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The Fifth Amendment states that:
The Fifth Amendment is often referred to as the due process amendment, in that it contains multiple clauses that aim to preserve criminal defendants against unwarranted, overzealous, or illegal prosecution by the government. However, the Fifth is probably most known for its protection against self-incrimination or having to disclose information that could ultimately harm you, stating that no person “shall be compelled in a criminal case to be a witness against himself.”
Defendants have the right to not testify at trial and the right to remain silent during a custodial interrogation (Miranda v. Arizona, 384 U.S. 436, 1966). The Fifth Amendment also provides for a grand jury in federal criminal prosecutions, prohibits double jeopardy, demands due process of law, and prohibits taking private property for public use.
The Court has incorporated the double jeopardy provision through the Fourteenth Amendment, making states also prohibited from subjecting a person to double jeopardy. However, it has not held that states must provide a grand jury review. The Fifth Amendment’s grand jury provision is one of two clauses of the Bill of Rights that has not been incorporated to the states—but most states do use the grand jury at least for some types of cases.
EXAMPLE
In Pennsylvania, grand juries are used in felony cases where witness intimidation is suspected. The Fifth Amendment also entitles citizens prosecuted by the federal government to due process of law.The Sixth Amendment states that:
The Sixth Amendment guarantees several protections to a criminal defendant in court, including the right to:
At the same time, the text of the Sixth Amendment does not include the many limitations that are imposed upon these rights in practice, nor does it specify the meaning of a speedy trial. In fact, a speedy trial time frame may be different from state to state, and between state and federal court. Following the Speedy Trial Act of 1974, federal prosecutors essentially have 100 days to get to trial following the arrest of an individual on federal charges—30 days after the arrest to secure an indictment, and then 70 days post-indictment to begin trial.
Congress has also passed legislation imposing a minimum time from arrest to trial—30 days—so that defendants have adequate time to prepare. The 100-day window imposed by the Speedy Trial Act, however, does not count delays imposed by the defendant. Moreover, the Speedy Trial Act does not apply to cases filed in state courts. Of course, most cases in state and federal courts are dealt with through plea bargaining and thus never get to trial.
EXAMPLE
In Pennsylvania, district attorneys have significantly more time to get to trial. Individuals charged with a criminal offense in Pennsylvania must be tried within 365 days of their arrest. If the defendant is held in pre-trial custody, the speedy trial clock is shortened to only 180 days.IN CONTEXT: Landmark Case: Gideon v. Wainwright
In 1961, Clarence Earl Gideon was arrested for petty larceny in Panama City, Florida, after an unknown witness reporting seeing him leave the Bay Harbor Pool Room early in the morning, carrying a bottle of wine, Coca-Cola, and change. Brought before a judge, Gideon stated that he could not afford a lawyer but believed that the state was responsible for providing him with an attorney. At the time, Florida only extended indigent defense—a lawyer appointed and paid by the state—for individuals facing capital offenses. After conviction, Gideon appealed his case from prison, citing a violation of his Sixth Amendment rights—and the Supreme Court agreed. The Court’s decision in Gideon officially incorporated the Sixth Amendment to the states, extending the right to indigent defense to anyone facing criminal charges that could be punished with 6 months, or more, of incarceration.
The Eighth Amendment states that:
The Eighth Amendment provides protections for individuals involved in the criminal justice system, particularly concerning punishment, and prohibits the government from imposing excessive bail, excessive fines, or inflicting cruel and unusual punishment. These protections are designed to ensure fairness and humane treatment throughout the legal process (Legal Information Institute, n.d.).
The Excessive Bail Clause ensures that individuals accused of a crime are not subjected to unfairly high bail amounts, which would prevent them from obtaining pre-trial release. The goal is to balance the individual's right to freedom with the need to ensure their appearance at trial (LII, n.d.).
Additionally, the prohibition of cruel and unusual punishment plays a critical role in limiting the severity of punishments. This clause has been used by courts to rule against inhumane methods of execution and to challenge disproportionate sentencing practices, including life sentences for minor offenses.
The Excessive Fines Clause prevents the government from imposing financially punitive measures that are disproportionate to the offense committed (LII, n.d.). This has implications in both criminal and civil asset forfeiture cases. Overall, the Eighth Amendment serves to uphold the principles of fairness and justice, ensuring that punishments within the criminal justice system are not extreme or unjustly harsh.
The Fourteenth Amendment reads:
The Fourteenth Amendment mandates that states do not deny their citizens’ due process of law. Due process can be summarized as making sure that the government treats people fairly. Part of fairness is giving people fair warning as to what behaviors are permitted and what behaviors are not permitted—putting people on notice of what the law is. Thus, legislators must be very careful when making new laws.
The Fourteenth Amendment also guarantees equal protection of the law. Generally, legislatures cannot make laws that treat people differently unless the laws are rationally related to a legitimate government interest. When legislatures attempt to pass laws that treat people differently based on sex, then the court reviews the law with heightened scrutiny—the law must be designed to achieve an important government interest.
EXAMPLE
Laws that imply differential treatment by sex must be based on an actual physiological difference, and not archaic stereotypes. When legislatures attempt to pass laws that treat people differently based upon their race or ethnicity, then they must have a compelling reason to do so, and even then, the courts, employing strict scrutiny, are likely to declare such laws unconstitutional.The Fourteenth Amendment covers differential treatment at all stages of the criminal justice process, from arrest to punishment. However, the courts, in their interpretation of this amendment, have categorically allowed criminal justice strategies that result in different outcomes based on sex or race. In fact, some of the most prominent Fourteenth Amendment landmark cases have legitimized the ability of different criminal justice actors to consider demographic traits.
IN CONTEXT: Landmark Case: United States v. Brignoni-Ponce
In the 1975 case United States v. Brignoni-Ponce, the Supreme Court ruled, unanimously, that law enforcement (in this case, Border Patrol) could not stop a vehicle, or execute a search, based solely on the presumed ethnicity or citizenship of the vehicle’s occupants. On its surface, this decision appears to outlaw racial profiling; yet, in its entirety, the Court’s decision validates the relevance of presumed ethnicity or citizenship in officers’ decisions to stop and search—if the suspect’s appearance is not the only articulable fact underlying reasonable suspicion or probable cause.
Other interpretations of the Fourteenth Amendment have made it more difficult for individual defendants or groups of defendants to argue that illegal discrimination led to their differential treatment in the criminal justice system. Most notably, the Supreme Court erected a nearly insurmountable standard for proving racial discrimination in McCleskey vs. Kemp—discussed below.
IN CONTEXT: Landmark Case: McCleskey v. Kemp
In 1987, Warren McCleskey was convicted in the murder of a police officer and sentenced to death. However, McCleskey appealed his sentence based on racially disparate treatment. Specifically, his attorney presented powerful data on racial differences in the imposition of the death penalty in Georgia. According to the “Baldus Study,” individuals convicted of homicide in Georgia were four times as likely to receive the death penalty if they had killed white victims, compared to Black victims. Yet the justices did not find these statistics sufficiently compelling to overturn McCleskey’s sentence, instead writing "apparent disparities in sentencing are an inevitable part of our criminal justice system." Moreover, the McCleskey decision produced a new standard for proving racial discrimination in the criminal justice system, requiring appellants to produce evidence of conscious race bias—proof that police officers, prosecutors, or judges, for example, had intended to treat an individual differently based on their race. For this reason, McCleskey v. Kemp is often lamented as a case that has made the rectification of racial inequalities in the justice system extraordinarily difficult.
Source: THIS TUTORIAL HAS BEEN ADAPTED FROM Open Washington’s “Introduction to the U.S. Criminal Justice System. ACCESS FOR FREE AT OPEN WA LICENSE:CREATIVE COMMONS ATTRIBUTION 4.0 INTERNATIONAL.
REFERENCES
Brandenburg v. Ohio, 395 U.S. 444 (1969).
Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).
Congress.gov. (1791, December 15). U.S. Constitution - Eighth Amendment. Library of Congress. Constitution.congress.gov. constitution.congress.gov/constitution/amendment-8/
Congress.gov. (n.d.a). U.S. Constitution - Fifth Amendment." Library of Congress. Constitution.congress.gov. constitution.congress.gov/constitution/amendment-5/
Congress.gov. (n.d.b). U.S. Constitution - Sixth Amendment. Library of Congress. Constitution.congress.gov. constitution.congress.gov/constitution/amendment-6/
Congress.gov. (2020). U.S. Constitution - Fourteenth Amendment. Library of Congress. Congress.gov. constitution.congress.gov/constitution/amendment-14/
Cox v. Louisiana, 379 U.S. 536 (1965).
District of Columbia v. Heller, 554 U.S. 570 (2008).
Legal Information Institute (LII). (n.d.). Overview of Eighth Amendment, Cruel and Unusual Punishment. www.law.cornell.edu/constitution-conan/amendment-8/overview-of-eighth-amendment-cruel-and-unusual-punishment.
Owen, S. S., Fradella, J.P.H. F., Burke, T. W., & Jopkins, J. W. (2019). Foundations of Criminal Justice (3rd ed.). Oxford University Press Academic US.
Reynolds v. United States, 98 U.S. 145 (1878).
Roper v. Simmons. (n.d.). Oyez. www.oyez.org/cases/2004/03-633
Texas v. Johnson, 491 U.S. 397 (1989).
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
