American Democracy in Context. Joseph A. Pika

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СКАЧАТЬ on unreasonable searches and seizures in 1949, it initially ruled that incorporation did not require states to apply the exclusionary rule.¹²¹ That changed in 1961 with Mapp v. Ohio, which required states to enforce the exclusionary rule.¹²² Similar to the Miranda warnings, the exclusionary rule has generated controversy. Some argue that it goes too far in protecting the rights of criminal defendants because it might allow a guilty person to go free if a police officer violates search-and-seizure guidelines. Others argue that it is an essential element of due process and an important deterrent against police misbehavior.

      Miranda warnings The list of rights that police must read to suspects at the time of arrest, including the right to remain silent and the right to request a lawyer. Absent such warnings, information obtained from suspects is inadmissible in court.

      exclusionary rule The principle, created by the Supreme Court, that illegally seized evidence may not be introduced in criminal trials.

      In the years since Mapp was decided, the Supreme Court has made some exceptions to the exclusionary rule. One of the most significant came in United States v. Leon (1984).¹²³ In that case, the Court ruled that evidence seized by police pursuant to an invalid warrant may be admissible because the error lies not with the police but the magistrate who issued the warrant. This is known as the good faith exception. Other countries also exclude certain evidence that has been tainted by police misconduct, but they are not as deferential to the rights of criminal defendants as we are in the U.S. Canada is a good example. Rather than assuming that all tainted evidence will be excluded, Canada calls for it to be excluded in those cases where it “is established that, having regard to all circumstances, the admission of it in proceedings would bring the administration of justice into disrepute.”¹²⁴ This provides a greater opportunity for tainted evidence to be admitted than would be the case under the U.S. system.

      The Death Penalty

      Whether to administer the death penalty—and, if so, how—leads to great debate. The Eighth Amendment bans “cruel and unusual punishment.” Does capital punishment violate that ban? If not, where does one draw the line between forms of execution that are constitutional and others that are not?

      Some thirty-five years ago, lethal injections were introduced in the United States as a more humane alternative to electrocution, the gas chamber, hanging, and use of a firing squad. In 2008, the Supreme Court considered whether lethal injections cause unnecessary pain, thereby violating the Eighth Amendment. Typically, lethal injections consist of a three-drug cocktail administered intravenously. The first drug, an anesthetic, renders the condemned unconscious; the second drug paralyzes the body; the third drug causes cardiac arrest. Medical personnel do not administer lethal injections because to do so would violate the Hippocratic Oath they have sworn to “do no harm,” and critics charge that the prison employees who typically administer these drugs are often poorly trained. If the first drug is not administered correctly, the inmate can experience excruciating pain that may not be apparent to onlookers because of the paralysis caused by the second drug. By a 7–2 vote, the Court upheld the use of lethal injections.¹²⁵

      As of March 2019, 30 states administer the death penalty. More than half the countries in the world have abolished the death penalty in either law or practice. It has been abolished completely in Canada, Australia, Britain, most of Europe, and parts of South America. The United States is one of only five fully developed nations to retain the death penalty (the others are Japan, Singapore, South Korea, and Taiwan). According to Amnesty International, 20 countries carried out executions in 2018, with the United States having the seventh-highest rate of confirmed executions in the world.¹²⁶ (See Figure 4.4.)

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      Figure 4.4 Countries With the Highest Numbers of Executions, 2018

      Note: Plus signs indicate that the figure calculated by Amnesty International is a minimum.

      Source: “Death Penalty 2018: Dramatic Fall in Global Executions,” Amnesty International, April 10, 2019, https://www.amnesty.org/en/latest/news/2019/04/death-penalty-dramatic-fall-in-global-execution/

      Since the late 1960s, a majority of Americans have consistently supported the death penalty (see Figure 4.5). Support for the death penalty reached a high of 80 percent in 1994 and declined to 56 percent in 2018.¹²⁷ Only two Supreme Court justices have argued that the death penalty itself constitutes cruel and unusual punishment. However, a majority of the Court did rule in 1972 that random and arbitrary imposition of the death penalty may constitute both cruel and unusual punishment and a violation of due process.¹²⁸ It also ruled in 1977 that the death penalty may be an excessive form of punishment for certain types of crimes (such as rape of an adult).¹²⁹ In 2002, the Court ruled that executing mentally retarded offenders was unconstitutional.¹³⁰ The Court extended that ruling in 2005 to offenders who were under the age of 18 when they committed their crime.¹³¹

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      Figure 4.5 The Death Penalty and Public Opinion, 1937–2018

      Survey respondents were asked, “Are you in favor of the death penalty for a person convicted ot murder?”

      Source: Gallup Poll (http://www.gallup.com/poll/1606/death-penalty.aspx)

      Balancing National Security with Civil Liberties

      Do the needs of national security justify restrictions on civil liberties? President Trump revived the debate when, in January 2017, he signed an executive order banning foreign nationals from seven predominantly Muslim countries from entering the United States. His stated purpose was to protect national security by keeping terrorists out of the United States. But given Trump’s pledge during the 2016 presidential campaign for “a total and complete shutdown of Muslims entering the United States,” some challenged the ban as a violation of religious liberty. Others challenged the ban on due process or equal protection grounds or as a violation of statutory guidelines. Although several lower courts overturned the ban, the Supreme Court ultimately upheld a revised version of the ban by a 5–4 vote in June 2018.¹³²

      Several Trump administration policies related to immigration (which the president formally declared to be a national emergency in order to build a wall along the southern border of the United States) also raise civil liberties issues. The highest profile of these was perhaps the administration’s family separation policy, which separated undocumented immigrants from their children as part of a zero-tolerance approach to deter migrants from entering the country. In yet another victory for the Trump administration, the Supreme Court voted 5–4 in March 2019 to uphold the government’s authority to detain any immigrant awaiting deportation who had ever been convicted of a criminal offense—even if the conviction occurred long ago and the individual had completed their prison term for the conviction. In a strongly worded dissent, Justice Stephen Breyer argued that the ruling—which allowed individuals who had already paid their debt to society to “be deprived of their liberty for months or years without the possibility of bail”—raised serious due process concerns.¹³³

      Achieving a balance between national security СКАЧАТЬ