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 Bell Assignment  Out of all of the rights provided for us under the Constitution, which right is most important to you? Explain your answer.

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Presentation on theme: " Bell Assignment  Out of all of the rights provided for us under the Constitution, which right is most important to you? Explain your answer."— Presentation transcript:

1  Bell Assignment  Out of all of the rights provided for us under the Constitution, which right is most important to you? Explain your answer.

2  Bill of Rights Rap Bill of Rights Rap

3 Protecting Our Freedoms

4  Civil liberties are the personal rights and freedoms that the federal government cannot abridge, either by law, constitution, or judicial interpretation.  These are limitations on the power of government to restrain or dictate how individuals act.

5 Bill of Rights - What the government cannot do.

6  What current issues/events come to mind when you think of civil liberties? Brainstorm at least three.  Share one of these with your “Libertarian” partner.

7  The Bill of Rights was designed to limit the powers of the national government.  In 1868, the Fourteenth Amendment was added to the Constitution and its language suggested that the protections of the Bill of Rights might also be extended to prevent state infringement of those rights.  The amendment begins: "No state shall....deprive any person, of life, liberty, or property without due process of law."  Most of the amendments have been incorporated but not all…

8 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or of the right of people to peaceably to assemble, and to petition the government for a redress of grievances.

9  Analyze the cartoon on your handout and answer the questions below.

10 There has been a lot of controversy over the way the Courts have interpreted and applied these two clauses. The First Amendment states: “Congress shall make no law… 1.respecting an establishment of religion 1.respecting an establishment of religion, free exercise thereof 2.or prohibiting the free exercise thereof;…”

11  "Congress shall make no law.....prohibiting the free exercise thereof (religion)" is designed to prevent the government from interfering with the practice of religion.  This freedom is not absolute!

12 SSeveral religious practices have been ruled unconstitutional including: ssnake handling uuse of illegal drugs PPolygamy KKey Cases: ▪R▪Reynolds v. United States (1979) – prohibited polygamy ▪W▪Wisconsin v. Yoder (1972) – schools could not require Amish children to attend school beyond 8 th grade ▪E▪Employment Division of Oregon v. Smith (1990) - The Court ruled that Oregon could deny unemployment benefits to workers fired for using drugs (peyote) as part of a religious ceremony. NNonetheless, the Court has made it clear that the government must remain NEUTRAL toward religion.

13  They asked, “Should we establish a religion or not?”  Thomas Jefferson wrote that there should be “a wall of separation between church and state.”  No where in the Constitution is this “wall” mentioned.

14  Separationists: argue that a high “wall” should exist between the church and state. showing preference.  Accomodationists: contend that the state should not be separate from religion but rather should accommodate it, without showing preference.

15  Which viewpoint do you support? Why?  Share your view with your “Tea Party” partner.

16 The Supreme Court has held fast to the rule of strict separation between church and state when issues of prayer in public school are involved. Key Cases: Engel v. Vitale (1962), the Court ruled that even nondenominational prayer could not be required of public school children. Wallace v. Jaffree (1985), the Court struck down the moment of silence laws and other related laws stating they violated the establishment clause. In Lee v. Weisman (1992), the Court continued its unwillingness to allow prayer in public schools by finding the saying of prayer at a middle school graduation unconstitutional.

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18  In 1971, the Court ruled that New York state could not use state funds to pay parochial school teachers’ salaries.  To be Constitutional the challenged law must 1. Must have a secular purpose 2. Can neither advance nor inhibit religion 3. Cannot foster excessive government entanglement with religion.  In 1980, this Lemon Test was used to invalidate a Kentucky law that required the posting of the Ten Commandments in public school classrooms.

19  Student participation in before - or after - school events, such as "see you at the pole," is permissible.  School officials, acting in an official capacity, may neither discourage nor encourage participation in such an event.

20  Other issues that have been debated:  Monument to the Ten Commandments outside of state courthouses.  Chaplains in the military and Congress.

21  Burwell v. Hobby Lobby Stores, Inc.  Issue: The mandate in the Affordable Care Act – businesses must provide women contraceptive options under their health insurance plans.  Hobby Lobby is a faith-based company objected to this mandate.  Decision: 5-4: Under the Religious Freedom Restoration Act of 1993, the religious convictions of a company’s owners could apply to the company itself. However, the court did not apply the decision to all corporations.  Stipulation: for-profit “closely held corporations” and non-profit corporations could be exempt from providing the coverage under the Affordable Care Act publicly held companies must comply.

22  Big Question – What constitutes a “closely held corporation”? No one seems to have a universal standard for this.  Justice Alito held that a corporation could assert religious protections under the Religious Freedom Restoration Act when the interests of the corporation and the shareholders were identical so that the religion of the owners could be imputed to the corporation.  Corporation = individual in this case.  Corporate Veil – Historically share-holders are not responsible for a corporations debt – does this decision “pierce the corporate veil”?  Do you agree or disagree with the Court’s decision in this case? Explain your response.

23 HHow much separation between church and state did the Founding Fathers intend for there to be?

24  Devout Christian Scientist parents refuse to bring their sick 5-year-old child to a medical clinic, even though the illness could be cured by proven treatment and medication. The child dies and the couple is arrested and brought to trial on charges of murder. The prosecutor tells you that the couple is guilty because they did not provide the child with proper treatment, even though they knew that the child’s illness could probably be successfully treated. The parents are grief-stricken, but argue that as Christian Scientists they believe spiritual healing would restore their child’s health. They said it was contrary to their religious beliefs to bring the child to a medical clinic, and that to find them guilty would be denying them their right to freedom of religion under the First Amendment.  If you were a judge in this case, based on what you have learned about First Amendment rights, what would you decide? Provide at least two strong arguments to support your decision.

25  Your state has a law requiring public school students to stand and pledge allegiance to the flag at the beginning of each school day. When the children of a devout Jehovah’s Witnesses family refuse to salute the flag, they are suspended from school. The parents of the suspended children sue the school board. They argue that under their religion, saluting the flag, is idolatry and therefore a sin. They are not unpatriotic, but merely want an exception to be made for their children. The school board says that the children should not be allowed back in school until they can salute the flag. The school board argues that saluting the flag merely shows loyalty to America, and that it is required by state law; religious beliefs are not relevant.  If you were a judge in this case, based on what you have learned about First Amendment rights, what would you decide? Provide at least two strong arguments to support your decision.

26  An Amish man is fined for violating a state law that requires his children to go to school beyond the eighth grade. As part of their religion, the Amish believe in separating themselves from the modern world. Therefore, they do not want their children to receive more education than their simple lifestyle demands. The state argues that education is an important part of citizenship and that the children should not grow up “ignorant”.  If you were a judge in this case, based on what you have learned about First Amendment rights, what would you decide? Provide at least two strong arguments to support your decision.

27  An American Indian is arrested for using an illegal drug peyote in a religious ceremony. He is charged with violating his state’s drug laws. The prosecutor claims that the people of the state do not want illegal and dangerous drugs to be used there, and that’s why the laws were passed. The man who was arrested argues that peyote is and always has been a part of his religion and that convicting him would violate his freedom of religion.  If you were a judge in this case, based on what you have learned about First Amendment rights, what would you decide? Provide at least two strong arguments to support your decision.

28  Your state has a law requiring public school students to stand and pledge allegiance to the flag at the beginning of each school day. When the children of a devout Jehovah’s Witnesses family refuse to salute the flag, they are suspended from school. The parents of the suspended children sue the school board. They argue that under their religion, saluting the flag, is idolatry and therefore a sin. They are not unpatriotic, but merely want an exception to be made for their children. The school board says that the children should not be allowed back in school until they can salute the flag. The school board argues that saluting the flag merely shows loyalty to America, and that it is required by state law; religious beliefs are not relevant.  If you were a judge in this case, based on what you have learned about First Amendment rights, what would you decide? Provide at least two strong arguments to support your decision.

29  What is speech?  Speaking in public (rally, meeting, fair)  Holding a sign?  Clothing?  Making a gesture?  Flag burning?  Cross burning?  Burning a draft card?

30  Pure Speech  Speech Plus  Symbolic Speech

31  Can the government restrict any of the following?  Obscenity  Defamation  Fighting Words  Hate Speech  Speech at School  Other?

32  false speech that endangers a person’s good name  Slander - spoken falsehoods  Libel - written falsehoods  Fighting Words - words that provoke immediate violence  In the United States, it is often difficult to prove libel or slander, particularly if “public persons” or “public officials” are involved.

33  Obscenity is not protected  Communities Decide: Public standards vary from time to time, place to place and person to person.  Work that some call “obscene” may be “art” to others. The ambiguity of definition still exists and is becoming even more problematic with the Internet.  No nationwide consensus exists.

34  Symbolic speech--symbols, signs, and other methods of expression. The Supreme Court has upheld as constitutional a number of actions including:  An example of protected symbolic speech would be the right of high school students to wear armbands to protest the Vietnam War (Tinker v. De Moines Independent Community School District, 1969).  flying a communist red flag  burning the American flag ▪ The Supreme Court upheld that right in a 5-4 decision in Texas v. Johnson (1989).

35  Schenck v. United States (1919): Set the “clear and present danger” standard for limiting speech.  Brandenburg v. Ohio (1969): The Court made the “clear and present” danger test less restrictive by ruling that using inflamatory speech would be punished only if there was imminent danger that the speech would incite an illegal act.

36  Martin Luther King Jr’s March on Washington  Million Man March  Multiple protests, meetings, events in Washington DC  Lobbyists  Letter to Congress

37  The Courts have generally ruled:  Groups may be required to apply for a permit.  Certain public facilities may be restricted from demonstrations (schools, airports, jails).  Restrictions on assembly must apply to all groups equally.  Groups cannot use private property to create buffer zones, ex. Zones around abortion clinics.  Police may disperse demonstrations in order to keep the peace to protect the public’s safety if demonstrations become dangerous.

38  Prior Restraint - The government can’t censor information before it is printed.  Radio and Television  Subject to extensive Regulation - F.C.C.  Protecting News Sources  Reporters aren’t protected  Shield Laws  Motion Pictures (little regulation)  Commercial Speech  No misleading information  Can ban tobacco ads - some alcohol ads

39  A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

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41  Does 2 nd Amendment Protect…  Individual right to bear arms…?  State’s right to raise a militia…?

42  There are one million gun incidents per year in the United States (murders, suicides, assaults, accidents and robberies all involving guns).

43  Does the easy availability of handguns promote crime?  Do people have a right to possess firearms to defend themselves and their property?  Are guns part of the problem of crime – or part of the solution?

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50  US v Miller 1939  Question: Does the National Firearms Act of 1934 violate Miller’s 2 nd Amendment rights by banning sawed off shotguns?  Question: Is the National Firearms Act a violation of state’s rights with regard to regulation of a militia?  Decision:  A sawed off shotgun is not essential to a well regulated militia.  The state militia is subordinate to the needs of the national military and national government.

51  District of Columbia v. Heller: Recently the Supreme Court overturned the Washington DC’s ban on handguns.  Rationale: Regulations on guns (registration, etc.) are acceptable but complete banning of a handgun is a violation of the 2 nd Amendment.

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53  The National Rifle Association  Believe that having firearms is a Constitutional right and meet a vital defense need for individuals.  The problem is not the sale and ownership of weapons but with their use by criminals. “Guns don’t kill people, people kill people.”  NRA Ring of Freedom NRA Ring of Freedom

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56  The Coalition to Stop Gun Violence  Brady Center to Prevent Gun Violence  Believe that handguns “serve no valid purpose, except to kill people.”  Support a ban on the sale of most handguns.  Brady Center Brady Center

57  The Brady Center to Prevent Gun Violence The Brady Center to Prevent Gun Violence

58  Child safety locks  Regulation of gun dealers – especially at gun shows  Should gun manufacturers be sued for producing guns without safety features?

59  Two groups for greater gun control.  Two groups against gun control.  The teams must be fairly even.

60  In groups create an argument for one side of the gun control issue.  Your group needs to create a slogan that describes your viewpoint on this issue.  Use the class handouts I have provided for you to strengthen your arguments and provide a factual basis.  Choose one person to present your opening comments.  Everyone in your group must speak during the debate.  You have twenty minutes to prepare.

61  If you can’t be polite – you can’t participate!!!  Listen to the moderator or you can’t participate!!!  Take turns talking.  Be appropriate, be appropriate, be appropriate!!!

62  Researcher – writes the paper.  Debater – argues debate  Damage Control: Prepare for rebuttal questions

63 4,5,6,8 AMENDMENTS

64 are the due process rights and the procedural guarantees provided by the Fourth, Fifth, Sixth, and Eighth Amendments

65  The 4 th Amendment’s general purpose  is to deny the government the authority to make general searches without a warrant.  Provides protection against “unreasonable” searches and seizures  Requires search warrants-probable cause  Sworn oath  Naming what is to be searched, and seized

66  Police have no general right to search for evidence or to seize either evidence or persons. Except in particular circumstances, they must have a proper warrant obtained with probable cause-that is, reasonable grounds.

67  Yes! Under the following circumstances:  Consent  Search pursuant to a lawful arrest  Exigent circumstances – emergency situations accompanied by probable cause.  Hot pursuit  Stop and frisk

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70  From people/bugs listening outside home? (1928)  In a public phone booth? (1967)  From 1,000 feet above your “farm” in an airplane looking at a double fenced in field? (1986)  From helicopter hovering at 400 feet looking in your “greenhouse” (1987)  Trash on the curb? (1988)  Luggage on a public bus? (2000)  Against heat sensing flyovers? (2001)  Overnight guests in another person’s home? (1990)  Temporary guests in another person’s home? (1998)

71  When evidence is in plain view.  When there is no “reasonable expectation of privacy”  When evidence is uncovered due to the putting out of a fire, but later searches wouldn’t be admissible.  Automobiles, boats and airplanes may be searched where there is probable cause because they are considered “movable scenes of crimes”.  What about the air around a vehicle?

72 1. Sobriety Checkpoints 2. Border Crossings 3. Airport Searches 4. Drug Testing 5. Student Searches 6. Athlete/Extracurricular Drug Tests 7. Consensual Searches

73  Evidence gained as a result of an illegal act by police cannot be used against the person from whom it was seized.  Not admissible in court.  Established by Mapp v. Ohio

74  In Cleveland, Ohio, a police detective in plain clothes was assigned to patrol an area looking for shoplifters or pickpockets. One day he saw two men on a corner talking carefully in one store window. The second man did the same thing. Each man repeated this walk 5 or 6 times. A third man joined the two and spoke with them briefly.  The detective feared that the men wanted to rob a store and that they might have guns. Since they might have guns, the detective also had reason to fear for his own safety. He approached the men and asked their names. They mumbled something. The detective spun one man around and frisked him. He felt a gun in the left inside breast pocket of the overcoat. He removed the overcoat and found the gun. The detective frisked the second man and found a gun in the outer pocket of his overcoat. No weapon was found on the third man.  All three men were taken to a police station. The two men who had the guns were arrested and formally charged with carrying concealed weapons without a license, a violation of state law. 1. Were the three men properly stopped by the police detective? Why or why not? 2. Do you believe that it was proper to frisk the men? Why or why not?

75  A teacher in a New Jersey high school discovered two girls smoking in the school lavatory. Smoking was against school rules. The teacher took the girls to the principal’s office. One girl admitted to the assistant vice principal that she had been smoking. The other girl, T.L.O., fourteen years old, denied it.  The assistant vice-principal demanded to see the purse of the fourteen-year- old. He reached in and found a pack of cigarettes. He also saw a package of cigarette rolling papers which were known to be used in smoking marijuana. He searched the purse more thoroughly. He discovered marijuana, a pipe, empty plastic bags, and money. He also discovered an index card listing the names of people who owed money to T.L.O. Finally, he found two letters which indicated that T.L.O. was dealing marijuana. Charges of juvenile delinquency were brought against T.L.O. 1. Should a school official be able to search a student’s purse whenever there is a reasonable suspicion (a lesser standard than probable cause) that something illegal can be found? 2. Was the vice-principal justified in continuing to search the purse after finding the initial item? Explain why or why not?

76  An undercover narcotics officer went to an apartment and arranged to purchase heroin. He left the apartment saying he had to get money. The undercover agent returned with nine other plain-clothes officers. A man opened the door, then attempted to close it when he saw the group of men. The undercover officer pushed past him and entered the bedroom. The undercover officer was shot and killed by another man in the bedroom. The man who shot him was, himself, seriously injured.  Over the next four days, the officers searched the apartment without a warrant. Some two hundred to three hundred items were taken. The evidence seized included guns, ammunition, and narcotics. 1. As a judge, would you suppress the evidence seized? Why or why not? 2. Is the fact that there was a murder a reason not to secure a warrant to search the premises? Why or why not?

77  Dr. Magno Ortega was a physician and psychiatrist at a state hospital in northern California. He was dismissed from his job in Prior to his dismissal, hospital authorities investigated his management of the residency program of the hospital. They also investigated charges that Dr. Ortega had sexually harassed two female hospital employees.  During the investigation, Dr. Ortega was required to take a leave from his job at the hospital. While he was on leave, the hospital authorities entered his office and made a thorough search. Several items were taken from his desk and filing cabinets – a Valentine’s Day card, a photograph, and a book of poetry. Those items were later used in a hearing on Dr. Ortega’s conduct. 1. Did the hospital authorities have the right to search Dr. Ortega’s desk and files? Why or why not?

78  Police in Boston, Massachusetts, found the badly burned body of a woman in a vacant lot. An autopsy revealed that she had died of several skull fractures caused by blows to the head.  The police, after some investigation, decided to question one of the victim’s boyfriends. The boyfriend stated that he had not seen the victim since Tuesday and had been at a house where cards were played from 9 p.m. Friday to 5 a.m. Saturday (the body was discovered Saturday). Further investigation revealed that the boyfriend had borrowed a car on the night in question. He had left the house where cards were being played and was absent from 3 a.m. to 5 a.m.  The officers then visited the owner of the car that the boyfriend had borrowed and asked to inspect the car. The owner consented. The officers found bloodstains and pieces of hair on the rear bumper and in the trunk. They also noticed strands of wire like those strands found on and near the victim’s body.

79  Based on the investigation, the police sought a warrant to search the boyfriend’s home. The request for the warrant stated that the officers wanted to look for bloody clothing, a murder weapon, wire like that found on the body, and other things.  The judge issued a warrant but inadvertently used a form that directed the police to search for drugs. The judge failed to change the form properly. He signed the warrant for a drug search only. When the police executed the search warrant, they seized evidence of a murder, including bloody clothing. 1. Would you suppress the evidence seized because the warrant said to search for drugs? Why or why not?

80  The FBI intercepted a telephone conversation by attaching a listening device (wiretap) to the exterior of a public phone booth. Information gained from the conversation was used to convict the defendant on illegal gambling charges.  Did the defendant have a reasonable expectation of privacy in his phone conversation? Must the police obtain a search warrant before wiretapping a public phone booth?

81  Police lawfully arrest the defendant in his home when he returns after work. The police then conducted a warrantless search of the defendant’s entire house. Evidence was discovered that link the defendant to a series of burglaries.  May the police search a defendant’s entire home when a valid arrest is executed?

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83  An anonymous letter was sent to the police stating that Lance and Sue Gates were selling narcotics out of their home. The letter stated that Susan would drive to Florida on May 3 to purchase drugs and that Lance would fly to meet her a few days later. They were to drive back together. The police investigated and discovered that Lance had made a plan reservation to Florida. He had also booked a hotel room in Florida. Based on these facts a search warrant was issued for the Gates’ home and car. The search uncovered weapons and marijuana.  Did the facts above constitute probable cause as a basis for issuance of a search warrant? Explain your answer.

84  A policeman stopped a car for speeding. As he approached the car, he smelled marijuana. The officer then searched the car and discovered an envelope containing marijuana. He then searched a jacket in the car. The officer unzipped a pocket in the jacket and discovered cocaine. The defendant was convicted of cocaine possession.  Did the officer have probable cause to search the car? Did the officer have the right to search the jacket?

85  Mapp v. Ohio (1961): The Court ruled that evidence obtained without a search warrant was excluded from trial in state courts – this allowed for the exclusionary rule to extend to the states.  Terry v. Ohio (1968): The Court ruled that searches of criminal suspects are constitutional and police may search suspects for safety purposes. “Terry Pat”  New Jersey v. T.L.O. (1985): Established the “plain view” precedence.

86 The Patriot Act was created as a result of the 9/11 attacks, and many believe that some of its provisions violate the Constitution.

87  May tap any telephone used by a suspected terrorist after receiving court order.  May tap Internet connections with a court order  May seize voic messages with a court order  Investigators can share information learned in grand jury proceedings.  Any noncitizen may be held as a security risk for seven days, or longer if “certified” to be a security risk  The federal government may track money across U.S. borders and among banks.  The statute of limitations on terrorist crimes is eliminated with increased penalties too

88  In times of national emergency…any noncitizen believed to be a terrorist or to have harbored a terrorist would be tried by a military court.  Military Court Provisions:  The accused are tried before a commission of military officers  A 2/3 vote of the commission is needed to find the accused guilty  An appeal by the accused may be made only to the secretary of defense or to the President.

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90  Some see it as a violation of privacy, especially due to phone taps and Internet connections  What if you are not a terrorist and they are listening to you!  Does this violate a person’s due process rights?  Research the Patriot Act and be prepared to discuss this tomorrow.

91  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a 1)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 2)be subject for the same offense to be twice put in jeopardy of life or limb ; nor shall be 3)compelled in any criminal case to be a witness against himself, nor 4)be deprived of life, liberty, or property, without due process of law; nor 5)shall private property be taken for public use, without just compensation. Fifth Amendment:

92 1. You do not have to testify against yourself in a criminal procedure. 2. You cannot testify against yourself in a criminal procedure. 3. Once you are arrested, police can question you before reading you’re your rights. 4. Police can question you before your attorney is present. 5. Police can refuse to let you have an attorney if they know you are guilty.

93 6. You can refuse blood or urine tests under the Fifth Amendment. 7. You must testify against your union if you are on the witness stand in a trial involving the union in a criminal procedure. 8. You may use the Fifth Amendment in a civil procedure. 9. You confess to a crime and are found guilty. In prison, you realize you should have used the Fifth Amendment. You can demand a retrial which will leave out your confession. 10. In order to put to death for murder, you must undergo a psychiatric evaluation. Once declared sane, you can’t be executed. You decide to use the Fifth Amendment to refuse the psychiatric evaluation for fear the results may be self-incriminating.

94  Yes: Indictment by Grand jury in capital cases  No  double jeopardy  Self incrimination  Denial of due process of law  Eminent domain without compensation.

95 SSelf Incrimination – YYou can’t be forced to testify against yourself. ▪T▪The 5 th Amendment states that “No person shall be …compelled in any criminal case to be a witness against himself. TThe government bears the burden of proof. PProtects citizens against confessions by force. MMiranda v. Arizona (1966): The Court ruled that suspects in police custody have certain rights and that they must be informed of those rights (right to remain silent, right to have an attorney).

96 1. Mr. Brown admits to murdering someone. Police knew he was guilty and got him to confess by hanging him upside down from a tree. 2. A juvenile admits to a felony after being questioned by police from 12 midnight to five a.m. 3. Police read an accused woman her rights and give her milk, sandwiches, and cigarettes when she asks for them while questioning her. She confesses. 4. A suspect is on a respirator, too ill to talk, sedated but conscious. He is read his rights and questioned for several hours. He admits his guilt by writing a confession. 5. A man is told he may call his wife once he confesses.

97  Writ of Habeus Corpus: The protection from unjust arrest and imprisonments.  Ex Post Facto Laws: A law applied to an act committed before its passage.

98  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.

99  Speedy trial  Public trial  Impartial jury in community  Be informed of your accusation  Face your accuser  Power to bring witnesses  Right to have counsel (lawyer)

100  Powell v Alabama (1932)  9 black men, accused of raping 2 white women on a train, given a one day trial, all sentenced to death, met their lawyers after cases were heard.  In capital cases, states must provide counsel for your trial.  Johnson v Zerbst (1938)  At FEDERAL level, every person charged with a felony is required to have a lawyer appointed to represent them.  Betts v Brady (1942)  At state level, in noncapital cases the defendant is only entitled to a public defender if the defendant is mentally handicapped.  Giddeon v. Wainright (1963)

101  The 6 th Amendment Guarantees a right to counsel.  In the past this meant that a defendant could hire and attorney.  Since most criminals are poor they did not have counsel.  In the case of Gideon v. Wainwright (1963).  In Gideon, a poor man, was accused of a crime and denied a lawyer.  The Court ruled unanimously that a lawyer was a necessity in criminal court, not a luxury. The state must provide a lawyer to poor defendants in felony cases.

102  Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment be inflicted. I have the right not to…  be forced to pay excessive bail  pay excessive fines  be punished cruelly/unusually  EVOLVING STANDARD***

103  You do not have a right to bail.  Excessive would be more than an amount necessary to ensure accused presence at a trial.  Can be denied bail by anticipation of possibility that accused may flee in capital cases.

104 What is Cruel and Unusual Punishment?

105  Branding  Pierce tongue with hot iron  Cut off ears  Whippings  Stocks (public display) people throw stuff at offender  Wear letter “A” or sign

106 1. Rape – Kidnapping – Assault – Espionage – Arson – Burglary – Horse Theft Forgery – Treason – Witchcraft

107  Furman v. Georgia (1972): The Court ruled the death penalty unconstitutional under existing state law because it was imposed arbitrarily.  Gregg v. Georgia (1976): In this case, the death penalty was constitutional because it was imposed based on the circumstances of the case.

108  Edmund v. Florida (1982): The death penalty cannot be imposed on a defendant that did not kill, intend to kill, or know that a killing would take place. A person can however receive the death penalty if they were a major participant in a felony resulting in death.  Ford v. Wainwright (1986): A person who is mentally incompetent or insane at the time of his execution cannot be put to death because such an execution would violate the Eighth Amendment.  Atkins v. Virginia (2002): Ended the execution of mentally retarded defendants.  Roper v. Simmons (2005): Ended juvenile death sentences.

109  3 People killed by Federal Government  Timothy McVeigh is most recent  1,026 people executed by State Governments (38 of 50 have D.P.)  376 by Texas, 97 by Virginia, 22 by Arizona (13 th Place)  Over 600,000 Americans have been murdered in same time period  Over 3,300 Americans on Death Row Today

110  Colonial:  Hanging (primary)  Gibbeting – caged and put on beach at low tide  Pressed – crushed  Burned – last used by government in 1825 on a runaway slave  Breaking on a wheel – strapped to wheel and limbs broken in gaps  Bludgeoned  Hanging on Chains

111  Lethal Injection  Gas Chamber  Electrocution  Hanging  Firing Squad

112  Lethal Injection  Lethal Injection – inmate is first injected with an anesthetic to put them asleep – the next injection paralyzes the entire body and stops the breathing. The final injection stops the heart.  Medical ethics do not allow doctors to take part in executions.

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114  Electrocution  Electrocution: 1890 – seen as a more humane way of execution than hanging  Nebraska uses this method  Person is shaved and strapped to a chair – a metal electrode is attached to the head over a sponge moistened with saline and conducive jelly – they are blindfolded and volts over thirty seconds is given  Between jolts the inmate’s pulse is checked until their heart stops

115  …the prisoner’s eyeballs sometimes pop out and rest on his cheeks. The prisoner often defecates, urinates, and vomits blood. The body turns bright red as its temperature rises and their flesh swells and his skin stretches to the point of breaking. Sometimes the prisoner catches fire…Witnesses hear a loud and sustained sound like bacon frying, and the sickly sweet smell of burning flesh permeates the chamber.

116  Gas Chamber  Gas Chamber – 1924 – five states use lethal gas - condemned person is strapped to a chair in an airtight chamber – the prisoner is instructed to breathe deeply to speed up the process. The inmate does not lose consciousness immediately. At first there is evidence of extreme horror, pain, and strangling. The eyes pop. The skin turns purple and the victim begins to drool.

117  Firing Squad  Firing Squad – still used in Utah and Idaho – last execution by this method was 1996/  A black hood is placed over the inmate’s head – he is strapped to a chair – five shooters are armed with.30 caliber rifles – one shooter has blanks – each shooter fires at the inmate – the prisoner dies as a result of blood loss caused by the rupture of the heart – the shooters aim for the heart.

118  Hanging  Hanging – Until the 1890s this was the primary method of execution in the U.S. – Hanging is still used in Delaware and Washington.  The inmate is weighed the day before the execution to ensure the proper length of the rope and weight of the sand bag.  If this is not correctly measured it can take the inmate as long as 45 minutes to die.

119  “If the inmate has strong muscles, is very light, if the “drop” is too short, or the noose has been wrongly positioned, the fracture- dislocation is not rapid and death results from slow asphyxiation. If this occurs the face becomes engorged, the tongue protrudes, the eyes pop, the body defecates, and violent movements of the limbs occur.”

120  May 4, 1990 Florida – Jesse Tafero – During this execution six-inch flames erupted from his head and three jolts of power were required to kill him. This was due to human error as an inappropriate synthetic sponge was substituted for a natural sponge

121  May 2, Ohio. Joseph L. Clark. Lethal Injection. It took 22 minutes for the execution technicians to find a vein suitable for insertion of the catheter. But three or four minutes thereafter, as the vein collapsed and Clark's arm began to swell, he raised his head off the gurney and said five times, "It don’t work. It don’t work." The curtains surrounding the gurney were then closed while the technicians worked for 30 minutes to find another vein. Media witnesses later reported that they heard "moaning, crying out and guttural noises."56 Finally, death was pronounced almost 90 minutes after the execution began. A spokeswoman for the Ohio Department of Corrections told reporters that the execution team included paramedics, but not a physician or a nurse.

122  December 13, Florida. Angel Diaz. Lethal Injection. After the first injection was administered, Mr. Diaz continued to move, and was squinting and grimacing as he tried to mouth words. A second dose was then administered, and 34 minutes passed before Mr. Diaz was declared dead. At first a spokesperson for the Florida Department of Corrections claimed that this was because Mr. Diaz had some sort of liver disease. After performing an autopsy, the Medical Examiner, Dr. William Hamilton, stated that Mr. Diaz’s liver was undamaged, but that the needle had gone through Mr. Diaz’s vein and out the other side, so the deadly chemicals were injected into soft tissue, rather than the vein. Two days after the execution, Governor Jeb Bush suspended all executions in the state and appointed a commission “to consider the humanity and constitutionality of lethal injections.”  

123  "[A]lternatives (to the current method of lethal injection) must effectively address a 'substantial risk of serious harm.' To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State's refusal to change its method can be viewed as 'cruel and unusual' under the Eighth Amendment." Baze v. Rees, No (U.S. 2008).

124  I assumed that our decision would bring the debate about lethal injection as a method of execution to a close. It now seems clear that it will not. The question whether a similar three-drug protocol may be used in other States remains open, and may well be answered differently in a future case on the basis of a more complete record. Instead of ending the controversy, I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself. Baze v. Rees (2008) (Stevens, J., concurring).

125  In New York – the estimated costs in 1995 was $23 million per person sentenced to death.  Death penalty trials cost 48% more than life sentence trials.

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127  Viva Leroy Nash, the oldest person on death row in the U.S., died of natural causes on death row in Arizona on February 12, He was deaf, nearly blind, confined to a wheelchair and suffering from dementia and mental illness. He had been imprisoned almost continually since he was 15. He was sentenced to death in (Associated Press, Feb. 14, 2010).

128  athRowMain.asp#Index athRowMain.asp#Index

129  cuted.htm cuted.htm

130 Last Meal TEXAS LAST MEAL ANTHONY FUENTES November 17, 2004 Last Meal: Fuentes had a final meal request of fried chicken with biscuits and jalapeno peppers, steak and french fries, fajita tacos, pizza, a hamburger, water and Coca-Cola.

131 Last Meal Last Meal:  For his final meal, McWilliams requested six fried chicken breasts with ketchup, french fries, six layer lasagna (ground chicken, beef, cheese, minced tomatoes, noodles and sauteed onions), six egg rolls, shrimp fried rice and soy sauce, six chimichangas with melted cheese and salsa, six slices of turkey with liver and gizzard dressing, dirty rice, cranberry sauce and six lemonades with extra sugar.

132 Last Meal Last Meal:  ten pieces of crispy fried chicken (leg quarters), two double meat, double cheese burgers with sliced onions, pickles, tomatoes, mayo, ketchup, salt, pepper and lettuce, one small chef salad with chopped ham and thousand island dressing, one large order of french fries cooked with onions, five big buttermilk biscuits with butter, four jalapeno peppers, two sprites, two cokes, one pint of rocky road ice cream, one bowl of peach cobbler or apple pie.

133 Last Meal Last Meal:  20 beef tacos, 20 beef enchiladas, two double cheeseburgers, a pizza with jalapenos, fried chicken, spaghetti with salt, half of a chocolate cake and half of a vanilla cake, cookies and cream ice cream, carmel pecan fudge ice cream, a small fruit cake, two Coca-Colas, two Pepsi- Colas, two root beers and two orange juices.

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137  The Supreme Court has also given protection to rights not specifically enumerated.  The Court has ruled that though privacy is not specifically mentioned in the Constitution, the Framers expected some areas to be off-limits to government interference.

138  Implied in 1,3,4,5,14 amendments

139  Background: prohibited the use of "any drug, medicinal article or instrument for the purpose of preventing conception."  1879 Connecticut law: prohibited the use of "any drug, medicinal article or instrument for the purpose of preventing conception."  Estelle Griswold opens a Planned Parenthood clinic. Is arrested under this law, convicted in a trial, and fined $100.  How would you decide?

140  7-2 decision  Majority 4: Cite a penumbra of rights suggested by 3 rd,4 th, and 5 th Amends.  Concurring 3: 9 th Amendment includes possibility that right to privacy in bedroom is a Constitutional right.  Dissent 2: Allow state legislatures to make laws they think are appropriate to govern local affairs.

141  In Roe v. Wade (1973) The Supreme Court ruled that a Texas law prohibiting abortion violated a woman's constitutional right to privacy.  Since Roe, a number of other cases on abortion have been decided, in general they have limited abortion rights in some way.  Webster v. Reproductive Health Services (1989) - upheld fetal viability tests  Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) - Pennsylvania was allowed to limit abortions as long as they did not pose 'an undue burden' on pregnant women.

142  In 1990, the Court heard the case Cruzan by Cruzan v. Director, Missouri Department of Health.  In a 5-4 ruling, the Court rejected a right to privacy in such cases but argued that living wills, written when competent, were constitutional.  In 1997, the Court ruled that there was no constitutional right to assisted suicide.  This is an issue that has been left up to individual states to decide.


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