The 5th Amendment

“I plead the 5th” is a phrase used by many since the Bill of Rights was ratifiedIt ensures that a suspect cannot be compelled to testify against himself in a criminal caseWhat about outside a court of law? If a police officer gets gets a confession out of suspect, is that self-incrimination?

The Miranda Case1966-Ernesto Miranda had been convicted in Arizona of kidnapping & rape, based on a confession made after 2 hours of questioningMiranda was not told about his 5th Amendment right to remain silentThe Court overturned the conviction-a police interrogation, it said, “is inherently intimidating”Under these conditions, Miranda’s statement could not be considered as given of his own free choice

Your Miranda RightsTo make sure that a confession is truly a free choice, the Court came up with the well-known Miranda RightsIf you are ever arrested, police are now required to read you the Miranda statement (most police already have it memorized)If police do not read a suspect these rights, nothing the suspect says can be used in court

The Public Worried About CrimeIn one case, police failed to read a suspect his Miranda rights until after frisking himThey found an empty holster & asked him where his gun wasThe suspect led police to a gunA lower court dismissed the charges because the gun had been used as incriminating evidence in the trialThe Supreme Court, however, reinstated the conviction “because concern for public safety must be paramount to adherence to the literal language of the Miranda rule”

More Chipping Away at Miranda2010-The Court ruled that once a suspect has invoked his Miranda rights, the prohibition against police questioning is “not eternal”If the suspect changes his mind, police can resume questioning him 14 days after his release from custodyAnother murder suspect in Michigan was read his Miranda rights, & remained silent for 3 hoursWhen asked whether he believed in God, he said, “Yes”Police then asked him if he expected to be forgiven for killing a young boy—and the suspect answered yesThe man was convicted, & the Court upheld his conviction-suspects must explicitly invoke the right to remain silent

This means being tried twice for the same crimeThe 5th Amendment specifically prohibits this, & it was extended to the states in 1969Prosecutors, however, can exploit 2 loopholes in this civil liberty A suspect may be tried in federal & state court for the same crimeIf a suspect is found innocent of one set of criminal charges brought by the state, he may be still found guilty of the same or closely-related civil charges brought by a private individual

Politics Can Lead to Convictions1992-Four LA police officers were acquitted of beating Rodney King, a driver they had chased for speedingA bystander’s video of the beating seemed to contradict the verdict, so that LA was rocked by 3 days of riotingPolitical pressure caused Pres. George H.W. Bush to urge federal prosecutors to retry the officers not for excessive use of force, but for violating King’s civil rightsTwo were found guilty, two were acquitted

The OJ Mess1994-OJ Simpson, a famous football, movie, & TV star, was accused of killing his wife Nicole and a friendIn a year-long televised trial, OJ’s attorneys alleged misconduct on the part of policeThe “Trial of the Century” ended in OJ’s acquittal on first-degree murder chargesLater, the families of the victims sued Simpson for $40-million and won, & the judgment was upheld by California court in 2008

Eminent DomainNothing gets a property owner angrier quicker than for a city, county, or state to threaten to take his propertyUnder “eminent domain” laws, local governments can & do seize private property for projects deemed in the public interestThe city, county, or state has to offer a reasonable price to the property owner

The Problem With That Is…

The 5th Amendment also contains a clause stating “nor shall private property be taken for public use without just compensation”When the government needs private property to build a highway or a park, it can force a land owner to sell at fair market valueWhat if the landowner doesn’t want to sell?The landowner usually sues

Controversial TakingsSome have interpreted the “takings” clause to cover not only physical takings but “regulatory takings”That is, if the Endangered Species Act protects the habitat of an animal that is on your land, you might not be able to develop that propertyThus, its market value would be lower if the endangered species did not live on that landBy this argument, the government has “taken” some of the value of your land away, so it should compensate you for your loss

Controversy in ConnecticutA New London, Conn. Developer wanted to build a waterfront hotel, offices, & high-end housing project To do it, he got the city to OK his takeover of a working-class neighborhoodOne homeowner sued the city to stop the developmentThe Supreme Court supported the city, but Justice O’Conner dissented with the rulingWhat would prevent any government from taking a home to put up a mall, or a farm with a factory?Ironically, the developer bulldozed all the homes, but failed to get the financing for his project-the land sits still empty

The 6th Amendment

The right to an attorney is one of the key civil liberties because the legal system is too complex for the layperson to navigateAt one time, however, poor people accused of a felony were forced to defend themselves in court because they could not afford an attorneyThis all changed in 1963 with the celebrated case of Gideon v. Wainwright

Gideon v. WainwrightClarence Gideon was accused of breaking into a Florida pool hall to steal beer, wine, & changeHe couldn’t afford an attorney & had to defend himselfHe did a creditable job in calling witnesses, cross-examining witnesses, & arguing his caseHowever, he was convicted and sent to prison for 5 years, based largely on the testimony of a witness who ended up being the guilty partyThe Court overturned his conviction, ordering in the future that all defendants were to be provided a lawyer

Strengthening GideonUnlike the exclusionary rule & protection against self-incrimination, both Congress & the Courts have moved to strengthen the Gideon case1964-Congress passed the Criminal Justice Act, which provided better legal representation in federal courtsWithin 2 years, 23 states had taken similar actionThe court defined a general right for a defendant to “effective” counsel (whatever that means)

A Speedy & Public TrialThe Court affirmed the rule to a speedy trial by a jury in 1967Congress passed the Federal Speedy Trial Act, that says a trial must begin within 70 days of a defendant’s arrest or 1st appearance in courtThe Court has strengthened this right, saying a defendant may not waive his right to a speedy trialIn choosing an impartial jury, lawyers may not use race or gender as the basis for a pre-emptory challenge during “voir dire” proceedings

What About Anwar al-Awlaki?This American citizen living in Yemen was a key leader of Al QaedaHe was killed by a US military drone in 2011As a terrorist, al-Awlaki certainly needed to answer for his crimesYet his killing raised controversial questions about whether the US violated his due process rights, such as a fair trial

Cruel & Unusual PunishmentThe 8th Amendment prohibits “cruel & unusual punishment”The Founding Fathers would be surprised to find that some Americans think this applies to the death penaltyIn Jefferson’s time, the death penalty was an accepted punishment, even for stealing a horseBoth the 5th & 14th Amendments say a person may not be deprived of “life, liberty, or property without due process of law”That implies that someone could be deprived of life as long as the state follows due processCurrently, 33 states allow the death penalty, 5 have abolished it since 2007

Supreme Court & the Death PenaltyFor nearly 200 years, the Supreme Court was silent on the death penalty1972-The Court ruled the death penalty was unconstitutional because the process of applying it was inconsistentCongress & 35 states rushed to make their laws comply with the Court’s decisionThe typical fix: Make sentencing in capital crimes a 2-step processFirst, find out if a defendant is guilty or innocent, & if guilty, there is a sentencing phase of the trial1976-The Supreme Court approved these changes & allowed states to bring back the death penalty

Chipping Away at the Death PenaltySince the 1980s, the Court has struck down laws mandating the death penalty in murder & rape cases It also prohibited execution of the insane and mildly retarded (2002), juveniles under 18 (2005), & child rapists (2008)These recent cases show that the Court often responds to public opinion & political change-showing the Constitution is a “living document”

ProportionalityOne unsettled area of the 8th Amendment-Does the punishment fit the crime?1910-The Court overturned a punishment requiring shackling & “hard & painful labor” for a full prison termSince then, the Court has applied proportionality in other instances: taking away citizenship for a crime, imprisonment for drug addiction, beating prison inmates, & disproportionate sentencesThe Court actually overturned a life sentence handed down for a 7-time criminal who wrote a $100 bad check

Three Strikes & You’re Out1991-The Court began to limit application of proportionality by saying the 8th Amendment contains no proportionality guaranteeThus, California’s “3 Strikes & You’re Out” law was constitutionalThe case concerned Leandro Andrade, who stole 9 videotapes from 2 different K-MartsHe received 2 consecutive terms of 25 years to life (that’s 50 years)Andrade’s previous felony convictions were for nonviolent crimes

Privacy RightsThe word “privacy” does not appear in the ConstitutionThe concept of privacy rights first developed in 1965 in a challenge of a Connecticut law that prohibited the use of birth controlEstelle Griswold, director of Planned Parenthood of Connecticut, was arrested 9 days after opening a clinic that dispensed birth control pillsShe was fined $100, appealed her conviction, lost in state court, but her conviction was overturned by the Supreme Court

The Significance of GriswoldThe Court agreed the Connecticut law was outdated, but on little elseSix justices filed their own opinions on this case, including Justice William O. DouglasDouglas found privacy implicit in the 1st Amendment’s right of association, 3rd against troop quartering, 4th protection against unreasonable searches, 5th against self-incrimination, & 9th catchall rights retained by the peopleThis case laid the basis for the landmark Roe v. Wade Abortion ruling in 1973

Abortion

Jan. 22, 1973-Roe v. Wade struck down anti-abortion laws in 46 statesThe ruling said states could not limit abortions in the 1st trimester of a pregnancy,& could limit abortions in the 2nd trimester in the interests of the mother’s healthStates could prohibit 3rd-trimester abortions except those necessary to protect the health & life of the mother

Trimming Back Roe v. WadeSince 1973, the Court has endorsed some state restrictions on abortionRequiring parental consent, a waiting period, or counseling sessions have been upheldThe trimester analysis of Roe has been replaced by a focus on the viability of the fetus (22-23 weeks)Opponents of abortion are hoping that Roe will be overturned, shifting the argument back to the states & making it an even more politically hot issueFor instance, a Mississippi “personhood amendment” defining life beginning at conception was defeated in a statewide vote in 2011

The Right to DieTwo different debates involving privacy rights are in play hereFirst, the right of a person who is brain-dead or in a persistent vegetative state to refuse medical treatment so they can dieThe 2nd is more complex: May states allow assisted suicide for people with terminal illnesses?

The Terri Schiavo Case1990-Terry Schiavo suffered from heart failure that led to brain damage1990-2005—Schiavo remained in a vegetative state, while her husband wanted to “pull the plug,” her parents wanted to do everything possible to keep her aliveAfter she was taken off life support at her husband’s request, the Supreme Court refused to interveneGiven this precedent, it seems unlikely the Court will intervene in matters traditionally between a family & their doctor

Death With DignityOregon voters have twice okayed a law allowing a terminally ill patient get a prescription to end his lifeIn its first 14 years, 596 people killed themselvesOregon, Washington, & Montana are the only states with such lawsUS Attorney-General John Ashcroft attempted to revoke the medical licenses of doctors who wrote prescriptions for death drugsHowever, in 2006, the Court said the AG should not be given authority to criminalize the actions of registered physicians for actions he deems illegitimate

Gay Rights2003-Supreme Court ruling established very broad privacy rights for sexual behaviorTwo Houston men were prosecuted for same-sex sodomy by police, who had received a false tip about an armed man in their apartmentUnder Texas law, sodomy was legal for heterosexuals but not homosexualsIn a 6-3 ruling, the Court said the 14th Amendment’s due process clause allowed homosexuals to have sexual relationsSince that time, at least 13 states have had their sodomy laws struck down