Protecting Individual Liberties and Crime and PunishmentSections 3 & 4

Civil LibertiesChapter 10

• The Second Amendment protects the right to keep and bear arms. The Third and Fourth Amendments guard the rights to security of home and person.

• The Supreme Court has interpreted the Constitution as protecting a right to privacy.

• The Constitution’s guarantees of due process require that government act in accordance with fair and public laws in whatever it does.

Section 3 at a GlanceProtecting Constitutional Rights

The Right to Keep and Bear Arms

• Second Amendment, one of most heavily debated amendments today• Included to protect rights of states to form militias, ease fears of those

worried about standing army controlled by federal government — Some believe this protects individual right to own all kinds of

firearms — Others believe amendment only protects rights of states to

form militias• Only one major Supreme Court ruling• 1939, United States v. Miller: Court upheld law placing restrictions on

possession of some types of guns often used by criminals• Said amendment protected only guns that might be used by people in militia• Since Miller, Supreme Court has not addressed issue of gun control — Some lower courts have made decisions on gun control laws

— Others believe amendment only protects rights of states to form militias

Security of Home and Person

The Third Amendment• British military sometimes quartered—housed—soldiers in colonists’

homes• Sometimes paid for food, shelter; often did not• Declaration of Independence listed quartering of troops among many

American complaints against British • Third Amendment forbids government from housing troops in private

houses during times of peace without consent of owner• During war, troops can only occupy private houses as prescribed by law• Military forces cannot simply take over house without due process

Today the Third Amendment is largely forgotten by most Americans. Forced quartering of troops has never been the subject of a Supreme Court case.

Search and Seizure• Fourth Amendment also forbids

“unreasonable searches and seizures”

• Sets terms for issuing search warrant, document giving police legal authority to search private property

• Government can issue search warrant only after authorities have proved to a judge there is probable cause for a search

• Warrant must describe what will be searched, seized

The Fourth Amendment• Fourth Amendment also result of

hated British practice in colonial times: use of writs of assistance

• Writ, a legal document that gave British authorities wide power to search private homes, businesses

• Could conduct searches without probable cause, strong likelihood they would find evidence of a crime

• Fourth Amendment written to protect Americans against such abuses, has proved to be important guarantee of personal security

Security of Home and Person {continued}

• Officials can enter in emergency without warrant, must follow strict rules• Only search for evidence directly related to crime being investigated• May seize other evidence only if it is in “plain view”

• 1987, Arizona v. Hicks: “plain view” did not extend to serial numbers• 1914, Weeks v. United States: evidence obtained illegally may not be used

against person in court; known as exclusionary rule• 1961, Mapp v. Ohio: conviction overturned because evidence seized in illegal

search

• Fourth Amendment does not always require police to obtain warrant• Person’s right to be free does not reach outdoors• Police can search through person’s trash without warrant

• Fourth Amendment relates to stopping, searching vehicles• Can stop, search autos without warrant under some circumstances• Can stop drivers observed committing traffic violations• May seize evidence in plain view, search any place within reach or control

of vehicle’s occupants• In some cases may also search auto’s trunk without warrant

Pedestrians and Cars Legally speaking, stopping a person considered a seizurePolice can stop someone on basis of reasonable suspicionOnce stopped, police may search person if there is concern for safety of police officer, othersTo arrest, police must be able to show probable cause

Security of Home and Person {continued}

Security of Home and Person {continued}

Electronic Communications• Fourth Amendment protects person’s “papers”• Courts have had to decide if this applies to new means of communication

—telegraph, telephone, Internet• 1928, Olmstead v. United States: wiretapping not illegal search• 1967, Katz v. United States: Court reversed self; wiretapping now requires

probable cause warrant• Post-9/11, USA PATRIOT Act gave law enforcement agencies more

freedom to search telephone, e-mail communications, business, medical, library records

• 2007: parts of act struck down; gave officials too much power to search phone, Internet records without court oversight

• 2005: NSA secret program monitoring communications prompted debate of violations

Testing for Drugs Courts have held private employers have wide freedom to test their workers to discourage illegal drug useGovernments face limits in ability to test their workersCan test employees whose jobs may affect public safety—pilots, drivers

Security of Home and Person {continued}

Testing for Drugs Supreme Court: public school students have fewer Fourth Amendment rights than general populationCourt has ruled school’s need to ensure safe learning environment can override privacy concernsSchool officials may search for drugs, weapons, randomly test student athletes for drugs, require other students participating in extracurricular activities be tested for drugs

Due Process of Law

Substantive Due Process•Substantive due process: concerns whether laws themselves are fair and just•Based on idea that people have rights that cannot be taken away, even by laws passed properly•1873, Slaughterhouse Cases: dissenting opinion became basis for later rulings on due process

Procedural Due Process•Procedural due process: certain procedures must be followed before punishing person•1979, Mackey v. Montrym: state can take away driver’s license if driver refused breath test; penalizing without finding guilty•Getting drunk drivers off road strong enough reason to deny due process

The concept of due process is key to the protections provided by the Bill of Rights. Due process requires that government act fairly and reasonably in accordance with established laws. Due process limits government’s police power, or its ability to regulate behavior for the common good.

• The Constitution protects rights of people accused of crimes, including the right to a fair trial.

• People convicted of crimes also have certain rights. The Constitution prohibits government from imposing excessive fines or cruel and unusual punishments.

Section 4 at a GlanceCrime and Punishment

Protections for the Accused

The U.S. Justice System

Types of Law• Law commonly classified into two categories• Civil law covers private disputes between people over property, relationships• People who violate civil law often fined, otherwise punished, not imprisoned• Criminal law is system for dealing with crimes, punishments• People who violate criminal law may be fined, imprisoned, even executed

The basic freedoms to think and to act as we choose are guarded by the U.S. justice system, which also provides protections for persons accused of crimes and for those convicted of crimes. The justice system seeks fair and impartial outcomes for disputes of all kinds. It follows rules and guidelines to resolve lawsuits, criminal trials, and other disputes.

The U.S. Justice System {continued}

• Criminal Law — Deals with crime, offenses against public

— Crime occurs when person breaks local, state, federal law — Misdemeanor crimes, relatively minor offense; traffic, petty

theft — Felony crimes, more serious; murder, sexual assault, grand theft• Criminal Case Processes — 5th Amendment guarantee: cannot face trial for most federal

crimes without first facing grand jury — Grand jury decides if enough evidence to charge person with

crime — Issues formal complaint, indictment

— Accused arrested, taken into custody — Pretrial hearings

— Plea entered

The U.S. Justice System {continued}

• Criminal Case Processes (cont’d.) — Bail—money pledged by accused as guarantee he/she will return

for trial—may be set

— Plea bargain may be reached — If trial proceeds, complex process begins• Jury Trial — Jury selection comes first

— Prosecution and defense each offer evidence, witnesses — Judge or jury decides case

— Either side may appeal decision to higher court — If defendant found guilty, sentencing takes place at separate

hearing — Sentences depend on severity of crime: probation, prison time, capital punishment—punishment by death—most severe

sentence

Rights of the Accused

Habeas Corpus• Writ of habeas corpus, legal order requiring imprisoned person to be

brought before court so judge may determine whether or not imprisonment is legal

• Important protection against government abusing police power• Has received much attention in aftermath of 9/11• Many suspected terrorists held several years after capture with no formal

hearing, judicial process• 2004, Hamdi v. Rumsfeld and Rasul v. Bush: unlawful enemy combatants

do have limited rights to challenge imprisonment• 2006: Congress passed law establishing tribunal system

In our justice system, we presume that people accused of crimes are innocent until proven guilty beyond a reasonable doubt. Balancing the rights of the accused with the need to protect society from criminals is a major challenge.

Rights of the Accused {continued}

Self-Incrimination• Fifth Amendment protects accused from witnessing against him/herself• Protection covers any government proceeding that might lead to criminal

charges; covers only spoken testimony• Government can get people to testify against selves by granting immunity• 1966, Miranda v. Arizona: questioning suspects without giving right to consult

with attorney violates Fifth Amendment

Habeas Corpus• Fifth Amendment includes guarantee people cannot be tried for most

federal crimes without first being indicted by grand jury• Some states do not have grand jury system• Criminal charges brought by prosecutor in an information

Rights of the Accused {continued}

Bail• Eighth Amendment: “excessive bail

shall not be required”• Not all must be allowed to post bail• Some charged with crimes like

murder not allowed to post bail

Bills of Attainder• Bill of attainder declares person

guilty; takes away right to trial• Constitutionally prohibited from

being passed by states, Congress as violation of separation of powers

Ex Post Facto Laws• Ex post facto laws apply to events

in past; outlawed by Constitution• If not prohibited, such laws would

make it possible to punish person for actions legal at time committed

Victims’ Rights • Some feel Constitution does not

sufficiently protect victims of crimes

• Victims’ rights laws defend right to be treated with fairness, respect; be present at court proceedings, informed of outcome of trial

Landmark Supreme Court Cases Miranda v. Arizona (1966)

Why It Matters: Miranda v. Arizona protects the rights of criminal suspects during police interrogations. Suspects in police custody must be informed of their rights before questioning.

Punishment

The Constitution includes protections for those convicted of crimes. The Framers were anxious to protect the American people from possible abuse of government powers.

• Excessive Fines — Eighth Amendment: prohibits government from imposing

excessive fines — Limit applies only to government, not jury awards in civil cases• Cruel and Unusual Punishments — Eighth Amendment bans cruel and unusual punishments

— Supreme Court has never defined “cruel and unusual” — Debate has figured into numerous cases involving death penalty

Punishment {continued}

• 1972, Furman v. Georgia• 1976, Gregg v. Georgia• Most states allow death penalty• Many Americans concerned about

how fairly penalty is applied• New technology has helped prove

innocence of some convicted criminals

Capital Punishment•Death penalty practiced at time Bill of Rights written•Supreme Court has consistently ruled capital punishment constitutional•Number of crimes for which capital punishment applied reduced•Court focused on just application of penalty

Lethal injection has become the subject of controversy, particularly over whether or not it constitutes cruel and unusual punishment.

Vocabulary

Probable Cause The strong likelihood that a search would find evidence of a crime

Search Warrant A document that gives police legal authority to search private property

Exclusionary Rule the rule that evidence obtained illegally may not be used against a person in court

Police Power the government’s ability to regulate behavior for the common good

Procedural Due Process

legal expectation that government follow certain procedures before punishing a person

Substantive Due Process

legal expectation that laws are fair and just

Civil Law category of law that covers private disputes between people over property and relationships

Criminal Law category of law that deals with crimes and their punishments

Indictment a formal complaint of criminal wrongdoing issued by a grand jury

Bail money pledged by the accused as a guarantee that he or she will return to court for trial

Vocabulary

Capital Punishments Punishment by death

Miranda Warnings A list of certain constitutional rights possessed by those accused of crimes

Bench Trial A trial in which the judge alone hears and decides a case

Double Jeopardy Restriction on trying a person twice for the same offense