Chapter 4 Civil Liberties

The First Century of Civil Liberties

Figure 4.1 Frederick Douglass and the North Star

The ex-slave Frederick Douglass, like many prominent abolitionists, published a newspaper. Much of the early debate over civil liberties in the United States revolved around the ability to suppress such radical statements.

Source: http://www.loc.gov/exhibits/odyssey/archive/02/0210001r.jpg and http://commons.wikimedia.org/wiki/File:Frederick_Douglass_portrait.jpg.

The first big dispute over civil liberties erupted when Congress passed the Sedition Act in 1798, amid tension with revolutionary France. The act made false and malicious criticisms of the government—including Federalist president John Adams and Congress—a crime. While printers could not be stopped from publishing, because of freedom of the press, they could be punished after publication. The Adams administration and Federalist judges used the act to threaten with arrest and imprisonment many Republican editors who opposed them. Republicans argued that freedom of the press, before or after publication, was crucial to giving the people the information they required in a republic. The Sedition Act was a key issue in the 1800 presidential election, which was won by the Republican Thomas Jefferson over Adams; the act expired at the end of Adams’s term.See James Morton Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca, NY: Cornell University Press, 1956). For how the reaction to the Sedition Act produced a broader understanding of freedom of the press than the Bill of Rights intended, see Leonard W. Levy, Emergence of a Free Press (New York: Oxford University Press, 1985).

Debates over slavery also expanded civil liberties. By the mid-1830s, Northerners were publishing newspapers favoring slavery’s abolition. President Andrew Jackson proposed stopping the US Post Office from mailing such “incendiary publications” to the South. Congress, saying it had no power to restrain the press, rejected his idea. Southerners asked Northern state officials to suppress abolitionist newspapers, but they did not comply.Michael Kent Curtis, Free Speech, “The People’s Darling Privilege”: Struggles for Freedom of Expression in American History (Durham, NC: Duke University Press, 2000), especially chaps. 6–8, quote at 189.

World War I

As the federal government’s power grew, so too did concerns about civil liberties. When the United States entered the First World War in 1917, the government jailed many radicals and opponents of the war. Persecution of dissent caused Progressive reformers to found the American Civil Liberties Union (ACLU) in 1920. Today, the ACLU pursues civil liberties for both powerless and powerful litigants across the political spectrum. While it is often deemed a liberal group, it has defended reactionary organizations, such as the American Nazi Party and the Ku Klux Klan, and has joined powerful lobbies in opposing campaign finance reform as a restriction of speech.

Establishment Clause

Rejecting the British legacy of “established” churches, the establishment clauseSection of the First Amendment that prohibits the government from recognizing an official religion. bars Congress from giving any religion an official status. In Jefferson’s much-quoted line, the establishment clause erects a “wall of separation between church and state.” A public policy may advance religious objectives only if its aim and main effect have nothing to do with religion. Thus a law forcing stores to close on Sundays can be justified to require employers to give staff a day off but not to enforce a Sabbath.Lemon v. Kurtzman, 403 US 602 (1971).

The separation of church and state has generated high-profile controversies. The drama surrounding such confrontations is often captured by the press. In the 1920s, John Thomas Scopes was found guilty of teaching evolution in violation of a Tennessee law requiring that the Bible’s version of creation be taught in public schools. Scopes’s trial, portrayed in the stage play and film Inherit the Wind, was a precursor of later battles.

Starting in the 1960s, the Supreme Court, in a series of rulings, prohibited nondenominational state-issued prayers in school, Bible readings, moments of silence intended for prayer, and student-led prayers at graduation ceremonies and football games. (The Court did refrain from invalidating the Pledge of Allegiance for containing the words “under God.”)Respectively, Engel v. Vitale, 370 US 421 (1962); Abington School District v. Schempp, 374 US 203 (1963); Wallace v. Jaffree, 472 US 38 (1985); Lee v. Weisman, 507 US 577 (1992); and Santa Fe Independent School District v. Doe, 530 US 290 (2000). Court attempts to stop prayers are hard to enforce across the country—especially since they often receive saturation media coverage that gives most of the attention to those decrying what they see as judicial activism.

Free Exercise Clause

The First Amendment also says that Congress shall not prohibit the “free exercise” of religion. Individuals have the right to believe and practice their religions as they see fit. Government policies cannot target individuals’ religious practices or force actions that violate their religions.

This free exercise clauseSection of the First Amendment that prohibits the government from barring individuals from freely practicing religion. gained potency in 1943 when the Supreme Court ruled that Jehovah’s Witnesses could not be expelled from public schools for refusing to salute the American flag, an act contrary to their religion. More recently, the Supreme Court limited the clause’s reach when it ruled, in 1990, that American Indians had no right to disobey an Oregon law barring controlled substances in order to ingest peyote as part of a religious service. The Court held that laws hindering religious practices do not violate the First Amendment if they apply to all persons and do not openly refer to religion.

The establishment clause tries to keep religion out of government; the free exercise clause tries to keep government out of religion. The two objectives are not always compatible. For example, President George W. Bush proposed to allow government to contract with “faith-based” organizations to administer social programs. Opponents argued that this would violate the establishment clause by endorsing religion; Bush responded that existing policy violated the free exercise clause by discriminating against religious organizations.

Thoughts, Words, and Actions

Thoughts are deemed beyond the scope of government regulation; actions are heavily regulated by government; words are somewhere in between. The distinctions between thoughts, words, and actions are not always clear. Two cases of protest against the Vietnam War show how lines are drawn.United States v. O’Brien, 391 US 367 (1968); and Tinker v. Des Moines Independent Community School District, 393 US 503 (1969). In one, a protester burned his draft card and was charged with violating a federal law that makes it a crime to knowingly destroy draft cards. The Court upheld the law, saying that the law aimed to maintain draft records, not to stifle free expression. When two students wore black armbands to their high school to protest the war and were suspended for violating the dress code, the Court found the policy sought to suppress free expression and sided with the students.

When Speech Can Be Regulated

The First Amendment does not protect speech that fails to contribute to the exchange of ideas that is crucial in a democracy—for instance, libel, obscenity, and “fighting words”—but such forms of speech are narrowly defined.

The publication of defamatory information, or libelDefamatory publication unprotected by the First Amendment; to win a libel suit, public figures must demonstrate “actual malice” revealed by a “reckless disregard for the truth.”, can be challenged in court. But officials and other public figures must demonstrate “actual malice” displayed by a “reckless disregard for the truth.”New York Times v. Sullivan, 376 US 254 (1964). Thus libel cases are hard to win. Nonetheless, some litigants sue to shame a media organization publicly or to force it to spend money defending itself in court.

There is now a right to possess most obscene material in one’s home, but not to produce, sell, or ship it. Early in the twentieth century, obscenity laws had halted the circulation of works of art such as James Joyce’s now classic novel Ulysses. In 1957, the Supreme Court shrank the definition of obscenity from anything to do with sex to “material that deals with sex in a manner appealing to prurient interest” and “utterly without redeeming social importance.” This decision forced the justices to hear dozens of cases in order to distinguish obscenity from protected speech. The results were almost comical. The often elderly justices viewed numerous pornographic films, the earthy Thurgood Marshall recounting the goings-on to his patrician, sight-impaired colleague John Harlan. At one point, Justice Potter Stewart exasperatedly wrote in one opinion, “I know it when I see it.” Finally, in 1973, the Court established three rules that must be met for material to be obscene: it appeals to a prurient interest by the standards of the local community; it depicts specified sexual conduct in a patently offensive way; and it lacks serious literary, artistic, political, or scientific value.The key cases here are Roth v. United States, 354 US 476 (1957); Stanley v. Georgia, 394 US 557 (1969); and Miller v. California, 413 US 15 (1973).

In the 1920s, the Supreme Court allowed government to bar fighting wordsSpeech, not protected by the First Amendment, that provokes people to immediate attack or acts of violence. as long as there was a “clear and present danger” of provoking an immediate attack or acts of violence. In Justice Oliver Wendell Holmes’s terms, freedom of speech does not extend to the right to falsely yell “Fire!” in a crowded theater. Such a rule allowed for suppression of radical voices. As late as 1951, the Court upheld a federal law banning advocacy of the violent overthrow of the government. But the Court, in 1969, held that speech favoring illegal action is protected unless violence is both intended and likely.Respectively, Schenck v. United States, 249 US 47 (1919); Dennis v. United States, 341 US 494 (1951); and Brandenburg v. Ohio, 395 US 444 (1969).

Even when the government cannot bar speech, it can direct its time, place, and manner. But policies may not target particular content and must provide alternative ways to express oneself. If public universities and colleges cannot ban political speeches, they may restrict them to certain parts of campus such as “Free Speech Alleys.”

Speech Codes

Like fighting words, intimidation and harassment are not protected forms of free speech. By this logic, colleges and universities in the 1980s proposed campus speech codes to forbid the demeaning or stigmatizing of persons on the basis of race, ethnicity, gender, or sexual orientation. Proponents argued that speech codes would actually boost free speech, since “hate speech” deterred individuals who felt under attack from speaking out. But courts struck down the codes as too broad.James B. Jacobs and Kimberly Potter, Hate Crimes: Criminal Law and Identity Politics (New York: Oxford University Press, 1998), 112–21.

Prior Restraint

The government is rarely able to stop material from being published. Even the Sedition Act of 1798, discussed previously in this chapter (Section 4.1 "The Bill of Rights"), did not include this prior restraintA practice, forbidden by the First Amendment, whereby government can prevent publication.. The Supreme Court extended the ban to the states in 1931 when it struck down a Minnesota law allowing the state to suppress a “malicious, scandalous and defamatory” publication as a “public nuisance”—in this case, an abusively anti-Semitic periodical. Prior restraint is rarely justified: in 1971, the Court refused to issue an injunction sought by the executive branch against the New York Times and Washington Post on grounds of violations of national security. In the absence of the government’s proof that the national interest would be harmed, the Court allowed the publication of the Pentagon Papers, a leaked classified set of documents revealing decisions leading to the Vietnam War.Near v. Minnesota, 283 US 697 (1931); and New York Times v. United States, 403 US 713 (1971).

News Media Privileges

Reporters have privileges that the public lacks: greater access to the workings of government, the ability to question officeholders, legal protection from revealing confidential sources, and access to government public information offices that feed them quotations and stories. But such privileges stem from policy and practice, not from constitutional rights.

Laws aimed at public disclosure, such as sunshine laws preventing government from working behind closed doors, benefit reporters. The Freedom of Information Act (FOIA), enacted in 1966, allows for access to executive agencies and commissions’ records and files closed to public inspection.Herbert N. Foerstel, Freedom of Information and the Right to Know: The Origins and Applications of the Freedom of Information Act (Westport, CT: Greenwood Press, 1999). Information obtained under the FOIA provides documentation for stories like USA Today’s discovery of a huge increase in the use and dealing of crack cocaine by individuals under age fifteen. Such information can also reveal scandals. In 1990, Washington Post reporter Ann Devroy was frustrated with White House Chief of Staff John Sununu’s refusal to answer her dogged questions about his rumored use of perquisites of office for private gain. Devroy filed for documents under the FOIA and found Sununu had used government planes to get to a dentist’s appointment and to attend postage-stamp auctions. Sununu resigned in disgrace.

Broadcast Regulation

Public policy treats different media differently. Broadcast and cable slots, being inherently limited, can be regulated by government in ways that are not allowed for print media or the Internet.Red Lion Broadcasting Company v. Federal Communication Commission, 395 US 367 (1969) and Turner Broadcasting System, Inc. et al. v. Federal Communication Commission, 520 US 180 (1997).

The Federal Communications Commission (FCC), established in 1934, has the power to issue licenses for a given frequency on the basis of “the public interest, convenience, or necessity.” From the start, the FCC favored big commercial broadcasters aiming at large audiences. Such limits on competition enabled the establishment of hugely profitable radio (and later television) stations and networks, whose licenses—sometimes jokingly termed licenses to print money—the FCC almost automatically renewed.

The FCC has regulatory authority to penalize the broadcast media, but not cable television, for indecent content. During the halftime show at the 2004 Super Bowl, televised by CBS, singer Justin Timberlake tore the costume and briefly exposed the right breast of singer Janet Jackson. The FCC fined CBS $550,000 for the Super Bowl “wardrobe malfunction.” The fine was overturned by a federal court of appeals in July 2008. In May 2009, the Supreme Court returned the case to the court for reconsideration.

Electronic Searches

New technologies complicate searches and seizures. In 1967, the Supreme Court ruled that the Fourth Amendment did not simply restrict physical entry: it “protects people, not places.”Olmstead v. United States, 277 US 438 (1928) and Katz v. United States, 389 US 347 (1967). The pivotal test is whether a person has “a legitimate expectation of privacy” regardless of the technological means used to search. Thus the Court has held that the use of heat-sensing devices able to find intensive marijuana farms inside closets requires a search warrant as much as would a physical entry to one’s house.Kyllo v. US, 533 US 27 (2001).

New technologies can also intrude into formerly private domains hitherto free from the potentially prying eye of government. For example, e-mail passes through many portals en route to delivery, each of which may be available for search without the sender’s or receiver’s knowledge. E-mail and web searches are still available in shadowy form even after the hard drive has seemingly been erased, and they can be searched for key words or other patterns efficiently. Police and prosecutors now have new weapons at their disposal in tracking down possible criminal activity.

The massive computerization of information tempts the government even more. In May 2004, the Government Accountability Office (GAO) released a report on data mining. It documented 52 federal agencies conducting 122 projects to collect, analyze, and use identifiable information on US persons for national security and law enforcement purposes. These numbers, which omit classified projects, are probably low-ball estimates.

Electronic Eavesdropping

In 2006, newspapers leaked word of a secret executive order signed by President George W. Bush authorizing electronic eavesdropping on computerized and cell phone conversation without a warrant.For revelations and details, see Eric Lichtblau, Bush’s Law: The Remaking of American Justice (New York: Pantheon, 2008). Bush claimed that the inherent powers of the president and Congress’s authorization of force to respond to the 9/11 attacks allowed him to initiate this policy. Members of Congress, unhappy that the program had been put into place without their knowledge, supported legislation obliging the president to seek warrants from a secret court.

The Exclusionary Rule

The Fourth Amendment’s exclusionary ruleJudicial rule applied to federal and state courts that prohibits the use of evidence in trial when it is not legally obtained. prevents evidence from an illegal search or seizure being introduced against a defendant in court. The Supreme Court adopted this rule for federal cases in 1914 and extended it to states in 1961.

Law enforcement officers have long bridled at the exclusionary rule and claim that “technicalities” allow guilty suspects to be set free. The Supreme Court has permitted the use in trial of seized evidence that would have been “inevitably discovered” even without an unconstitutional search—such as that “in plain view”—or which police officers acquired under a search warrant that they did not know was improperly issued.The cases that established the exclusionary rule are Weeks v. United States, 232 US 383 (1914) and Mapp v. Ohio, 367 US 643 (1961). See, more recently, Nix v. Williams, 467 US 431 (1984); United States v. Leon, 468 US 897 (1984); and Massachusetts v. Sheppard, 468 US 981 (1984).

Innocent until Proven Guilty

The central right of the accused is the presumption that anyone charged with a crime is innocent until proven guilty in court. This rule can be hard to preserve when an accused individual has been subjected to massive unfavorable media attention prior to or during a trial. For example, the police have perfected a technique known as the “perp walk” (for “perpetrator”), allowing television cameras to film the accused—often handcuffed and in prison garb—escorted by police. Such images, repeated over and over again in news broadcasts, can lead viewers to presume guilt rather than innocence.

“Taking the Fifth”

The Constitution’s Fifth Amendment gives people the right to refuse to answer questions from any entity of government if they claim such responses might lead to criminal prosecution. Claiming this right not to incriminate oneself is popularly called “taking the fifth.” Witnesses may be compelled to testify only if given immunity from prosecution.Quinn v. United States, 349 US 155 (1955); Emspak v. United States, 349 US 190 (1955) and Ullman v. United States, 350 US 422 (1956).

Such restrictions frustrate law enforcement officers, who find confessions among the best means to obtain a guilty verdict.

The right against self-incrimination originally meant only that individuals could not be forced to testify against themselves during their trials. In the 1920s, the Supreme Court threw out convictions for which evidence had been gained by torture or coercion and slowly expanded the right to cover all discussions with all law enforcement officials.

By 1966, the Court was weary of issuing case-by-case decisions about whether the police had gone too far in questioning suspects. In Miranda v. Arizona (384 US 436), the justices, having reviewed numerous police manuals, concluded that police often tried to create an atmosphere designed to intimidate or manipulate the accused into confessing. The justices ruled that law enforcement officials must “demonstrate the use of procedural safeguards” by ensuring that the accused is “adequately and effectively apprised of his rights.” The Miranda decision required a warning to be read to suspects prior to interrogation—this warning is known as Miranda rightsList of rights that the police must tell suspects if their confessions are to be admitted as evidence in court.—without which their statements could not be admitted as evidence in court. Suspects must be notified of the following: that they have the right to remain silent, that whatever they say can be used against them in court, that they have the right to be represented by a lawyer before and during questioning, that they have the right to have a lawyer provided by the court if they cannot afford one, and that they have the right to terminate questioning at any time.

Figure 4.2 Oliver North’s Swearing In at Congressional Hearing

Congressional investigations that provide grants of immunity can complicate judicial proceedings. The conviction of Oliver North, a central figure in the arms-for-money Iran-Contra scandal of the 1980s, was overturned for that reason.

Source: Used with permission from AP Photo/J. Scott Applewhite.

These rights are familiar to anyone who has seen criminal detective movies or television shows.

But are they effective? Police officers view the reading of these rights as a mere technicality. They can get information by appealing to a suspect’s desire to tell his or her story and by acting as if they are on the suspect’s side. Even after suspects invoke Miranda rights, officers can try to change their minds or elicit what they term off-the-record information. Eighty percent of suspects voluntarily waive their rights; many confess.Welsh S. White, Miranda’s Waning Protections: Police Interrogation Practices after Dickerson (Ann Arbor: University of Michigan Press, 2001), especially chap. 7.

Trial Procedures

Over time, Supreme Court decisions have outlined processes for a suspect to be tried in court. The most important are the following:

• Individuals cannot be subject to double jeopardyThe practice of putting someone on trial a second time for a crime after their acquittal; prohibited by the Fifth Amendment.; in other words, they cannot be tried again for a crime after being acquitted of it in an earlier trial. This restriction does not prevent someone acquitted in a criminal case from being sued in a civil case: actor-athlete O. J. Simpson, found not guilty of the murder of his ex-wife and her friend, was found in civil court to be responsible and financially liable for their deaths.
• Suspects must know and understand the charges and evidence against them; therefore, cases against those “incompetent to stand trial” for reasons of illness or insanity must be dismissed, and juvenile suspects cannot be tried as adults.
• The trial must be speedy, so that someone not yet proven guilty is not punished by lengthy incarceration before trial.
• Defendants for serious crimes (punishable by more than six months in prison or a $500 fine) and those in federal civil cases have a right to a trial by an “impartial jury” of their peers.
• Defendants have a right to face and confront witnesses against them.
• The accused has a right to a defense attorney. At first, this meant only that accused persons could pay for lawyers to represent them. But the 1932 case of seven young African American men sentenced in Scottsboro, Alabama, to die on a charge of raping two white women (a charge later found to be trumped-up) persuaded the Supreme Court otherwise. The justices ruled that these defendants—poor, illiterate, and charged with a capital offense—had to be represented by a public defender, a defense attorney employed and paid by the state.

This ruling gradually extended to all defendants in federal courts, then to felony defendants in state courts, and eventually to anyone facing any jail time.Johnson v. Zerbst, 304 US 458 (1938); Gideon v. Wainwright, 372 US 335 (1963) and Argersinger v. Hamlin, 407 US 25 (1972). But public defenders are underpaid and overworked. And their convicted clients can win on appeal only if they can show that public defenders made serious errors, depriving them of a fair trial.United States v. Cronic, 466 US 648 (1984) and Strickland v. Washington, 466 US 668 (1984).

Moreover, most charges are resolved prior to trial when a defendant agrees to plead guilty to a lesser charge. They thereby avoid being charged with—and found guilty of—a more serious crime and receiving a more severe sentence, but they lose out on the many protections of trial procedures.

The War on Terror

Civil liberties are often impaired during international crises. Witness the “war on terrorism,” which is no exception. While the revelations in April 2004 of abuse and torture of Iraqi prisoners in the Abu Ghraib prison may be a matter more for international law than civil liberties, other rights of the accused were also in question after the terrorist attacks of 9/11.

In October 2001, Congress enacted the USA Patriot Act. Among other things, it authorized the attorney general to detain indefinitely a noncitizen when there are “reasonable grounds to believe” that the person is a threat to national security. Attorney General John Ashcroft praised these policies, correctly observing, “It is difficult for a person in jail or under detention to murder innocent people or to aid or abet in terrorism.”Quoted in Matthew Purdy, “Bush’s New Rules to Fight Terror Transform the Legal Landscape,” New York Times, November 25, 2001, B4.

The Bush administration used these powers vigorously. Hundreds of resident aliens were detained without explanation in the fall of 2001, many in solitary confinement. When the Taliban government was overthrown in Afghanistan in late 2001, American forces captured some ten thousand soldiers and other Afghanis. Many of them were named “enemy combatants” (not “prisoners of war,” who would have greater protection under international law). Shackled and hooded, they were shipped to a military prison at the base at Guantánamo Bay. Some were subjected to abusive interrogation. The base was located on land the United States had leased from Cuba in perpetuity, and thus, according to the Bush administration, it was outside the jurisdiction of the federal judiciary.For a detailed history of abuses in the war on terror, see Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (New York: Doubleday, 2008); and for a critique of the trade-off between liberty and security see David Cole and Jules Lobel, Less Safe, Less Free: Why America Is Losing the War on Terror (New York: New Press, 2007).

Many rights of the accused were directly challenged by these policies: the right to know charges against oneself, the right to counsel, the right to a speedy and public trial, the right to a jury of one’s peers, the right to confront adverse witnesses, and the ability to appeal decisions to a higher court.

In 2004, the Supreme Court upheld the president’s power as commander in chief to name persons as enemy combatants, to hold them indefinitely under Congress’s authorization of military force, and to fashion trial proceedings with less stringent standards of evidence. But that due process required that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the detention’s basis before a neutral decision maker. The Court also ruled that because the United States controlled Guantánamo, all detainees there had the habeas corpus right to go to federal court to challenge their detention.Hamdi v. Rumsfeld, 542 US 507 (2004) and Rasul et al. v. Bush, President of the United States, et al., 542 US 466 (2004)..

In response, the Bush administration began keeping detainees in a camp in Bagram, Afghanistan, in the theater of war, where judges could not go. And Congress passed the Military Commissions Act of 2006, removing the federal courts’ jurisdiction to hear habeas corpus applications from detainees designated as enemy combatants. Then, in 2008, the Supreme Court, by a vote of 5–4, declared the Military Commissions Act unconstitutional, thereby giving back to enemy combatants their habeas corpus rights.Boumediene et al. v. Bush, President of the United States, et al. (Nos. 06-1195 and 06-1196), 476 F. 3d 1981 (2008).

Prisons

Through the 1970s, prisoners were rarely expected to serve out their full sentences. Parole or “time off for good behavior” gave incentives to cooperate and acquire skills needed to reenter society. But media stories about crimes committed by paroled ex-cons impelled “truth-in-sentencing” laws—mandatory minimums or fixed sentences for given crimes.

States began adopting “three-strikes-and-you’re-out” laws. These typically increase the sentence for a second felony conviction and require life in prison without parole for a third. These lengthy sentences often bear little connection to the gravity of the crimes committed.

Lengthy sentences and the fact that over three-fourths of those put in state or federal prison each year commit nonviolent crimes raise an Eighth Amendment question: does the punishment fit the crime?Steven R. Donziger, ed., The Real War on Crime: The Report of the National Criminal Justice Commission (New York: Harper Collins, 1996), chap. 1. In 2003 the Supreme Court decided that “three strikes” was not so “grossly disproportionate” as to violate restrictions on “cruel and unusual punishment.”Ewing v. California, 538 US 11 (2003) and Lockyer v. Andrade, 538 US 63 (2003). The basis for “proportionality” as an Eighth Amendment test is Solem v. Helm, 462 US 277 (1983).

The United States is the world leader in the proportion of its population that is incarcerated. When you include those on probation or parole, about 3.2 percent of adults live under the criminal justice system’s direct supervision.Steven R. Donziger, ed., The Real War on Crime: The Report of the National Criminal Justice Commission (New York: Harper Collins, 1996), 34; Fox Butterfield, “U.S. ‘Correctional Population’ Hits New High,” New York Times, July 26, 2004, A10.

When prison policies are reexamined, it is less for civil liberties than for their costs. States badly needed to cut expenses when the economic depression that started in 2007 slashed their tax receipts. They instituted sentencing alternatives to prison for first-time offenders, those seeking early parole, and prisoner-release programs.

Prisoners may organize to pursue common interests, such as seeking decent conditions in prison.Ronald Berkman, Opening the Gates: The Rise of the Prisoners’ Movement (Lexington, MA: D. C. Heath, 1979). Inspired by 1960s civil rights movements, they claimed a denial of basic rights. Their perspectives were bolstered by Hollywood films of the 1960s and 1970s, such as Birdman of Alcatraz, Cool Hand Luke, and One Flew Over the Cuckoo’s Nest, that vividly depicted inhumane conditions of involuntary confinement. Some inmates taught themselves to become lawyers and sued the prisons. Starting in the 1960s, the Supreme Court recognized prisoners’ rights to bring suit and said the ban on “cruel and unusual punishment” included prison conditions. While harsh conditions may be part of a convict’s penalty, prisoners cannot be subjected to “unnecessary and wanton” pain by the “deliberate indifference” of authorities.Cooper v. Pate, 378 US 546 (1964); Estelle v. Gamble, 429 US 97 (1976); Wilson v. Seiter, 501 US 299 (1991) and Lewis v. Casey, 516 US 804 (1996).

The Death Penalty

The death penalty is now reserved for the most serious of crimes: murder and treason. In 1972, the Supreme Court threw out all state laws imposing the death penalty as a violation of due process being arbitrarily applied from one case to the next. In 1976, the Court allowed states to impose capital punishment as long as it is decided on by a jury following a strict process, weighing mitigating and aggravating circumstances to decide if death is the most appropriate punishment.Furman v. Georgia, 408 US 238 (1972); Gregg v. Georgia, 428 US 153 (1976); Woodson v. North Carolina, 428 US 280 (1976). After 1976, thirty-eight states reinstated the death penalty, which by then was endorsed by a strong majority of the public.

The main objection to the death penalty today is that it cannot be applied dependably enough to meet the Bill of Rights’ standards for due process. Death sentences vary greatly based on the race of the convicted murderer and of the murder victim; blacks convicted of murdering a white person are far more likely to receive a death sentence than blacks convicted of murdering a black person (see Note 4.28 "Comparing Content").

Comparing Content

Victims and Capital Punishment

Victims are everywhere in the media. But who gets to play the part? For some investigative journalists, the answer is innocent death row inmates. Building on evidence dug up by journalism professor David Protess and his students at Northwestern University, reporters for the Chicago Tribune compiled two devastating series about prisoners sentenced to die on faulty evidence—“Trial and Error” and “The Failure of the Death Penalty in Illinois.” The first story in the series began by listing accusations against prosecutors: “They have prosecuted black men, hiding evidence the real killers were white. They have prosecuted a wife, hiding evidence her husband committed suicide.…They do it to win. They do it because they won’t get punished.”Ken Armstrong and Maurice Possley, “Trial and Error, Part 1: Verdict: Dishonor,” Chicago Tribune, January 10, 1999.

Evidence of mistaken convictions led Illinois governor George Ryan to declare a moratorium on capital punishment and, just before leaving office in 2003, to commute all death penalties to life in prison without parole. Days later, Ryan went on Oprah. The show’s host, Oprah Winfrey, aired two episodes she termed “our show with the governor who emptied death row.” Before the broadcast, Winfrey videotaped interviews with surviving relatives of those whose murderers had been spared the death penalty. She confronted Ryan with this video testimony of survivors describing the gruesome crimes and their sense of betrayal.

Oprah Winfrey and George Ryan

For investigative journalism, the victims are wrongfully convicted death row inmates, whose wrongful convictions justify a halt to the death penalty, so that the state does not put innocent people to death. This focus on the exoneration of the wrongfully convicted, sometimes by dramatic revelations of exculpatory DNA evidence, shifts the media’s frame away from the victims of crime to the victims of prosecution, and may thereby shift public opinion. But for the daytime talk show, the victims are survivors of violent crime who rely on the justice system to give them what Winfrey called “closure.” The future of capital punishment may depend on which frame wins.

Roe v. Wade and Abortion Rights

In this 1973 decision, the Supreme Court, invoking privacy, recognized a woman’s constitutional right to an abortion in the first three months of a pregnancy.Roe v. Wade, 410 US 113 (1973). Whether to have an abortion was seen as a private decision between a woman and her doctor. Before and since then, a debate has raged between two sides calling themselves “pro-choice” and “pro-life”—a debate and a divide exaggerated by the news media’s preference for vivid conflicts.

The Roe decision mobilized a pro-life movement. Members of Congress sought but failed to obtain the two-thirds majorities necessary for a constitutional amendment declaring that life begins with conception, thereby recognizing the fetus as a “person” able to receive the protection of the Bill of Rights. President Reagan, elected in 1980, also pushed to reverse Roe. States tried to test Roe’s boundaries. The Court initially rejected such efforts as requiring the written consent of the woman’s spouse or her parents, demanding that abortions be performed in a hospital, or enforcing twenty-four-hour waiting periods.

By the end of the 1980s—President Reagan having named new justices to the Supreme Court—the original majority for Roe had eroded. In 1989, the Court limited abortion rights by ruling that the state’s interest in the fetus begins at conception, not viability; states could now regulate abortions in the first trimester.Webster v. Reproductive Health Services, 492 US 490 (1989).

Roe Reaffirmed

Figure 4.3 Roe v. Wade Anniversary

The justices of the Supreme Court presumably did not realize when they issued the Roe v. Wade decision on January 22, 1973, that its anniversary would be marked by demonstrations by opponents and counterdemonstrations of proponents in front of their building.

Source: Used with permission from AP Photo/Joe Marquette.

When pro-life president George H. W. Bush named David Souter and Clarence Thomas to replace retiring pro-choice justices William Brennan and Thurgood Marshall, Roe seemed doomed. In 1992, the justices considered a Pennsylvania law that required a married woman’s husband to be notified before she could have an abortion and a twenty-four-hour waiting period for a woman to be provided with information about risks and consequences of abortion. But Justice Anthony Kennedy, allying with Souter and Sandra Day O’Connor (a Reagan appointee), jointly wrote an opinion. They declined to overturn Roe’s central tenet that a woman had a right to an abortion prior to the ability of the fetus to live outside the womb. But they scrapped the trimester scheme of Roe and put in a new (if less clear) test of whether a law imposes an “undue burden” on a woman’s right to an abortion. The decision supported most of the restrictions Pennsylvania had placed on abortion. It fit public opinion that was against reversing Roe v. Wade but in support of conditions and exceptions.Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833 (1992).

D&X or Partial-Birth Abortion?

With the Court’s reaffirmation of Roe, the pro-life movement was on the defensive—until it began focusing on an unusual abortion procedure known technically as “dilate and extract” (D&X). Giving it the unsettling term “partial-birth abortion” and recounting dramatic examples of its use late in a pregnancy, the pro-life side refocused the attention of the media on the fetus and away from the pro-choice emphasis on a woman’s right to decide (with her physician) on abortion without government interference.

In 2003, Congress passed—and President George W. Bush signed—a law banning partial-birth abortion. The law allowed an exception to save the lives of women but no exception for their health. It was the first time since Roe that federal law criminalized an abortion procedure. With President George W. Bush’s two appointees voting in the majority, the Supreme Court upheld the law by a vote of 5–4 in April 2007.Gonzales v. Carhart and Gonzales v. Planned Parent Federation of America, 550 US 124 (2007).