12.5: Civil Liberties- Protecting the Rights of the Criminally Accused
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In addition to protecting the personal freedoms of individuals, the Bill of Rights protects those suspected or accused of crimes from various forms of unfair or unjust treatment. The prominence of these protections in the Bill of Rights should not be surprising. Given the colonists’ experience of what they believed to be unjust rule by British authorities, however, and the use of the legal system to punish rebels and their sympathizers for political offenses, the impetus to ensure fair, just, and impartial treatment to everyone accused of a crime—no matter how unpopular—is completely understandable. Even today, one must always consider the fact that constitutionally protected civil liberties are intended to protect individuals accused of crimes from improper government conduct. At every stage of the legal process, the Bill of Rights incorporates protections for these people.
The Fourth Amendment and Investigations
The Fourth Amendment largely pertain to investigations conducted before someone has been charged with a crime. In general, this amendment protects people from unreasonable searches and seizures by government officials and sets requirements for issuing search warrants of a person and his or her home, car, business, or school. The Fourth Amendment, however, is not a guarantee against all searches and seizures, but only those that are deemed unreasonable under the law. Whether a particular type of search is considered reasonable in the eyes of the law, is determined by balancing two important interests. On one side of the scale is the intrusion on an individual's Fourth Amendment rights. On the other side of the scale are legitimate government interests, such as public safety.41
The extent to which an individual is protected by the Fourth Amendment depends, in part, on the location of the search or seizure.42 When evidence is obtained either through the improper acquisition or execution of a warrant, any evidence obtained through the use of that warrant may be excluded and held inadmissible at a criminal trial.43
The Fifth Amendment and Police and Defense Procedures
Many of the provisions dealing with the rights of the accused are included in the Fifth Amendment. As a result, it is one of the longest in the Bill of Rights. The clauses incorporated within the Fifth Amendment outline basic constitutional limits on police procedure, some of which are derived from protections once afford by the Magna Carta, a document guaranteeing English political liberties. This amendment provides for five distinct constitutional rights: the right to indictment by the grand jury before any felony criminal charges are formally brought against the defendant; the prohibition of double jeopardy (a procedural defense that prevents an accused person from being tried again on the same (or similar) charges following a valid acquittal or conviction in the same jurisdiction); the right against forced self-incrimination; the guarantee that all criminal defendants have a fair trial; and the guarantee that governments cannot seize private property—through the process called eminent domain (Figure 12.2)— without giving the owner full and adequate compensation at the market value of the property.44
The Sixth Amendment and Criminal Trials
The Sixth Amendment was drafted by the those who were very familiar with a long list of government abuses—punishment, torture, and execution of British subjects—at the hands of the English monarch. Certainly, some of these abuses related to the improper accusation of criminal offenses and the assessment of unfair punishments. Because none of protections afforded by the Sixth Amendment were guaranteed to British citizens, these protections became priorities when the Bill of Rights was proposed and subsequently ratified.45
The Sixth Amendment contains the provisions that govern criminal trials: the right to have a speedy, public trial by an impartial jury (which protects people from being detained indefinitely by the government); the right to be informed of the nature of the crime with which the defendant is being charged (usually during an arraignment); the right to confront and cross-examine witnesses brought on behalf of the prosecution; the right to secure subpoenas (written orders requiring a person to attend a court) to ensure the presence and obtain the testimony of witnesses in the defendant’s favor; and the right to have the effective assistance of counsel, which is previously discussed in this chapter. One additional note regarding the right to counsel is necessary here. Historically, many states did not provide attorneys to those accused of most crimes who could not afford one themselves. Even when an attorney was provided, his or her assistance was often inadequate at best. This situation changed as a result of the Supreme Court’s decision in Gideon v. Wainwright (1963), a case in the Supreme Court’s decision holding that the Sixth Amendment's guarantee of a right to assistance of counsel applies to criminal defendants in both federal and state courts.46
The Eighth Amendment and Limitations on Penalties
The Eighth Amendment prohibits the federal government from imposing excessive bail, excessive fines, and cruel and unusual punishments. The Amendment serves as a limitation upon the federal government to impose unduly harsh penalties on criminal defendants before and after a conviction.47 The phrases in this amendment originated in the English Bill of Rights of 1689, which outlined specific constitutional and civil rights and ultimately gave Parliament power over the monarchy. Among these rights was the prohibition against cruel and unusual punishments at a time when one such punishment included drawing and quartering.
As previously mentioned, judges ordinarily set a bail amount at a suspect’s first court appearance after an arrest, which may be either a bail hearing or an arraignment. Judges normally follow standard practices setting lower bail for petty, nonviolent offenses and higher (or no) bail for those who have committed more serious crimes. Judges can raise or lower the bail or waive bail altogether and grant release on the defendant’s personal recognizance (P.R.) based on the circumstances of an individual case.48 Factors that influence the allowance and amount of bail include the amount of evidence against a defendant, the defendant’s criminal history, the defendant’s risk to the community, whether the defendant is a flight risk (e.g., whether the defendant is like to skip post-arrest trial proceedings), and the severity of the offense with which the defendant is charged.49
It is rare for bail to be successfully challenged for being excessive. The Supreme Court has defined an excessive fine as one “so grossly excessive as to amount to deprivation of property without due process of law” or “grossly disproportional to the gravity of a defendant’s offense.”50 Similarly, the courts rarely strike down a fine as excessive unless it is grossly disproportionate to the gravity of the offense that it was designed to punish.51 The most
controversial provision of the Eighth Amendment is the ban on “cruel and unusual punishments.”52 Various torturous forms of execution common in the past—drawing and quartering, burning people alive, and the like—are prohibited by this provision.53
Undoubtedly, the most vigorous and decisive discussions about the issue of cruel and unusual punishment relate to whether to administer the death penalty and, if so, the manner in which the death penalty is administered. The death penalty’s existence can be traced to the beginning of the American colonies. Since then, and certainly in more recent years, the Supreme has addressed a number of cases specifically addressing the following issues:
- death penalty statutes must allow consideration of mitigating evidence in addition to the circumstances of the offense in determining whether a defendant should be sentenced to death, Lockett v. Ohio 438 U.S. 536 (1978);
- death sentences for individuals who did not intend to kill the victim violate the Eighth Amendment, Enmund v. Florida 458 U.S. 782 (1982);
- Eighth Amendment prohibits the execution of a person who is insane and not aware of his execution or the reasons for it, Ford v. Wainwright 577 U.S. 389 (1986);
- execution of a person with "mental retardation" violates the Eighth Amendment, Atkins v. Virginia 536 U.S. 304 (2002);
- Constitution prohibits the execution of individuals who were under eighteen at the time of the offense, Roper v. Simmons 543, U.S. 551 (2005); and
- state’s three-drug protocol for carrying out lethal injections does not amount to cruel and unusual punishment under the Eighth Amendment, Baze v. Rees 553 U.S. 35 (2008).54
Twenty-eight states, American Samoa, the federal government, and the military use the death penalty. Five methods of execution are used by those states: lethal injection, gas chamber, firing squad, electrocution, and hanging. Of those methods, Texas has used hanging, electrocution, and—in 1977—legal injection. Recent controversies over lethal injections and firing squads to administer the death penalty suggest the topic is still very important. While the Supreme Court has never established a definitive test for what constitutes a cruel and unusual punishment, it has generally allowed most penalties short of death for adults, even when to outside observers the punishment might be reasonably seen as disproportionate or excessive. Perhaps the most notorious example, Harmelin v. Michigan, 501 U.S. 957 (1991), upheld a life sentence in a case in which the defendant was convicted of possessing just over one pound of cocaine with no other accompanying crime.
In 1982, Texas became the first jurisdiction in the world to carry out an execution by lethal injection. As of mid-year 2020, Texas has executed 570 offenders, more than a third of the national total. In the midst of this unprecedented period in Texas, seven additional states have abolished capital punishment since 2007. It appears that, even in Texas, the public mood may have shifted somewhat against the death penalty. Since 1998, Texans have voiced the following sentiments:
- overwhelming acknowledgment that people are wrongfully convicted and executed for capital crimes
- support for the death penalty, but less support when life imprisonment (LWOP) without the possibility of parole is a jury option
- majority belief that the death penalty is applied fairly if LWOP is an option considered by juries
- support for moratoriums, greater deterrence, more vigorous DNA testing, and emphasis on rehabilitation rather than punishment
- grave concerns about racial disparities in the administration of the death penalty and execution of the mentally retarded.55
The death penalty has been imposed less frequently since 2005 when Texas allowed juries to sentence a defendant to life without parole for capital murder cases.
Fourteenth Amendment and Due Process
As early as 1833, federal courts rules that the amendments in the Bill of Rights originally only applied to federal government action and, therefore, did not apply to the states. It was not until the 1920s that the Supreme Court gradually applied selected elements of the first ten amendments to the states through the Due Process Clause of the Fourteenth Amendment. This process is known as selective incorporation. In other words, selective incorporation makes parts of the first ten amendments to the Constitution binding on the states, and state governments largely are held to the same standards as the federal government with regard to many constitutional rights.56 In addition, no less than ten of the thirty-one sections in the state constitutions bill of rights relate directly to the guarantees addressed in Article 4, 5, 6 and 8 of the federal Bill of Rights.
41. Administrative Office of the U.S. Courts, “What Does the Fourth Amendment Mean?” (2020).
42. Minnesota v. Carter, 525 U.S. 83 (1998).
43. Weeks v. United States, 232 U.S. 383 (1914).
44. “Fifth Amendment,” Cornell Law School - Legal Information Institute (2020), https://www.law.cornell.edu/constitu...Dincrimination.
45. “The Sixth Amendment,” Revolutionary War and Beyond (2020), https://www.revolutionary-war-and-be...amendment.html.
46. Gideon v. Wainwright, 372 U.S. 335 (1963).
47. Bryan A. Stevenson and John F. Stinneford, “The Eighth Amendment: Common Interpretation,” National Constitution Center (2020).
48. Sara J. Berman, “How Judges Set Bail - Bail Schedules,” Nolo (2020), https://www.nolo.com/legal-encyclope...-bail-set.html.
49. “5 Factors That Determine the Cost of Bail,” Titan Bail Bonds (2020), https://titanbailbondstn.com/5-facto...cost-bail/983/.
50. Waters-Pierce Oil Co. v. Texas, 212 U.S. 86 (1909).
51. United States v. Bajakajain, 524 U.S. 321 (1998).
52. U.S. Const amend VIII.
53. Wilkerson v. Utah, 99 U.S. 130 (1879).
54. Gary Graham and Juan Garza, “Summaries of Key Supreme Court Cases Related to the Death Penalty,” Capital Punishment in Context (2020), https://capitalpunishmentincontext.o.../casesummaries.
55. “State Polls and Studies,” Death Penalty Information Center (2020), https://deathpenaltyinfo.org/facts-a...ls-and-studies.
56. Web Solutions LLC, Incorporation Doctrine (2020).