What could be more frightening than violations of our constitutional rights? But is everything that appears to be a violation actually one? Join us as we explore some current constitutional issues. We hope you enjoy our Bill of Frights!

When accused of a crime, every citizen possesses the right to a fair trial–some details of what a fair trial encompasses are laid out in the Constitution and the Bill of Rights. But some worry that mandatory minimum-sentencing guidelines are shifting the scales of justice and placing too much power in the hands of prosecutors, thus making it challenging for citizens to receive a fair trial.

The past few decades have seen a steady decrease in the number of felony cases brought to trial. In the 1970s, the ratio of felony cases that made it to trial was about one in 12. Today, some estimates put the number at fewer than one in 40. Observers of the criminal justice system partly attribute this shift to sentencing laws prosecutors leverage when negotiating with individuals accused of a crime.

There are practical reasons that explain the criminal justice systems increase use of plea bargains including a near three-fold increase in felony case loads. With courts around the country clogged up with cases, is it reasonable to expect every single case will find its way to trial?  In addition, the idea that a plea bargain–a voluntary agreement (or rather contract) between the accused and a prosecutor–could be construed as potentially subverting or undermining the right to a fair trial is itself problematic. If the accused desires to have a trail, then a trial of some form will commence.

Still, some contend that the “choice” aspect of plea bargains is not as robust as it may appear. In an interview with PBS’s Frontline, Yale law professor John Langbein said, “the problem with choice arguments is that they neglect the main dynamic of plea bargaining which is the pressure that the prosecutor puts on you to do it his way. Plea bargain works by threat. What the prosecutor says to a criminal defendant in plea bargaining is, ‘Surrender your right to jury trial, or if you go to trial and are convicted of an offense, we will see to it that you are punished twice. Once for the offense, and once for having had the temerity to exercise your right to jury trial.’ That is a coercive system.”

In 2004, Judge William Young, a federal magistrate in Boston, lambasted the criminal justice system in a 177-page decision in which he said, “the focus of our entire criminal justice system has shifted away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused.”

Despite these complaints, some experts point to the notion that the problems surrounding plea bargains are procedural in nature. In a 2003 article for Regulation Magazine, Timothy Sandefur of the Pacific Legal Foundation wrote, “But there are sufficient justifications for plea bargaining. Its flaws are procedural, not constitutional, and it needs reform, not abolition.” And even though the Framers did not include plea bargains in the Constitution (only jury trials are mentioned), that, in of itself, does not prove the mechanism unconstitutional. The Supreme Court has ruled on the constitutionality of plea bargains on several occasions. In Santobello v. New York (1971), the Court found that plea bargains are not only constitutional, but “an essential component of the administration of justice” and that “[so long as it is] properly administered, [plea bargaining] is to be encouraged.”

The most famous Supreme Court case on plea bargains is North Carolina v. Alford (1970). In that case, the Court found plea bargains to be constitutional regardless of whether the accused only plead guilty to avoid the possibility of a harsher sentence at trial. (In Alford, a defendant who claimed innocence pleaded to a sentence of life in order to avoid a mandatory death penalty sentence that would have resulted had he lost the trial.)

But critics of the plea bargaining method still see a problem with a system that makes going to trial seem so unreasonable the innocent people will plead out to crimes they didn’t commit.

What do you think? Does the combination of harsh sentencing laws and plea bargains undermine the accused right to a fair trial?

What could be more frightening than violations of our constitutional rights? But is everything that appears to be a violation actually one? This week we’ll explore some current constitutional issues ripped from the headlines, and delve into some questions about whether rights are being violated. We hope you enjoy our Bill of Frights!

Under what circumstances are police allowed to enter the homes of private citizens? In most cases, a search warrant issued by a judge is needed for any encounter where law enforcement requires access to a private residence. But law enforcement is also bringing to bear another tool–warrantless searches.

Law enforcement argues that when exigent circumstances arise in situations either pertaining to officer and public safety or to the destruction of evidence, police officers must be allowed the flexibility to enter a home without a warrant. But are warrantless searches a necessary part of combating crime – particularly with those offenders who have opportunities to destroy evidence?

In Kentucky v. King (2011), the Supreme Court ruled 8-1 that law enforcement can enter a home without a warrant given the existence of exigent circumstances. The Court concluded that the warrantless search might still be legal even if law enforcement itself brings about the exigent circumstances (i.e. a knock on a door causes a stirring inside a house and that stirring causes the officers to assume a destruction of evidence is taking place). Justice Alito, writing for the majority, reasoned that “a rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their conduct causes the exigency would unreasonably shrink the reach of this well-established exception to the warrant requirement.”

In her dissent of the King ruling, Justice Ginsberg stated that she found no reason to “allow an expedient knock to override the warrant requirement. Instead, I would accord that core requirement of the Fourth Amendment full respect.”

Ginsberg  referred in her dissent to Johnson v. United States (1948), a case similar to King. In that case, the Court stated: “The right of officers to thrust themselves into a home is … a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not a policeman … If the officers in this case were excused from the constitutional duty of presenting their evidence to a magistrate, it is difficult to think of [any] case in which [a warrant] should be required.”

Compounding Justice Ginsberg’s dissent are recent news items on botched or mistaken searches conducted by departments around the country. Mistakes happen and, unfortunately, mistakes around searches often entail deadly consequences for both officers and citizens. One serious example happened in May of last year when a raid on the wrong residence lead to the death of Jose Guerena, an ex-Marine who served two tours in Iraq.

As many argue, there are certainly circumstances that require the most temporary shedding of aspects of due process protections. But some argue that when you couple Fourth Amendment considerations with the real potential for mistakes around the country, the need to examine the scope of warrantless searches must be taken seriously.

What do you think? Does the existence of warrantless searches fundamentally circumvent the Fourth Amendment?

What could be more frightening than a violation of our constitutional rights? But what counts as a violation? Over the next few weeks we’ll explore some current constitutional issues ripped from the headlines, and delve into questions about whether our rights are being violated. We hope you enjoy our Bill of Frights!

“For every man’s house is looked upon by the law to be his castle of defense and asylum …” Sir William Blackstone, an English jurist from the 18th century, said these words in his seminal work Commentaries on the Laws of England. Though not American, Blackstone’s words are reflected in American law. But some believe this principle of legal institutions respecting one’s home is under fire in the United States, namely through the abuse and overuse of eminent domain.

The Takings Clause of the 5th Amendment empowers the national government to seize property needed for “public use,” but it also restricts government by requiring it to provide just compensation to the owner. The Supreme Court has applied these restrictions to state and local governments through the Fourteenth Amendment. Yet from 1998 through 2002, the Institute for Justice documented 10,000 properties in 41 states where eminent domain was used to transfer property from private citizens to private developers whose planned projects promised to boost the local economy.

The proposed redevelopment projects vary in scope and rationale. Some are done in the name of urban renewal and the cleaning up of “blighted” neighborhoods. In an example from 2003, New York City seized property in Brooklyn so that Bruce Ratner could build a stadium and bring his New Jersey Nets basketball franchise into the city. At the heart of the disputes of such projects is the definition of the Fifth’s Amendment’s words, “public use”.

In 2005, the Supreme Court took up this issue in Kelo v. City of New London. The City of New London, Connecticut had on its desks a plan that involved a private developer promising to create 3,169 jobs and bring in $1.2 million in annual tax revenue. Standing in the way of development were several New London homes, including one owned by Susette Kelo. Kelo challenged the constitutionality of the taking. In a 5-4 decision, the court sided with New London, holding that: “The city’s proposed disposition of petitioners’ property qualifies as a “public use” within the meaning of the Takings Clause.” In the majority opinion, Justice Stevens took note of court precedent that eminent domain takings a) need not examine a “blighted” area building-by-building, b) can rest on the states responsibility to “social and economic evils of a land oligopoly”, and c) the eschewing of “rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power.”

The Kelo decision brought forth a firestorm of criticism. Justice Scalia, who voted in the minority and who is known for his originalist approach to the Constitution, stated recently that the Kelo ruling stood with Dred Scott as one of the few “mistakes” the Court had made in estimating its ability to “stretch beyond the text of the Constitution without provoking overwhelming public criticism and resistance.” Kelo makes it easier for state and local governments to seize property from citizens and transfer the land deeds to private developers who promise economic development in economically depressed areas.

So what do you think? Was the Supreme Court correct to interpret the Fifth Amendment as it did? Should these types of takings be allowed?

What could be more frightening than violations of our constitutional rights? But is everything that appears to be a violation actually one? Join us as we explore some current constitutional issues. We hope you enjoy our Bill of Frights!

Of all the amendments to the Constitution, the First is, in many respects, the one whose meaning seems most plain. Its protection of speech appears unequivocal: “Congress shall make no law … abridging the freedom of speech.” But some people wonder and worry if this prohibition against speech regulation has been observed by Congress and other government officials.

Free speech cases have a long history of litigation and Supreme Court precedent. And while the current trend in Supreme Court decisions supports a robust view of speech rights, regulations of speech continue. Earlier this year, the city council of a small town in Arkansas attempted to ban citizens from forming organizations without city approval. The ban would have even made it illegal to have four people meet in a residence to discuss issues the council was considering. The implications for freedom of assembly as well as speech concerned many, and the ordinance was later repealed.

Another interesting case of speech regulation comes in the Stolen Valor Act. The Act gives government a role in regulating speech based on the truth-value of the statement. In 2006, Congress overwhelmingly passed the Stolen Valor Act—legislation making it illegal for an individual to lie about receiving military medals of distinction from the government. The act states: “Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces … shall be fined under this title, imprisoned not more than six months, or both.”

In July, 2008 Xavier Alvarez was fined $5,000 and sentenced to three years of probation for uttering these words at a public meeting in 2007: “I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.” Alvarez had actually never received the congressional medal.

Alvarez’s case found its way to the Ninth Circuit Court of Appeals in 2010. The court overturned Alvarez’s sentence. In his concurring opinion, Chief Justice Kozinski stated that: “If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the Congressional Medal of Honor, but also the JDater who falsely claims he’s Jewish or the dentist who assures you it won’t hurt a bit.”

In October of this year, the Supreme Court announced that it will be reviewing Alvarez’s case.

So what do you think? Will federal, state, and local governments continue to attempt to regulate speech? Should the government have a role in punishing fallacious statements?

When accused of a crime, every citizen possesses the right to a fair trial–some details of what a fair trial encompasses are laid out in the Constitution and the Bill of Rights. But some worry that mandatory minimum-sentencing guidelines are shifting the scales of justice and placing too much power in the hands of prosecutors, thus making it challenging for citizens to receive a fair trial.

The past few decades have seen a steady decrease in the number of felony cases brought to trial. In the 1970s, the ratio of felony cases that made it to trial was about one in 12. Today, some estimates put the number at fewer than one in 40. Observers of the criminal justice system partly attribute this shift to sentencing laws prosecutors leverage when negotiating with individuals accused of a crime.

There are practical reasons that explain the criminal justice systems increase use of plea bargains including a near three-fold increase in felony case loads. With courts around the country clogged up with cases, is it reasonable to expect every single case will find its way to trial?  In addition, the idea that a plea bargain–a voluntary agreement (or rather contract) between the accused and a prosecutor–could be construed as potentially subverting or undermining the right to a fair trial is itself problematic. If the accused desires to have a trail, then a trial of some form will commence.

Still, some contend that the “choice” aspect of plea bargains is not as robust as it may appear. In an interview with PBS’s Frontline, Yale law professor John Langbein said, “the problem with choice arguments is that they neglect the main dynamic of plea bargaining which is the pressure that the prosecutor puts on you to do it his way. Plea bargain works by threat. What the prosecutor says to a criminal defendant in plea bargaining is, ‘Surrender your right to jury trial, or if you go to trial and are convicted of an offense, we will see to it that you are punished twice. Once for the offense, and once for having had the temerity to exercise your right to jury trial.’ That is a coercive system.”

In 2004, Judge William Young, a federal magistrate in Boston, lambasted the criminal justice system in a 177-page decision in which he said, “the focus of our entire criminal justice system has shifted away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused.”

Despite these complaints, some experts point to the notion that the problems surrounding plea bargains are procedural in nature. In a 2003 article for Regulation Magazine, Timothy Sandefur of the Pacific Legal Foundation wrote, “But there are sufficient justifications for plea bargaining. Its flaws are procedural, not constitutional, and it needs reform, not abolition.” And even though the Framers did not include plea bargains in the Constitution (only jury trials are mentioned), that, in of itself, does not prove the mechanism unconstitutional. The Supreme Court has ruled on the constitutionality of plea bargains on several occasions. In Santobello v. New York (1971), the Court found that plea bargains are not only constitutional, but “an essential component of the administration of justice” and that “[so long as it is] properly administered, [plea bargaining] is to be encouraged.”

The most famous Supreme Court case on plea bargains is North Carolina v. Alford (1970). In that case, the Court found plea bargains to be constitutional regardless of whether the accused only plead guilty to avoid the possibility of a harsher sentence at trial. (In Alford, a defendant who claimed innocence pleaded to a sentence of life in order to avoid a mandatory death penalty sentence that would have resulted had he lost the trial.)

But critics of the plea bargaining method still see a problem with a system that makes going to trial seem so unreasonable the innocent people will plead out to crimes they didn’t commit. What do you think? Does the combination of harsh sentencing laws and plea bargains undermine the accused right to a fair trial?

What could be more frightening than violations of our constitutional rights? But is everything that appears to be a violation actually one? This week we’ll explore some current constitutional issues ripped from the headlines, and delve into some questions about whether rights are being violated. We hope you enjoy our Bill of Frights!

“For every man’s house is looked upon by the law to be his castle of defense and asylum …” Sir William Blackstone, an english jurist from the 18th century, said these words in his seminal work Commentaries on the Laws of England. Though not an American, Blackstone’s words  are reflected in American  law. But some  believe the principle that one’s home is respected by legal institutions is under fire in the United States through the abuse and overuse of eminent domain.

The Takings Clause of the 5th Amendment empowers the national government to seize property needed for “public use,” but it also restricts government by requiring it to provide just compensation to the owner. The Supreme Court has applied these restrictions to state and local governments through the Fourteenth Amendment. Yet from 1998 through 2002, the Institute for Justice documented 10,000 properties in 41 states where eminent domain was used to transfer property from private citizens to private developers whose planned projects promise to boost the local economy.

The proposed redevelopment projects vary in scope and rationale. Some are done in the name of urban renewal and the cleaning up of “blighted” neighborhoods. In an example from 2003 , New York City seized property in Brooklyn so that Bruce Ratner could build a stadium and bring his New Jersey Nets basketball franchise into the city. At the heart of the disputes of such projects is the definition of the Fifth’s Amendment’s words, “public use”.

In 2005, the Supreme Court took up this very issue in Kelo v. City of New London. The City of New London, Connecticut had on its desks a plan that involved a private developer who promised to create 3,169 jobs and bring in $1.2 million in annual tax revenue. Standing in the way of development were several New London homes, including one owned by Susette Kelo. Kelo challenged the constitutionality of the taking. In a 5-4 decision, the court sided with New London, holding that: “The city’s proposed disposition of petitioners’ property qualifies as a “public use” within the meaning of the Takings Clause.” In the majority opinion, Justice Stevens took note of court precedent that eminent domain takings a) need not examine a “blighted” are building-by-building, b) can rest on the states responsibility to “social and economic evils of a land oligopoly”, and c) the eschewing of “rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power.”

The Kelo decision brought fourth a firestorm of criticism. Justice Scalia, who voted in the minority and who is known for his originalist approach to the Constitution, stated recently that the Kelo ruling stood with Dred Scott as one of the few “mistakes” the Court had made in estimating its ability to “stretch beyond the text of the Constitution without provoking overwhelming public criticism and resistance.” Hyperbole aside, Kelo makes it easier for state and local governments to seize property from citizens and transfer the land deeds to private developers who promise economic development in economically depressed areas. So what do you think? Was the Supreme Court correct to interpret the Fifth Amendment as it did? Should these types of  takings be allowed?

Under what circumstances are police allowed to enter the homes of private citizens? In most cases, a search warrant issued by a judge is needed for any encounter where law enforcement requires access to a private residence. But law enforcement is also bringing to bear another tool–warrantless searches.

Warrantless searches are often a necessary part of combating crime–and particularly those offenders who have opportunities to destroy evidence. When exigent circumstances arise, law enforcement argues, in situations either pertaining to officer and public safety or to the destruction of evidence, police officers must be allowed the flexibility to enter a home without a warrant.

In Kentucky v. King (2011), the Supreme Court ruled 8-1 that law enforcement can enter a home without a warrant given the existence of exigent circumstances. The Court concluded that the warrantless search might still be legal even if law enforcement itself brings about the exigent circumstances (i.e. a knock on a door causes a stirring inside a house and that stirring causes the officers to assume a destruction of evidence is taking place). Justice Alito, writing for the majority,  reasoned that “a rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their conduct causes the exigency would unreasonably shrink the reach of this well-established exception to the warrant requirement.”

In her dissent of the King ruling, Justice Ginsberg stated that she found no reason to “allow an expedient knock to override the warrant requirement. Instead, I would accord that core requirement of the Fourth Amendment full respect.”

Ginsberg  referred in her dissent to Johnson v. United States (1948), a case similar to King. In that case, the Court stated: “The right of officers to thrust themselves into a home is … a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not a policeman … If the officers in this case were excused from the constitutional duty of presenting their evidence to a magistrate, it is difficult to think of [any] case in which [a warrant] should be required.”

Compounding Justice Ginsberg’s dissent are recent news items on botched or mistaken searches conducted by departments around the country. Mistakes happen and, unfortunately, mistakes around searches often entail deadly consequences for both officers and citizens. One serious example happened in May of this year when a raid on the wrong residence lead to the death of Jose Guerena, an ex-Marine who served two tours in Iraq.

As many argue, there are certainly circumstances that require the most temporary shedding of aspects of due process protections. But some argue that when you couple Fourth Amendment considerations with the real potential for mistakes around the country, the need to examine the scope of warrantless searches must be taken seriously. What do you think? Does the existence of warrantless searches fundamentally circumvent the Fourth Amendment?