Tahlequah Daily Press

Local News

March 17, 2014

Pleading the Fifth against self-incrimination

Fifth Amendment shields citizens from trial abuses

TAHLEQUAH — With the colonial era still fresh on their minds, the Framers of the U.S. Constitution were familiar with the temptation of government to expand or misuse its authority.

Abuse of trials is addressed in the Bill of Rights by the Fifth Amendment, which demands a grand jury indictment before a felony trial in federal cases, and protection against double jeopardy and self-incrimination.

It reads: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

State Rep. Mike Brown, D-Tahlequah, said the Fifth Amendment is “another layer of protection for our civil liberties.”

“One of the most well-known of the protections in the Fifth Amendment is the prohibition against required self-incrimination,” Brown said. “We have all heard the phrase, ‘plead the Fifth,’ meaning [people refuse] to answer because they have reasonable cause to believe answering might lead to incriminating themselves. This protection is also evident in the Miranda rights statement, which protects our ‘right to remain silent.’”

Dr. Daniel Savage, chair of the Department of Geography, Political Science and Sociology at Northeastern State University, said the most important piece of the Fifth Amendment is the due process clause.

“It is so important that it is restated, so that it applies to the states, in the 14th Amendment,” Savage said. “Technically, procedural due process means that individuals cannot be executed, imprisoned or fined without going through the proper legal procedures, enumerated in amendments 4-8.”

Those debating the Constitution in the 1780s were quite conscious of the use of draconian and capricious laws by governments to lock up anybody deemed fit for prison. It remains a persistent problem in a number of countries today.

“Clearly, the Framers of the Constitution believed the rights of those accused of crimes were important, because they dedicated five of the 10 amendments in the Bill of Rights to them,” Savage said. “Justice Felix Frankfurter once said the ‘history of liberty has largely been the history of the observance of procedural guarantees.’ Most despotic regimes use criminal law as a way of persecuting people – for political reasons, for example – and that was one thing the Framers wanted to guard against.”

The Fifth Amendment is designed to protect the innocent from unjust conviction. Savage said a society could easily decide to give advantages to the prosecution of crime, believing it worth punishing a few innocent people to ensure convictions for all criminal activity.

“The Framers wanted to lean in the other direction,” he said. “They believed it would be better to allow a few guilty people to go free if that were the only way of making sure we did not convict the innocent. Even with all these protections, however, we still convict innocent people all the time, so guarding the rights of those accused of crimes is extremely important.”

The final clause – demanding those whose land is seized for public use receive just compensation – was brought to public attention in recent years, thanks to the highly controversial 5-4 Supreme Court decision in Kelo v. City of New London (Conn.) in 2005. The court found the city of New London was within the definition of “public use” when it sought purchase of private land through condemnation and eminent domain to turn it over to other private interests for commercial development.

The decision was consistent with earlier eminent domain decisions by the court; however, such verdicts were justified with the removal of blight or efficient use of farmland. New London sought a populace of greater wealth than the lower-middle class homeowners of its Fort Trumbull district, primarily to increase tax revenues.

Writing for the majority, Justice John Paul Stevens said: “Promoting economic development is a traditional and long-accepted function of government. There is, moreover, no principled way of distinguishing economic development from the other public purposes that we have recognized. Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose. ... Quite simply, the government’s pursuit of a public purpose will often benefit individual private parties.”

Justice Sandra Day O’Connor wrote the dissenting opinion, and in his separate dissent, Justice Clarence Thomas wrote, “Though citizens are safe from the government in their homes, the homes themselves are not.”

The decision resulted in greater public awareness that eminent domain is tied to the Fifth Amendment - and created a backlash. Most states passed laws restricting the application of eminent domain, and the Oklahoma Supreme Court simply rejected the Kelo decision in 2006.

srowley@tahlequahdailypress.com

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