6.5: The Individual and the Criminal Justice System

“The USA offers procedural rights at trial that are on par with international standards, but this is of little consolation to those who, facing the threat of overwhelming sentences upon conviction and forced into insincere plea deals, never benefit from the protection of these rights.”

—Fair Trials International ⁽¹⁾

The power differential between individuals and government is starkly on display when people stand accused of committing a crime. The founders were very familiar with the English criminal justice system’s historic abuse of the American colonists, and worked to create changes.

The Fourth Amendment

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In Mapp v. Ohio (1961), the Supreme Court ruled that states—as well as the federal government—are bound to apply the Fourth Amendment’s search and seizure protections to people. This idea also applies to the exclusionary rule, meaning that any evidence that state or federal authorities gather in violation of the Fourth Amendment must be excluded from the defendant’s trial. The Fourth Amendment has been used to require authorities to get warrants before they do the following:

• Attach GPS tracking devices to a suspect’s car. ⁽²⁾
• Search a suspect’s phone for incriminating information. ⁽³⁾
• Access records that reveal the physical location of cellphones. ⁽⁴⁾

March to End Racial Profiling in Stop and Frisk

On the other hand, federal courts have given authorities broad latitude to search people on the street. In Terry v. Ohio (1968), the Supreme Court ruled that police may stop and frisk people on the street if they have a reasonable suspicion that the person has committed a crime, is in the process of committing a crime, or is about to commit a crime. Reasonable suspicion is a lower standard than probable cause, which is the standard used when judges issue warrants or when police operate in what are known as exigent circumstances. The Court also ruled that even if police do not have reasonable suspicion to stop and frisk someone, if that person has an outstanding warrant, police can use anything they find in court. ⁽⁵⁾

Since Mapp v. Ohio was decided, the Supreme Court has placed many other limitations on the exclusionary rule including good faith exceptions, exceptions for evidence obtained by someone other than police, and exceptions for situations where the incriminating evidence likely would have been found anyway without an illegal search. During traffic stops, police are allowed to examine that which is in plain view—e.g., on your dashboard or sitting on the back seat—without reasonable suspicion or probable cause, but they would need probable cause to search further without your permission. Anything incriminating that is in plain view can be grounds for probable cause. They can ask you to step out of the car and can frisk you with reasonable suspicion, which presumably they already have if they legally stopped your vehicle.

The Fifth and Sixth Amendments

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.“

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

The Fifth and Sixth Amendments have many protections for criminal defendants. The Fifth Amendment says that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” This clause protects an individual against double jeopardy. A notable exception concerns the separate sovereigns doctrine, which means that the federal government and the state governments are separate units under our federal system. In other words, the state government and the federal government can prosecute you separately for the same crime. ⁽⁷⁾

The Fifth Amendment also protects against self-incrimination: no person “shall be compelled in any criminal case to be a witness against himself.” In a federal or state trial, defendants are not obligated to testify, nor are suspects required to say anything to police when they are detained or arrested. To ensure that people fully exercise their freedom from self-incrimination, the Supreme Court took action in Miranda v. Arizona (1966). In a tight 5-4 decision, the majority threw out Ernesto Miranda’s kidnap and rape conviction because he gave his confession without understanding that he had a right to remain silent and had a right to have a lawyer present at his interrogation. As a result, police must inform someone of their Miranda rights:

• you have a right to remain silent
• anything you say can be used in a case against you
• you have the right to have a lawyer present
• if you cannot afford a lawyer one will be appointed for you

The Fifth Amendment provides a person due process, which is defined as “A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one’s life, liberty, or property. . . [and] a constitutional guarantee that a law shall not be unreasonable, arbitrary, or capricious.” ⁽⁹⁾ In a lecture to the University of Pennsylvania Law School, Judge Henry Friendly put together a nice list of what procedural due process means:

1. An unbiased tribunal.
2. Notice of the proposed action and the grounds asserted for it.
3. Opportunity to present reasons why the proposed action should not be taken.
4. The right to present evidence, including the right to call witnesses.
5. The right to know opposing evidence.
6. The right to cross-examine adverse witnesses.
7. A decision based exclusively on the evidence presented.
8. Opportunity to be represented by counsel.
9. Requirement that the tribunal prepare a record of the evidence presented.
10. Requirement that the tribunal prepare written findings of fact and reasons for its decision. (10)

The Fifth Amendment also provides for grand juries, which are panels of citizens who hear evidence and decide if there is sufficient evidence to proceed with a prosecution. At this time, the protection for a grand jury indictment before moving to trial operates at the federal level only. Note that this protection has not been incorporated into the Fourteenth Amendment or made a requirement for state criminal prosecutions.

The Eighth Amendment

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Cherise Fanno Burdeen writes that “More than 60 percent of people locked up in America’s jails have not yet been to trial, and as many as nine in ten of those people are stuck in jail because they can’t afford to post bond.” ⁽¹⁵⁾ Being stuck in jail because you can’t pay cash bail makes it impossible to work. Being unable to afford steep fines after you’ve pled guilty to get a fine instead of jail time, makes for a never-ending engagement with the criminal justice system. Obviously, America’s criminal justice system burdens fall heaviest on the poor. In Timbs v. Indiana (2019), the Supreme Court indicated in its 9-0 ruling that it does not intend to let states impose excessive fines.

The Florida Electric Chair in 1999

The Eighth Amendment’s ban on cruel or unusual punishment is the focus of the U.S longstanding debate over capital punishment, which is when the government kills someone as punishment for a crime. Historically, governments imposed capital punishment for many offenses, including rape, counterfeiting, accomplice to murder, and piracy. Now, capital punishment is reserved for murder, although still a possibility for treason, espionage, and terrorism. The federal criminal justice system allows for capital punishment, as does the criminal justice systems in twenty-eight of fifty states.

Due to the arbitrary and racially biased way that capital punishment was meted out across the United States, in Furman v. Georgia (1972), the Supreme Court essentially invoked a moratorium on applying capital punishment. Two of the justices—Thurgood Marshall and William Brennan—opined that the death penalty violated the Constitution’s prohibition against cruel and unusual punishments, regardless of procedural issues. States that practiced capital punishment rewrote their statutes, and in Gregg v. Georgia (1977), the Court upheld capital punishment again. According to the Death Penalty Information Center, since the Supreme Court re-allowed capital punishment in the Gregg case, over 1,500 people have been put to death and there still appears to be racial disparities in how the death penalty is applied. ⁽¹⁶⁾

What if. . . ?

What if we restricted plea bargaining and equalized resources between prosecutors and public defenders? In 1987, state circuit court judge Ralph Adam Fine argued that plea bargaining was a double evil: “It encourages crime by weakening the credibility of the system on the one hand and, on the other, it tends to extort guilty pleas from the innocent.” ⁽¹⁷⁾ Another problematic aspect of plea bargaining is that it is paired with cash bail or the threat of very high penalties, which really put defendants in a tough spot. As former state prosecutor Melba Pearson says, “If you are in jail because of a cash bail you can’t pay, pleas can sound like a great alternative to losing your job, failing to pay rent, and a variety of other negative consequences.” ⁽¹⁸⁾ The practice of plea bargaining—admitting guilt to obtain a reduced sentence—has, in fact, been abandoned in a few jurisdictions in the United States, but is growing around the world. ⁽¹⁹⁾

References

1. Editor, “Plea-Bargains and Fair Trials in the USA,” Fair Trials International. May 28, 2014.
2. United States v. Jones (2012)
3. Riley v. California (2016)
4. Carpenter v. United States (2018)
5. Utah v. Strieff (2016)
6. No Author, “Double Jeopardy,” Cornell Law School Legal Information Institute. No date.
7. Gamble v. United States (2019).
8. “English Translation of Magna Carta,” The British Library. Paragraph 39.
9. “Due Process of Law,” The Legal Dictionary.
10. Henry Friendly, “Some Kind of Hearing,” University of Pennsylvania Law Review. Volume 123. 1975. Pages 1267-1317.
11. Andrew Cohen, “How Americans Lost the Right to Counsel, 50 Years After Gideon,” The Atlantic. March 13, 2013.
12. Kanya Bennett and Ezekiel Edwards, “Our Government Has Failed to Defend the Sixth Amendment,” The American Civil Liberties Union. May 16, 2019.
13. Dylan Walsh, “Why the U.S. Criminal Courts Are So Dependent on Plea Bargaining,” The Atlantic. May 2, 2017.
14. Soo Youn, “40% of Americans Don’t Have $400 in the Bank for Emergency Expenses: Federal Reserve,” ABC News. May 24, 2019.
15. Cherise Fanno Burdeen, “The Dangerous Domino Effect of Not Making Bail,” The Atlantic.April 12, 2016.
16. Death Penalty Information Center.
17. Ralph Adam Fine, “Plea Bargaining: An Unnecessary Evil,” Marquette Law Review. Summer 1987. Page 615.
18. Christopher Wright Durocher, “The Rise of Plea Bargains and the Fall of the Right to Trial,” American Constitution Society Expert Forum. April 4, 2018.
19. The Economist, “The Troubling Spread of Plea Bargaining from America to the Rest of the World,” November 9, 2017.

Media Attributions

• Stop and Frisk © longislandwins is licensed under a CC BY (Attribution) license
• Electric Chair © Florida Department of Corrections/Doug Smith is licensed under a Public Domain license