american national politics, chapter 4 notes
american national politics, chapter 4 notes pols 110 002 (Political Science, Dr. M. Gilkison, American National Politics)
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Chapter 4 civil liberties: protecting individual rights A. Balancing Act The court case of United States v. Jones (2012) helped to identify how far the police could intrude on an individual’s civil liberties. The supreme court’s 90 vote upheld what the lower courts had declared. Both courts rejected the government’s augments that the tracking device was too trivial to constitute as unreasonable search. The courts stated the 14 amendment to defend their decision. The public would be unsafe if law officials could near track a suspect yet citizens would forfeit their privacy if police could track at will. th The 14 amendment protects Americans from only unreasonable searches not all searches. Civil Liberties = the fundamental individual rights of a free society, such as freedom of speech and the rights to a jury trial, which in the U.S. are protected by the Bill of Rights. Civil liberties are different from civil rights because civil liberties refer to specific individual rights like protection against selfincrimination, whereas civil rights have to do with whether member of differing groups racial, sexual, religious, etc. are treated equally by the government and private parties. th B. The constitution: the bill of rights and the 14 amendment The bill of rights was enacted in 1791 and specify certain rights of life, liberty, and property that the federal government is obliged to protect. Bill of Rights = the first 10 amendments to the constitution. They include rights such as freedom of speech and religion and due process protections for persons accused of crimes. The first amendment deals with freedoms of: speech, assembly and religion The 4 amendment protects you from unreasonable searches and seizures, and protects from arrest unless authorities have probable cause. The 5 amendment protects you from selfincrimination, so you can plea the 5 th and remain silent, which protects you from coercion. Also protects you with double jeopardy which means you can’t be tried twice for the same crime (there’s a very good movie called double jeopardy and has to deal with this amendment) and lastly this amendment deals with due process which states you can’t be deprives of life, liberty, or property without proper legal proceedings. The 6 amendment gives you the right of Counsel (you have a right to e represented by an attorney and you can demand one first before answering questions for the police. This amendment also gives you the right to prompt and reasonable proceedings which means you have the right to be arraigned promptly The 8 amendment protects you from excessive bail or fines and protects from cruel and unusual punishments. The supreme court has responsibly for defining what the bill of rights guarantees will mean in practice. The supreme court has developed tests to determine whether authorities have acted properly. For instance, the test applied in the area of free speech is whether general rules are reasonable and applied fairly. Originally the Bill of rights only applied to the actions of the national government but in 1833 was challenged by the case of Barron v. Baltimore. The court upheld that the first ten amendments “contain no expression indicating an intention to apply them to the state governments”. As a result, the bill of rights had little meaning over the lives of ordinary Americans because the state governments were the ones in charge of law enforcement and areas in which personal rights were at issue. 1. Selective incorporation of free expression rights The development of the Bill of Rights protecting citizen form state governments happened slowly and in stages. Right after the civil war some southern states enacted laws that denied newly freed slaves the same rights as whites, like the right to own property. Congress responded to this by proposing a constitutional amendment designed to protect the rights of former slave. All former confederate states, except Tennessee, refused to ratify it. So congress passed the Reconstruction Act which placed southern states under military rule until they ratified the amendment and adopted state constitutions that conformed with the U.S. constitution. By 1868 it was ratified. It included due process clause ( = the clause of the constitution that has been used by the judiciary to apply bill of rights protections to the actions of state governments) which was ignored by the southern states because the supreme court allowed them to. In the case of Gitlow v. New York (1925) the supreme court enacted the 14 amendments due process clause in this free speech case. the supreme court upheld the New York law that made it illegal to advocate the violent overthrow of the U.S. government but they also stated that states do not have complete authority over what their residents can say and write. by interpreting the 14 amendments due process clause to protect a first amendment right, the court positioned itself to broaden the protections to include all first amendment rights. within a dozen years the Court heard a set of free expression cases that did what’s highlighted in green directly above. For example, the case of fiske v. Kansas which was about the restriction of freedom of speech. In the Near case (a case that involved Jay Near who was a publisher for a newspaper, the state of minasoda closed down his paper on the bais of a Minnesota law banning malicious, scandalous or defamatory publications.) the supreme court agreed with Near saying that the stte had infringed on freedom of press In these case the Court engaged in what came to be known as selective incorporation. Selective incorporation = the process by which certain of rights contained in the th bill of rights became applicable through the 14 amendment to actions by state governments. 2. Selective incorporation of fair trial rights The supreme court was moving to protect freeexpression rights from state action in the 1920’s and 30’s yet it held back on doing the same for the rights of the accused. The Court did expand on capital punishment cases, holding that states had to provide legal counsel to defendants who were too poor to hire one. This ruling came in Powell v. Alabama (1932) in which 8 African American men were sentenced to death without counsel on trumped up rape charges. Then in the 1960s the supreme courts position on the rights of the accused in state courts changed. The civil rights movement had dramatized the fact that poor and minorities had fewer rights in practice than other Americans. The selective incorporation process began with Mapp v.Ohio (1961). Police forcefully entered the home of Dollree Mapp, a black woman, looking for a fugitive. After not finding the fugitive they handcuffed her and then searched her home finding obscene photographs. They arrested her and convicted of violating an Ohio law that prohibited obscene photographs. The supreme court overturned her conviction, ruling police had acted unconstitutionally, citing the 14 amendment, concluding that evidence acquired through an unconstitutional search cannot be used to obtain a conviction in state courts. In the 60’s the courts also ruled that defendants in state criminal proceedings must be provided a lawyer in felony cases if they can’t afford to hire one, cannot be compelled to testify against themselves, have the right to remain silent and to have legal counsel at the time of arrest, right to confront witnesses who testify against them, that must be granted a speedy trial, have a right to jury trial in criminal proceedings and cant be subjected to double jeopardy this is how the supreme court has broadly protected the bill of rights guarantees from action by the states. C.Freedom of expression Freedom of expression = Americans freedom to communicate their views the foundation of which is the first amendment fights of freedom of conscience, speech, press, assembly, and petition. Freedom of speech however does not entitle individuals to say whatever they want too to whomever they want. Free speech can be denied if it endangers national security, wrongly damages the reputation of others, or deprives others of their basic human rights. 1. The early period: the uncertain status of the right of free expression The first time the U.S. government restricted free expression was the Sedition Act of 1798, which made it a crime to print critical news about the president or national officials. This act was not tested in the courts. Which left the question of whether congress had the power to regulate free expression and if so how far did it extend. The 1919 court case of Schenck v. United States was a freeexpression case to which the defendant had been convicted under the 1917 Espionage Act. Espionage Act = prohibited forms of dissent, including the distribution of antiwar leaflets that could harm the nations effort in WW1. The court upheld the Espionage act; Home’s ,a justice at the time, stated that not even the first amendment would permit a person to falsely yell fire in a crowded theater. This court case established a constitutional standard – the clearand presentdanger test for determining when a gov. could legally do so. the clearandpresentdanger = a test devised by the supreme court in 1919 to define the limits of free speech in the context of national security. According to the test, government can’t abridge political expression unless it presents a clear and present danger to the nation’s security. 2. The modern period: protecting free expression Since the world wars Americans rights of free expression have been defined largely in the context of national security concerns. I. Free speech Imminent lawless action test = a legal test that says government cannot lawfully suppress advocacy that promotes lawless action unless such advocacy is aimed at producing, and is likely to produce, imminent lawless action. During the cold war the supreme ourt allowed govenmnet to limit subversive expression. In 1951, the Court upheld the convictions of 11 members of the U.S. Communist Party who had been prosecuted under a federal law that made it illegal to advocate the forceful overthrow of the U.S. government. Then by the late 50’s fear of internal communist subversion was subsiding and the Court changed its stance. Now it has held that national security must be endangered before the government can lawfully prohibit citizens from speaking out. In the 1920s the Court moved to protect speech from actions by the sates. The 1969 free speech cas of Brandenburg v. Ohio was a defining case. in a speech at a KKK rally Clarence Brandenburg state that revenge might have to be taken if the national government continues to suppress white people. He was convicted under Ohio law but the supreme Court sided with Brandenburg, over turned his conviction stating that a state cannot prohibit speech that advocates the unlawful use of force unless it meets a twopart test: first, the speech must be directed at inciting or producing imminent lawless action and, second, it must be likely to produce such action. This test (imminent lawless action) is a reinforcement of the clearand presentdanger test that allows individuals more latitude in what they say. This test gives Americans the freedom to voice nearly any political opinion they desire. This freedom also extends to hate speech as seen in an unanimous 1992 opinion where the Court struck down a St. Paul ordinance making it a crime to engage in speech likely to arouse “anger of alarm” on the basis of “race, color, creed, religion, or gender”. The Court ruled that the first amendment prohibits gov. from silencing speech on basis of content. This freedom doesn’t carry over to hate crimes though. And important case is Snyder v. Phelps (2011). Here, Pastor Fred Phelps of Westboro Baptist church led a protest demonstration at the funeral of Matthew Snyder, a U.S. marine killed in Iraq. This protest was directed at Americas tolerance of gays and lesbians. Their signs had vulgar messages but they were otherwise orderly. Matthew’s father sued the WBC and was awarded 5 million dollars in a federal jury trial. But the supreme court overturned the decision in a 81 desion concluding that the WBC protest was protected by the 1 st amendment. Symbolic speech = action (example, the waving or burning of a flag) for the purpose of expressing a political opinion. In 1989, the Court ruled that the symbolic burning of the American flag st is a lawful form of expression and is a bedrock principle of the 1 amendment. This ruling came from the case of Gregory Lee Johnson who burned a flag outside of the 1984 republican convention in Dallas. II. Free assembly In 1977 the U.S supreme court upheld a lower court decision ruling against local ordinances of Skokie Illinos, that had been envoked to prevent a parade there by the American Nazi party. The court ruled that the right of free expression takes precedence over the mere possibility that the excise of that right might have undesirable consquences. The S. Court has recognized that freedoms of speech and assembly may conflict with the routines of daily life. Accordingly, individuals don’t have the right to hold a public rally at a busy intersection during rush house or the right to immediate access to public auditorium or the right to turn up volume extremely loud. the Occupy Wall Street protesters were within their right to peacefully assemble. But the right did not extend to an indefinite occupation of public spaces of one that could result in a safety, sanitation, or fire hazard. The Court allowed public officials to regulate the time, place, and conditions of public assembly, provided the regulations are reasonable and are applied fairly to all groups. III. Press freedom and prior restraint The freedom of press is extremely protected by the courts Example in 1971 in the case of New York Times Co v. United States the court rules that the Times publication of the Pentagon Papers could not be blocked by the government, which claimed that the publication would harm the war effort. The court ruled that “any system of prior restraints” on the press is unconstitutional unless the gov. can justify it. Prior restraint = government prohibition of speech or publication before the fact, which is presumed by the courts to be unconstitutional unless the justification for it is overwhelming. IV. Libel and slander Libel = publication of false material that damages a person’s reputation Slander = spoken falsehoods that damage a person’s reputation The constitutional right of free expression is not a legal license to avoid responsibility for the consequences of what is said or written. If false information to a person’s reputation is publish (libel) or spoken (slander) then they can be sued. Public officials can be criticized nearly at will without fear that the writer of speaker will have to pay then damages for slander/libel. The Supreme court has held that true statements disseminated by the media have “full constitutional protection”. No matter how damaging. In New York Times V. Sullivan (1964) the Court overruled an Alabama state court that had found the New York Times guilty of libel for publishing an ad that claimed Alabama officials had mistreated a student civil rights activists. Even though only some of the allegations were true, the Court backed the times, saying that libel of a public official requires proof of actual malice. V. Obscenity Obscenity is a form of expression that is not protected by the 1 t amendment and thus can legally be prohibited. No test to disquques from obscene material form sexually oriented material that adults have the right to see. Then a test was developed in the case of Miller v. California (1973) the court held that for material to be judged obscene it had to meet a 3part test: first, the material must depict sexual conduct in a patently offensive way; second, the material must be precisely described in law as obscene. And three, the material taken as a whole must appeal to prurient interest and have no redeeming social value. The Courts subsequently ruled that material cannot be judged obscene simply because the average local resident might object to it. The court also later modified its content standards, saying the material must be of a “particularly offensive type”. The supreme court distinguished between obscene materials in public and in homes in 1969, ruling that what adults read and watch in the privacy of their homes cannot be made a crime. But made an exception to theis rule in 1990 by upholding Ohio law making it a crime to possess pornographic photos of children. Court reasoned that the purchase of such photos encourages producers to use children in the making of pornographic materials, which is a crime. D. Freedom of religion The first amendment reads “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The establishment clause is in red and the freeexercise clause in blue. 1. The establishment clause st Establishment clause = the 1 amendment provision stating that government may not favor one religion over another or favor religion over no religion, and prohibiting congress from passing laws respecting the establishment of religion. In recent decades the Courts have prohibited religious teachings and observances in public schools. 1962 in Engel v. Vitale the courts held that the establishment clause prohibits the reciting of prayers in public schools 1963 the court stuck down Bible readings in public schools. People have tried to bring religion into public schools is less direct ways like when an Alabana law attempted to circumvent the prayer or meditation. Which was declared unconstitutional in 1985. This was reaffirmed in 2000 by extending it to include organized studentled prayer at public football games. The Court has also banned religious displays on public property when the purpose of the displays are overly religious and lacks a historical context. In the case of Van Orden v. Perry 2005, his suit was rejected because the religious object in the Texas State Capital had been installed half a century ago and paid for by a nonreligious group. On the other hand in McCreary county v. American civil liberties union (2005) the supreme court struck down displays of the 10 commandments on the walls of 2 Kentucky courthouses. The displays were resent. only after they were sued did they hang other historical displays alongside them. But the Court concluded that the officials had religious purpose in mind when they erected the displays and had to remove them. The Court can be said to have applied the Wall of Separation doctrine (a strict separation of church and state) in these rulings, it has also relied upon what is called the accommodation doctrine. accommodation doctrine = allows government to aid religious activity if no preference is shown toward a particular religion and if the assistance is of a secular nature. In deciding whether government assistance for such activities (like providing busing for kids to attend religious schools) is lawful, the Court at times has applied a test articulated in Lemon v. Kurtzman (1971), a case involving state funding of the salaries of religious school instructors who teach secular subjects, like math and English. This threepoint test is called the Lemon test and for government action to be acceptable it must meet all 3 conditions: first, the statute must have a secular legislative purpose; second, its principal or primary effort must be one that neither advances nor inhibits religion; lastly, the statute must not foster “an excessive government entanglement with religion”. Lemon test = a threepart test to determine whether a law relating to religion is valid under the religious establishment clause. To be valid, a law must have a secure purpose, serve neither to advance nor inhibit religion, and avoid excessive government entanglement with religion. In contrast, the Court in another case allowed states to pay for math, science, and other secular textbooks used in churchaffiliated schools, concluding that the textbooks had little if any religious content in them In 2002 a key decision was made in the case of Zelman v. Simmons Harris the Supreme Court upheld an Ohio law that allows students in Cleveland’s failing public schools to receive a taxsupported voucher to attend a private or religious school. 90 percent of the vouchers were used to attend a religious school, the Court concluded that the program did not violate the establishment clause because students had no choice between secular and religious education. 2. The freeexercise Clause Freeexercise clause = a 1 amendment provision that prohibits the government from interfering with the practice of religion the 1 and 14 amendment prohibit government from interference with free exercise of religion but Americans aren’t always free to act on their belief. That is when the exercise of religious belief conflicts with otherwise valid law. An example is the prohibition on the practice of polygamy by those of the Monrmon faith and court ordered medical care for children with life threatening illnesses whose parents deny them treatment on relighou grounds Employment division v. Smith (1990) supreme court upheld Oregon’s refusal to grant unemployment benefits to a person fired for using peyote, even though its used in religious rituals. Sometimes the free exercise of religion clause does clash with the prohibition on the establishment of religion. For instance, the supreme court overturned a Louisiana law that required creationism to be taught along with the theory of evolution in public schools. On the basis that its inclusion in public school curricula violates the establishment clause by promoting a religious belief. E.The Right to Bear Arms The second amendment prevents the federal government from abolishing state militias but there are disagreements on whether or not it gives the individual to bear arms outside of the military. The Decision came in 2008 with District of Columbia v. Heller when the Court said “the 2 amendment protects an individual right to possess a firearm unconnected with the service in a militia, and to use that arm for traditionally lawful purposes, like self defense within the home.” This ruling struck down a District of Columbia law that banned the possession of handguns but not rifles or shotguns within the districts boundaries. In McCdonald v. Chicago (2010) the court struck down a Chicago ordinance that banned handgun possession; the court stated that the right to keep and bear arms is constitutionally protected from infringement by state and local officials. F.The right of privacy Until the 60’s Americans constitutional rights were confined largely to those listed in the bill of Rights. In 1995 the supreme court added to the list of individual rights by declaring that Americans have a right of privacy. This decision came from Griswold v. Connecticut, which challenged a state law prohibiting the use of condoms and other birth controls, on married couples. The Supreme Court struck this down concluding that a state had no business interfering with a married couple’s decision regarding contraception. The courts majority reasoned that the freedoms in the Bill of Rights imply an underlying right of privacy The right of privacy has been invoked in 2 major areas: a women’s right to choose abortion and consensual relations among samesex adults. 1. Abortion The right of privacy was the basis for the supreme court’s ruling in Roe v. Wade (1973) which gave women full freedom to choose abortion during the first three months of pregnancy. Americans are very divided on this issue and in 1994 the Congress passed a law that makes it illegal to block the entrance to abortion clinic or otherwise prevent people from entering. Anti abortionist persuaded the Missouri legislature to pass a law that prohibited abortions from being performed in the state funded medical facilities, a policy that the supreme court upheld in Webster v. Reproductive Health Services (1989) Antiabortionist hoped that this decision and planned parenthood v. Casey (1992) would reverse the Roe decision. Instead the Court held that a constitutional right to abortion, yet at the same time upheld a Pennsylvania law requiring minors to have parental or judicial consent before getting an abortion. Then a decade later the Court struck down a New Hampshire parentalconsent law because it had no exception in the case of a medical emergency. This is because the omission could place an undue burden on a pregnant minor who faced a lifethreatening emergency. In Gonzales v. Carhart (2007) the Court, for the first time, upheld a ban on the use of a particular type of abortion. This was the federal Partial Birth Abortion Ban Act passed by Congress in 2003. The law provides for a fine and prison term for physicians who perform an abortion during the birth process even if he mothers life or health is endangered. Earlier in Stenberg v. Crhart 2000, the Court invalidated a nearly identical Nebraska law. This was because of one of the Justices had a swing vote. But by the time the 2007 case came along said Justice had retired leaving a more conservative Justice in his place. 2. Consensual sexual relations among samesex adults Even after the 1965 Griswold case which took the gov. out of the bedroom. All states still prohibited sexual relations between consenting adults of the same sex. In 1989 the Georgia case Bowers v. Hardwick the Court held that the right of privacy did not extend to consensual sexual relations to same sex adults In 2003 the Court reversed itself and in the process struck down the sodomy laws of the 13 states that still had them In Lawernce v. Texas, in a 63 vote the Court concluded that Texas’s sodomy law violated the right to privacy implied by the grant of liberty in th the 14 amendments due process clause. G. Rights of person accused of crimes Due process refers to legal protections that have been established to preserve the rights of individuals and the most significant of these protections is Procedural due process. Procedural due process = the constitutional requirement that government must follow proper legal procedures before a person can be legitimately punished for an alleged offense The U.S. constitution offers procedural safeguards designed to protect a person from wrongful arrest, conviction, and punishment. According to article 1, section 9 a person taken into police custody is entitled to seek a writ of habeas corpus, which requires law enforcement officials to bring the suspect into court and to specify the legal reason for the detention. Specific procedural protections for the accused are listed in the 4 , 5 , 6 , and 8 amendments 1. Suspicion phase: unreasonable search and seizure The 4 amendment was included in the Bill of Rights to prohibit forced entry into a home by U.S. government. The 4 amendment protects Americans from unreasonable searches and seizures. th But the 4 amendment does not provide blanket protection against search and seizures though. For instance, a person caught in the act of a crime can be seized on the spot and can be searched for weapons and incriminating evidence. YET, the 4 amendment does provide protection against speculative or arbitrary police action. For instance, the failure of police and FBI agents to obtain a warrant contributed to the supreme Court’s 2012 decision to overturn a conviction that had been obtained by placing a tracking device on a suspect’s car (mentioned earlier). In the 60’s the court ruled that police must have substantial basis for believing that an individual had committed a crime before they could stop, apprehend and search the person. However, in the case of Whren v. United States (1996) the Court upheld the conviction of an individual who had been found with drugs sitting in plain view in the front seat of his car. Even though the police had not evidence indicating that drugs were in the car, they had a hunch and used a traffic violation as a pretext to stop his car. The Court concluded that the officers motive was irrelevant as long as an officer in some situations might reasonably stop a car for the infraction in question. This ruling gave police more latitude in stopping suspected individuals. The Court also allows warrantless searches in some circumstances. For example, police roadblocks to check drivers for signs of intoxication are legal as long as the action is systematic and not arbitrary The Court justified this decision by saying that roadblocks serve and important highway safety objective. In Indianapolis v. Edmund (2001) the Court held that narcotics roadblocks serve a general law enforcement purpose rather than one th specific to highway safety and therefore violate the 4 amendment’s requirement that police have suspicion of wrongdoing before they can search and individuals auto. Police can’t entire a home without search warrants and the Court reasons that the same procedure should apply to modern technology. The 4 amendment protects individuals in their persons. In Ferguson v. Charleston (2001) the Court held that patients in public hospitals can’t be forced to take a test for illegal drugs if the purpose is to report to the police and turn them in. (this constitutes as the Court says, an illegal search of a person’s). Yet in board of education of independent school district No. 92 of Pottawatomie county v. Earls (2002) the Court concluded that drug testing on students involved in extracurricular activities doesn’t violate the ban on unreasonable searches. 2012 controversial decision in Florence v. BOARD OF Chosen Freeholders the Court in a 54 decision held that law enforcement officials can strip search anyone arrested of a crime, even if it’s a minor infraction and even if they do not have reason to believe the individuals is hiding a weapon of contraband. In this case the Florence was pulled over and arrest because he had a warrant out for not paying a fine, which he had it just wasn’t in the system yet, while in holding they strip searched him twice. He sued and a federal court ruled in his favor BUT the supreme Court reversed the decision stating that even when the chances are remote that an individual poses a threat, police have the authority to conduct a thorough search. 2. Arrest phase: protection against selfincrimination th The 5 amendment says that an individual “cannot be compelled in any criminal case to be a witness against himself. This amendment was designed to protect individuals for a coerced confession. At the time of arrest police cannot begin their interrogation until the suspect has been warned that his or her words can be used as evidence. This waring came from the case of Miranda v. Arizona in 1966 which centered on Ernesto Miranda’s confession during police questioning. The Court over turned his conviction on the grounds that police had not informed him of his right to remain silent and to have legal assistance. The Court reasoned that suspects have a right to know their rights and this led to the formulation of the Miranda warning. Miranda was retried and convicted based on other evidence The Miranda warning has mainly benefited the poor and undereducated. In 2000 case of Dickerson v. U.S. the Court reaffirmed the Miranda decision saying that it was an established constitutional rule that congress can’t abolish by ordinary legislation And the Court further strengthen the Miranda precedent in Missouri v. Siebert in 2004. This ruling came from a police strategy of questioning suspects before informing them of their Miranda rights and then nd questioning them a 2 time in a more formal way. The Court concluded that this police strategy was intended to undermine the Miranda warning and was a violation of suspects rights Yet in 2010 the Court weakened the Miranda warning One ruling by the Court held that suspects who invoke their rights can be questioned at a later time if they hav been released from custody and are read their rights again before the questioning begins. 3. Trial phase: the right to a fair trial There are fair trial guarantees that are designed to protect them from wrongful conviction. i. Legal counsel and impartial jury th Under the 5 amendment suspects charged with a federal crime cannot be tired unless indicted by a grand jury. This protection, however, has not been incorporated into the 14 amendment, as a result states are not required to use grand juries. half do and other states the prosecutor usually decides whether to proceed with a trial th The 6 amendment provides a right to legal counsel before and during trial In Johnson v. Zerbst (1936) the supreme Court held that criminal defendants in federal cases must be provided a lawyer at government expense if they cannot afford legal counsel. The Court extended this requirement to include state felony cases with its ruling in Gideon v. Wainwright 1963. In this case Gideon was denied a lawyer by the judge and had to be his own. The supreme Court overturned it on grounds that he did not have adequate legal counsel. Criminal defendants also have the right to a speedy trial and to confront witnesses against them. But jury makeup can be a problem For example in the court case of Witherspoon v. Illinois 1968 the supreme court invalidated Illinois policy of allowing he prosecution an unlimited number of challenges in capital cases. The prosecution used the challenges to remove them the jury anyone who expressed even the slightest qualms about sentencing the defendant to death if found guility. The Court said that this practice virtually guaranteed a verdict of death. ii. the exclusionary rule a problem in some trials is the admissibility of evidence obtained in violation of the defendants’ rights exclusionary rule = the legal principle that government is prohibited from using in trials evidence that was obtained by unconstitutional means. the exclusionary rule was formulated on a limited basis in a 1914 supreme court decision and was devised to deter police from violating people’s rights. in the 60’s the supreme Court expanded the exclusionary rule to the point where almost any illegally obtained evidence was inadmissible in federal or state court. then this was weakened in the 80’s when republican Justices were appointed to the court. In United states v Leon 1984 the Court ruled that evidence discovered under a faulty warrant was admissible because the police had acted in good faith. This position was reaffirmed in Herring v. U.S. 2008 The Good Faith exception holds that otherwise excludable evidence can be admitted in trial if police believed they were following proper procedures. The second way in which tainted evidence can be admitted is the inevitable discovery exception. Inevitable discovery exception was developed in the case of Nix v. Williams 1984. In this case eye witnesses lead police to believe that Williams had kidnapped a young girl. Police got a warrant and arrested him. While being transported by police, despite verbal assurances to his lawyer that he would not be questioned enroute he was interrogated and told them where the girl’s body was. When Williams appealed his conviction, the Court acknowledged that his rights had been violated but concluded that police had other evidence that would have enabled them to find the girl’s body 4. Sentencing phase: cruel and unusual punishment The 8 amendment prohibits: “cruel and unusual punishment” of those convicted of crime. There several tests the supreme court uses to determine whether a punishment is cruel and unusual, including whether it is “disproportionate to the offence”, violates “fundamental standards of good conscience and fairness,” and is “unnecessarily cruel.” The supreme court usually lets congress and state legislatures determine the appropriate penalties for crime In 1991 the supreme court upheld a conviction under Michigan law that mandated life imprisonment without parole for a nonviolent first offense involving 1.5 LBS of cocaine The court also upheld a conviction under California’s “three strikes and you’r out” law that sent a twice previously convicted felon to prison for life for shoplifting a video worth 100 dollars. th YET the supreme court had recently employed the 8 amendment to narrow the use of the death penalty In Atkins v. virgina 2002 and again in Panetti v Quarterman (2007) the Court outlawed the death penalty for the mentally retarded on grounds that it constitutes cruel and unusual punishment The court also used the8th amendment to ban the death penalty ti cases involving juveniles and for crimes other than murder Incarceration rates See page 105 for an actual map. some states prohibit the death penalty while others use it. For example, a third of all execution in the past quartercentury have taken place in Texas. Louisiana has the highest incarceration rate with 865 inmates for every 100,000 residents. The other top five states are: Mississippi, Texas, Oklahoma, and Alabama Maine has the lowest incarceration rate – with 159 per 100,000 residents Wisconsin has 300399 incarcerated per 100,000 residents. 5. Appeal: one chance, usually The constitution doesn’t guarantee an appeal after conviction but the federal government and all states permit at least one appeal. Court has said that appeal process can’t discriminate against poor defendants. On convicts first appeal government must provide legal resources. Prisoners who believe their constitutional rights have been violated by state officials can appeal their conviction to a federal court. A 60’s Court case gave prisoners the right to have their appeal heard I federal court unless they had “deliberately bypassed” the opportunity to first make their appeal in state courts. THIS was then overturned in 1992 when the Court held that inmates can lose the right to a federal hearing even if a lawyer’s mistake is the reason they failed to first present their appeal properly in state courts, In bowles v Russell (2007) the Court went so far as to deny an appeal in a case in which the deadline for filing the appeal was missed because a federal judge had given the inmates lawyer the wrong date THEN in maples v. Thomas (2012) the Court ruled that a death row defendant whose court appointed lawyers had dropped his case without informing him was entitled to file an appeal even though the filing deadline had been missed. The greatest restriction on appeals is a federal law that bars in most instances a 2 federal appeal by state prison inmate. This was upheld in Felker v. Turpin (1996) 6. Crime, punishment, and police practices Most of the key precedents established in the 1960’s remains in effect including the most important one: the principle that procedural protections guaranteed to the accused by the Bill of Rights must be observed by the states as well as by the federal government. Supreme court rulings have changed police practices: Police are required to read suspects the Miranda warning before questioning them Yet research has shown that constitutional rights are applied unevenly This is seen in racial profiling. A study in 1999 found that 80% of motorists stopped and searched by Maryland state police on interstate 95 were minorities and only 20persent were white, despite the fact that whit motorists constituted 75% of all drivers Sentencing policies are also an issue Most state legislates in the last two decades have enacted stiffer penalties for crème while also limiting the ability of judges to reduce sentences As a result, the number of federal and state prisoners has more than doubled since the 90’s The U.S. has the largest number of incarcerated in the world with Russia coming in second. The cost of hold so many prisoner has led to an intensified debate over the criminal justice system Critics also cite studies showing that minorities and the poor receive harsher sentences than do middleclass white persons convicted of comparable crimes. Another difference is the disparity in sentences for those convicted of powder cocaine and crackcocaine offenses. African Americans make up roughly three fourths of crack cocaine defendants whereas whites make up about ¾’s of powercocaine defendants. Federal law calls for nearly twice as much prison time for crack cocaine convictions as for a powder cocaine conviction In 2007 the Court gave judges the authority to reduce crack cocaine sentences so that they could bring them closer to the sentences of power cocaine sentences. H. Rights and the war on terrorism In times of war the courts have upheld government policies that would not be permitted in peace time. For example, after Pearl Harbor president Roosevelt ordered forced relocation of thousands of Japanese Americans living on the west coast to detention camps in inland locations. Another example is after the 9/11 attacks the Bush administration invoked precedents suck as these in declaring that customary legal protections would not be afforded to individuals it deemed to have engaged in terrorist activity. 1. Detention of enemy combatants Enemy combatants = those judged to be engaged in or in support of, hostile military actions against the U.S. Enemy combatants are held either at Guantanamo Bay (U.S. land on the tip of Cuba) or imprisoned elsewhere in Afghanistan, Iraq, and elsewhere. Requests by lawyers and international agencies to see the detainees were dined or very ,very limited. In 2004 the Court issued its first ruling on the abusive treatment of detainees at Guantanamo Bay by saying that they had the right to challenge their detention in court. Stating that because GBay is on land leased to the U.S. it is under jurisdiction of the U.S. courts. In the second 2004 case of Hamdi v. Rumsfeld the Court ruled that one of the GBay detainees who was a U.S. citizen by being born here yet raised in Saudi Arabia, had the right to be heard in U.S. court The ruling that stated the detainees were protected by both U.S. uniform code of military justice and by the Geneva conventions. This ruling came about because the Bush administration was using secret military tribunals to try detainees. In hamdan v. Rumsfeld (2006) the Court ruled that the tribunals were unlawful because they did not provide even minimal protections of detainee’s rights 2. Surveillance of suspected terrorists In response to 9/11 and the Bush administration’s request for expanded surveillance powers, Congress passed the USA Patriot Act which lowered the standard for judicial approval of wiretapping when terrorist activity was at issue. The USA Patriot Act also allowed information from intelligence surveillance to be shared with criminal investigators when evidence was found of criminal activity unrelated to terrorism. This law also gave government increased authority to examine medical, financial, and student records and allowed the government in some situations to secretly search homes and offices (called the sneak and peek) Bush administration promised to act with restraint and congressional oversight committees were satisfied with its actions until the New York Times revealed in 2005 that Bush without judicial approval had secretly authorized the NSA to wiretap international phone calls and email messaged originating in the US. Such actions are expressly prohibited by the Foreign Intelligence Surveillance Act of 1978. I. The court and a free society A 2010 poll done by CNN found that more than 2 in five Americans think that individuals arrested on suspicion of terrorism should not be read their Maranda rights. Judges typically are more protective of individuals right. Most judges and Justices regard the protection of individual rights as a constitutional imperative End of chapter 4 notes. All information came from the text the American Democracy the 11 edition by Thomas Patterson.
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