Constitutional Law and Procedure

Transcription

1 Question 1: What is the historical basis of constitutional rights of an individual? Answer 1: Many of the founding fathers who signed the United States Constitution on September 17, 1787, were concerned that it contained few protections for the individual. The Constitution balanced the powers of the federal government with the powers of the individual states; it also created a balance of power between the three coequal branches of the federal government-the executive, the legislative, and the judiciary. Yet, because the new Constitution lacked protections for the people from the abuses of government, many states were reluctant to go through the formal ratification process needed for the formal adoption of the United States Constitution. The compromise reached to assure ratification of the Constitution was to adopt the amendments that specified certain rights that protected both individual persons and the states from the potential abuse of power in a strong centralized government. Therefore, the first 10 amendments ratified in December of 1791 became known as the Bill of Rights. Question 2: Does the Bill of Rights protect the people from wrongful actions taken by a state government? Answer 2: The Bill of Rights was not intended by the founding fathers to protect the people from the power of the state in which they lived. At that time, there was a greater concern that the power of a federal government could be abused by those in power in the same way that King George of England had abused the freedoms of those who lived in the original 13 colonies. People had turned to the leaders and militias of those 13 colonies to free them from England s rule; and after the United States declared its independence, many people still looked to the individual states as their greatest protection from the newly formed federal government. Therefore, the Bill of Rights was designed to limit the power of the federal government in dealings with the individual states and the citizens of those states. History has proven, however, that the individual states did not necessarily protect the freedoms and liberties of those who resided there. Ultimately, the American Civil War led to the adoption of the Reconstruction Amendments between 1865 and These amendments were created to protect the rights and liberties of the African-American slaves who had become this country s newest citizens at the end of the Civil War. The Thirteenth Amendment abolished slavery, except as a punishment for crime. The Fourteenth Amendment provided United States citizenship to any 1

2 person born or naturalized in this country. The Fifteenth Amendment provided that neither the federal nor state governments could deny or abridge a citizen s right to vote on the basis of race, color, or previous condition of slavery. While the importance of these fundamental political rights cannot be overemphasized, the struggle to enforce those basic liberties continued well into the Twentieth century. More important to the criminal justice system was the Fourteenth Amendment s substantive protections of fairness and equality from future abuse by the states. The Fourteenth Amendment prohibited any state from infringing upon the privileges and immunities of, or denying equal protection to, any U.S. citizen. The Fourteenth Amendment also imposed the same limitation on the states that had served the people well under the Fifth Amendment for the federal government-the amendment provided that no state may deprive any person of life, liberty, or property without due process of law. Over a period of many years, the United States Supreme Court has broadened this Due Process Clause of the Fourteenth Amendment to include those portions of the Bill of Rights that are fundamental to the fairness of the American justice system. Once incorporated by the Due Process Clause, those rights become enforceable against not only the federal government but also state and local governments. Only a few of the protections that individuals have from federal action under the first eight amendments have not been applied to the states under the Due Process Clause of the Fourteenth Amendment. Question 3: What individual liberties are provided in the Bill of Rights? Answer 3: The First Amendment prohibits the Congress of the United States from creating any law that limits the free exercise of religion or any law that would establish or require a religion. This amendment also protects freedom of speech, right to assemble peaceably, and the ability to petition grievances to the federal government. The First Amendment also protects the freedom of the press. The Second Amendment allows individuals to possess and to bear arms so they may assist a state militia when needed to protect the freedom of the state. The Third Amendment was designed to prohibit a common abuse in the colonies committed by the British military. The residences of private individuals could no longer be taken from them to house soldiers except by the owner s consent. 2

3 The Fourth Amendment provides for the protections of each person and his or her property from unreasonable searches or seizures or those that were performed without a warrant issued by a judge. That amendment requires that only a judge may issue a search or arrest warrant-and then only if the judge was given sufficient information under oath or affirmation to justify the search or seizure of a particular person, particular property, or at a particular location. The Fifth Amendment provides a criminal defendant protection from being tried twice for the same alleged act and protection from being forced to provide evidence against him or herself. As previously mentioned, this amendment also prohibits the Federal Government from denying any person of life, liberty, or property without due process of law. The Sixth Amendment provides specific rights in a criminal proceeding, such as the right to a speedy and public trial, the right to a trial by an impartial jury, and the right to counsel. It also provides that the accused must be notified of the charges against him or her and the basic facts supporting that charge. This amendment further provides that a criminal defendant has the right to confront and to cross-examine the witnesses against him or her and the right to force those witnesses to come to his or her trial who may have testimony or evidence in the defendant s behalf. The Seventh Amendment preserves the right to a jury trial in most civil cases. The Eighth Amendment prohibits the imposition of an excessive bail in a criminal case prior to trial and prohibits the imposition of an excessive fine following a conviction. This Amendment also provides that no cruel or unusual punishment may be imposed. The Ninth Amendment essentially admits that there may be many other individual rights that are not specifically set out in the Constitution and that the failure of the Constitution to identify those undiscovered rights shall not be construed to mean those rights do not exist. Perhaps more than any other Amendment, this provision provides the basis upon which the Constitution remains a living document that implicitly recognizes the possibility of new constitutional rights being discovered and incorporated into the basic liberties that are enjoyed by Americans. The Tenth Amendment makes it clear that the Federal Government keeps only the powers given to it by the Constitution, and that all other powers belong either to the states or to the people. 3

4 While the language in the Bill of Rights may appear to establish absolute and unbending rights and protections, it should be remembered that the courts have rarely, if ever, declared any constitutional right to be without some limitation. This is particularly true where the exercise of one person s constitutional liberties would infringe upon the constitutional liberty of another person. The legislatures and the courts must sometimes weigh the competing interests of the conflicting constitutional provisions to determine which one prevails. The interpretation of the language within any one of these constitutional rights will change from time to time as different personnel on the United States Supreme Court gather a majority for their points of view, and as the conscience of U.S.society grows and evolves from the much different times of the colonial revolution. Question 4: How did the courts get the power to declare a law or action to be unconstitutional? Answer 4: The United States Supreme Court first found in 1803 that the judicial branch has a duty to say what the law is, and that duty includes upholding the United States Constitution as the supreme law of the land when it is violated by the laws or acts of members of the executive and legislative branches (Marbury v. Madison, 1803). Article VI of the United States Constitution provides that the Constitution and the laws of the United States created in conformance with the Constitution shall be the supreme law. That article also requires federal and state officers to promise to uphold the United States Constitution by giving their oath or affirmation to its support. That article also requires that all judges in all states be bound by the United States Constitution. Therefore, common sense would indicate that when someone who is required to obey the specific provisions of the Constitution acts in violation of the Constitution, then those acts are unconstitutional. This unconstitutional act might be a law passed by a legislature, an act performed by some member of the executive branch, or some ruling made by a lower court judge. Judicial review is this power of a court to determine whether a law created by the legislative branch, or some action performed by the executive branch, violates the Constitution. Of the three branches of government, only the judiciary can serve as the last defense against the violation of individual rights, privileges, and immunities by the government. When a dispute turns into a lawsuit, the judiciary is charged with the responsibility of bringing a finality in the resolution of the dispute; one of the issues the judiciary must resolve in some cases is whether the actions taken by other governmental officials violated the Constitution. The power of judicial review is an inherent and necessary corollary to the need of the courts to interpret the laws. Judicial review serves as one of the checks and balances 4

5 that the judiciary has to control the power of other governmental officials to conform to the requirements of the Constitution. Question 5: Can the government limit the exercise of an individual s constitutional right? Answer 5: Occasionally, the exercise of freedoms enjoyed by one person will infringe upon the freedoms, rights, and safety of others. For example, the freedom of the press to report information concerning a criminal matter might infringe upon a criminal defendant s right to a trial by an impartial jury exposed to that media coverage. The right of people to march peacefully for a political cause might interfere with another person s right to privacy. Legislatures pass criminal laws to protect the health, safety, morals, and general welfare of the public that may conflict with constitutionally protected activities of individuals. When a criminal law conflicts with a constitutionally protected activity, the courts will use the power of judicial review to protect the supremacy of the Constitution after balancing the conflicting rights involved. For example, freedom of speech does not include the right to provoke assaults, incite riots, or unnecessarily cause panics that may result in injuries to others. On the other hand, laws that unreasonably limit an individual s right to protest peacefully, such as laws prohibiting the burning of draft cards or American flags, have been held to be unconstitutional. Question 6: What is the difference between substantive and procedural due process? Answer 6: First and foremost, the Due Process Clauses of the Fifth and Fourteenth Amendments guaranty basic fundamental fairness whenever the government attempts to take the life, liberty, or property of any person. Whenever the local, state, or federal governments permit the filing of a civil or criminal case, the plaintiff in those cases will normally seek a remedy that will result in the loss of the defendant s life, liberty, or property. Therefore, this constitutional amendment requires certain procedures of fairness to be followed in that lawsuit and provides that the laws involved in the prosecution of that case to be fair. Procedural Due Process essentially involves the right to be in a position to defend oneself from the allegations made against him or her in a court of law, including the right to present evidence that may be favorable to him or her in a trial. Procedural Due Process includes the right of the accused to receive notice of the allegations made against him or her and the essential facts that are 5

6 alleged to support that charge. It also requires notice of the identity of the person making those accusations and provides an opportunity to answer those charges. In addition, it includes the right to notice of the time and place of the hearing. Procedural Due Process refers to the rules and procedures by which a person can be compelled to attend a court action and be subject to civil or criminal penalties of the law. If Procedural Due Process encompasses how a person is brought to justice fairly, Substantive Due Process refers to the fairness of the laws involved in those proceedings. The United States Supreme Court has over a period of years in various cases determined that many of the Bill of Rights that are essential to the fairness of a criminal proceeding are incorporated by the Due Process Clause of the Fourteenth Amendment; therefore, the individual states must comply with those individual rights as required by the Fourteenth Amendment s Due Process Clause. For example, the right to counsel is so fundamental to the fairness of criminal proceedings that the Supreme Court has required the states to enforce the protection from the Sixth Amendment in local and state criminal proceedings (Powell v. Alabama, 1932). The Fourth Amendment s protections against unreasonable searches and seizures, as well as the limitations upon the issuance of search and arrest warrants, are now held to be a fundamental part of Substantive Due Process applicable to the states (Mapp v. Ohio, 1961). Question 7: When does the Fourth Amendment permit warrantless searches and seizures by law enforcement officers? Answer 7: The Fourth Amendment does not require all search and seizures to be performed with a warrant obtained by a judge. The Reasonable Clause of the Fourth Amendment specifically permits law enforcement officers to conduct searches and seizures without a warrant if, under the circumstances, it would be reasonable to do so. Law enforcement officers want to comply with the Fourth Amendment s rules because a violation of those rules is normally punished by the exclusion of any evidence obtained illegally or by the release of a suspect after his or her arrest (Wong Sun v. United States, 1963). Ironically, not all searches and seizures are governed by the rules of the Fourth Amendment. If the Fourth Amendment does not apply to the situation confronting the police officer, then there is no exclusionary rule that would prohibit the introduction of evidence against the suspect at trial. Generally, the Fourth Amendment only applies in those situations in which the suspect has a reasonable expectation of privacy in the place searched or in the property seized (Katz v. United States, 1967). In contract, a person would have no reasonable expectation of privacy in regards to his or her property that is exposed to public view. Id. Following this line of reasoning, the appellate courts 6

7 have found there is no reasonable expectation of privacy when an individual abandons a home or apartment or abandons his or her personal property (Abel v. United States, 1960). Those things that can be found in open areas, as opposed to private property, are generally not protected by the Fourth Amendment (Hester v. United States, 1924). The Fourth Amendment would not apply to places of incarceration where the inmates have no reasonable expectation of privacy from their keepers, nor to places that are not subject to the laws of the United States-for example, across the border into Mexico (Lanza v. New York, 1962; Brulay v. United States, 1967). The courts have also held that the Fourth Amendment does not protect the exterior of automobiles found in public areas, nor the VIN numbers on those automobiles (Cardwell v. Lewis, 974; New York v. Class, 1986). There are also situations in which a suspect cannot complain about a search or seizure because his or her property rights were not infringed-the property belonged to someone else (Brown v. United States, 1973; United States v. Salvucci, 1980). The Fourth Amendment only protects the people for illegal searches and seizures performed by government officials and agents; the Fourth Amendment does not protect an individual from the search or seizure of his or her property by a private party not involved with the government (Burdeau v. McDowell, 1921; Irvine v. California, 1954). If the Fourth Amendment does apply to the situation (because it is the personal privacy or property rights of the suspect involved when government officials searched or seized his property on U.S. soil), then, for the government to be able to use that evidence at trial against the suspect, it must prove compliance with the Fourth Amendment. If a warrant was not obtained that permitted the search of premises, the seizure of property, or the arrest of an individual, the police must prove that it was reasonable under the circumstances for them to act without a warrant (Coolidge v. New Hampshire, 1971). Over a period of years, the United States Supreme Court has created a number of specifically defined, and narrowly limited, exceptions to the warrant requirement of the Fourth Amendment. If a police officer obtained a warrant prior to acting, then the warrant is presumed to be reasonable (Aguilar v. Texas, 1964.) If the officer chose to act without a warrant, his or her actions are presumed to be unreasonable unless it clearly falls within one of these very few exceptions established by the United States Supreme Court (Coolidge v. New Hampshire, 1971). To date, the Reasonableness Clause has provided the United States Supreme Court no less than 10 separate categories of searches or seizures that are permitted without a warrant. In each of the situations, it has been determined that under the circumstances it would have been unreasonable for the officer not to proceed with the search or the seizure 7

8 without a warrant (Warden v. Hayden, 1967). The officer s good faith in proceeding without a warrant does not convert an illegal search or seizure into a lawful search and seizure (Taylor v. Alabama, 1982). The oldest exception to the requirement for a search warrant is the search incident to a lawful arrest. This exception can be traced back to the Roman Empire s search of suspects taken into custody. If the law enforcement officer has a valid reason for the suspect s arrest, then the officer may search that individual and the area close to the individual for potential weapons and evidence (Carroll v. United States, 1925). Another long standing exception to the warrant requirement arises when there is imminent and apparent danger to human life or safety or danger of significant harm to property. This is why firefighters, who are government officials, may enter onto private property to fight fires and check for potential victims. Police officers are under no less duty to protect persons and property; and where these especially exigent circumstances arise, the officer would be unreasonable if he or she failed to act promptly. If in the process of responding to the apparent emergency the officer or fireman finds evidence of a crime, he or she may also seize that evidence without first obtaining a search warrant (Michigan v. Tyler, 1978). Yet another exception to the warrant requirement was created many years ago based upon the need to allow the country to protect itself from those bringing weapons or contraband into the country at one of its borders. The United States Supreme Court permits in these circumstances a full search of the person and property of those coming across an international border into the United States, and no search warrant is required (Almeida-Sanchez v. United States, 1973). A similar exception was carved out for situations when the police are in hot pursuit of a fleeing felon. Because of the perceived danger that can be caused by individuals who attempt to avoid arrest from the scene of a felony, the Supreme Court has ruled that the police may follow wherever the suspect leads them while the chase is active. If during that chase the police observe evidence of a crime, the plain view doctrine permits the officer to seize the item without a warrant (Warden v. Hayden, 1967). The constitutional protections involving search and seizure may be voluntarily waived by the suspect or some other person having control over the property or item. Consent to a search or seizure eliminates the need to obtain a search warrant (Schneckloth v. Bustamonte, 1973). In some situations, individuals 8

9 with joint custody or control over the premises or property with a suspect can give valid consent permitting the search or seizure of property belonging to the suspect (Frazier v. Cupp, 1969). Sometimes the police will see something that they recognize as contraband or evidence in plain view, but it is in a nonpublic area. For example, if the officer has a legitimate reason to be inside a person s residence or vehicle, and while looking where he or she has the right to look, observes something that is obviously illegal contraband or evidence of some crime, then the officer may pick up or seize the item while lawfully within that private residence or vehicle. Plain view does not permit an officer to enter into a private area without a lawful reason; it only permits the officer to seize evidence once the property has lawfully been entered (Harris v. United States, 1968). The practical problems of mobility necessitated the creation of what is sometimes known as the automobile exception to a warrant. Assume, for example, that a law enforcement officer makes a routine traffic stop (with no intent to arrest the driver) for a minor traffic infraction. However, while standing beside the vehicle, the officer observes an illegal drug sitting on the passenger seat next to the driver. The observation was legal under the plain view doctrine, but that doctrine does not permit the officer to enter the vehicle without permission of the driver or without a search warrant. This mobility of the vehicle created a dilemma for the law enforcement officer. If the officer holds the car at the scene to obtain a warrant, he or she has already seized the suspect s car, which involves Fourth Amendment protections. If the officer does not hold the vehicle at the scene, the suspect or anyone else can simply drive the vehicle away before the warrant is obtained. In either case, the officer would be acting unreasonably unless a new exception to the warrant requirement was created that permitted both the entry into the vehicle and the seizure of the item of evidence. The automobile or mobility doctrine permits the officer not only to seize the vehicle temporarily to protect and preserve the evidence of the crime he or she already knows is inside the car, but it also allows him or her to enter the vehicle and seize the evidence without a warrant (Carroll v. United States, 1925). This exception to the warrant requirement of the Fourth Amendment has also been applied to other containers in transit, such as luggage or boxes being transported or shipped. The specific rules relating to containers without any means of self-propulsion, however, only allow the container to be seized and protected, but a search warrant or consent is required before the officer can open the container to seize the evidence inside that container (United States v. Chadwick, 1977). The protection of the law enforcement officers and others in the vicinity provides a basis for the exception to the warrant requirement that occurs when 9

10 the police stop an individual who might pose a threat to the life or safety of the officers or others. This stop and frisk exception permits an officer to detain an individual, even though the officer lacks sufficient grounds to make an arrest if the officer has a reasonable suspicion to believe that a crime has been committed, is being committed, or will be committed by that individual. This exception then allows the officer, for the protection of him or herself and others, to frisk (or pat down) the exterior of the detainee s clothing and any bag or container he or she may be carrying for the possibility of a weapon, but only if the officer had an articulable suspicion that led the officer to fear for his or her own safety (Terry v. Ohio, 1968). Occasionally, the police must take possession of someone else s property, even if it is not involved in any apparent crime. For example, a vehicle that is left unattended for some time upon a public street is eventually impounded and towed away. To protect the officers, and those who take charge of the safekeeping of the vehicle, the Supreme Court has allowed a search of that vehicle for all of its contents. This inventory search allows the officers to record what items were in the vehicle at the time it was removed from the street so the owner of the vehicle is protected if that property is later found to be missing. This also protects the officers of false accusations of misappropriating property from the vehicle that was never there (Illinois v. Lafayette, 1983). Perhaps the most recently created exception to the warrant requirement concerns student searches on school property. This exception allows school officials, who in a public school setting are government employees, to conduct a search of the person and property of a student for evidence of a crime or of a violation of a school regulation if that search is reasonably related and limited to the facts supporting that search (New Jersey v. TLO, 1985). The United States Supreme Court has demonstrated a willingness to create new exceptions to the Fourth Amendment that would permit a search or seizure without a warrant (Warden v. Hayden, 1967). The Court has also found exceptions to the application of the exclusionary rule that would normally keep out evidence obtained through an illegal search or seizure where a combination of the officer s good faith reliance upon the legality of the search or seizure and the existence of facts would have led to the discovery of the evidence at a later time or because of a different untainted basis of information (United States v. Leon, 1984; Massachusetts v. Sheppard, 1984; Illinois v. Krull, 1987). Sometimes the property or evidence seized during an illegal search or seizure either with, or without, a warrant may be admissible, even though the exclusionary rule would normally not allow that evidence into trial against the defendant whose rights were violated under the traditional Fourth Amendment rules and exceptions. Id. For example, where the government can show that 10

11 the evidence would have inevitably been discovered by a lawful search or seizure, the technical violation of the Fourth Amendment will not exclude the evidence (Nix v. Williams, 1984). The evidence would also not be excluded from trial if the government can prove that they would have recovered the evidence anyway during a later valid search based upon an independent source not tainted by the original unlawful activity of police (Murray v. United States, 1988). Question 8: When does an individual s right to counsel under the Sixth Amendment come into play during a criminal case? Answer 8: The right to counsel provided by the Sixth Amendment applies to all federal, state, and local jurisdictions. America s adversarial criminal justice system works on the premise that if each side has competent counsel who will provide aggressive representation within the limits of the law, the jury will receive the best information available prior to rendering a verdict. Indeed, if a criminal defendant s attorney is not competent in the presentation provided to the accused at trial, the criminal justice system fails and the appellate courts have a duty to overturn the conviction for a new trial (Powell v. Alabama, 1932). The right to counsel in criminal cases developed slowly in this country after the adoption of the United States Constitution. Only in the Powell v. Alabama (1932) case was the need for competent counsel recognized in a capital case. Another 30 years passed until the right to counsel for an indigent defendant during the trial of a noncapital felony case was established (Gideon v. Wainwright, 1963). It was 40 years after Powell v. Alabama (1932) until the right to competent counsel was recognized in every case (felony or misdemeanor) in which the defendant might be sentenced to serve time in custody (Argersinger v. Hamlin, 1972). Now the Sixth Amendment right to counsel includes the appointment of counsel to assist indigent defendants who face potential jail sentences in a criminal case, not only at trial but also at every critical stage in the proceeding where their substantial rights may be affected. In a number of cases from Powell v. Alabama (1932) through Brewer v. Williams (1977), the United States Supreme Court has gradually required the effective assistance of counsel for every critical stage from the commencement of adversary proceedings through appeal (Messiah v. United States, 1964; Douglas v. California, 1963). The commencement of criminal proceedings for the purposes of the right to counsel begins when a criminal investigation has narrowed down to a suspect; therefore, a criminal suspect who has not yet been charged with a crime is entitled to have at attorney during any police custodial interrogation (Escobedo 11

12 v. Illinois, 1964). For example, if the police wish to require a suspect to participate in a lineup for possible identification by a witness, counsel must be provided whether or not the police attempt to question the suspect (Gilbert v. California, 1967; United States v. Wade, 1967). The police must actually inform the suspect of his or her right to counsel and the right to remain silent before such an interrogation may commence (Miranda v. Arizona, 1966). Statements made by the accused in violation of his or her right to counsel, and all evidence that may be discovered because of information illegally obtained because of that confession, are inadmissible in court against the defendant (Spano v. New York, 1959; Miranda v. Arizona, 1964). Question 9: How has the Eighth Amendment been applied to the sentences imposed in criminal cases? Answer 9: The prohibition against cruel and unusual punishments is one of the three protections provided to criminal defendants by the Eighth Amendment. The prohibition against excessive bail is a pretrial protection. The prohibition against excessive fines imposed at sentencing is sometimes confused with the prohibition against cruel and unusual punishment. Historically, it should remembered that at the time of the American Revolution, the use of punishments such as torture, whippings, branding, pillories and stocks, and amputations were not that far removed from the criminal justice system as it then existed. As social conscience evolved, these very common forms of punishment were deemed barbaric and inappropriate. In a sense, the term cruel and unusual punishment is deemed whatever society as a whole deems to be unacceptable as punishment for crime (Trop v. Dulles, 1958). While much of the current debate surrounding cruel and unusual punishment centers upon the death penalty, other forms of punishment could be addressed in a discussion of the Eighth Amendment. For example, could a state today impose some form of corporal punishment to inflict pain and suffering, such as a caning or whipping, for the conviction of a crime? (Ingraham v. Wright, 1978; Coker v. Georgia, 1977). May a state impose a prison sentence for the crime of being addicted to a controlled substance that is prohibited by law? (Robinson v. California, 1962). When does the length of a prison sentence or the conditions of confinement exceed the appropriate purposes of punishment for a specific crime? (Harmelin v. Michigan, 1991; Wilson v. Seitzer, 1991; Solem v. Helm, 1983; Estelle v. Gamble, 1976). The death penalty debate within the context of the Eighth Amendment falls into 12

13 five general topics: Is the imposition of the death penalty, per se, cruel and unusual punishment? Is the penalty of death grossly disproportionate to the crime committed? Do the legal procedures used to determine whether an individual receives the death penalty constitute cruel and unusual punishment? Does the method by which the person is executed constitute cruel and unusual punishment? Is the imposition of the death penalty cruel and unusual punishment based upon the unique physical or mental characteristics of the offender? Historically, the execution of individuals for heinous crimes has been an accepted part of the cultures and religions of most of the world. Nevertheless, Amnesty International USA s studies have demonstrated that the United States is the only Western democracy that still uses the death penalty. The Fifth Amendment to the United States Constitution specifically mentions the death penalty in addressing the right to a grand jury in criminal cases. While the individual members of the United States Supreme Court have given lengthy opinions concerning the appropriateness of the death penalty, a majority of that Court has never ruled the death penalty itself to constitute cruel and unusual punishment (Furman v. Georgia, 1972). The debate will, no doubt, continue as the social conscience of the community continues to change one direction or the other. Using a proportionality analysis that weighs the crime committed against the penalty imposed, the Supreme Court held that the death penalty was so grossly disproportionate to the offense of rape of an adult woman that it constituted cruel and unusual punishment. Only if the victim received aggravated injuries above and beyond the type of injuries suffered during the rape itself, or if the victim died from such injuries inflicted during the rape, might the death penalty be the appropriate punishment to fit the crime (Coker v. Georgia, 1977). The Supreme Court has also held that the death penalty is an excessive penalty for a robber who does not take a human life (Enmund v. Florida, 1982). In Furman v. Georgia (1972), the United States Supreme Court placed a hold on all capital executions because of the flawed manner in which juries were selected and instructed in capital cases; the Court found the death penalty was applied in an arbitrary and random manner because of these problems. Approximately three fourths of the state rewrote their death penalty statutes to comply with the Supreme Court s ruling; and in 1976, the death penalty was formally reinstituted when Georgia s new capital punishment laws were 13

14 approved by the Supreme Court (Gregg v. Georgia, 1976). Under the present interpretation of the new death penalty laws, even if it can be statistically demonstrated that the death penalty is applied in a racially disproportionate manner against minorities, it would still be incumbent upon the defendant to establish that his or her particular death sentence was the result of racial discrimination (McClesky v. Kemp, 1987). Since the death penalty was reinstituted in 1976, inmates on death row have been executed by means of hanging, the electric chair, the gas chamber, lethal injection, and even by firing squad. Regardless of the considerable public debate on the perceived pain and suffering that any of these methods may cause the individual being executed, no case questioning whether the method by which a person is executed has been addressed by a United States Supreme Court decision. In only one case has hanging been deemed a cruel and unusual means of execution where the offender weighed in excess of 400 pounds and the likely result of a hanging would have been decapitation (Rupe v. Wood, 1994). Compare Campbell v. Wood (1994), which held that execution by hanging does not violate cruel and unusual punishment. More recently, a number of United States Supreme Court cases have addressed the imposition of the death penalty against minors and the mentally ill. While this area may still be in flux, the Supreme Court typically has tried to determine whether the retributive purposes of the death penalty are applicable to people who are deemed unable to appreciate the consequences of their conduct and the reasons for the imposition of the penalty. For example, the United States Supreme Court has forbidden the imposition of the death penalty in cases where the minor was under the age of 18 at the time of the commission of the crime (Roper v. Simmons, 2005, overruled, Stanford v. Kentucky, 1989). Generally, the Supreme Court has upheld the death penalty against persons who are mentally ill or retarded so long as they were legally sane at the time of the commission of the crime and mentally competent to stand trial at the time of their conviction (Atkins v. Virginia, 2002, overruled, Penry v. Lynaugh, 1989). Question 10: What other constitutional protections are provided in a criminal case outside the Bill of Rights? Answer 10: The United States Constitution contains five protections for criminal defendants that are not found in any of the Bill or Rights or other amendments. Article I, Section 9, provides for the writ of habeas corpus to allow courts to determine the legality of a person s detention except during times of war or when public safety may require its suspension. Article I, Section 9, Clause 3 (and Section 10, Clause 1), prohibits the enactment of any bills of 14

15 attainder, which would remove a criminal case from the judiciary to a trial by the legislature. Article I, Section 9, Clause 3, also prohibits the enactment of any ex post facto law that would criminalize an act already committed by someone when it was lawful and then prosecute that individual for such act after the new law went into effect. Article III, Section 3, provides that when a person is charged with treason, a conviction may not be allowed except upon the testimony of two witnesses unless there is a confession made by the accused in open court. Article III, Section 3, Clause 2, states no corruption of blood or forfeiture is permitted to punish the offender s family by removing his or her ability to inherit the property of the offender. It should also be remembered that each of the several states has a state constitution that typically provides for certain rights, protections, privileges, and immunities to be enjoyed by its citizens-some of which involve the criminal justice system. Before the United States Supreme Court had required the states to obey certain provisions of the Bill of Rights as a matter of federal law pursuant to the selective incorporation doctrine of the Fourteenth Amendment, some states granted many of those rights to its citizens through the state constitution. An attorney researching the protections afforded by the United States Constitution on behalf of a person charged in a state or local court would be remiss in his or her duties if he or she failed to determine whether that state s constitution provided greater or different protections that the United States Constitution and Bill of Rights. A number of states have elevated the concept of victim s rights into the protections provided by the state constitution. Most states now have some laws that define the rights of a victim or the victim s family in a criminal proceeding. A few states have taken it a step further by adopting constitutional changes to address the needs of the victims of crime. An inherent issue that arises when the rights of victims are raised to a constitutional level will be whether such rights conflict with the constitutional rights of a criminal defendant. References Abel v. United States, 362 U.S. 217 (1960). Aguilar v. Texas, 378 U.S. 108 (1964). Almeida-Sanchez v. United States, 413 U.S. 266 (1973). Argersinger v. Hamlin, 407 U.S. 25 (1972). 15

16 Atkins v. Virginia, 536 U.S. 304 (2002), overruled, Penry v. Lynaugh, 492 U.S. 302 (1989). Brown v. United States, 411 U.S. 223 (1973). Brulay v. United States, 383 F.2d 345 (9th Cir. 1967). Burdeau v. McDowell, 256 U.S. 465 (1921). Campbell v. Wood, 978 F.2d 1502 (9th Cir. 1994). Cardwell v. Lewis, 417 U.S. 583 (1974). Carroll v. United States, 267 U.S. 132 (1925). Coker v. Georgia, 433 U.S. 584 (1977). Coolidge v. New Hampshire, 403 U.S. 443 (1971). Douglas v. California, 372 U.S. 353 (1963). Enmund v. Florida, 458 U.S. 782 (1982). Escobedo v. Illinois, 378 U.S. 478 (1964). Estelle v. Gamble, 429 U.S. 97 (1976). Frazier v. Cupp, 394 U.S. 731 (1969). Furman v. Georgia, 408 U.S. 238 (1972). Gideon v. Wainwright, 372 U.S. 335 (1963). Gilbert v. California, 388 U.S. 263 (1967). Gregg v. Georgia, 428 U.S. 153 (1976). Harmelin v. Michigan, 501 U.S. 957 (1991). 16

17 Harris v. United States, 390 U.S. 234 (1968). Hester v. United States, 265 U.S. 57 (1924). Illinois v. Krull, 480 U.S. 340 (1987). Illinois v. Lafayette, 462 U.S. 640 (1983). Ingraham v. Wright, 430 U.S. 651 (1978). Irvine v. California, 347 U.S. 128 (1954). Katz v. United States, 389 U.S. 347 (1967). Lanza v. New York, 370 U.S. 139 (1962). Mapp v. Ohio, 367 U.S. 643 (1961). Marbury v. Madison, 5 U.S. 137 (1803). Massachusetts v. Sheppard, 468 U.S. 981 (1984). McClesky v. Kemp, 481 U.S. 279 (1987). Messiah v. United States, 377 U.S. 201 (1964). Michigan v. Tyler, 436 U.S. 499 (1978). Miranda v. Arizona, 384 U.S. 436 (1966). Murray v. United States, 487 U.S. 533 (1988). New Jersey v. TLO, 469 U.S. 325 (1985). New York v. Class, 475 U.S. 106 (1986). Nix v. Williams, 467 U.S. 431 (1984). Powell v. Alabama, 287 U.S. 45 (1932). 17

18 Robinson v. California, 370 U.S. 660 (1962). Roper v. Simmons, 543 U.S. 551 (2005), overruled, Stanford v. Kentucky, 492 U.S. 361 (1989). Rupe v. Wood, 863 F.Supp (W.D. Wash. 1994). Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Solem v. Helm, 463 U.S. 277 (1983). Spano v. New York, 360 U.S. 315 (1959). Taylor v. Alabama, 457 U.S. 687 (1982). Terry v. Ohio, 392 U.S. 1 (1968). Trop v. Dulles, 356 U.S. 86 (1958). United States v. Chadwick, 433 U.S. 1 (1977). United States v. Leon, 468 U.S. 897 (1984). United States v. Salvucci, 448 U.S. 83 (1980). United States v. Wade, 388 U.S. 218 (1967). Warden v. Hayden, 387 U.S. 294 (1967). Wilson v. Seitzer, 501 U.S. 294 (1991). Wong Sun v. United States, 371 U.S. 471 (1963). 18