All notes for test 2
All notes for test 2 PSCI 1040
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Date Created: 03/11/16
Supreme Court Cases McCulloch v. Maryland 1819 Very. Important case concerning both national sovereignty and right of congress to use the necessary and proper clause McCulloch represents the federal government Maryland said that the national bank has no right to exist because the constitution isn't mentioned. If it does have the right to exist then the state has the right to tax it. John MArshall says that it has the right to exist per article 1 section 8 in the elastic clause. And that the federal government can’t be taxed because the emerald government is supreme and the power to tax is the power to destroy Gibbons v Ogden, 1824 South Carolina sided with broad interpretation of commerce clause States were going to govern commerce on river Federal government said that they were going to control it This case resulted into the broad definition of commerce instead of the state's desired Barron v Baltimore, 1833 The Bill of Rights pertained only to the federal or national government, not actions of the states Barron owned a dock and charged for loading and unloading the boat, sues under the fifth amendment because he was deprived of property, loses case because it not applies to federal government not local government Baltimore dredges the harbor and moves the sand so that the big ships can't move in causing Barron to lose his livelihood 1857 Dred Scott Slaves “were never thought of or spoken of except as property” Because congress is forbidden by the fifth amendment to legislate about a person's property without due process of law 1919 Supreme Court finally ruled on a free expression case Near v Minnesota 1931 and thepentagon papers case involving publication of stolen documents about the Vietnam War 1940. Kids HAVE to salute 1943 Oh wait never mind it's unconstitutional kids DO NOT have to salute the flag Brown v Board of education 1957 1960s Teacher led and school sanctioned prayers unconstitutional Earl Warren Chief Justice Griswold v Connecticut 1965 Supreme Court overturned Connecticut’s law AND recognized the existence of a right of privacy.Therefore allowing people have access to information about contraceptives Roe v Wade 1973 Supreme Court ruled that the right to privacy established in Griswold v Connecticut is broad enough to cover whether or not a women can get an abortion. Also set up the trimester rule. First trimester (3 months) yes you can get it Favors the mother Second trimester (6 months) we don’t know Third trimester (9 months) no absolutely not Favors the child Said that the jurisdiction placed on the women must not be burdensome to women Cowen v US 1975 Man came in with fuck the draft on a jacket Was protected because it was a political message 1978 Supreme Court rejected louisiana’s teaching of creationism 1980 Unconstitutional to require posting of Ten Commandments in public school classrooms 1984 Lynch v Donnelly Displays of religious and nonreligious items public property are ok 1985 Supreme Court rejected Alabama’s moment of silence 1989 Supreme court ruled that menorah could be apart of the display Assistance to religious schools is ok as long as it is secular Hustler magazine v Falwell 1988 Reverend Jerry Falwell Parodied by hustler magazine about Jerry Falwell’s first sexual experience Publisher Larry flynt Flynt win People vs Larry Flynt 1992 Supreme Court has recognized the fact that the writ of habeas corpus is the only thing to prevent terrible acts School sponsored prayer at graduation is unconstitutional 1993 Supreme Court ruled that religious group can use public school facilities if other groups can do so Boerne v Flores archbishop of San Antonio et al 1997 2000 School prayer at a football game is unconstitutional Lawrence v Texas 2003 Case brought to the court about homosexiality The right of privacy also extends to the sexual practices of consenting adults. States are no longer get able to criminalize sexual behavior with sodomy laws Weekly notes for test 2 Chapter 3: Federalism ● Same sex marriage ○ Can state and county officials refuse to implement a ruling of the U.S. Supreme Court ■ Kim Davis county clerk ● Related question ○ Could a southern state refuse to integrate its school when the Supreme Court directed it to do so ■ Brown v Board of education ○ Can a business refuse to provide services to a same sex couple ● RFRA ○ City oBoerne v Floresarchbishop of San Antonio et al 1997 ■ ISSUE ● Could the church’s plan to add on to their building be stopped by the zoning commission ■ History ● Two men failed their drug test due to the presence of payoute ● Applied for unemployment and was down turned. ● Supreme Court says if it is illegal then it doesn't automatically become legal for a religious practice ● RFRA states that states could not substantially burden the free exercise of religion without a so pulling reason to do so ● Bishop says you have violated RFRA because we can't expand ● Supreme Court says RFRA is unconstitutional because religious institutions had control over the federal system ○ Most states have their own RFRA ● 3.0Advantages of federalism ○ State and local governments create many opportunities for citizen interaction with public officials ○ This is a big country and local officials will often have more knowledge of what is going on in their area ○ Coordination; almost impossible to coordinate at national level for such a large population ○ Allows for a diversity of ideas. Look at California and Texas on environmental matters, for example ○ Allows for other types of diversity to thrive religion, language, cultural traditions and so on ○ Federalism is a hedge against our government being taken over by a dictator. ● Update in life stuffs ○ Antonin Scalia ■ Most conservative justice recently died February 13,2016 in shatter, tx ○ Republican debate ■ Attacks from Jeb Bush ■ People were cheering and booing just like a basketball game ○ About court appointment ■ The body wasn’t even cold yet and they were looking for someone new to fill the spot there are 4 liberals and 4 conservatives ■ There is no longer going to be a republican control. There is likely to be a liberal appointment from Obama ■ Sessions start October first Monday the decision may wait till then ● Huge outcry from the people ■ There hasn't been confirmed member of the court in 80 years during an election year ● 3.0 Disadvantages of federalism ○ States have a long history of oppressing their citizens ■ Think discrimination against African Americans and treatment of those accused and convicted of crimes ○ Policies differ from state to state, creating a complex web for citizens to try to understand and work with ■ When you move you have to change your driver's license, register your car ○ Federalism allows us to avoid a national consensus, even though such a consensus would at times be good and useful ■ A national identity is differing across the country and more of a state identity ○ People aren't much invested in state and local government, so they don't turn out or elections and other political events ○ The quality of government may decline as one goes from national to local government ● 3.1 Types of power ○ Inherent powers ■ Powers that would belong to any government ● Example ○ We expect the order to be kept and maintained ○ Enumerated powers ■ Powers specifically listed in the Constitution in Article 1 section 8 ● Direct text ○ The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; ○ Implied powers ■ Stemming from the necessary and proper clause ● Based on these powers congress is allowed to do what is necessary to carry out these powers ● Direct text ○ The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. ○ Concurrent powers ■ Can be exercised by more than new level of government ● Example ○ Taxation ○ Making laws governing behavior ○ Establishment of courts ○ Chartering banks and corporations ○ Spending money for the general welfare ○ Reserved powers ■ Belong to the states ■ Found in the tenth amendment ● Direct text ○ The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. ● Example ○ States can make laws on matters dealing with earth, safety and morals ○ States can decide the basis of property ownership ■ Dillon's rule. ● The state owns anything that it creates ○ States can set up call governments ○ States can ratify amendments to the U.S. Constitution ○ State can regulate commerce within the state ● Community property ○ Came from Mexico ○ Everything earned during the marriage is split between both partners ○ Things that car clearly gifts are exempt from this ruling ○ Powers denied ■ Constitution prohibits ● Can't grant noble titles ● Accepting gifts from foreign heads of state ● The US cannot favor one state over another ○ Interstate relations: Article IV ■ Disputes among states are settled by Supreme Court ■ Full faith and credit clause ● Legal ruling ● marriage licenses ■ Privileges and immunities clause ● Police protection ● Right to buy property ■ Extradition ● Must deliver up criminals ■ Interstate compacts ● Agreements between and among states ■ Direct text ● The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence ● 3.2 Federalism and Marshall Court ○ McCulloch v. Maryland 1819 ■ Very. Important case concerning both national sovereignty and right of congress to use the necessary and proper clause ● McCulloch represents the federal government ● Maryland said that the national bank has no right to exist because the constitution isn't mentioned. If it does have the right to exist then the state has the right to tax it. ● John MArshall says that it has the right to exist per article 1 section 8 in the elastic clause. And that the federal government can’t be taxed because the emerald government is supreme and the power to tax is the power to destroy ○ Gibbons v Ogden, 1824 ■ South Carolina sided with broad interpretation of commerce clause ● States were going to govern commerce on river ● Federal government said that they were going to control it ● This case resulted into the broad definition of commerce instead of the state's desired ○ Barron v Baltimore, 1833 ■ The Bill of Rights pertained only to the federal or national government, not actions of the states ● Barron owned a dock and charged for loading and unloading the boat, sues under the fifth amendment because he was deprived of property, loses case because it not applies to federal government not local government ● Baltimore dredges the harbor and moves the sand so that the big ships can't move in causing Barron to lose his livelihood ● Story time ○ Key point #1 changes in Chief Justice ■ John Marshall ● Fourth Chief justice ● Served from 18011835 ● Favored national power ○ Had great influence ■ Roger Taney ● Fifth Chief Justice ● Served from 18361864 ● Favored states rights ● Wrote the decision in Dred Scott case ○ Key point #2 Doctrine of Nullification ■ Doctrine that a state could decide that a federal law court ruling was not valid within its borders and would not be enforced ■ Law would not take effect unless threefourths of the states favored it ■ Theory ● The Union is a voluntary compact of states and the federal government has no right to exercise powers that are not specifically listed in the constitution ■ John C. Calhoun ● “The federal government exists at the will of the tates” ■ Webster/Hayne Debate on Nullification 1830. ● Hayne ○ “Liberty first and union afterward” ● Webster said that the Constitution was creation of the people and not the states ○ “Liberty and Union, now and forevermore ne and inseparable” ○ Actions ■ 1832 ● South Carolina called a state convention and passed an ordinance of nullification ● The ordinance that recently passed was a tariff law were null and void ● After Congress change the law the ordinance was rescinded ■ President Jackson's Response ● Issued proclamation to the people of South Carolina, asserting the supremacy of the federal ver meant and warning tisunion by armed force is treason” ● Congress then enacted a Force Bill authorizing the President to use military force if necessary to collect tariff duties ○ Was repealed once South Carolina was compliant ■ Slavery and Nullification ● The doctrine of nullification was used later by the southern States to justify their right to keep slavery ■ 1857 ● Dred Scott Decision ○ Supreme Court says ■ Slaves “were never thought of or spoken of except as property” ■ Because congress is forbidden by the fifth amendment to legislate about a person's property without due process of law ○ South Carolina says ■ “Congress could not ban slavery in the territories as slaves are property and Congress could not interfere with property” ● The Civil War ○ Yes it was about slavery and whether or not it could exist ○ It was also a war about who we in charge the national government or the states ○ Amendments ■ Thirteenth ■ Outlawed slavery ■ Fourteenth ■ Defined citizenship, included due process clause ■ Fifteenth ■ Gave newly freed men the right to vote ● 1863 ○ Emancipation proclamation ○ 3.4 Reasons for the decline of state power ■ Fourteenth amendment ● “All personorn or naturalize in the United States, and subject to the jurisdiction thereof, are citizen of the United States and of the state wherein they reside.” ● Put in to nullify the ruDred Scott ● Due process clause ○ “No state shall make or enforce an law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of lwor deny to any person within its jurisdiction the equal protection of the laws.” ○ Exactly the same as in the fifth amendment ○ Fixesarron v Baltimore ● Equal protection Clause ○ No state shall make or enforce an law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process ofor deny to any person within its jurisdiction the equal protection of the laws.” ■ Sixteenth amendment ● Passed by congress July 2,1909 ● Ratified February 3,1913 ● Changes a port in of Article 1 section 9 ○ “The congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regart t any census or enumeration” ■ New Deal ● Establishment of the foundation of social welfare programs, including Social Security (old age pensions, disability payments, unemployment insurance and others) ■ Ruling on Brown v Board of Education ● Court cited teourteenth Amendment’sue processand equal protectionlauses ● Over the years since 1950s, many rulings in areas of civil rights and liberties ● This ruling makes schools integrated ■ Refusal of states to grant and protect civil rights ● The refusal of states led to legislative action from Congress and president and judicial action Supreme Court to enforce rights ● These rights have expanded over time to not only African Americans but also women, Native Americans, disabled persons, same sex couples ■ Refusal of states to protect the rights of persons accused of crime ● This refusal led to federal legislative and musical action in areas such as confessions, notification of rights, protection of people n prisons, and so on ■ The use of commerce clause ■ Reemergence of issue ● Ronald reagan ○ In his inaugural address in 1981 ○ The federal government did not create the states, the sites created the federal government” ○ Upheld states rights through judicial appointees ● Chapter 4 ● Civil liberties ○ Interesting fact ■ The US has 5% of the world's population but 25% of the world's prisoners ○ 4.1 civil liberties ■ The bill of rights was writteames Madison ■ The proposed amendments were sent to the states in 1789 ■ Most provisions were approved by 1791 ■ By 2016 the bill of rights will be 225 years old ■ Inspired by Virginia because Virginia would not ratify the Constitution without the Bill of Rights ■ The bill of rights applied only to congress not to states ● Barron v Baltimor 1831 confirmed this ● Was undone by the Fourteenth amendment in 1868 ● Most states had their own bill or rights ■ Incorporation process ● When legislation is incorporated into state levels. The states had to incorporate the bill of rights per the fourteenth amendment ● Some argued that it as the entire bill of rights ○ This idea was rejected by Supreme Court ○ However Supreme Court has said there is various fundamental rightsthat all people have ■ Fundamental right ● Rights that are not listed in the Constitution or the bill or rights ○ Marriage ○ Children ○ Vote ○ Privacy ○ Travel freely ■ Selective incorporation ● Take part of the bill of rights and apply them to the states ■ Amendments not yet incorporated ● Third amendment ○ Quartering soldiers ● Seventh amendment ○ About jury trials in civil suits ● Parts of the fifth amendment ○ About grand juries ● Eighth amendment ○ Prohibits against excessive bail or fines ○ 4.2 freedom of religion ■ Quoted text ● Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise theror abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances ■ There is no national religion ■ We as citizens are allow to proactive as we chose ■ If it is legal you can do it for religious purposes if it was illegal the practice done in any setting be it religious or not it is still illegal ○ Belief vs Action ■ While the freedom to believe is absolute the freedom to at is not ● Can you deny your child life saving care ○ Yes but the court can step in ● Can you have more than one spouse at a time ○ No ● Can you use illegal drugs as part of you or religious ceremony ○ No if it is legal you can do it for religious purposes if it was illegal the practice done in any setting be it religious or not it is still illegal ○ The Establishment Clause ■ Congress shall make no law establishing a religion ■ Has been interpreted that the government cannot favor new religion over another and also cannot suppr to religion over nonreligion ■ Two Perspectives ● Wall of Separation ○ This is the clause from which we get the concept that there should be a wall of separation between church and state ○ Thomas Jefferson idea ○ 1/3 Americans do not believe in the idea of the separation of church and state, and think that government should be supportive of religion ○ Applies to schools, school prayer, bible reading ● Accommodationist perspective ○ When government aids religion for a secular purpose ○ Saying the pledge of allegiance and also money saying “in God we trust” ■ Rulings ● 1960s ○ Teacher led and school sanctioned prayers unconstitutional ○ Earl Warren Chief Justice ● 1978 ○ Supreme Court rejected louisiana’s teaching of creationism ● 1980 ○ Unconstitutional to require posting of Ten Commandments in public school classrooms ● 1985 ○ Supreme Court rejected Alabamans moment of silence ● 1992 ○ School sponsored prayer at graduation is unconstitutional ● 1993 ○ Supreme Court ruled that religious group can use public school facilities if other groups can do so ● 2000 ○ School prayer at a football game is unconstitutional ■ Accommodationist perspective ○ 1984 ○ Lynch v Donnelly ○ Displays of religious and nonreligious items public property are ok ○ You can put up Mary and Joseph and candy canes, reindeer, penguins, snowmen etc. ○ 1989 ○ Supreme court ruled that menorah could be apart of the display ○ Because Mary and Joseph were allowed then the menorah are allowed ○ Assistance to religious schools is ok as long as it is secular ○ You cannot use federally funded buildings to teach anything related to religion ○ Current issues ■ Some argue today that government should be more accommodating when it comes to certain issues ● Example ○ Should public officials not carry it any of their duties when the official says that doing so would violate their religious views ○ KIM DAVIS! ● We have become a nation where people use religious be toons as a way of expressing political and cultural dissent ■ Free exercise class ● Freedom to believe is absolute by we distinguish between beliefs and practices. ● A religious practice may be curbed, prohibited, or limited in some way if there is a valid secular purpose for doing so ○ if it is legal you can do it for religious purposes if it was illegal the practice done in any setting be it religious or not it is still illegal ■ Polygamy 1879 ● Federal assistance to in sitting that discriminate ■ Salutes ● Bellamy salute ● congress says how we pledge allegiance ■ Minersville case ● Should we force people to pledge allegiance ● Issues ○ Saluting the flag ■ 1940. ■ Kids HAVE to salute ■ 1943 ■ Oh wait never mind it's unconstitutional kids DO NOT have to salute the flag ○ Animal sacrifices ■ 4.3 freedom of speech often denied ● Abridged at various times ○ Sedition act of 1798 (112) which made it a crime to criticize the President or other officials ○ Civil war restrictions on speech ○ 1919 ■ Supreme Court finally ruled on a free expression case ● Fred phelps and members of the Westboro baptist church from Kansas ● Protected speech and press ○ Censorship (rior restrai) ■ You can't stop the printing of somethings before it is printed or said ■ Most important principle in freedom of the press's is that pair censorship of somethings is almost never allowed ■ We say there is heavy presumption. Against its constitutionality ■ Important cases ■ Near v Minnesota 1931 and the pentagon papers case involving publication of stolen documents about the Vietnam War. ■ Daniel Ellsberg ■ Worked at the pentagon ■ Wa privy to a report about American presidents deliberately deceiving the American people and the Vietnam war (19451967) ■ gave to New York Times publishing in 1971 and Washington post ■ Government files suit and says that you can't publish the documents ■ Supreme Court upholds the first amendment and rules against the federal government ■ Didn't go to jail because evidence against Ellsberg was illegally obtained ○ Symbolic speech ■ Types of actions that can constitute symbolic speech almost without limit ■ Flag burning is most important activity that the Supreme Court has addressed ■ Cowen v US ■ Man came in with fuck the draft on a jacket ■ Was protected because it was a political message ○ Hate speech ■ Should speech be restricted if it says nasty things about people on account of their race, ethnicity, sexual orientation, or other attributes ■ Much debate about this issue, especially in college campuses ○ Parody, satire ■ Mocking people through the the use of satire or parody has a long wonderful history in the US ■ Think Saturday night live ■ Most famous case went all the way t the Supreme Court and became a big movie ■ Reverend Jerry Falwell ■ Parodied by hustler magazine about Jerry Falwell’s first sexual experience ■ Publisher Larry flynt ■ Flynt win ■ People vs Larry Flynt ● Unprotected speech and press ○ Libel and slander ○ Expression that is slashes AND hurts another person's reputation is known as lander (spoken) and libel (written) ○ Note that it is perfectly okay to say something about another person that will harm that person's reputation if it is. True ○ Famous people have less protection than people who are not famous ○ Defamation ■ The act of ruining someone's good reputation ○ Fighting words ■ “Words that by their very utterance inflict injury or tend to incite an immediate breach of peace” are not protected by fifth amendment ○ Censored publications ○ Student newspapers ○ CIA memoirs ■ Information directly related to national defense such as battle plans ■ Pornograhy and obscenity ■ They are not the same ■ Porngraphy is protected under first amendment and is legal to possess it UNLESS it's child por graphs which is always illegal ■ Obscenity is not protected but it is difficult to define ■ It must deal with sex, it must do so in rurient (unwholesome) manner, and it must be without redeeming value ■ Guidelines ■ Must deal with sex ● Privacy ○ A controversial right ■ We have rights that are not specifically mentioned in the Constitution the right t get a job, invest money, buy property, travel, have children and many more. So what makes piracy so controversial ○ The early days ■ Privacy was easier to maintain people lived further apart and had limited access to one another. Now we have telephone, telegraph, computers, Facebook. ■ The bill of rights has guarantees that make it seem that there are areas of our lives that are off limits to governments. There is no mention of the right of privacy however ○ Birth control contraceptives ■ In the past it was not kept for store shelves, not for sale to minors or unmarried people banned altogether, depending on the state ■ Best example ● Connecticut which outlawed sale of all forms of contraception and even made it illegal for doctors to discuss it with patients ● Griswold v Connecticut 1965 ○ Supreme Court overturned Connecticut’s law AND recognized the existence of a right of privacy. Therefore allowing people have access to information about contraceptives ● Roe v Wade 1973 ○ Supreme Court ruled that the right to privacy established in Griswold v Connecticut is broad enough to cover whether or not a women can get an abortion. ○ Also set up the trimester rule. ○ First trimester (3 months) yes you can get it ○ Favors the mother ○ Second trimester (6 months) we don’t know ○ Third trimester (9 months) no absolutely not ○ Favors the child ○ Said that the jurisdiction placed on the women must not be burdensome to women ○ 1980 the Republican Party adopts the right to life and the Democratic party adopts for the right to chose ● Homosexuality ○ Lawrence v Texas 2003 ○ the right of privacy also extends to the sexual practices of consenting adults. States are no longer get able to criminalize sexual behavior with sodomy laws ● Rights of persons accused or convicted of crime: civil liberties ○ Due process, procedural due process ■ We have processes in place in every aspect of the criminal justice system ■ They may be followed or may be abridged ○ U.S. Prisons ■ The United States is horld's leain incarceration wi.2 million peocurrently in prisons and jails ■ We lock up716 people for every 100,000 residents ■ This rate of incarceration is morive times highethan most their nations in the world ■ 36 states and the District of Columbia have incarceratioates highethan that of Cuba, which is the nation with the second highest incarceration rates in the world ■ New York is tied with Rwanda in its rated, although Rwanda had terrible genocide in the 1990s and people are still in prison for that civil strife ■ Reasons ● We have a toughoncrime mentality ● We have been engaged for a long time in a war on drugs ● We have gotten involved in a forprofit prison system ○ Constitutional guarantees ■ Article 1 provides fwrits of habeas corpus ● A writ of habeas corpuss a judicial mandate to a prison official ordering that an inmate be brought to the court s it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody ○ Only suspended by President Lincoln ■ 1992 Supreme Court has recognized the fact that the writ of habeas corpus is the only thing to prevent terrible acts ■ 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 another or affirmation, and particularly describing the place to be seach ● Rules about searches ○ No general searches ○ A specific warrant is required most f the time ○ Rules are looser about cars, because they can be moved, but tracking devices are not legal ○ People are more secure than places ○ A person can be strip searched for even a minor infraction ■ 2012 the Supreme Court ruled that you could be stripped searched without any reasons ● Legal warrantless searches ○ Roadblocks to check for intricate do drivers ○ Pursuant to a legal arrest ○ If a crime is about to be committed, or has just been ○ Illegal items in plain view ■ Plain view doctrine ■ Fifth amendment ● 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 ● Five right in fifth amendment ○ Grand juries ○ No double jeopardy ○ No required selfincrimination ○ The right to a fair trial ○ Government will not seize property without paying for it ● Right against self incrimination ○ A defendant does not have to take the stand at trial ○ The fact that he or she does not testify cannot be construed as evidence of guilt ● Confessions ○ We have a long history of coerced confessions depriving people of water, food, sleep, a visit to the bathroom, threats against family members ○ Miranda v Arizona 1966 ■ A person must be told of his rights ■ the right to remain silent, ■ what he says will be used against him, ■ that he has a right to an attorney ● Double jeopardy ○ No retrial after acquittal ○ No second prosecution after conviction ○ no multiple punishments for same offense ○ This right keeps prosecutors from using retrials to shop for conviction ■ Sixth amendment ● 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 defense. ● Right to consul ○ Originally meant—if you could afford it, you could have it. ○ Originally applied in cases where penalty could be death ○ Scottsboro Case 1930 ■ Black men were on the train with a few white women. The women had sex with the men consensually however afterward said it was rape. ○ Gideon v Wainwright 1963 ■ At trial, he asked for attorney but was denied one; he was convicted and sent to prison. ■ While in prison, he wrote out a writ to the Supreme Court and asked the Court to review his case. ■ In unanimous decision, the Supreme Court ruled in Gideon’s favor. ■ Defendants in felony cases now have to have an attorney. ■ Eighth amendment ● Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. ○ Excessive bail and excessive fines have yet to be incorporated ● History ○ Death penalty brought to America thanks to the colonist ○ Death penalty tracked back to 1800 years before the start of the modern era. ○ In the 7th century B.C.E., Athens made death the only punishment for all crimes. ○ Hanging common in Britain by around 1,000 C.E. By 1500s, methods including boiling in oil, burning at the stake, and beheading. ○ Colonists brought death penalty with them. Often used for minor offenses like stealing chickens ○ Americans (like Jefferson) tried to get it abolished. ○ There were more executions in the 1930s than any other decade in American history (average of 167 per year, or almost one every second day) ● Important data ○ United States only country in the Americas still using executions regularly. ○ At end of 2013, more than 23,000 persons were on death row around the world. ○ In the United States, 41.7 percent of those on death row are black, 43.1 percent are white, and 12.6 percent are Latino. ● Texas ○ In 2012, Texas accounted for more than 40 percent of all American executions. In 2014, it was less than 30 percent. ○ If Texas were a nation, it would be fifth in the world in number of executions. ○ Harris County alone accounts for 122 (of 518) executions since 1982. That is more than any state except Texas. (Texas Coalition to Abolish the Death Penalty ○ The State of Texas has executed 518 people since 1982; of these 279 took place during the Perry Administration. Executions in Texas peaked in 2000, when 40 people were put to death. (Texas Coalition to Abolish the Death Penalty) ○ Death sentences appear to be decreasing in Texas. In 2014, 11 persons were sentenced to death. One person was sentenced last week, the first in ten months. ● Modern development ○ Furman v. Georgia, 1972 ■ Court ruled that because the death penalty was imposed in an arbitrary manner, it was cruel and unusual punishment. ○ Gregg v. Georgia, 1976 ■ Supreme Court upheld newly revamped death penalty laws. ● Exceptions ○ Supreme Court has ruled that the following persons cannot be executed: ○ Those shown to be intellectually challenged; ○ Those under the age of 18 when they committed their crime. ● Sentencing guidelines ● Bifurcated trials ○ Two stage process of convection. The trail is determined if you are guilty or not. If you are considered guilty then there is a break and the same jury hears the trail later t decide punishment ● World wide ○ Amnesty International: “The majority of the world is abolitionist in law or practice.” Just 22 countries carried out executions in 2013. ○ China executes secretly, but it is known that China executes more people every year than all other nations combined. It says, however, it has stopped harvesting transplant organs from executed persons. ○ Other countries that are currently executing: Iran, North Korea, Saudi Arabia, and Somalia
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