Interpreting the Bill of Rights -- part three

AMENDMENT VI

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."

The most significant portion of the sixth amendment and one of the most important renderings of the United States Supreme Court ever was the interpretation of the right to counsel. Until 1963, this right had been consistently interpreted as being present only in capital cases. With the decision in Gideon v. Wainwright, the Court extended this right to all felony cases and then, in 1972, extended it further to include misdemeanor cases as well. It was later incorporated into the "Miranda warning", an advisement of rights by the police to a suspect which came out of the 1966 landmark 5-4 decision in Miranda v. Arizona.

The "Miranda warning" was lambasted by police across the country, fearing it would so handcuff them in their attempt to arrest suspects that the administration of justice would be almost impossible to achieve. As it turned out, the effect was just the opposite. The great concern centered around the idea that suspects would have their cases dismissed at trial or later on appeal because of a "technicality" that had nothing to do with whether they committed the crime or not. The obvious problem with that objection is that what was and continues to be called a "technicality" is, in fact, a constitutional guarantee that must be upheld. The end result was that police officers became more efficient and effective in the administration of justice because of this ruling instead of in spite of it.

But back to the right to counsel. Everyone should understand that simply because one has an attorney appointed to them if they cannot afford one still does not make the playing field level. I received a critical letter to the editor a couple of years back from an attorney when I dared to suggest that not all attorneys are created equal. Just like with every other profession and occupation, there are good ones and bad ones. There are attorneys who attend the best law schools in the country and graduate towards the top of their class and there are attorneys who attend the lowest rated law schools in the country and graduate at or near the bottom of their class. Attorneys, of course, know this, but stubbornly defend their profession publicly while criticizing the same attorneys I am drawing attention to privately. One of the outgrowths of Gideon v. Wainwright was the establishment of public defender offices all around the country. These attorneys are hired by the state, are paid a salary, and often have horrendous work loads. Some are bright, intelligent, and dedicated to the prospect of serving, others aren't so much. Some could get hired at the best law firms, if that was their choice; others become public defenders because they can't get hired at any law firms.

In other words, if you are an indigent defendant who can't afford an attorney and must rely on the court to appoint you one, it's a crap shoot. You may get a good one, you may get a bad one, and you don't get to pick which one it is. The only protection a defendant has in this situation is if it can be proven that your attorney was negligent in his duties and obligations to you as a defendant. If that is proven, you will be granted a new trial with a new attorney. Other than this one exception, you have to take what you're given. Most would contend that a bad attorney is better than no attorney at all, but you'll find many who would argue that point when one's life and liberty hangs in the balance.

AMENDMENT VIII

"Excessive bail shall not be required, not excessive fines imposed, nor cruel and unusual punishments inflicted."

The eighth amendment is the shortest amendment, in terms of total words, but every word is crucial to the administration of justice and the problem is that the words used are general rather than specific because someone has to make a determination as to what constitutes "excessive" and what is meant by "cruel and unusual punishment". That "someone" happens to be the courts.

One of the arguments that has evolved over time has to do more with the discriminatory nature of bail rather than what constitutes excessive bail. Discriminatory in the sense that some people are more financially able to post bail than are others. For example, if a rich man and a poor man are arrested for the same crime, the rich man can post bail and be released until his trial while the poor man cannot. The implication of this is significant because research clearly indicates that a person who is released and able to actively aid his attorney in his own defense is more likely to be acquitted at trial than a person who remains in jail. So the question is begged, why should someone's economic situation have anything at all to do with whether he stays in jail or is released, since his economic situation usually had nothing to do with the crime committed?

To alleviate this conflict while holding true to the spirit of this part of the amendment, some have suggested that bail be based on a percentage of one's resources rather than a flat fee. For example, bail for a particular crime could be set at a percentage of a person's net worth, rather than a fixed amount. If this principle was adopted, the theory is that both the rich man and the poor man would be impacted on more equally than the way the current bail system is administered. This idea has not made much headway since it first began being discussed but I believe it is an idea that has merit.

Finally, the provision against cruel and unusual punishment has been used almost exclusively in death penalty matters. In fact, we saw a suspension of the death penalty for several years because the Supreme Court ruled that capital punishment was cruel and unusual punishment. This decision was made by a liberal leaning Court. When the Court became more conservative, the concept was revisited and the ban on capital punishment was lifted because the make-up of the new Court determined capital punishment to not be "cruel and unusual." We have also seen appeals made to the Court based on certain kinds of executions (most recently lethal injections) as being cruel and unusual. These appeals have not succeeded because the current make-up of the Court remains conservative.

This brings us back full circle to my initial column about the Bill of Rights two weeks ago when I contended that judicial interpretation is made by both liberal and conservative courts and you and I are going to either agree or disagree with how the Court rules based on our own ideas, values, norms, biases and prejudices.