Cite as: 538 U. S. 760 (2003)
Opinion of Kennedy, J.
I respectfully dissent, but for the reasons articulated by Justice Kennedy, post, at 799, concur in Part II of Justice Souter's opinion.
Justice Kennedy, with whom Justice Stevens joins, and with whom Justice Ginsburg joins as to Parts II and III, concurring in part and dissenting in part.
A single police interrogation now presents us with two issues: first, whether failure to give a required warning under Miranda v. Arizona, 384 U. S. 436 (1966), was itself a completed constitutional violation actionable under 42 U. S. C. § 1983; and second, whether an actionable violation arose at once under the Self-Incrimination Clause (applicable to the States through the Fourteenth Amendment) when the police, after failing to warn, used severe compulsion or extraordinary pressure in an attempt to elicit a statement or confession.
I agree with Justice Thomas that failure to give a Miranda warning does not, without more, establish a completed violation when the unwarned interrogation ensues. As to the second aspect of the case, which does not involve the simple failure to give a Miranda warning, it is my respectful submission that Justice Souter and Justice Thomas are incorrect. They conclude that a violation of the Self-Incrimination Clause does not arise until a privileged statement is introduced at some later criminal proceeding.
A constitutional right is traduced the moment torture or its close equivalents are brought to bear. Constitutional
Amendment. Justice Thomas' opinion is fundamentally flawed in two respects. It incorrectly assumes that the claim it rejects is not a due process claim, ante, at 772-773, and it incorrectly assumes that coercive interrogation is not unconstitutional when it occurs because it merely violates a judge-made "prophylactic" rule. But the violation in this case is far more serious than a mere failure to advise respondent of his Miranda rights; moreover, the Court disavowed the "prophylactic" characterization of Miranda in Dickerson v. United States, 530 U. S. 428, 437-439 (2000).
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