Crime & Punishment

Many of the rights in the Bill of Rights apply to those accused or convicted of crimes. The framers had experienced the power of the British government to search through colonists' possessions, prosecute them for suspected violations of smuggling laws on weak evidence, and transport them across the seas to trial in England by a judge appointed by the king. Without bail, a person could be held in prison awaiting trial even if later found innocent. Also, harsh punishments might not fit the crime or be cruel and inhumane. Therefore, the U.S. Bill of Rights gives special protection to the individual when facing the power of the state during the criminal justice process. Many constitutional scholars believe it is better for a guilty person to go free than for an innocent person to be wrongly convicted.

The Fifth Amendment contains perhaps the most famous right on television: the right to remain silent. That means a suspect does not have to answer questions by police if the answers could be used to convict him or her of a crime. In addition, the Fifth Amendment allows prosecutors to use a grand jury to evaluate evidence against a suspect before actually charging her. It also requires due process of law, or fair procedures, in all criminal cases, and it prohibits double jeopardy—trying an accused twice for the same offense.

The Sixth Amendment secures the right to a fair trial in general, with several specific protections. Its goal is to prohibit the abuses of England's notorious Star Chamber—a court under King Henry VIII where political prisoners could be tried in secret. With the Sixth Amendment, the accused has the right to a “speedy and public trial” by an “impartial jury” located in the state and district where the alleged crime was committed. The accused also must know the charges against him, in order to present an adequate defense. Any witnesses must confront the accused in court, rather than testify in secret. And the accused, like the state, must be able to force witnesses to testify and have lawyers represent him.

Finally, the Eighth Amendment addresses the terms of an individual's imprisonment and punishment, both before and after conviction. The use of bail means that an accused can pay a bond, or insurance, that she will appear in court at a future date and be released from jail in the meantime. The Eighth Amendment also prohibits excessive fines, as well as “cruel and unusual” punishment. The Supreme Court's interpretation of “cruel and unusual” has evolved over time, especially regarding the death penalty. Although the Court still upholds the death penalty in general, it must be carried out following strict procedures. The Court has also ruled that the Eighth Amendment prohibits a juvenile or a mentally disabled person from being executed for murder, in part because he is not fully capable of understanding the seriousness of the crime.