“The USA offers procedural rights at trial that are on par with international standards, but this is of little consolation to those who, facing the threat of overwhelming sentences upon conviction and forced into insincere plea deals, never benefit from the protection of these rights.”
—Fair Trials International (1)
The power differential between individuals and government is starkly on display when people stand accused of committing a crime. Not only did the founders know this in principle, they were very familiar with the English criminal justice system’s historic abuse of the American colonists. So, let’s take some time to understand our constitutional protections, those protections’ limitations, and subsequent abuses that have been visited upon people.
The Fourth Amendment
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Recall Mapp v. Ohio (1961), which involved the Fourth Amendment’s provision that people be protected from unreasonable searches and seizures. In that case, the Supreme Court ruled that now states—as well as the federal government—are bound to apply the Fourth Amendment’s search and seizure protections to people. This applies to the exclusionary rule as well, meaning that any evidence that state or federal authorities gather in violation of the Fourth Amendment must be excluded from the defendant’s trial. The Fourth Amendment has been used to require authorities to get warrants before they do the following:
- Attach GPS tracking devices to a suspect’s car. (2)
- Search a suspect’s phone for incriminating information. (3)
- Access records that reveal the physical location of cellphones. (4)
On the other hand, federal courts have given authorities broad latitude to search people on the street. In Terry v. Ohio (1968), the Supreme Court ruled that police may stop and frisk people on the street if they have a reasonable suspicion that the person has committed a crime, is in the process of committing a crime, or is about to commit a crime. Reasonable suspicion is a lower standard than probable cause, which is the standard used when judges issue specific warrants or when police operate in what are known as exigent circumstances. The Court also ruled that even if police do not have reasonable suspicion to stop and frisk someone, if that person has an outstanding warrant, police can use anything they find in court. As lawyer Taru Taylor argues, the precedent set by Terry v. Ohio (1968) completely turned on its head the relationship between policing authorities and ordinary citizens, putting the latter in the same situation the colonists faced before the Revolution. “Ever since Terry,” he argues, “cops have had the despotic discretion to search or seize any U.S. citizen based on a ‘reasonable suspicion’ that they are a criminal or are about to commit a crime.” The Founders complained in the Declaration of Independence about the general warrants the British used to oppress Americans, but actions of the police backed by the amorphous “reasonable suspicion” standard is an even more oppressive law enforcement tool than general warrants ever were. (5)
Since Mapp v. Ohio was decided, the Supreme Court has placed many other limitations on the exclusionary rule including good faith exceptions, exceptions for evidence obtained by someone other than police, and exceptions for situations where the incriminating evidence likely would have been found anyway without an illegal search. During traffic stops, police are allowed to examine that which is in plain view—e.g., on your dashboard or sitting on the back seat—without reasonable suspicion or probable cause, but they would need probable cause to search further without your permission. Anything incriminating that is in plain view can be grounds for probable cause. They can ask you to step out of the car and can frisk you with reasonable suspicion, which presumably they already have if they legally stopped your vehicle. All people should know their rights when being stopped or interviewed by the police.
The Fifth and Sixth Amendments
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.“
“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 defence.”
The Fifth and Sixth Amendments have many protections for criminal defendants. When the Fifth Amendment says that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb,” we refer to that as the protection against double jeopardy. Double jeopardy “prohibits anyone from being prosecuted twice for substantially the same crime.” (6) A notable exception to the double jeopardy protection concerns the separate sovereigns doctrine, which means that the federal government and the state governments are separate units under our federal system. Therefore, the state government and the federal government can prosecute you separately for the same crime. (7)
The Fifth Amendment also protects against self-incrimination: no person “shall be compelled in any criminal case to be a witness against himself.” In a federal or state trial, defendants are not obligated to testify, nor are suspects required to say anything to police when they are detained or arrested. To ensure that people fully exercise their freedom from self-incrimination, the Supreme Court took action in Miranda v. Arizona (1966). In a tight 5-4 decision, the majority threw out Ernesto Miranda’s kidnap and rape conviction because he gave his confession without understanding that he had a right to remain silent and had a right to have a lawyer present at his interrogation. As a result, police must inform you of your Miranda rights: that you have a right to remain silent, that anything you say can be used in a case against you, that you have the right to have a lawyer present, and that if you cannot afford a lawyer one will be appointed for you.
The Fifth Amendment provides a person their due process before the government can deprive them of life, liberty, or property. The idea of due process goes back to the Magna Carta of 1215. This agreement, which was forced upon England’s King John by the aristocracy said that “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” (8) Thus, due process is “A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one’s life, liberty, or property. . . [and] a constitutional guarantee that a law shall not be unreasonable, arbitrary, or capricious.” (9) In a lecture to the University of Pennsylvania Law School, Judge Henry Friendly put together a nice list of what procedural due process means:
- An unbiased tribunal.
- Notice of the proposed action and the grounds asserted for it.
- Opportunity to present reasons why the proposed action should not be taken.
- The right to present evidence, including the right to call witnesses.
- The right to know opposing evidence.
- The right to cross-examine adverse witnesses.
- A decision based exclusively on the evidence presented.
- Opportunity to be represented by counsel.
- Requirement that the tribunal prepare a record of the evidence presented.
- Requirement that the tribunal prepare written findings of fact and reasons for its decision. (10)
The Fifth Amendment also provides for grand juries, which are panels of citizens who hear evidence and decide if there is sufficient evidence to proceed with a prosecution. At this time, the protection for a grand jury indictment before moving to trial operates at the federal level only. Note that this protection has not been incorporated into the Fourteenth Amendment or made a requirement for state criminal prosecutions.
The Sixth Amendment provides for the right to counsel. As we’ve seen, the Supreme Court in Gideon v. Wainwright (1963) incorporated the Sixth Amendment into the Fourteenth Amendment and required that states also provide counsel to indigent defendants. This is an important procedural guarantee, but one that often falls short in practice. As Andrew Cohen writes, “There is a vast gulf between the broad premise of the ruling and the grim practice of legal representation for the nation’s poorest litigants.” He further argues that Gideon essentially put an unfunded mandate on the states to provide and pay for lawyers for the 80 percent of defendants who can’t afford to pay for their own counsel. (11) Public defenders and lawyers assigned to defendants are chronically overworked, often with caseloads three times higher than national standards. Moreover, nationwide only 2.5 percent of state and local criminal justice budgets go to defend indigents. (12) The result is that indigent defendants often don’t get the defense they deserve, and too many settle for plea bargains for reduced sentences because they fear what might happen if they go to trial against the resources of federal or state prosecutor’s offices. More than 90 percent of federal and state cases are settled by plea bargain. (13)
The Eighth Amendment
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Before Timbs v. Indiana (2019), people were not being protected by the Eighth Amendment’s provision against excessive bail and fines. States and localities got into the practice of requiring both. Given that 40 percent of Americans can’t come up with $400 to pay for an unexpected car repair so they can keep going to work, it’s no surprise that many Americans can’t afford cash bail or fines when they are charged with a crime or when they reluctantly admit guilt in a plea bargain. (14) Cherise Fanno Burdeen writes that “More than 60 percent of people locked up in America’s jails have not yet been to trial, and as many as nine in ten of those people are stuck in jail because they can’t afford to post bond.” (15) Being stuck in jail because you can’t pay cash bail makes it impossible to work. Being unable to afford steep fines after you’ve pled guilty to get a fine instead of jail time, makes for a never-ending engagement with the criminal justice system. Obviously, the burdens of America’s criminal justice system fall heaviest on the poor. Finally, and fortunately, in Timbs v. Indiana (2019), the Supreme Court indicated in its 9-0 ruling that it does not intend to let states impose excessive fines.
The Eighth Amendment’s ban on cruel or unusual punishment is the focus of America’s longstanding debate over capital punishment, which is when the government kills someone as punishment for a crime. We used to impose capital punishment for many offenses, including rape, counterfeiting, accomplice to murder, and piracy. Now, capital punishment is reserved for murder, although still a possibility for treason, espionage, and terrorism. The federal criminal justice system allows for capital punishment as does the criminal justice systems in twenty-eight of fifty states.
Due to the arbitrary and racially biased way that capital punishment was meted out across the United States, the Supreme Court invoked a moratorium on applying capital punishment when it decided Furman v. Georgia (1972). Two of the justices—Thurgood Marshall and William Brennan—opined that the death penalty violated the Constitution’s prohibition against cruel and unusual punishments, regardless of procedural issues. In any case, states that practiced capital punishment rewrote their statutes, and in Gregg v. Georgia (1977), the Court upheld capital punishment again, although justices Marshall and Brennan again argued that it was inherently cruel and unusual punishment that cannot be tolerated under the Eighth Amendment. According to the Death Penalty Information Center, since the Supreme Court re-allowed capital punishment in the Gregg case, over 1,500 people have been put to death and there still appears to be racial disparities in how the death penalty is applied. (16)
Qualified Immunity for Police
Congress passed the Ku Klux Klan Act of 1871 to protect newly freed slaves and void the Black Codes that Southern states were using to restrict the ability of Blacks to vote, move about their communities without being assaulted, enter into contracts, and practice a profession. It has this provision:
“Any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress.”
This seems to be a clear statement that any person acting under law (like a law enforcement officer) would be liable if they violated the Constitutional rights of any person in the United States. In 1967, however, amidst a concern about rising crime rates, the Supreme Court invented the doctrine of “qualified immunity” for police officers. The original case—Pierson v. Ray (1967)—involved White and Black clergy who were arrested while they were trying to have lunch at a coffee shop in a segregated bus station in Jackson, Mississippi. When the clergy tried to sue the officers for violating their Constitutional rights—as stipulated in the Ku Klux Klan Act—the Supreme Court announced in its majority opinion that police had qualified immunity from such lawsuits, meaning that the police cannot be sued unless the plaintiffs can show that the officers should have known that they were violating clearly established law. Note that qualified immunity does not exist in the Constitution or in the Ku Klux Klan Act.
Originally, qualified immunity protected police if they were acting “in good faith,” but over the years the Court has strengthened the doctrine to give police broad authority to violate Constitutional rights without much fear of liability. For example, in fatal shootings by police, officers are charged in less than 2 percent of cases and convicted in less than a third of the cases that are charged. Joanna Schwartz, who has studied the issue extensively, writes that “just as George Floyd’s murder has come to represent all that is wrong with police violence and overreach, qualified immunity has come to represent all that is wrong with our system of police accountability.” (17) Clearly, police need to have the authority to do their jobs, but many on the left and right of the political spectrum believe that the pendulum has swung too far in favor of immunity for police officers.
What if. . . ?
What if we restricted plea bargaining and equalized resources between prosecutors and public defenders? This is actually an old debate in the United States. State circuit court judge Ralph Adam Fine argued back in 1987 that plea bargaining was a double evil: “It encourages crime by weakening the credibility of the system on the one hand and, on the other, it tends to extort guilty pleas from the innocent.” (17) Another problematic aspect of plea bargaining is that it is paired with cash bail or the threat of very high penalties, which really put defendants in a tough spot. As former state prosecutor Melba Pearson says, “If you are in jail because of a cash bail you can’t pay, pleas can sound like a great alternative to losing your job, failing to pay rent, and a variety of other negative consequences.” (18) The practice of plea bargaining—admitting guilt to obtain a reduced sentence—has, in fact, been abandoned in a few jurisdictions in the United States, but is growing around the world. (19)
- Editor, “Plea-Bargains and Fair Trials in the USA,” Fair Trials International. May 28, 2014.
- United States v. Jones (2012)
- Riley v. California (2016)
- Carpenter v. United States (2018)
- Taru Taylor, “We Must Overturn SCOTUS Decisions That Effectively Deny Rights to Black People,” Truthout. March 5, 2023. See also the Heritage Foundation’s Guide to the Constitution, particularly the section on general warrants as they relate to unreasonable searches and seizures.
- No Author, “Double Jeopardy,” Cornell Law School Legal Information Institute. No date.
- Gamble v. United States (2019).
- “English Translation of Magna Carta,” The British Library. Paragraph 39.
- “Due Process of Law,” The Legal Dictionary.
- Henry Friendly, “Some Kind of Hearing,” University of Pennsylvania Law Review. Volume 123. 1975. Pages 1267-1317.
- Andrew Cohen, “How Americans Lost the Right to Counsel, 50 Years After Gideon,” The Atlantic. March 13, 2013.
- Kanya Bennett and Ezekiel Edwards, “Our Government Has Failed to Defend the Sixth Amendment,” The American Civil Liberties Union. May 16, 2019.
- Dylan Walsh, “Why the U.S. Criminal Courts Are So Dependent on Plea Bargaining,” The Atlantic. May 2, 2017.
- Soo Youn, “40% of Americans Don’t Have $400 in the Bank for Emergency Expenses: Federal Reserve,” ABC News. May 24, 2019.
- Cherise Fanno Burdeen, “The Dangerous Domino Effect of Not Making Bail,” The Atlantic.April 12, 2016.
- Death Penalty Information Center.
- Joanna Schwartz, “How the Supreme Court Protects Police Officers,” The Atlantic. January 31, 2023. See also Taru Taylor, “We Must Overturn SCOTUS Decisions That Effectively Deny Rights to Black People,” Truthout. March 5, 2023.
- Ralph Adam Fine, “Plea Bargaining: An Unnecessary Evil,” Marquette Law Review. Summer 1987. Page 615.
- Christopher Wright Durocher, “The Rise of Plea Bargains and the Fall of the Right to Trial,” American Constitution Society Expert Forum. April 4, 2018.
- The Economist, “The Troubling Spread of Plea Bargaining from America to the Rest of the World,” November 9, 2017.