The Bill of Rights and the Accused

State and local authorities had historically controlled the criminal justice system, and the Bill of Rights protections (e.g., the Fourth, Fifth, and Sixth amendments) that embodied the rights of the accused had historically applied only against the national government. These amendments outlined basic criminal procedures: the Fourth involved search and seizure, the Fifth provided that individuals could not be compelled to testify against themselves, and the Sixth granted right to counsel in a criminal proceeding. After World War II the Supreme Court nationalized each of these amendments, bringing their protection to bear against state action by incorporating them under the due-process clause of the Fourteenth Amendment. The Court's actions, as in other areas of incorporation, spawned a great public and political outcry, which had special poignancy given the sharp rise in criminal activity that was going on at the same time the decisions were rendered.

The most controversial aspect of the Fourth Amendment was the extension of the so-called exclusionary rule to the states. This judge-made rule provided that evidence that was illegally seized through an improper search could not be introduced as evidence in a trial. The Court formulated the doctrine in Weeks v. United States in 1912, but it had consistently refused to apply it to the states. The Court in Wolf v. Colorado ( 1949) did hold that the Fourth Amendment applied to the states, but the badly divided justices refused to extend the exclusionary rule. The justices worried that by applying the rule against the states they would be placed in the position of second-guessing local officials.

The Court finally nationalized the exclusionary rule in Mapp v. Ohio ( 1961), one of the most controversial and important cases of the modern era. As was typical in the area of criminal procedure, the Warren Court in many ways was merely ratifying what the states had already undertaken. By the time that the Court decided Mapp (a case involving a wreckless search of the home of a suspected drug dealer in Cleveland, Ohio), more than half of the states had adopted the exclusionary rule. Furthermore, the majority of the justices recognized that incorporation of the Fourth Amendment meant little if there was no means of enforcing its provisions against the states. Justice Tom

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Clark wrote that to deny enforcement through the exclusionary rule was tantamount to granting "the right but in reality [withholding] its privilege and enjoyment." ³² The Court in the 1980s, however, backed partially away from its strong support of the exclusionary rule, holding in United States v. Leon ( 1984) that the rule would not apply where the police had acted in "good faith."

The justices also nationalized the provision against self-incrimination in the Fifth Amendment. By the early 1950s, especially with the second Red Scare, taking the Fifth Amendment was viewed as evidence of guilt. Historically, however, the amendment was rooted in the idea of preventing government from coercing individuals into confessing to crimes that they had not committed. In Brown v. Mississippi ( 1936), for example, the Court had thrown out, based on the due-process clause of the Fourteenth Amendment, confessions gained as a result of whipping. But it was not until 1964, in Malloy v. Hogan, that the justices incorporated the Fifth Amendment protection against self-incrimination through the Fourteenth Amendment, and three years later it provided in In Re Gault that these same protections applied to juvenile delinquents. The Gault decision thus stripped local juvenile courts of a great deal of the discretion that they had enjoyed since the early twentieth century. Juveniles, at least for purposes of the criminal justice system, were brought under the Constitution's protection for the first time.

Even more controversial was the Court's decision in the landmark case of Miranda v. Arizona ( 1966). Miranda was a small-time thug who had kidnapped and raped a woman. He was subsequently arrested and taken to the stationhouse where, after a few hours of questioning, he confessed to the crimes. The police, however, had not informed Miranda of his right to remain silent, and after his conviction he appealed. A sharply divided Court decided in favor of Miranda, and Chief Justice Warren made clear that suspected criminals had to be read their rights to remain silent, to know that anything they said could be used against them, and that if they had no money the state was obliged to provide them with counsel. This "Miranda warning" became a standard feature of police practice, but it was also highly controversial, because it appeared that the justices were coddling criminals. Yet the changes wrought by Miranda have been better police practices and, according to some studies, a higher incidence of convictions. Despite much outcry against the rule, moreover, the Supreme Court has carved out only limited exceptions.

The right to counsel was also nationalized. In Gideon v. Wainwright ( 1963), the justices considered a handwritten plea brought by Clarence Earl Gideon from his Florida prison cell. Gideon was a small-time thief who had been found guilty of breaking into a pool hall in Panama City, Florida. Gideon had represented himself at his trial because he had no money to pay for counsel. Florida, unlike more than half of the states, had no law requiring that indigents be provided counsel in felony trials. The Supreme Court had first dealt with the issue of incorporating the Sixth into the Fourteenth Amendment in Powell v. Alabama ( 1932), the great Scottsboro rape case, but they had not followed a consistent course, proceeding rather on a case-by-case basis, sometimes finding that the protection applied and other times that it did not. The importance of the Gideon decision, which the Court decided unanimously, was that it totally applied the incorporation doctrine, meaning that nationally every defendant in a felony trial had a right to counsel and that, if a person was indigent, then the state had to provide counsel. What made the Gideon ruling controversial was that the justices

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applied it retroactively, meaning that the states had to retry convicts properly, by giving them counsel, or let them go, which was usually what happened. Moreover, the Court has consistently expanded the right to counsel, applying it to misdemeanors and requiring that counsel be made available in the early phases of processing a criminal suspect in the stationhouse.

The Supreme Court has dramatically enhanced the scope of civil liberties since World War II. Judicial review has been an instrument by which the justices have restrained majority will in order to preserve individual liberty. The continuing respect for the Court has been underscored by the repeated failure of efforts to trim its appellate jurisdiction or to overturn its decisions through constitutional amendments. The federal judiciary has become in this century a policy-making institution, but Americans seem to approve its actions on the whole.

Date: 2015-01-29; view: 804