as Johnson’s expressed purpose was to lend order and predictability to the law of retroactivity. See 457 U.S. at 542-548.


The Court is understandably concerned about the conduct of private lawbreakers. That concern should not, however, divert its attention from the overriding importance of requiring strict obedience to the law by those officials who are entrusted with its enforcement -- and, indeed, with its interpretation. For decisions of this kind have a corrosive effect in a society dedicated to the rule of law. There is, after all, profound wisdom in Justice Brandeis’ observation:

Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the onmipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means -- to declare that the Government may commit crimes in order to secure the conviction of a private criminal -- would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.

Olmstead v. United States, 277 U.S. 438, 485 (1928) (dissenting opinion).

I respectfully dissent.

1. This Court limited its grant of certiorari in this case to the question of whether Edwards "should be applied retroactively" to this case. Ante at 642. Therefore, the holding of the Court of Appeals that the police conduct in this case violated respondent’s rights under the Fifth Amendment is not at issue here, and must be taken as a given.

2. One significant omission from the opinion of the Court is any claim that there is language in Miranda that could have led police to believe that they could interrogate an individual after he had requested an opportunity to confer with counsel. The omission is understandable; there is no such language.

3. In his opinion concurring in the result, JUSTICE WHITE added:

The question of the proper procedure following expression by an individual of his desire to consult counsel is not presented in this case. It is sufficient to note that the reasons to keep the lines of communication between the authorities and the accused open when the accused has chosen to make his own decisions are not present when he indicates instead that he wishes legal advice with respect thereto. More to the point, the accused having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities’ insistence to make a statement without counsel’s presence may properly be viewed with skepticism.

423 U.S. at 110, n. 2.

4. The Court elaborated:

The per se aspect of Miranda was thus based on the unique role the lawyer plays in the adversary system of criminal justice in this country. Whether it is a minor or an adult who stands accused, the lawyer is the one person to whom society as a whole looks as the protector of the legal rights of that person in his dealings with the police and the courts. For this reason, the Court fashioned in Miranda the rigid rule that an accused’s request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease.

442 U.S. at 719.


In Miranda v. Arizona, the Court determined that the Fifth and Fourteenth Amendments’ prohibition against compelled self-incrimination required that custodial interrogation be preceded by advice to the putative defendant that he has the right to the presence of an attorney. 384 U.S. at 479. The Court also indicated the procedures to be followed subsequent to the warnings. If the accused indicates that he wishes to remain silent, "the interrogation must cease." If he requests counsel, "the interrogation must cease until an attorney is present." Id. at 474.

Miranda thus declared that an accused has a Fifth and Fourteenth Amendment right to have counsel present during custodial interrogation. Here, the critical facts as found by the Arizona Supreme Court are that Edwards asserted his right to counsel and his right to remain silent on January 19, but that the police, without furnishing him counsel, returned the next morning to confront him and as a result of the meeting secured incriminating oral admissions.

451 U.S. at 481-482.

6. If Edwards contains any innovation, it is one favorable to the police. While the language of Miranda is mandatory, indicating that no interrogation can take place until the individual has conferred with a lawyer, Edwards makes it clear that this language does not extend to a conversation between the authorities and the individual initiated by the latter:

In concluding that the fruits of the interrogation initiated by the police on January 20 could not be used against Edwards, we do not hold or imply that Edwards was powerless to countermand his election or that the authorities could in no event use any incriminating statements made by Edwards prior to his having access to counsel. Had Edwards initiated the meeting on January 20, nothing in the Fifth or Fourteenth Amendments would prohibit the police from merely listening to his voluntary, volunteered statements and using them against him at the trial. The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. Absent such interrogation, there would have been no infringement of the right that Edwards invoked, and there would be no occasion to determine whether there had been a valid waiver.

451 U.S. at 485-486.

7. There is reason to question the majority’s reading of "prior" law. The Court cites only three of our cases as supporting a case-by-case approach. The first, Michigan v. Mosley, 423 U.S. 96 (1975), in fact points in the opposite direction, as the discussion in Part I, supra, demonstrates. The second is Johnson v. Zerbst, 304 U.S. 458 (1938). Of course, Zerbst was decided long before Miranda, and hence places no gloss on it. Zerbst was also a case decided under the Sixth Amendment, and the policies underlying the Fifth and Sixth Amendments are quite distinct, as this Court has often pointed out in rejecting reliance on Sixth Amendment precedent in Fifth Amendment contexts and vice versa. See Estelle v. Smith, 451 U.S. 454, 470, n. 14 (1981); United States v. Henry, 447 U.S. 264, 272, 273-274, n. 11 (1980); Rhode Island v. Innis, 446 U.S. 291, 300, n. 4 (1980); United States v. Wade, 388 U.S. 218, 223-227 (1967). The third, North Carolina v. Butler, 441 U.S. 369 (1979), did not concern the per se aspect of Miranda -- there the accused had not invoked his right to consult with counsel. Moreover, Miranda itself was inconsistent with the case-by-case waiver inquiry of Zerbst. In Miranda, the Court specifically rejected case-by-case inquiry into whether there was a knowing, voluntary, and intelligent waiver of Fifth Amendment rights, opting for a prophylactic rule that eschewed case-by-case inquiry:


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Chicago: STEVENS, "STEVENS, J., dissenting," Solem v. Stumes, 465 U.S. 638 (1984) in 465 U.S. 638 465 U.S. 656–465 U.S. 667. Original Sources, accessed December 6, 2023,

MLA: STEVENS. "STEVENS, J., dissenting." Solem v. Stumes, 465 U.S. 638 (1984), in 465 U.S. 638, pp. 465 U.S. 656–465 U.S. 667. Original Sources. 6 Dec. 2023.

Harvard: STEVENS, 'STEVENS, J., dissenting' in Solem v. Stumes, 465 U.S. 638 (1984). cited in 1984, 465 U.S. 638, pp.465 U.S. 656–465 U.S. 667. Original Sources, retrieved 6 December 2023, from