Chapter 4
DUE PROCESS
INTRODUCTION
CRIMINAL PROCEDURE
Feeley, Malcolm M. The Process is the Punishment (1979)
Plea Bargains…in the Shadow
Santobello v. New York (1971)
Pre-Trial
Rochin v. California (1952); Mapp v. Ohio (1961); Terry v. Ohio (1968); United States v. Ross (1982); Arizona v. Hicks (1987); Katz v. United States (1967)
Trial
Powell v. Alabama (1932); Gideon v. Wainwright (1964); Escobedo v. Illinois (1964); Miranda v. Arizona (1966); Georgia v. McCullum (1992)
Post-Trial
Trop v. Dulles (1958); Gregg v. Georgia (1976); McClesky v. Kemp (1987)
Baldus, David, George Woodworth, Charles Pulaski, Jr. Equal Justice and the Death Penalty (1990).
Rummel v. Estelle (1980); Johnson v. Texas (1993); Dawson v. Delaware (1991)
Scheingold, Stuart A. The Politics of Street Crime (1991).
Chapter 4
DUE PROCESS
INTRODUCTION
Due process of law, as applying to the federal government in the Fifth Amendment and to state governments in the Fourteenth Amendment, is a set of procedures that these authorities must follow in order to secure consistency and fairness in its treatment of all American citizens. Thus, “No person shall be…deprived of life, liberty, or property without due process of law.” A guarantee of procedural due process does not necessarily prohibit the government from depriving a person of these things—but assures that certain standards will be applied in doing so.
The rights that Americans possess when they are threatened by the government can be traced back to twelfth century England. Early sovereigns offered new forms of justice and promised superior procedures for settling disputes, as a way of consolidating authority over their kingdoms. The enticement to loyalty was an alternative to private mechanisms for settling disagreements that had a propensity to degenerate into feuding and bloody acts of vengeance. The procedural guarantees that evolved from the law, as applied in the King's courts, were given a boost in the Magna Carta of 1205. There, the King himself was constrained by the promise of due process. The fundamental right of due process in the United States first extended royal authority and then limited the way that authority was exercised. Constitutional due process is "...ingrained in our national traditions and is designed to maintain them," Justice Felix Frankfurter said in Anti Fascist Refugee Committee v. McGrath (1951). Reflecting its heritage, this constitutional right has a dual nature.
Though social scientists have questioned how well due process works, its two functions are to determine truth and show respect to individuals. When both functions do work, Americans identify with the system; when they do not, Americans are distrustful and suspicious. The forerunners of conventional procedures, mechanisms such as dunking and trial by combat, seem bizarre to citizens living in a liberal democratic state today. They do not conform to either acceptable methods for determining truth or the ways in which we conventionally show respect for individuals. The shift to scientific standards of inquiry and Renaissance humanism supports and explains what is generally thought to be appropriate and fair. Increasingly, however, these standards themselves appear odd to many Americans.
Due process rights find doctrinal footing in the Bill of Rights. That document, along with the Declaration of Independence, reflects a commitment to human dignity that was at its height around the founding of the American Republic. Indeed, the system of authority that supports the government depends on conformity with accepted practice. The requirements are so deeply embedded in procedural guarantees that they sometimes require participation on the part of the citizen that he or she might prefer to forfeit. Regardless of whether or not a person desires to appear at trial, for instance, the process requires it. Judges have bound and gagged defendants in order to satisfy this requirement, thereby defeating part of the purpose. Generally, however, the rights associated with due process are protections that serve the interests of defendants, as well as the state.
The standards for due process reveal a concern for humanity that goes beyond science and is sometimes at odds with the expectation that the process should result in a "true” determination. The procedures were not developed with only pursuit of truth in mind. The robust, uncompromising model, which is idealized as critical inquiry and associated with scientific investigation, is often a challenge to the due process model, which is concerned with the rights of the individual. Legal guilt is a compromise between the competing claims of a humanitarian exercise of authority and the expectation that truth will win out. But with such mechanisms as prohibitions against searches and seizures, the rules of evidence, and double jeopardy, the government gives up some of its truth determining capacities in favor of protection for the defendant. Nevertheless, the model holds that an exchange between interested parties with determination by a neutral judge will produce a result that is not too far from our idea of the truth.
The significance of procedural guarantees is reflected in the eloquence of the rhetoric it has elicited. Justice Benjamin Curtis's discussion in Murray's Lessee v. Hoboken Land and Improvement Co. (1855) is an early example. In his opinion, Curtis developed the meaning of the Fifth Amendment in terms of the tradition of the Magna Carta. "The law of the land," he observed, indicates the importance of safeguards both general and specific. In approaching the idea, he looked first at the Constitution to determine whether any particular process is "...in conflict with any of its provisions..." and "if this not be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England." The process that Curtis held up to the measure of settled usages is that no summary proceeding could be carried out without the person in jeopardy being given the opportunity to "show himself to be acquitted." This is the general justification for procedures that are not always explicitly delineated in the Constitution and the Bill of Rights.
Justice Benjamin Cardozo's 1937 discussion of how the Bill of Rights protections should be made applicable to the states is another expression of due process standards. Cardozo's view, in Palko v. Connecticut (1937), was that only protection which was "implicit in the concept of ordered liberty" would be applied to the states. In this case, the issue was whether appeal of a sentence by the prosecution was a violation of double jeopardy. By this formulation, the justice evoked the image of a meaningful tradition that would serve as guide in specific cases. In Palko's unfortunate case, however, it may be that the very grandness of the principles "...at the base of all our civil and political institutions" made it hard to see their specific application and allowed Connecticut prosecutors to try him again for a capital offense. Thus, the Court did not at that time “incorporate” the protection against double jeopardy into the Fourteenth Amendment’s Due Process Clause; the states were not yet bound to uphold that right (this occurred in Benton v. Maryland in 1969). This case is remembered for its contribution to the ideology of due process and not for the outcome.
Perhaps the classic argument for due process in the constitutional setting came in a concurrence by Justice Felix Frankfurter in Anti Fascist Refugee Committee v. McGrath (1951). The Committee, one of the Cold War's casualties, had been designated "communist" without notice, justification, or the chance to confront the evidence, without, as Frankfurter argued, the fundamental fairness that is due process. "Fairness of procedure,” he said in the opinion, is "due process in the primary sense." He summarizes the twin functions of due process with his characteristic precision.
No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it. Nor has a better way been found for generating the feeling, so important to a popular government, that justice has been done.
Thus, at the height of national paranoia over a communist threat, the pursuit of truth and respect for the individual combined to preserve due process from the passions of the moment. In such times, grand statements remind us that the fundamental principles of the Constitution that protect citizens against arbitrary action by the government need to be invoked.
Procedural due process, perhaps more than any of the civil liberties, depends on context for a determination of what is appropriate. Originally associated primarily with the criminal sanction, the idea expanded as the functions of government grew. Attention to this historical context is part of the following analysis. Americans may now call for procedural fairness in schools, prisons, and welfare agencies, as well as courts. In this chapter we focus our discussion on criminal procedure because the specifics are most fully developed in the area of criminal law. You will see that the constraints on prosecution epitomize the promise of due process. We then turn our attention to the less fully developed due process protections concerning civil deprivations. Although the substance of civil due process is comparatively less well defined, expansion of procedural guarantees in this area affects far more people than criminal procedure. We will conclude with a discussion of how both criminal and civil due process contribute to the legitimacy of the government.
Criminal Procedure
The power of the government to maintain order through the criminal law is a function long established in the liberal state. Criminal procedure thus antedates modern protections individuals have when they are faced with some kind of depervating actions by authorities. Well before the government provided student loans, food stamps, or social security benefits, people were brought to trial for breaches of the peace. The trial process invoked in such instances stemmed from respect for fundamental rights, which is at the heart of the constitutional tradition. The "deep structure" of criminal procedure is found in the Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution the core of the Bill of Rights (see Table 1).
Table 1 Constitutional Criminal Procedure
_________________________________________________________________
4th 5th 6th 8th
Amendment Amendment Amendment Amendment
_________________________________________________________________
Search and Indictment Speedy trial No excessive
seizure Double jeopardy Impartial bail or fines
(exclusionary Self incrimination jury No cruel or
rule) Due process Information unusual
Confrontation punishment
Counsel
_________________________________________________________________
The process begun by the police, carried out by the prosecutor, and concluded by the judiciary has three main stages: 1) the period prior to trial when the investigation, arrest, and initial appearance before a magistrate take place; 2) the period of the trial, including the selection of a jury and the evidentiary matters that constitute the business of the trial; and 3) the appellate process. Looked at as a flow of the case through its various stages (see Table 1), the process takes its structure from the constitutional protections in the Bill of Rights. These protections shape the criminal process and, in substance, they are evident in the actual operation of the system. The motivating force behind prosecution may be "crime control" in which "repression of criminal conduct is by far the most important function to be performed" (Packer, 1964: 158). The manner in which this takes place, however, is conditioned by the need to maintain respect for individuals' rights and to secure the integrity of the legal system. The result is a liberal "due process model" that serves to control crime control and maintain order over the long run.
Bargains in the Shadow
Before developing the elaborate guarantees that express constitutional protection in the criminal process, it is essential to explore one rather large exception to the due process model because most cases never go to trial. The exception is the "plea bargain," an arrangement between the prosecutor and the accused for a plea of guilty in exchange for concessions in the charge and sentencing. In most jurisdictions, around 90 percent of criminal cases are handled this way. Given this situation, it is crucial to consider whether constitutional protections have an effect on pleas. We begin with the legal status of the plea bargain and conclude with attention to research that explores whether the bargain is conditioned by the procedural setting.
Plea bargaining or "trading out," the disposition of criminal cases short of trial, is not new. References to plea bargaining appeared in United States v. Ford (1898) where the Supreme Court ruled that the government was without authority to negotiate a plea. Subsequently, the Court held that the negotiated plea "...is itself a conviction; nothing remains but to give judgment and determine punishment" (Kercheval v. United States, 1947). Yet, it has only been since the due process revolution of the 1960s that the justices have brought the practice under the umbrella of constitutional legitimacy. About twenty years ago they recognized plea bargaining as “a viable practice accepted as a legitimate component in the administration of criminal justice" (Blackledge v. Allison, 1977:1630). Plea bargaining is now a central practice in the administration of justice for several reasons. Some argue that heavy caseloads force courts to pressure defendants to avoid trials there are simply not enough resources allocated to the criminal justice system to be able to try all those accused of crime. Others, who have studied plea bargaining, suggest that caseload alone is not the key explanation for plea bargaining (Heumann, 1978; Mather 1975; Feeley, 1979a). They note that even in low caseload jurisdictions, defendants plead guilty to get the "best deal."
The Supreme Court began to supervise plea bargaining in the early 1970’s, holding that due process requires a negotiated plea be given voluntarily and knowingly (McCarthy v. United States, 1970). The Court also requires a judge not to accept a plea of guilty unless he or she is satisfied that the plea had some factual basis that it is at least partially true. Such "satisfaction" means that the judge confronts the defendant rather than "a silent record." Some in the legal community suspected abuse of defendants' rights in the informal process of negotiation and called for greater formality, uniformity (Michelman, 1969), and active judicial supervision of the plea bargaining process. Others, such as politically conservative justices, have been more concerned about enhancing efficiency in the criminal process and hence less supportive of efforts to formalize the plea bargaining process. Consequently, with the Court today dominated by politically conservative justices, it is reluctant to upset negotiated pleas (Conlyn, 1973), yet it remains attentive to the practice.
In Brady v. United States (1970) and the two cases decided along with it (McMann v. Richardson; Parker v. North Carolina), the Court heard appeals from defendants who claimed that they had not pled guilty voluntarily. Charged with kidnaping, Brady faced the death penalty. He felt this was a coercive element influencing his plea of guilty to a lesser charge. The justices considered the circumstances and held that since Brady's co defendant was about to testify against him it was to his advantage to plead guilty. The Court begins to treat the plea as a practice that should be supervised but not prohibited altogether. In Parker v. North Carolina (1970), a black man tried to have his indictment declared invalid after he had pled guilty because blacks were excluded from the grand jury that indicted him. Under North Carolina law, an objection to the composition of the grand jury must be raised prior to the entry of the guilty plea, so the Court ignored Parker's plea. This outcome was attested to in McMann v. Richardson (1970), in which defendants were unable to challenge the voluntariness of their confessions because they had already pled guilty. Although the Court had actually limited the admissibility of confessions after the defendants in this case pled, they were not allowed to take advantage of the change. In dissent, Justice William Brennan lamented this extreme commitment to the sanctity of the plea. In Tollett v. Henderson (1973), the Court summarized its position that "the voluntary plea insulates prior constitutional defects" from appellate review.
Santobello v. New York (1971) set the parameters for a policy of judicial deferral in matters of substance, with reinforcement of due process. The Court held the plea bargain to be "an essential component of the administration of justice" that was to be "encouraged" (Santobello, 1971:260). The appeal involved a broken agreement, and the majority sent the case back to the state to determine whether the agreement should be enforced or whether the plea could be withdrawn. They held that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of an inducement or consideration, such promise must be fulfilled" (Santobello, 1971:262). In 1977, a conviction was again overturned where the courts failed to keep adequate records of the plea and the sentencing promise (Blackledge v. Allison, 1977). Here, concern for the finality of the plea is ultimately preserved by cognizance of the bargain. That same year, the Supreme Court let stand a circuit ruling requiring a federal trial judge to accept a bargain even where he had not felt it was "in the best interests of justice" (Woodruff v. U.S., 1977).
Prosecutorial attempts to increase the charges after a refusal to plead guilty are considered vindictive (North Carolina v. Pearce, 1969; Blackledge v. Perry, 1974). But when the "bargaining" environment is accepted as part of the process in Bordenkircher v. Hayes (1978), greater freedom is granted to the prosecutor. In this case, the prosecutor added a repeat offender charge to a misdemeanor offense, increasing the sentence to life. The give and take, with the prosecutor giving threats and defendant taking what he could get, is constitutionally recognized as consistent with the due process clause of the Fourteenth Amendment. The justices treat the bargain much as the law treats contracts, with little attention to the substance of the arrangement. Having set these parameters, the Supreme Court keeps its distance from the process. When the Eighth Circuit ordered a district judge to issue another sentence in accordance with a plea agreement because he had added a requirement of restitution that was not in the original agreement, the Supreme Court declined to review the decision (Runck v. U.S., 1980). Constitutional requirements of due process can be satisfied without review of the context or attention to whether the defendant got a sentence comparable to what he would have received if he had gone to trial.
However, constitutional law on plea bargain agreements is complex because of the social circumstances that gave rise to them and the legal implications that follow the bargain itself. While the courts have articulated some basic principles on plea bargaining, the circumstances in which bargains are made and the effects of such bargains on access to subsequent legal proceedings raise more legal questions about the scope of defendants’ rights once they enter into a plea bargain. In Keeney v. Tamayo Reyes (1992), for example, language translation was required in order to make the plea bargain in English “knowing and intelligent” to a Cuban immigrant who spoke Spanish. Social circumstances thus required that the plea bargain made in one language be adequately translated into another language in order for it to be meaningful to the Spanish speaking defendant. The defendant in this case alleged after he pled no contest to a murder charge, as a result of a plea bargain, that the translation was so poor that he did not fully understand the implications of his agreement. One of the legal implications to having pled no contest in this case, which Tamayo Reyes would later discover after going to the U.S. Supreme Court, was that he forfeited the opportunity for direct federal habeas corpus review. Indeed, on appeal to the Supreme Court, Tamayo Reyes’ claim got embroiled in a different constitutional debate, one that has recently divided the Court the scope of federal habeas corpus review.
Five members of the Court agreed with Justice White that Tamayo Reyes did not have the opportunity to federal habeas corpus review because his lawyer failed to present important facts in the state court proceeding. In their attempt to restrict the scope of federal habeas corpus law, the majority concluded that Tamayo Reyes was entitled to a federal evidentiary hearing only "if he can show cause for his failure to develop the facts in the state court proceedings and actual prejudice resulting from that failure." Four members joined Justice O'Connor's dissent in which she emphasized the inadequacies of the state court post conviction hearing. Citing the lower court record she notes that Tamayo Reyes’ attorney "did not ask him whether his interpreter had translated manslaughter for him. Counsel instead introduced the deposition testimony of the interpreter, who admitted that he had translated manslaughter only as less than murder." O'Connor argued that the defendant did not purposively fail to make this claim in the state court proceeding and therefore according to Townsend v. Sain (1963), he should not have his right cut off to prove his claim in a federal hearing. At issue in this case is how much access defendants will have to federal review of state court convictions. If they must show cause and demonstrate actual prejudice before they can get into federal court, as the majority requires, then their rights to federal review are in the hands of state courts. The dissenters argue that this is an undo burden on defendants' rights and that in fact these are the very issues that defendants seek to present in federal courts. Yet it is important from a sociological perspective to understand how constitutional law is made to pay attention to the context in which scope of access to review is debated and determined. For Tamayo Reyes it was his involvement with an English plea bargain that set off a chain of events leading to restrictions on access to subsequent legal proceedings.
Two perspectives govern the plea bargain process and the literature on it. The first is that most defendants plead guilty prior to trial because most defendants are guilty (Heumann, 1978), and the second is that because not going to trial saves the expense and time of a trial, the bargain should be weighted in favor of the accused (Haney and Lowy, 1979). There is little in the massive literature on plea bargaining about the significance of the legal environment for the plea, that is, the possibility that the defendant would have been acquitted if the case had gone to trial (Feeley, 1979a). Thus, in a great deal of criminal justice literature, the premise is that criminals plead guilty and defendants go to trial. This perspective is particularly evident in the appellate process, where the admission of guilt stops the review of evidentiary matters and cuts off the possibility that errors in the state's case would show up a trial (Tollett v. Henderson, 1973). While Malcolm M. Feeley has argued that "vigorous negotiations between defense and prosecution often appeal to 'the law' and take place 'as if' they were being umpired by a judge" (1979b:13), the judge plays a minimal role in crafting the substance of the deal. Others, such as Abraham Blumberg (1967), write of another sobering possibility—a disappearance of the adversary process. In his study, he finds that the defense lawyer’s straddling the roles of “officer of the court” as well as of confidante of the accused serves both sides as opposed to just that of the defendant. Within the “closed community” of the court, the accused’s lawyer has greater professional, organizational, economic, and intellectual ties to the others within the court system—with whom he is supposed to have an adversarial relationship—than with his own client (1967:21). As such, he finds, it is overwhelmingly the defense counsel who recommends a plea of guilty (1967: 36). Such findings cast a shadow on the forms to which we now turn.
Pre Trial
The pre trial period begins with the investigation, leads to arrest, and ends with arraignment. During the investigation, the Fourth Amendment protects a citizen against unreasonable searches and seizures. The amendment guarantees that people will be "secure in their persons, houses, papers, and effects." In contemporary terms, one's "space" will not be violated without cause and the consent of a neutral authority, such as a judge or magistrate. At arrest, the familiar Miranda warnings advising the accused of his or her right to remain silent and right to an attorney further protect the defendant by alerting him/her of his/her rights under the Constitution. The Fifth Amendment sets the parameters for indictment, guarantees that the defendant will not be forced to assist in his own prosecution, and provides assurances that there will be no violation of double jeopardy.
Investigations and Searches. The basic rule in preliminary investigations is that a warrant (i.e., an official authorization for some action), is necessary before a search or seizure takes place. Police officers seeking a warrant must show a disinterested magistrate that there is “probable cause” to believe that the named items will be found. The warrant requirement reflects the due process concern that prior justification exist before the government undertakes a search to collect evidence against an individual. The warrant requirement need not fully operate in every instance in order to have meaning as a constitutional protection, but institutions and even the exceptions develop from it. As with other areas of constitutional law, the exceptions delineate the constitutional right. In the famous case of Rochin v. California (1952), Justice Frankfurter” argued that the meaning of “due process of law” is not “fixed” but dependent on the circumstances of each case. In Rochin, police officers illegally broke into Rochin’s home, jumped on him when he swallowed some capsules that were on his bed side table, and then, against his will, had his stomach pumped in order retrieve the capsules for evidence. The Court unanimously agreed with Justice Frankfurter's opinion that this was "conduct that shocks the conscience" and clearly violates constitutional expectations about due process of law. While certainly the circumstances in every case weigh heavily in judicial interpretations, there are a few general principles that the courts have applied from case to case concerning the constitutionality of criminal searches. However, we warn you that in this area of constitutional law there are perhaps more exceptions to the rule than there are rules.
There are six major exceptions to the basic warrant requirement: (1) consent, where an individual has agreed to let the police search; (2) non testimonial personal evidence, such as lineups and fingerprints; (3) searches provided for by statute; (4) a search subsequent to a valid arrest; (5) volatile situations in which police officers in the field are suspicious based on their claim of expertise and the particular situation; and (6) searches of automobiles. The first two of these exceptions are rather basic to the law in this area and therefore do not require much elaboration. If a person freely and voluntarily grants officials permission to search an area, no warrant is required. The only issue is whether that person has the authority to grant permission for a search. The Supreme Court has addressed this question in a few cases (Stoner v. California, 1964 and U.S. v. Matlock, 1974) and held that consent should be obtained from the suspect or the person who occupies the property (e.g., the owner or renter), not by a third party (e.g., employee, landlord or house quest). Police do not need a warrant if they are seeking to obtain "non testimonial" evidence, such as identification and fingerprints (on the related issue of blood alcohol tests, see South Dakota v. Neville, 1983).
Searches Provided for by Statute
Statutory exemptions from the Constitution’s warrant requirement include searches such as those at borders to minimize the spread of insects and disease. Some wiretaps also fall into this category (see Biswell, 1972; U.S. v. Giordano, 1974). Statutory exemptions are laws passed by legislatures exempting certain people from needing to use a warrant, due to various reasons of public safety. Warrantless searches authorized by special circumstances or statutory provision became the focus of extensive attention in 1983. The Court struggled with the constitutional questions surrounding a “drug courier profile” used by narcotics agents to pick out likely suspects at airports. The ruling was that even where an agent is justified in intercepting the passenger, the suspicion does not provide a basis for more prolonged interrogation (Florida v. Royer, 1983). This is at the margin of the warrant requirement. In another case dealing with contraband, customs officials were allowed to make random inspections of ships on inland waterways without any suspicion that a crime was being committed (U.S. v. Villamonte Marquez, 1983). The use of random inspections has been a way of getting around the requirement that individuals be protected from the arbitrary use of legal authority. Finally, also along these lines, the Court held that exposure of luggage to a drug sniffing dog is not a “search” and requires no previous suspicion of wrongdoing (U.S. v. Place, 1983). The political effects of the Court’s rulings in these cases weigh heavily towards law enforcement over the rights of the accused.
Searches Subsequent to a Valid Arrest
The courts have delineated the right to search connected to arrest. From these decisions comes the doctrine of plain view (Chimel v. California, 1969; Coolidge v. New Hampshire, 1971). This means that what the police see while searching during (or incident) to an arrest can be used in a trial. In Coolidge, the Court said that under certain circumstances, warrantless seizures by police of an item that comes within plain view during a lawful search of a private area may be reasonable under the Fourth Amendment. However, if the police have less than probable cause (i.e., reasonable suspicion) to believe that the item in question is evidence of a crime, they may not seize evidence under the plain view exception to the warrant requirement (Arizona v. Hicks, 1987).
Another delineation of the bounds of warrantless searches came in the case of Warden v. Hayden (1967)—the judges made an exception for searches conducted during “hot pursuit” of a suspect. Hayden had committed a robbery and fled on foot to his apartment, where he pretended to be asleep when police arrived immediately. Entering his apartment, they found a gun and the clothes witnesses had described him as wearing. This evidence was admitted because of the notion that police had probable cause to believe Hayden committed the crime and could possibly endanger other lives.
Volatile Situations
According to the Supreme Court’s interpretation of the Fourth Amendment, the police have the right to search, or at least “stop and frisk,” under such circumstances (Terry v. Ohio, 1968; Penn v. Jones, 1978). In the landmark Terry, a veteran police officer had observed two men walking up and down a particular block, stopping to look in the same store window numerous times. Suspecting them of casing the store to rob it, he approached them, identified himself as a police officer, patted them down, and found that two of the men had guns in their coats. Arrested on concealed weapons charges, these men challenged the search for lack of probable cause. The Court held that police officers have a right to “stop and frisk” people when they believe lives are in danger, “Where a police officer observes unusual conduct which leads him to conclude in light of his experience that criminal activity may be afoot and that the persons … may be armed and presently dangerous … he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.” Only Justice Douglas dissented, arguing that no search could be reasonable if probable cause were lacking.
Douglas may have been anticipating that police might use such searches to find types of evidence other than weapons. A 1993 case, Minnesota v. Dickerson, saw police stopping and frisking a man who was leaving a known crack house, and finding a package of the drug on him. The Court found this search to be overstepping the bounds of Terry, which clearly permitted such searches only for weapons. It can be possible however, for police to get around such a rule; for instance, they can testify that during a stop and frisk, the evidence fell out of the defendant’s clothes and into their sight—the “plain view” exception.
The scope of police discretion thus rests on the “good faith” standard. In U.S. v. Leon (1984), the Court made this an exception to the general rule that police can only search with probable cause—in this case there had been no probable cause for the warrant to have been issued by the magistrate, but the Court held that the warrant itself was mistaken, not the police in carrying it out. Thus, if the police in good faith believed the warrant to be valid, the search was permissible. While magistrate error is probably infrequent, the standard handed down in Leon is an important one.
Searches of Automobiles
The potential conflicts in police work between apprehending suspects and protecting individual rights are perhaps most acute in automobiles searches. Since Carroll v. U.S. (1925), the Supreme Court has not required a warrant to search an automobile on the theory that it is impractical to secure a warrant and preserve evidence which is in transit. In Carroll, as chief Justice Taft carved out the “automobile exception” to the 4th Amendment warrant requirement, he argued that individual privacy considerations would still be protected by requirement, he argued that individual privacy considerations would still be protected by requiring police to demonstrate that they had probable cause to believe contraband was inside the vehicle. The scope of this exception has increased substantially during the 1980s, following the general trend of search and seizure doctrine. Specifically, the relative weight given to the core elements of the automobile exception has shifted in many cases to favor governmental interests (police safety and preservation of evidence) over individual freedom from unwarranted intrusions (warrantless search and seizure). Indeed, it can be argued that the courts have abandoned the “balancing test” (government interests versus individual privacy interests) in this area altogether. In United States v. Ross (1982), the Supreme Court ruled that the minimum probable cause standard applied to searching containers found in automobiles and that the authority to determine probable cause rests in the hands of the police rather than the magistrate. In California v. Carney (1985), the Court held that mobile homes traveling on a public highway were not be excluded from the automobile exception. Both cases exemplify how the Court has moved away from Chief Justice Taft’s earlier concern with the inherent mobility of automobiles to the view that individuals have limited expectations of privacy in their automobiles.
Another example of the Court’s move in this direction in the 1980s is New York v. Belton (1981). In this case six members of the Supreme Court agreed to expand the constitutionally permissible scope of a warrantless automobile search incident to a lawful custodial arrest. The circumstances here are similar in many automobile search cases: After the occupants, who were stopped for speeding, got out of the car and were arrested, a policeman searched the back seat of the car, found a jacket belonging to Belton, unzipped one of the pockets and discovered cocaine. At his trial, Belton moved to suppress admission of the cocaine, arguing that it had been seized in violation of the Fourth and Fourteenth Amendments. Writing for the majority, Justice Stewart argued that to guide police officers it was necessary to adopt a “single familiar standard” and that such a standard had been articulated in Chimel v. California (1969) a case dealing with the scope of a search incident to a lawful arrest not involving an automobile search. In Chimel, the Court said that a lawful custodial arrest justifies a search of the immediately surrounding areas without a warrant. Justice Stewart reasoned that because the jacket was located inside the car where Belton had been just before his arrest, the jacket was "within the arrestee’s immediate control" (even though Belton and his companions were no longer in or near the automobile).
The dissenting justices disputed this interpretation of Chimel, arguing that its policy justifications for a warrantless search (i.e., to insure the safety of the arresting officer and to prevent evidence from being concealed or destroyed) were narrow and inconsistent with the latitude given police officers in this case. The issue in Chimel was "not whether the arrestee could ever have reached the area that was searched, but whether he could have reached it at the time of the arrest and search."
To what extent can the automobile exception to the warrant requirement of the Fourth Amendment justify warrantless searches of containers that are placed in automobiles? The Supreme Court first addressed this issue in United States v. Chadwick (1977). Speaking for a unanimous court, Chief Justice Burger said the mere fact that a footlocker, which police officers had probable cause to believe contained narcotics, was placed in the trunk of a car did not render the automobile exception applicable. The Court reaffirmed the general principle that closed packages and containers may not be searched without a warrant because a person's expectation of privacy in personal luggage is substantially greater than in an automobile.
Not all police suspicions are directed at a specific container, however. In Robbins v. California (1981), a companion case to New York v. Belton (1981), a plurality of the Court invalidated the warrantless search of a closed package found in a car trunk. Only after the driver of the automobile, Robbins, was placed in the police car did the officers search the trunk of his car and discover two packages wrapped in green plastic. The police opened the packages and found marijuana inside. Justice Stewart said that unless the contents of such a package were in plain view, it could not be searched without a warrant.
The rationale of Robbins was abandoned a year later in United States v. Ross (1982). Acting on a tip from a reliable informant that a certain person, Bandit, was selling drugs from the trunk of his purplish maroon Chevrolet Malibu, District of Columbia police stopped the car and arrested the driver. In the trunk they found a closed brown paper bag which contained a white powder later determined to be heroin. At headquarters another search of the trunk revealed a zipped red leather pouch containing cash. The respondent’s motion to suppress the evidence was denied and he was convicted of possession of heroin with intent to distribute.
Justice Stevens, writing for six members of the Court, held that police may search compartments and containers within the vehicle even though the contents are not in plain view as long as that search is based on probable cause. Stevens said that the "practical consequences of the [automobile exception] would be largely nullified if the permissible scope of a warrantless search of an automobile did not include containers and packages found inside the vehicle." The Court's holding in Ross broadens the automobile exception established in Carroll v. United States (1925). Ross not only holds the automobile exception to the minimum probable cause standard for searching containers, but effectively places the power to determine probable cause in the hands of the police rather than a magistrate.
Some observers maintain that with the retirement of Justice Stewart, who wrote both majority opinions in Belton and Robbins, and the appointment of Justice O’Connor to the Court, the controversy on warrantless container searches may be coming to a close. Police now may conduct warrantless searches of containers discovered in an automobile incident to an arrest and must only demonstrate that they had probable cause to believe contraband was located somewhere in the car. In theory, only when police have specific information that a particular container, such as a briefcase, contains contraband they are required to obtain a warrant, as held in Robbins v. California. Since police have been granted the power in Ross to carry out warrantless searches of automobiles and containers therein as long as they have some probable cause, it is unlikely that they would find it necessary to get a warrant to search a particular container located in an automobile.
Justice Marshall's dissent in Ross, joined by Justice Brennan and agreed with by Justice White, takes issue with the idea that a police officer should have the same power as a magistrate to determine probable cause. He argued that the majority's opinion “takes a first step toward an unprecedented probable cause exception to the warrant requirement.” Indeed it may well have been, however, the expansion of warrantless car searches slowed with the Court’s decision in Arizona v. Hicks (1987). Justice Scalia, for a six member majority, argued that the “plain view” exception to the Fourth Amendment warrant requirement could not be justified on less than a probable cause standard.
In addition to these exceptions to the warrant requirement, it is important for students of politics to know that there have been many efforts, though unsuccessful in part to get around the constitutional requirement. For example, in U.S. v U.S. District Court (1972), the justices rejected a claim by President Richard Nixon that he had an inherent power in domestic security cases to order wiretaps without a warrant, and the Court also turned down the president’s claim that warrantless wiretaps had been authorized by the Omnibus Crime Act of 1968. Due to the special circumstances surrounding President Nixon's status, and his considerable involvement in the use of national security wiretaps, Nixon had asked the courts to protect him from personal liability for damages stemming from a warrantless wiretap ordered while he was in office. The tap, on the home telephone of National Security Council staff member Morton Halperin, lasted twenty-one months and was part of the White House effort to stop information leaks. The district court ruled that the President and his top aides had violated Halperin’s constitutional rights. The court of appeals rejected the damage award and found the federal wiretap statute to apply. An equally divided Supreme Court, with Justice William Rehnquist not participating, left the court of appeal’s ruling intact (Kissinger v. Halperin, 1981).
In a case appealed to the Supreme Court by the American Civil Liberties Union on behalf of a Michigan lawyer, the justices refused to review a ruling from the Sixth Circuit Court of Appeals which allowed the National Security Agency to furnish summaries of telegrams to the FBI. The agency monitors worldwide electronic communication without warrants and had turned some information it had collected over to the FBI, which was investigating attorney Abdeen Jabara.
This national security exemption thus amounted to domestic surveillance (Jabara v. Webster, 1983). But the distinction between criminal and civil proceedings seems to be more basic than that between agencies. Two 1983 decisions (Sells Engineering v. U.S. and Baggot v. U.S.) restricted the use of grand jury evidence by the Internal Revenue Service, which sought information on back taxes, or by the civil attorneys at the Justice Department, who sought information concerning government damage suits. In the first case, a Navy contractor had pled guilty to conspiring to defraud the government. The Court made it clear, for the first time, that the government was required to obtain a court order to send the records of the grand jury investigation from prosecutors to its civil attorneys. The Internal Revenue Service claimed that the rulings put at risk about $500 million in civil tax cases involving grand jury materials.
The specter of technological intrusion holds a special place as a threat to human autonomy and dignity. The right not to be subject to such intrusions is grounded in the web of constitutional concerns uniting the Fourth and Fifth Amendments to form the penumbras associated with privacy. An exception raising a compelling threat in this regard is that for statutory wiretaps.
The first such wiretap case (Olmstead v. U.S.) came to the Supreme Court in 1928. The Court reasoned that because the wiretap was outside the home and there was no intrusion or physical seizure. A concern for privacy, however, was introduced to the Court through a dissent in this case by Justices Holmes and Brandeis. They argued that protection from warrantless telephone wiretaps was part of the Fourth Amendment. The conjunction of the Fourth and Fifth Amendments, that is, the protection for the individual that came with the Fifth Amendment, lays the foundation, they argued, for a due process protection against warrantless wiretapping. By 1967, in Katz v. U.S., the Court reversed itself and threw out the old requirement that there had to be a trespass and that some physical object had to be seized for constitutional protection to come into play. They extended the safeguards to bugging devices, wiretaps, and other forms of electronic eavesdropping that do not require a trespass or produce a physical object as a result of the investigation.
Ironically, the courts have been more tolerant of warrantless intrusions by paid government informants than they have been of electronic surveillance. One might argue that while both means of gathering information are intrusive, electronic surveillance is less so than the presence of an informant in one's life. However, the courts have upheld the use of informants as an important law enforcement tool. In Hoffa v. United States (1966) a Supreme Court plurality permitted evidence obtained by an undercover informant paid by the government over challenges that the presences of such an informant violated Jimmy Hoffa’s Fourth, Fifth and Sixth Amendment rights. This case is interesting not only because of what Hollywood and the U.S. Justice Department made of Jimmy Hoffa’s life and legacy as a powerful union leader, but it points to the risks in everyday life from which judges believe the Constitution cannot protect people. Hoffa's association with an informant, even though Hoffa did not know he was an informant, was judged to be voluntary and hence outside the scope of protected rights of the accused. Chief Justice Earl Warren was the only member of the Court who opposed the hands off approach to regulating informants. He argued that the motives of an informant and the purposes to which the government uses them should be factors in determining whether the rights of defendants are violated and they are essential for protecting the "integrity of the truth finding process in the federal courts."
Interrogation. Another part of the pre trial investigation takes place while the defendant is in custody. Fifth Amendment protections cover two interrelated aspects of custodial investigation: interrogation and immunity. The right to remain silent during interrogation by state law enforcement officers has been recognized by the Court since Malloy v. Hogan (1964), when the Court incorporated that protection. In the same year, rough treatment of Danny Escobedo by the police in Illinois became the basis for requiring counsel during questioning (Escobedo v. Illinois, 1964). The adversary process was brought into the interrogation room with the Court’s famous decision in Escobedo. Miranda v. Arizona (1966), spells out the implications of these cases wherein the Court announces a series of rules known as "Miranda warnings." These rules require the police to notify an arrested subject of the following: a) that he has the right to remain silent, b) that what he says may be used against him in court, c) that he has a right to counsel, d) that counsel will be provided for him without charge if he cannot afford to pay an attorney, and e) that any information that he gives must be given voluntarily. These warnings came to represent the "due process revolution" of the 1960s in which state governments, who do most of the criminal law enforcement work, became subject to constitutional review of their actions.
Both the rights to remain silent and to obtain counsel stem from the inherent coerciveness of custodial interrogation. The Miranda ruling has been under persistent attack from its inception. Critics argued that it handicapped the police and was lenient on criminals. After over ten years of decisions siding with prosecutors who wanted to use statements obtained without Miranda warnings (e.g., Harris v. NY, 1971; Oregon v. Mathison, 1977), the justices restated the authority of the warning requirement in Estelle v. Smith (1981) and Edwards v. Arizona (1981). In the first case, the Court held that Texas violated the defendant's rights when it admitted into evidence, at the penalty phase of a capital murder trial, testimony based on psychiatric interviews conducted without Miranda warnings. In the second, the justices held that the police could not initiate any questioning until an attorney had arrived, if the defendant requested counsel. Somewhat weakened, the Miranda ruling has survived because in the end it is not simply a matter of police procedure, but a reflection of the constitutional standards of due process as they bear on criminal justice.
Constitutional respect for the individual during the interrogation process is also evident in the requirement of voluntary confessions. Traditionally a source of guidance in other areas of the criminal process like consent for a warrantless search this area of law raises compelling social and philosophical questions. Modern attention to the meaning of voluntariness, for example arises from Brown v. Mississippi (1936). This case, out of the South, involved the way the arm of the law is laid on African Americans. As reported by Justice Charles Evans Hughes, "...defendants were made to strip and they were laid over chairs and their backs were cut to pieces with a leather strap with buckles on it..." in order to gain a confession (Brown, 1936:282). Subtle issues of voluntariness are hardly relevant in this case, but it serves as the basis for the requirement of freely given consent to confessions. For Justice Felix Frankfurter, twenty years later, the test became whether a confession was "...the product of an essentially free and unconstrained choice by its maker" (Culombe v. Connecticut, 1961). He described a three phased analysis involving "crude historical facts," inferential "psychological" facts, and a combination that became the rule of law. The result he called "an amphibian" because "it purports...to describe an internal psychic state and to characterize that state for legal purposes" (Culombe, 1961:605). Now, the totality of the circumstances provides the basis for determining voluntariness, and the Constitution encourages inquiry into the context of an interrogation. But determining whether a confession has been made voluntarily remains a challenge. The Burger and Rehnquist Courts have been rather generous to the prosecution. For example in Schneckloth v. Busamonte (1973), the Court allowed uninformed consent to stand in a decision that Justice William Brennan argued was "...supported neither by 'linguistics,' nor 'epistemology' nor indeed by 'common sense'.” Yet, verbal assent to a confession by the defendant does not end the constitutional inquiry.
A voluntary confession is a key to the interrogation process must also be understood with reference to the overlay of considerations that stem from due process generally and in particular from the variety of procedural requirements that now constitute acceptable police practices. These range from provisions bearing largely on police conduct, like the Miranda warnings, which provide protection independent of voluntariness, to the provisions for immunity from prosecution, which are for prosecutorial advantage and cancel the Fifth Amendment protections. It was with reference to the issue of Miranda mandated warnings that the Supreme Court offered a definition of interrogation. The issue again involved the coerciveness of the interrogation process. In upholding the conviction of Thomas Innis for armed robbery, over concerns expressed by the Rhode Island Supreme Court for his rights, Justice Potter Stewart and his colleagues in the majority demonstrated very little sensitivity to the protections from coerciveness that had been associated with the interrogation process for two decades. Although not under the glaring lights of the station house, the defendant was tricked into revealing where he had hidden his gun (Rhode Island v. Innis, 1980). He was told that handicapped children in a nearby school might find the weapon and hurt themselves. This was condoned under a definition of interrogation extending "only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response."
Immunity. The Fifth Amendment right not to be compelled to be a witness against oneself does not amount to a right to remain silent—not, at least, since the introduction of prosecutorial immunity. The grant of immunity from criminal prosecution was determined in Ullman v. United States (1956), to satisfy the constitutional requirement against self incrimination while still forcing the defendant to testify under penalty of contempt. The position was upheld in New Jersey v. Portash (1979). Portash was a case in which a municipal official testified before a state grand jury under immunity. He was later charged with misconduct in office and extortion. At the trial, he was told that if he testified, his grand jury testimony would be allowed into evidence to impeach his credibility. He refused to testify and was convicted. On appeal, the Supreme Court held that the testimony could not be used against him and because the reading of the law by the trial court was judged to be wrong a new trial was ordered.
The interpretation of due process which allows for this kind of immunity has particular significance in the context of grand jury investigations where cooperation with the prosecution can be required under penalty of criminal sanctions. The situation is such that if the subject of an investigatory net refuses to testify, he or she can be held in contempt. Along with the immunity provisions, the procedure for contempt circumvents the respect for individual autonomy in relation to the state. However, it even tips the balance expected to characterize the pursuit of truth in that it does not require the prosecutor to prove a case on the basis of evidence.
In addition to the limited reading of the Fifth Amendment protections in the modern period, there has also been an erosion of constitutional protection from self incrimination in another sense. Since the early 1970s, federal and state legislation has limited the scope of the immunity promised in exchange for testimony. This limitation has been in the form of use immunity; it prohibits the use of testimony but does not prevent prosecution in regard to an entire "transaction," that is, the circumstances that surround the testimony. This more limited immunity was upheld by the Supreme Court of Chief Justice Warren Burger soon after the legislation was passed (Kastigar v. U.S., 1972). Thus, the immunity that authorized compelled testimony is more limited than it had been when such compulsion was introduced.
The exclusionary rule is another procedural protection and it links the pre trial period and the trial. This rule stems from the general principle that if the police or prosecution failed to obey the laws governing the criminal process, or have twisted them to their own advantage, the illegal evidence or extra legal procedure cannot be used for a conviction. It has applied in federal courts since 1914 in Weeks v. United States. The rule was made applicable to the states in Mapp v. Ohio (1961), a case in which the police went into the home of Dolree Mapp without a search warrant allegedly in pursuit of a fugitive and used obscene literature they found in her home to convict her of violating an Ohio State obscenity law. To some, the principle of excluding illegally obtained evidence from a trial has represented the sanctity of the due process system; to others, it has represented the system's propensity to "coddle criminals."
The rule has undergone intense scrutiny since the early 1970s when Richard Nixon made his four appointments to the Supreme Court: Justices Burger, Blackman, Powell, and Rehnquist. One of the broadest and most puzzling in constitutional interpretation, from an ordinary observer's point of view, the rule excluding illegally obtained evidence has seemed destined to be excluded itself. Constitutional politics in this area focuses on this issue, while its place in the ideology of constitutional due process is marginal. It is a mechanism for preserving the integrity of the criminal process by excluding illegally obtained evidence and it has been an instrument used by the judiciary to deter unlawful police conduct (Stone v. Powell, 1976). The first goal has a formal rationality to it and the latter is appealing even where it may be ineffective. The rule has been a convention of surprising resiliency in constitutional interpretation. After twenty years of supervision by the justices of the Supreme Court, it appears most subject to dilution where its implications are irrelevant to either of its goals and where the benefit to the defendant is gratuitous. This is the situation with what has been called "good faith exception," (U.S. v. Leon, 1984) in which evidence is acquired in the belief that constitutional standards have been met. The Court has indicated its interest in this question, while reserving "for another day the question whether the exclusionary rule should be modified" (Illinois v. Gates, 1983).
Trial
The Sixth Amendment promises no undue delay in a case being brought to trial, an impartial jury and a public trial, notice of the accusation, and confrontation of witnesses and supporting witnesses by the defendant. This amendment sets the stage for a fair trial. As in the pre trial setting, it is from the Sixth Amendment that specific institutional practices and particular rights emerge. For instance, the requirement of impartiality creates the possibility of a change in the site of the trial (venue), determines how jurors are called (venire), and how they are chosen (voir dire). The right to an impartial jury results in an amalgamation of institutional practices rooted in the constitutional requirement of procedural fairness. The ideal is a combative process balancing the search for truth and respect for the individual. This is epitomized by efforts to have the accused present at trial to confront his or her accusers transcribed testimony will not satisfy the requirement of confrontation (Pointer v. Texas, 1965; Chambers v. Mississippi., 1973).
Knowledge of the accusation, along with the other protections, addresses horrors vividly depicted by Franz Kafka in his book The Trial, where the defendant not only has no opportunity to face his accusers but is not told such simple details as what he has done and the evidence against him. Knowing the charges is a fundamental due process right that reaches back in constitutional history (Connally v. General Construction Co., 1926) and is continually supervised (Rose v. Loche, 1975).
Delay. While the right to a public trial has been upheld by the Court since its decisions in the 1940s and is subject to relatively little controversy, the right to a speedy trial is of more recent vintage and is an issue of considerable legislative as well as judicial controversy. The Constitution's provision was applied to the states in Klopfer v. North Carolina (1967), a case arising out of civil right struggles in which the defendant Peter Klopfer (a professor at Duke University) was tried for participating in a sit in at a segregated restaurant. Klopfer was brought to trial for trespass. The trial was suspended, and Klopfer faced the threat of renewed prosecution at North Carolina's discretion any time it chose. The Supreme Court judged this to be a denial of the speedy trial right, which had already been recognized by most of the other states.
The courts were initially reluctant to specify exactly or "quantify" the length of time allowed by the constitutional provision. Willie Mae Barker's case, however, appears to have stimulated such a quantification of the permissible delay. Initially scheduled in 1958, Barker's trial was postponed eleven times while the prosecution sought a conviction of his partner. Barker objected to the twelfth continuance, which would have brought him to trial five years after he was arrested. Writing for the Court, Justice Lewis Powell did not consider the speedy trial time clock relevant until the defendant objected, which in Barker's case was well after he was arrested (Barker v. Wingo, 1972). The Federal Speedy Trial Act of 1974 was a partial response to this case (Pritchett, 1984:227), and generally, it has been through statutory authority rather than judicial decision that the parameters of access to timely justice have been delineated.
Jury. The right to an impartial jury also protects the individual from governmental oppression; this right is closely associated with due process guarantees. On the federal level and in some states, the accused is entitled to a hearing by a grand jury—the grand jury is responsible for examining the evidence of the prosecutor and determining whether or not there is enough evidence to indict the accused. While the right to a grand jury has not been incorporated to the states, who can devise any means of checking prosecutions in this way, the right to a full trial by jury after a plea of not guilty does apply to the states. Although jury trials are the exception rather than the rule in the criminal process, they set the framework in which more common plea negotiations take place. The jury has long been a subject of judicial commentary. It was first mentioned by the Supreme Court in 1795, when Justice William Paterson wrote that jury trials were protected by the Pennsylvania constitution (Vanhorne's Lessee v. Dorrance, 1795).
The idea of a jury was developed further in 1830 by Justice Joseph Story, who described trial by jury as "...justly dear to the American people" (Parsons v. Bedford, 1830). Writing in his opinion that trial by jury was to be required in all suits that were not of equity or admiralty jurisdiction, Story made clear in this case that the unique role of the jury as finder of facts would limit the range of appellate inquiry into a case. It was also clear before the turn of the century that the jury spoken of in the Constitution was the traditional common law jury (Thompson v. Utah, 1898). What precisely that was, on the other hand, was not fully amplified until well into the twentieth century, when pressure on the traditional jury began to mount.
In Williams v. Florida (1970), Justice Byron White argued that the jury must place itself "between the accused and his accuser." White wrote that the number of people on the jury had to be large enough "...to promote group deliberation from attempts at intimidation, and to provide a fair possibility for obtaining a representative cross section of the community." The common law jury of tradition had been twelve persons strong. It is against this standard, and by using the test suggested by Justice White, that the smaller and allegedly more efficient juries of today are measured. Six has been the lower limit, since Williams; thus, a misdemeanor conviction by a five person jury that reached the Supreme Court in 1978 was reversed (Ballew v. Georgia, 1978). Social science research investigating the nature of the jury process and the question of how large is large enough has contributed to resolution of the constitutional questions (Kalven and Ziesel, 1966; Lempert, 1975).
The traditional jury worked under the requirement of unanimous agreement. This requirement existed for some time in federal courts (Patton v. United States, 1930). The constitutional provision applied in state cases by 1968 (Duncan v. Louisiana). The attack on unanimity came in the early 1970s, when this unique requirement was treated as something of a historical accident. Like size, the unanimity requirement began to be viewed in functional terms as necessary for determining "reasonable doubt" (Johnson v. Louisiana, 1972; Apodaca v. Oregon, 1972). Since the 1970s, fewer persons have been needed for conviction nine or ten on the grounds that having fewer persons would not limit the possibility for assembling a cross section of the community. Dissenting justices, and a number of scholars, have argued that, independent from the common law tradition, majority juries are less sensitive to minority views than unanimous juries. The conflict over what decision matrix is required in order for a jury to convict demonstrates the difficulty of drawing a line since "...it requires attaching different consequences to events which, when they lie near the line, actually differ very little" (Duncan, 1968). But the justices have drawn the line, and in Burch v. Louisiana (1979), they held that a decision by a six person jury that was not unanimous in a petty criminal trial was not constitutional. The majority opinion was by Justice Rehnquist who, while not passionate in his commitment to the common law jury, was not willing to yield the constitutional provision for a jury in favor of the state's interest in saving money and time.
The capacity of the jury to represent the community is also related to the selection process. There, the defendant is protected against bias by the impartiality requirement, by the right to challenge those who would serve, and by how the jury pool is constituted. The make up of the group from which the jury is chosen (pool) must be a cross section of the community, although the Court approved confining jury service to males as late as Strauder v. West Virginia (1880). Women were made eligible later, although in a number of instances, statutory exemptions, such as allowing mothers to stay home with children, made it easy for women to avoid jury service (Hoyt v. Florida, 1961). The Court deemed such exemptions unconstitutional in Duren v. Missouri (1979), for violating a defendant’s right to have his or her case heard by a fair cross-section of the community. In 1935, the "Second Scottsboro Case" (Norris v. Alabama) struck down systematic exclusion of blacks. Concern over racism and more subtle exclusion of minorities was the cutting edge of the impartiality issue until a requirement that the jury represent a cross section of the community was established in 1975 (Taylor v. Louisiana.)
Recently the Court has been asked to look at more subtle ways of discriminating against racial minorities and women than the obvious categorical method of exclusion used in the past. The process of jury selection is premised on an adversarial model, whereby the prosecution an defense are each allotted a set number of peremptory challenges which they may use to remove someone from the jury pool. Peremptory challenges provide a secret opportunity for either side in a trial to exclude people on the basis of their race or gender because the special feature of peremptory challenges is that the attorney does not have to disclose to the judges, or anyone else, why he or she is excluding a particular person. After each side has used up its allotted peremptory challenges, the attorneys must give justification or cause for seeking to remove anyone else from the pool. What is the logic to this process? In strategic terms, peremptory challenges enable each side to both remove potential jurors who they think will not be favorable to their case and remain silent on the fact that they are seeking to select a jury that will be best for their client rather than “fair” in some abstract sense. Because both sides participate in shaping a jury with peremptory challenges, the practice has been accepted as fair.
In a 1992 case, Georgia v. McCollum, the Supreme Court was asked to determine if the state could require a racially neutral explanation for peremptory challenges if the state could first demonstrate that the criminal defendants were planning on exercising peremptory strikes in a racially discriminatory manner. The Court, in the 7 2 opinion by Justice Blackman, accepted this limitation on peremptory challenges. Two members of the majority, Chief Justice Rehnquist and Justice Thomas, concurred only because they were unwilling to unsettle the legal precedent on which Justice Blackman anchored the majority opinion. Had they been willing to challenge the logic of legal precedent in the manner that the two dissenters, Justices O’Connor and Scalia, did, the Court would have been narrowly divided. You will want to read all the opinions in this case because they not only reveal the tension on the current Court over the role of law in policing discrimination, but they also reflect a deep and widely shared goal to ensure that juries are viewed by the public as legitimate. The Court does not, however, share a sense of how to achieve this goal by regulating the trial process. Two years later, in a paternity and child support action brought by the state of Alabama (J.E.B. v. Alabama, 1994), the Court held that sex based peremptory challenges are unconstitutional under the Equal Protection Clause of the 14th Amendment.
Counsel. The right to have counsel assigned to those who cannot afford to hire a lawyer is regarded as a constitutional requirement (see Brewer v. Williams, 1977). Although not a stage in the process like the other subsections of the criminal process developed here, the issue of representation is central to due process. For years, the federal courts have recognized that counsel is the key to fair treatment. The expansion of the right of representation into the states reveals a doctrinal shift from concern that the accused have counsel, to concern that their counsel provides adequate representation.
The federal duty to assign counsel in capital cases stems from the Federal Crimes Act of 1790. In the states, it is associated with the first Scottsboro case, Powell v. Alabama (1932), where nine young black men, ranging in age from 12 to 19, were prosecuted for the rape of two white women. This case is often viewed simply as establishing a right to adequate counsel. The trial lasted only one day, the trial judge had virtually appointed no counsel by assigning all of the members of the bar to represent the defendants, and the sentence was death. The initial premise on the Supreme Court was voiced by Justice George Sutherland, who began with the fact that even the "...educated layman has small and sometimes no skill in the science of law." The Court held that in capital cases in which the defendant is unable to employ counsel the court must assign one, and the assignment must be in time for the provision of "...effective aid in the preparation and trial of the case." It is the latter finding that emphasized the importance of competent counsel to the constitutional provision of representation.
From capital cases, the provision of counsel was expanded to felonies in the federal courts (Johnson v. Zerbst, 1938). When the Supreme Court expanded this protection to the states in Betts v. Brady (1942), the justices ruled that counsel is not essential to a fair trial in all cases, although there might be circumstances like incapacity of the defendant or complexity of the trial which would require that counsel is provided. Because Betts required counsel in "special circumstances," it led to a series of ad hoc decisions in which the justices of the High Court determined what were and what were not circumstances requiring the provision of counsel.
When the justices tired of these ad hoc decisions, they accepted the case of Gideon v. Wainwright (1963). This case was dramatized by Anthony Lewis, who covered the Supreme Court for The New York Times, in the book Gideon's Trumpet (1964). Clarence Earl Gideon was a hapless petty offender who, nevertheless, had a strong sense of his rights. Charged with felony breaking and entering in Florida, he requested a lawyer because he could not afford to hire one. His handwritten request was turned down at the trial and in the state appellate courts, but it was accepted by the Supreme Court. The ruling was a high point of Warren Court jurisprudence in the criminal law, and it established a new requirement for court appointed counsel for indigents in serious criminal trials.
A later advance in the right to counsel came when the Burger Court made counsel a requirement even where imprisonment is possible (Argersinger v. Hamlin, 1972), with the subsequent interpretation that review of the right would have to be based on an actual prison sentence (Scott v. Illinois, 1979). Exactly where the right begins and ends gets into another level of constitutional discourse, and there are enough differentiated stages and events in the process to keep appellate courts busy for as long as they choose to monitor this area of the due process right. The cost to the state for this right is often substantial. In June of 1981, Chicago paid $133,000 for the defense of mass murderer John Wayne Gacy. In this, as in other due process expenses, the state's costs in conducting a trial are balanced against the benefits of guaranteeing a fair trial.
Although related to fairness, the adequacy of counsel has been less successfully adjudicated. Since Powell, "adequacy" has rested on a standard of "reasonable competence" (Tollett v. Henderson, 1973). Justice Thurgood Marshall has suggested a higher standard of "competence in law." But no one has successfully raised the equal protection issue at the heart of the fairness question. Such a concern might consider whether counsel provided to an indigent was comparable to that for a person capable of paying. The justices have been reluctant to accept this claim, but if the Constitution is to really achieve equal protection it might be in this arena of criminal due process. Here, procedural justice is uniquely attuned to charges of bias.
Post Trial
The conclusion of a trial presents the opportunity for appellate review, but this stage generally results in the imposition of sanctions. These sanctions are governed by the Eighth Amendment, which protects against excessive bail, as well as against penalties that are cruel and unusual. The post trial stage also embodies protection against double jeopardy, an area of procedural protection against being twice put in jeopardy of life or limb. By setting up a system of federal courts with the Supreme Court at the top having "appellate jurisdiction," and then by extending this jurisdiction to state action under the due process clause of the Fourteenth Amendment, the Constitution promises judicial supervision over the criminal process. Although only a small portion of convictions are appealed, these appeals are one source of the decisions delineating constitutional due process.
Appellate Review. Post trial constitutional protection, first and foremost, lies within the very existence of process: the right to appeal one’s conviction. Embedded in the structure of the criminal law, the provision of these levels of appellate review are fortified by the constitutional stature of common law processes in the Seventh Amendment, which guarantee that "...no fact tried by a jury, shall be otherwise reexamined in any court..." Appeals concern law which affects outcomes. The right to appeal itself has been less subject to review than access to this process. The right to a trial transcript for indigent defendants arose from the Warren Court's concern about equal access to appellate review (Griffin v. Illinois, 1956). More recently, the Court has said that alternatives to full free transcripts might be acceptable where the state shows that these alternatives are adequate (Mayer v. Chicago, 1971). The right to counsel, which had been extended to the pre trial and the trial period, also came to be required for the first appeal, sentencing, and probation revocation hearings. In Douglas v. California (1963), Justice William O. Douglas commented that "where the merits of the one and only appeal which an indigent has of right are decided without benefit of counsel...an unconstitutional line has been drawn between rich and poor." The Burger Court extended attorney assistance to prisoners where appeals are matters of right, but made an exception for petitions to the Supreme Court itself (Ross v. Moffitt, 1974). There, counsel is provided after the justices decide to hear a case.
Double Jeopardy. This is a confusing right without clearly demarcated coverage.
While the defendant has a right to appeal a criminal conviction, the prosecutor cannot appeal if the defendant is acquitted. The basis for this is the right not to be tried twice for the same crime, or the protection against double jeopardy. From the Fifth Amendment, the clause reads "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." Due to this right, trial judgments that go against the prosecution cannot be attacked. This has had a marked impact on the development of the constitutional law of criminal procedure. The tradition also holds, however, that once the defendant begins an appeal, the prosecution can defend its position (U.S. v. Ball, 1896) and sentences may be reviewed by higher courts (U.S. v. DiFrancesco, 1980). In Palko v. Connecticut (1937), however, Justice Benjamin Cardozo found that "double jeopardy" was not necessary to "the concept of ordered liberty." In Palko, state review of a verdict that resulted in a retrial and a death sentence was not considered a violation of double jeopardy. Because it was not held central to the due process at that critical juncture and because it is a highly complex realm, double jeopardy holds a particular fascination. It was not until 1969, in Benton v. Maryland, that the double jeopardy protections were considered fundamental enough to be applied to the states.
Related issues have been described by C. Herman Pritchett (1984:237) as surrounding what constitutes "jeopardy" in a legal proceeding and the meaning of "sameness" in an offense. On the first issue, it is jeopardy and not being tried twice that triggers the Constitution. It is not necessary for a trial to reach the verdict stage for double jeopardy protection to apply. If this were the case, trials might be stopped when they appeared to be going against the prosecution (U.S. v. Jorn, 1971), and then started all over again. On the second, offenses are viewed as the same where identical evidence is required to prove them. The event itself does not determine sameness (Morgan v. Devine, 1915). Thus, a number of charges may stem from one event and may even result in repeated trials (Ciucci v. Illinois, 1958; Ashe v. Swenson, 1970). Since 1976, the government may appeal when a trial judge reevaluates his own conduct and overturns a conviction in light of a Supreme Court decision (U.S. v. Morrison, 1981). In U.S. v. Martin Linen Supply (1977), however, the Court held that if a jury deadlocks in a federal criminal case, and the trial judge acquits, the government may not appeal. Although the Chief Justice dissented, the key to double jeopardy is still acquittal. Once the defendant has been acquitted, the government's case is finished. A defendant can be certain of having "once" been put in jeopardy of life and limb if he or she has been acquitted. Support for this view came in U.S. v. Scott (1978), where a pre trial dismissal was reversed on appeal, the action being "prior to acquittal." In Crist v. Bretz (1978), the Court divided 6 3, holding that double jeopardy protection begins in state cases once the jury is impaneled. In federal court, the protection begins when the first witness is sworn in. In related cases, six justices held that a defendant cannot be subjected to a second trial if an appellate court reverses a conviction because of insufficient evidence (Burks v. U.S., 1978) and that a Massachusetts man could not be tried a second time even though the Court of Appeals erroneously said the charges had been dismissed (Greene v. Massey, 1978).
Punishment. A tragic case links double jeopardy to post trial protection from cruel and unusual punishment. Louisiana ex rel. Francis v. Resweber reached the Court in 1947, after the state had attempted to execute a convicted murderer. Because of mechanical difficulty, the electric chair failed to work. Lawyers for Francis tried to stop a second attempt on the grounds that it would constitute double jeopardy and be cruel and unusual punishment. Both claims were rejected, and Francis was executed. In 1981, the Court held that the Constitution prohibits the state from asking for the death penalty at a retrial of defendants whose first jury, following sentencing proceedings that amounted to "trial" on the issue of punishment, declined to impose that punishment (Bullington v. Missouri ).
Generally, the Eighth Amendment has provided a conventional standard of reasonableness with regard to cruel and unusual punishment. There are, for instance, equity issues in punishment that prevent the government from turning a fine into a prison term for those unable to pay (Tate v. Short, 1971; Bearden v. Georgia, 1983). Since 1910, in Weems v. U.S., the expectation is that punishment will be proportionate to the offense. In Weems, a case coming from the Philippines which was under U.S. authority at the time the Court found that twelve years in chains at hard labor for altering an official document did not meet this standard. Generally, the Court defers to legislative determination and judicial imposition of sentence. Thus, although there is agreement that a proportionality requirement exists, some rather disproportionate results survive, like forty years in prison for a marijuana conviction (Hutto v. Davis, 1982). However, in 1983, a life sentence without the possibility of parole for a series of nonviolent petty offenses was ruled "cruel and unusual" (Solem v. Helm, 1983). Punishment is also viewed as cruel when it is inappropriate, such as being jailed for drug addiction (Robinson v. California, 1962). Capital punishment for rape was held to be unconstitutional because the seriousness of the punishment did not match the seriousness of the crime (Coker v. Georgia, 1977).
Recently, with a shifting political tide in state legislatures treating juveniles like adults, the constitutionality of youth punishment has been raised in light of the Eighth Amendment prohibition against cruel and unusual punishment. In Stanford v. Kentucky (1989), the Court in a 5-4 decision held that the imposition of capital punishment on an individual for a crime committed at 16 or 17 years of age does not constitute cruel and unusual punishment under the Eighth Amendment. In Johnson v. Texas (1993), another 5-4 decision, the Court reviewed the capital sentencing procedures used in Texas to convict and then sentence a 19-year-old to death. Two years prior, in Dawson v. Delaware (1991), the Court held that the First and Fourteenth Amendment rights of the accused did not erect a barrier to the admission of evidence concerning one’s beliefs and associations (which in this case were with the Aryan Brotherhood) at sentencing, simply because those beliefs and associations were protected by the First Amendment.
Efforts to hold some forms of punishment inherently barbarous, though rare recently, have drawn a disproportionate amount of attention. Torture went out of fashion when the "enlightenment" penology became a framework for interpreting “cruel and unusual.” The Court has reviewed different forms of execution with attention to a modern sensibilities. Public execution by firing squad (Wilkerson v. Utah, 1878) and electrocution (In re Kemmler, 1890) were upheld in the nineteenth century. Lethal injection has withstood legal challenge more recently (Wools v. McCotter, 5th Circuit, 1986).
Capital punishment, whatever the form, draws the most attention to the Eighth Amendment these days. It can be distinguished from all other forms of punishment when considering its finality. Since it was barely suggested by earlier cases on the death penalty, the 1972 decision in Furman v. Georgia was a bombshell. The case was undertaken by the National Association for the Advancement of Colored People’s Legal Defense and Educational Fund (NAACP-LDF), who wished to challenge a part of the Georgia law which allowed the jury total discretion in determining whether or not to impose the death penalty. This law, argued the NAACP-LDF, led to sentencing disparities—specifically, blacks convicted of murdering whites were more likely to be sentenced to death than were whites. In this case, Furman, a black man, had been accused of murdering a white man. By a vote of 5 4, the Court held the death penalty to be a violation of the constitutional ban on cruel and unusual punishment. Justices Douglas, Stewart, and White based their opinions on the capriciousness with which the death penalty was imposed and on its excessive impact on minorities; in other words, they objected to the manner in which it was applied rather than the punishment itself. Justices Brennan and Marshall, the other members of the majority, focused on execution's "affront to human dignity," characterizing it as the ultimate denial of that respect for the individual traditionally associated with due process; for them, the death penalty was unconstitutional under all circumstances. The capriciousness of this ultimate penalty, rather than the death penalty per se, made it cruel and unusual. Many states revised their statutes, and these statutes began to reach the Court by the middle of the decade.
In the appeal by Troy Gregg of his death sentence, under a reconstituted Georgia death penalty statute, the Court was asked whether a "non capricious" death penalty was constitutional (Gregg v. Georgia, 1976). Gregg was convicted of having killed two men who had given him a ride while he was hitchhiking. His trial was divided, or "bifurcated," so that guilt was determined first, followed by a separate process for determining the penalty. Death was a possible penalty when the case involved "aggravating circumstances" such as aircraft hijacking, treason, prior conviction of a capital felony, commission in the act of another capital felony, or when the murder was "horribly vile." Gregg's case was held to include all of the last three circumstances. On automatic appeal to the state supreme court, another mechanism that sought to minimize arbitrariness, the verdict was monitored for the influence of "passions, prejudice or any other arbitrary factor." The justices found the Georgia death penalty statute constitutional, and Gregg was sentenced to die. But, in the same year, "mandatory" capital punishment statutes passed after Furman in response to the charge of capricious application were struck down (Roberts v. Louisiana, 1976).
By the 1980s, the death sentence was on the rise, although it was still rarely carried out. While the federal government sought the penalty for treason, espionage, and presidential assassination, 35 states enacted new statutes to meet constitutional requirements set by the Supreme Court. In 1981, there were 780 people on death row in the United States; in 1996, there were 3,046 people on death row in 38 states. Opponents of the death penalty claim that the same arbitrariness and racial discrimination that led to its temporary abolition in 1972 still exist. Supporters, like Justice William Rehnquist, criticize the procedural protection that allows imposition of the sentence to be delayed. As part of the continuing split over exactly how to treat capital punishment, the Court upheld in 1983 the use of expedited procedures by the courts of appeals to review habeas corpus petitions from death row inmates (Barefoot v. Estelle, 1983). The 5 4 decision may have reflected the division over capital punishment itself, yet by the late 1990s this division has faded dramatically. Indeed, in 1996 Congress passed the Antiterrorist and Effective Death Penalty Act, one section of which limited the number of appeals people on death row may have in challenging their conviction and the sentencing process. [Insert figure 2. Map of US showing states where death penalty exists, method applied, and the number of executions since 1976]
Indeed we find that there is considerable public opinion and Supreme Court support for the death penalty despite significant empirical evidence that there is a systematic racial bias in imposing the death sentence. David Baldus’ famous study of jury imposition of the death sentence (included in this chapter) shows that if the race of the victim is white and the defendant is black, there is a significantly higher likelihood that the black defendant will receive the death sentence than if both victims and defendants are of the same race. This study was the basis for a challenge to the death penalty in McCleskey v. Kemp (1987). Here, the Court assumed that the Baldus study was valid, however it found that statistics were insufficient to demonstrate unconstitutional discrimination or show irrationality, arbitrariness, and capriciousness under the Eighth Amendment.
The aura around the death penalty, amplified by its infrequency as a punishment, gives special meaning to due process in this area. In 2002, the Supreme Court split 6-3 in holding the execution of the mentally retarded unconstitutional. The decision in Atkins v. Virgina, involved Daryl R. Atkins who was described as having an IQ of 59 and was 18 when he committed a murder in the course of a robbery. The majority opinion by Justice Stevens cited a rise to 18 of the 38 states with the death penalty who do not allow execution of the mentally retarded and referred to a “national consensus” that mental retardation meant diminished culpability. Chief Justice Rehnquist, Justices Scalia and Thomas wrote in dissent. Since the death penalty cannot be revoked, the search for truth is more significant here, and pressure to eliminate the penalty as the ultimate indignity is likely to remain strong.
The surge in public support for the death penalty since the mid-1970s is documented below [insert figure 1: Public Opinion and the Death Penalty]. Scholars have wondered why there has been such a dramatic reversal in support for the death penalty. Some turn to the “politicization of crime?” In his essay, Stuart Scheingold argues that street crime has become a cultural obsession in the U.S. during the post-war period and most recently in political campaigns at the national, state, and local levels. However, he finds in his study of the politics of street crime that there is an inverse relationship between crime rates and public fear of crime.
Most people will not use the criminal due process guarantees, although these are among the best known constitutional rights. There are times when we may wish to invoke some constitutional right in order to let the police or other authorities know that we are aware of limits to their authority, even if they are not. The rights may not stop determined authorities without a struggle and in an administrative context of plea bargains the rights that delineate the criminal process are generally well in the background. Criminal due process rights are a resource and the institutions of the criminal law have been set up to reflect guarantees which carry the enlightenment humanism behind the Bill of Rights. It is as an affirmation of that tradition that these rights are known best.
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