Keeping the Republic. Christine Barbour

protection of individual rights, whereas others do not believe that the Court has gone far enough in protecting society against criminals.

      Protection Against Self-Incrimination

      No less controversial than the rulings on illegally seized evidence are the Court’s decisions on unconstitutionally obtained confessions. The Fifth Amendment provides for a number of protections for individuals, among them that no person “shall be compelled in any criminal case to be a witness against himself.” The Supreme Court has expanded the scope of the protection against self-incrimination from criminal trials, as the amendment dictates, to grand jury proceedings, legislative investigations, and even police interrogations. It is this last extension that has proved most controversial.

      In 1966 the Warren Court ruled, in Miranda v. Arizona, that police had to inform suspects of their rights to remain silent and to have a lawyer present during questioning to prevent them from incriminating themselves. The Miranda rights are familiar to viewers of police dramas: “You have the right to remain silent. Anything you say can and will be used against you. . . .” If a lawyer could show that a defendant had not been “read” his or her rights, information gained in the police interrogation would not be admissible in court. Like the exclusionary rule, the Miranda ruling could and did result in criminals going free even though the evidence existed to convict them.

      Reacting to public and political accusations that the Warren Court was soft on crime, Congress passed the Crime Control and Safe Streets Act of 1968, which allowed confessions to be used in federal courts not according to the Miranda ruling, but according to the “totality of the circumstances” surrounding the confession. In 2000, despite the fact that some justices had been highly critical of the Miranda ruling over the years, the Court upheld the 1966 decision, stating that it had become an established part of the culture, and held the 1968 Crime Control Act to be unconstitutional.⁸³

      Right to Counsel

      Closely related to the Miranda decision, which upholds the right to a lawyer during police questioning, is the Sixth Amendment declaration that the accused shall “have the assistance of counsel for his defense.” The founders’ intentions are fairly clear from the Crimes Act of 1790, which required courts to provide counsel for poor defendants only in capital cases—that is, those punishable by death. Defendants in other trials had a right to counsel, but the government had no obligation to provide it. The Supreme Court’s decisions were in line with that act until 1938, when, in Johnson v. Zerbst, it extended the government’s obligation to provide counsel to impoverished defendants in all criminal proceedings in federal courts.⁸⁴ Only federal crimes carried that obligation until 1963. Then, in one of the most dramatic tales of courtroom appeals (so exciting that it was made into both a book and a movie called Gideon’s Trumpet), a poor man named Clarence Earl Gideon was convicted of breaking and entering a pool hall and stealing money from the vending machine. Gideon asked the judge for a lawyer, but the judge told him that the state of Florida was not obligated to give him one. He tried to defend the case himself but lost to the far more skilled and knowledgeable prosecutor. Serving five years in prison for a crime he swore he did not commit, he filed a handwritten appeal with the Supreme Court. In a landmark decision, Gideon v. Wainwright, the Court incorporated the Sixth Amendment right to counsel.⁸⁵

      The Gideon decision was a tremendous financial and administrative burden for the states, which had to retry or release many prisoners. Conservatives believed that Gideon went far beyond the founders’ intentions. Both the Burger and Rehnquist Courts succeeded in rolling back some of the protections won by Gideon, ruling, for instance, that the right to a court-appointed attorney does not extend beyond the filing of one round of appeals, even if the convicted indigent person is on death row.⁸⁶

      Protection Against Cruel and Unusual Punishment

      The Eighth Amendment, which says, in part, that “cruel and unusual punishments” shall not be inflicted, has generated some major political controversies. Like some of the earlier amendments, this guarantee reflects a concern of English law, which sought to protect British subjects from torture and inhumane treatment by the king. It is easy to see why it would be controversial, however. What is “cruel,” and what is “unusual”? Despite intense lobbying on the part of impassioned interest groups, however, the Court has not ruled that the death penalty itself is cruel or unusual (except in the case of intellectually disabled individuals, juveniles, and crimes against an individual that do not result in the victim’s death),⁸⁷ and most states have death penalty laws.

      The strongest attack on the death penalty began in the 1970s, when the NAACP Legal Defense Fund joined with the American Civil Liberties Union and the American Bar Association to argue that the death penalty was disproportionately given to African Americans, especially those convicted of rape. They argued that this was a violation of the Eighth Amendment and of the Fourteenth Amendment guarantee of equal protection of the law. Part of the problem was that state laws differed about what constituted grounds for imposing the death penalty, and juries had no uniform standards to rely on. Consequently, unequal patterns of application of the penalty developed.

      In Furman v. Georgia (1972) and two related cases, the Court ruled that Georgia’s and Texas’s capital punishment laws were unconstitutional, but the justices were so far from agreement that they all filed separate opinions, totaling 231 pages.⁸⁸ Thirty-five states passed new laws trying to meet the Court’s objections and to clarify the standards for capital punishment. By 1976 six hundred inmates waited on death row for the Court to approve the new laws. That year the Court ruled in several cases that the death penalty was not unconstitutional, although it struck down laws requiring the death penalty for certain crimes.⁸⁹ The Court remained divided over the issue. In 1977 Gary Gilmore became the first person executed after a ten-year break.

      In 1987 McCleskey v. Kemp raised the race issue again, but by then the Court was growing more conservative. It held, five to four, that statistics showing that blacks who murder whites received the death penalty more frequently than whites who murder blacks did not prove a racial bias in the law or in how it was being applied.⁹⁰ The Rehnquist Court continued to knock down procedural barriers to imposing the death penalty. In 2006 the Roberts Court held that death-row inmates could challenge state lethal injection procedures in lower courts on cruel and unusual punishment grounds. Several of those courts came to different conclusions. In 2008, in Baze v. Rees,⁹¹ the Supreme Court upheld Kentucky’s lethal injection practice, and other states, waiting for a sign from the Court, went ahead with their own practices.

      Public support for capital punishment appears to be softening in recent years, not because of opposition in principle but because of fears that the system might be putting innocent people on death row. This feeling grew as DNA testing cleared some death-row residents, and careful investigation showed that others, too, were innocent. After thirteen death-row convicts in his state were exonerated between 1977 and 2000, Illinois governor George Ryan, a moderate Republican who supported the death penalty in principle, called for a statewide halt to executions. “I cannot support a system, which, in its administration, has proven so fraught with error,” Ryan explained, “and has come so close to the ultimate nightmare, the state’s taking of an innocent life.”⁹² Following his lead, then–Maryland governor Parris Glendening issued a moratorium in 2002, but that action was quickly reversed by the new governor, Robert Ehrlich, in January 2003. In 2007 the New Jersey legislature banned the death penalty in the state—the first state to do so since the Supreme Court