Civil Liberties Rights of the Accused & Right to Privacy

Due Process Substantive vs. Procedural Substantive—is the law itself fair; all have basic rights that government can’t deny (the content of the law) Procedural—were the procedures applied fairly in order to legitimately deny someone’s right to life, liberty, property Writ of Habeas Corpus Provided for in the Constitution (Article I, Section 9); court order that allows detained person to go before a judge to be informed about why being detained Other than the Writ of Habeas Corpus, the original text didn’t address due process 5 th Amendment establishes right to due process 14 th Amendment expands the right to due process (says “no state shall deny any person the right to life, liberty, or property w/o due process of law…”) Other amendments deal with specific procedures 4 th, 5 th, 6 th, 8 th (some of which were incorporated through the 14 th in the 60s)

Search and Seizure 4 th Amendment: “…secure in their persons, houses, papers, and effects against unreasonable searches and seizures..” Most relevant in investigation phase of the criminal justice process Question is: What’s reasonable? Typically—a warrant based on probable cause is needed to show ‘reasonableness’ BUT there are exceptions (and Supreme Court cases establish ‘rules’) Examples of exceptions: One major standard used in determining exceptions—”Is there a reasonable expectation of privacy?” What happens when a search is illegal? Mapp v. Ohio (1961)and the exclusionary rule

Controversy Surrounding Exclusionary Rule Some say it allows guilty people free on a technicality Supporters say police must engage in reasonable behavior and shouldn’t be able to gather evidence illegal because one is innocent until proven guilt Some have said it should be dismantled and Congress has discussed writing legislation to do so (demonstrates how some expansions of Civil Liberties from the Courts in the 60s have been challenged) Exceptions: Good Faith—if police acted in ‘good faith’ and the search was illegal only because of an honest error, then evidence is admissible Inevitable Discovery—if police would have found the evidence on their own by legal means, it’s admissible Judges determine if these apply

The Fifth Amendment Several protections Grand Jury for serious federal offenses, double jeopardy, self-incrimination, due process Also, “…nor shall private property be taken for public use without just compensation” (eminent domain) “…nor shall be compelled in any criminal case to be a witness against himself…” refers to ‘self- incrimination’; “pleading the 5 th ”

Procedural Application of the 5 th Amendment In investigations, relevant in interrogation Miranda v. Arizona The precedent: in custodial interrogation, police must inform of rights IF want to use what they get at trial Miranda remains controversial Seen as ‘judicial activism’ by conservatives Congress attempted to undermine it with a law that attempted to restore former practice Supporters argue it’s a key protection Later cases refine the standard

The Sixth and Procedure: 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, …and be informed of the nature and cause of the accusation; to be confronted with witnesses against him; to have compulsory process for obtaining witnesses in his favour, and to have the Assistance of Counsel for his defence.” Right to Counsel (3 cases demonstrate the evolution); initially taken to mean right to hire an attorney Powell v. Alabama; Betts v. Brady Gideon v. Wainwright (’63)—a landmark case that overturned Betts; said state must provide attorney if can’t afford one in felony cases Juries— required in state criminal trials Speedy and Public Trial— not clearly established by the text of the Constitution; states establish what’s reasonable regarding speed; judges determine when public can be barred from trials

Eighth Amendment Freedom from “cruel and unusual punishment” Has been incorporated (Courts have made rulings saying that states can’t impose ‘cruel and unusual punishments’). Death Penalty debate is most relevant here Furman v. Georgia (’72) first time court addressed whether it’s cruel and unusual; overturned the specific state law, but said it wasn’t inherently cruel and usual (states rewrote laws) Courts typically defer to the states (and legislatures) on death penalty cases, but have ruled in certain types of cases 16 or 17 year olds can be executed 2002 mentally retarded people can’t be executed Three Strikes Laws have been upheld by the Court (commit 3 felonies and sentence is increased;some argue mandatory sentencing laws are over-reaching

Civil Liberties and the War on Terror History of Civil Liberties in Wartime Lincoln suspends Habeas Corpus Truman nationalizes steel mills Japanese internment camps & Korematsu Post 9/11 Policy The Patriot Act—gave government more authority to limit civil liberties “enemy combatants” & Guantanamo—how to deal with those accused of terrorism N.S.A. wiretapping program Use of torture Heightened airport security Many of these policies have caused political fights

The Right To Privacy Not specifically enumerated in the Bill of Rights Ninth: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” 14 th amendment—idea of personal liberty; 4 th —idea of privacy Griswold v. Connecticut—overturned state law that made contraception illegal The Court’s reasoning: private matter b/t couple Sodomy Laws Lawrence v. Texas—overturned law that made sodomy a crime, arguing was a privacy issue

Right to Privacy (cont.) Abortion Roe v. Wade: est. precedent that abortion is protected as private matter (privacy) for woman in 1 st trimester; states can claim compelling interest to limit later Restrictions on Abortion Webster v. Reproductive Health (‘86)—upheld Roe, but allowed some state limits Planned Parenthood v. Casey: affirmed Roe, but created ‘undue burden’ standard; limits allowed unless created ‘undue burden’ States and new restrictions  Various limits coming from states; some states closing down all providers  Some limits challenged as presenting an undue burden and not met by state’s compelling interest argument Remains a volatile political issue