Regan v. New York/Dissent Black

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS concurs, dissenting.

In order to keep his job as a New York City policeman petitioner signed a paper waiving immunity he would otherwise have had from prosecution under state law as to matters he might testify about before a grand jury. Twenty-two months later, long after he had resigned as a policeman, he was brought before a county grand jury. He was asked whether he had ever accepted bribes while he was a policeman. Acceptance of bribes is a New York felony punishable by ten years' imprisonment. Petitioner refused to answer the questions claiming a federal constitutional and state privilege against self-incrimination. For refusal to answer he was sentenced to twelve months in prison. The Court holds that New York can thus imprison petitioner 'for his refusal to provide such self-incriminatory testimony.' I do not agree that New York can do this consistently with the Federal Constitution.

For reasons stated on other occasions I believe the Fourteenth Amendment makes the Fifth Amendment applicable to the States. See, e.g., Adamson v. People of State of California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1683, 91 L.Ed. 1903. And the Fifth Amendment accords an unqualified privilege to persons to be silent when asked questions, answers to which would make those persons witnesses against themselves. See, e.g., Blau v. United States, 340 U.S. 159, 161, 71 S.Ct. 223, 224, 95 L.Ed. 170. Even under the other view of the Fourteenth Amendment, that it does not make the Fifth Amendment applicable to the States and that under some circumstances States may compel persons to testify against themselves, this Court has held many times that a State may not convict a person on testimony it coerced from him. E.g., Leyra v. Denno, 347 U.S. 556, 558, 74 S.Ct. 716, 717, 98 L.Ed. 948; Ashcraft v. State of Tennessee, 322 U.S. 143, 155, 64 S.Ct. 921, 927, 88 L.Ed. 1192; cf. Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183. Coercing testimony for that purpose is equally obnoxious to the Fourteenth Amendment. However its action is described, the State is seeking to coerce this petitioner to give testimony to help bring about his conviction for crime. For it is certainly coercion to throw a man into jail unless he agrees to testify against himself.

The Court approves the dilemma in which New York places petitioner. He must give evidence which might convict him of a felony or go to jail for refusing to give that evidence. The Court says, however, that petitioner's dilemma is 'simply the result of a voluntary choice to waive an immunity provided by the State.' There of course may be some doubt as to how 'voluntary' this 'choice' was. In any event it is a completely novel idea that a waiver device of this kind can destroy constitutional protections. It is nothing more nor less than a wholesale blanket agreement that a person will not claim a constitutional privilege with reference to anything he has ever done in the past or that he may do in the future in connection with his job. So far as I know it has never been held before that the privilege against self-incrimination or any other Bill of Rights safeguard can be bargained away far in advance of the day when needed as protection against the overreaching power of government.

The Court's holding appears to approve a dangerous technique whereby both State and Federal Governments can compel people to convict themselves out of their own mouths. Are we to infer that the Federal Government is now free to compel its millions of employees permanently to waive their privilege against self-incrimination or lose their jobs? Surely private employers are not now free to compel their employees to waive this and other constitutional privileges. This might be highly satisfactory to those who believe that the privilege against compulsory self-incrimination has no proper place in our Bill of Rights. But that provision was designed as a continuing rigid safeguard against ruthless exercise of governmental power. That it sometimes permits people to escape conviction for offenses is no sufficient reason for reading it out of the Constitution. Those who wrote the provision are bound to have known that it would have the effect of making it harder for the Government to convict people accused of crime. Exactly that effect results from all of the procedural provisions of the Bill of Rights, including the right to be heard, to have a lawyer, to be confronted by witnesses, to be informed of the nature of the offense charged, and to be tried by jury. This holding weakens these and other ancient safeguards which to me represent great landmarks in the never-ceasing struggle of men to be free from despotic governmental powers. See dissent in Feldman v. United States, 322 U.S. 487, 494-503, 64 S.Ct. 1082, 1085-1089, 88 L.Ed. 1408.