5th & 8th Ammendment Cases

The Fifth Amendment

 The Fifth Amendment to the United States Constitution protects all individuals from being witnesses against themselves in criminal cases. It states:

        “ 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 offence 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.”[1]

The Fifth Amendment has five (5) clauses:[2]

  1. The Grand Jury Clause
  2. The Double Jeopardy Clause
  3. The Self-Incrimination Clause
  4. The Due Process Clause
  5. The Takings Clause

The Grand Jury Clause

     This clause comes directly from pre-constitutional common law. A person must be indicted by a Grand jury when he or she has been charged with a “capital or otherwise infamous crime.”  Grand juries return indictments in many criminal cases. Grand juries are composed of peers and operate in closed proceedings. Specific instructions regarding the law are given members of the Grand jury by the judge. Grand juries are not restricted by many constitutional restrictions that normally apply in other court proceedings. An example of this would be the Exclusionary Rule.[3] This rule states that evidence collected in violation of a person’s Fourth, Fifth or Sixth amendment rights cannot be presented in court. The Grand Jury Clause does not apply this standard so this evidence can be used during a grand jury. Individuals brought before a grand jury also have no right to have an attorney present in the grand jury room during hearings. The individual is free to leave the grand jury room to consult with his or her attorney during the proceedings.

 The scope of a grand jury indictment can be amended by the prosecution only in specified circumstances. It was ruled by the United States Supreme Court on March 28, 1887 that the body of an indictment cannot be changed by the prosecuting attorney without that indictment being re-submitted to the grand jury. This was the “Ex Parte Bain” decision.[4] Any changes to the indictment, no matter how immaterial, such as adding or eliminating words make no difference. The court effectively ruled that any changes to the original indictment, makes the indictment a “different” indictment that the one presented to the grand jury “and must be re-presented” as a new indictment.

Ex Parte Bain was partially reversed in “United States v Miller” (471 U. S. 130-1985)[5] In the Miller case, the Supreme Court decided a looser interpretation of the rigid requirements set forth in Bain. In the Miller case, Miller asserted that the basis of his conviction was based on a “fatal variance” between the scheme and artifice to defraud charged in the indictment and that which the government proved at trial.”[6] The Ninth Circuit Court of Appeals agreed and vacated Miller’s judgement of conviction. The Ninth Circuit reasoned:

      “a grand jury’s willingness to indict an individual for participation in a broad criminal plan does not establish that the same grand jury would have indicted the individual for participating in a substantially narrower, even if wholly included, criminal plan.”[7]

The government clearly argued that “there were longstanding doctrines of criminal procedure premised on the notion that each offense whose elements are fully set out in an indictment can independently sustain a conviction.”[8]

The Supreme Court ruled on April 1, 1985 that:

    “The variance complained of added nothing new to the grand jury’s indictment and constituted no broadening.”

….. We therefore disagree with the Court of Appeals on the issue of whether Miller has shown any compromise of his right to be tried only on offenses for which a grand jury has returned an indictment. No such compromise has been shown. The judgement of the Court of Appeals is accordingly reversed.”[9]

Under the Grand Jury Clause, an “infamous” crime is determined by the severity of the punishment that may be imposed, not the actual punishment that imposed. In “Macklin v United States” (1886), “United States v Morland” (1922) and “Green v United States” (1957) established the three factors of “infamous” crimes. They are:

  1. Infamous crimes are crimes where incarceration in a prison or penitentiary as opposed to a correction or reformation house, attaches infamy to a crime
  2. Infamous crimes are defined to be those “punishable by imprisonment in the penitentiary.”
  3. Imprisonment in a penitentiary can be imposed only if a crime is subject to imprisonment exceeding one year.[10]

The Double Jeopardy Clause

    The Fifth Amendment to the United States Constitution protects person from being “subject for the same offense to be twice put in jeopardy of life or limb.”[11] “Jeopardy” applies when the jury is set in a jury trial, when the first witness is sworn in during a bench trial or when the plea is rendered. There are four (4) actions that are prohibited by the Double Jeopardy Clause:

     1.Subsequent Prosecution after Acquittal:

         One of the earliest cases which illustrates this principle is “Ball v United States”, 163 U.S. 662 (1896). In 1889, Millard Bell was arrested, along with two other men, for the murder of William T. Box. At trial, the jury acquitted Millard Ball but convicted the other two defendants. The two convicted defendants appealed the decision to the Supreme Court. In 1891, the Supreme Court reversed the original decision, stating that the indictment was not sufficient. This caused the re-indictment of all three defendants, including Ball, who was previously acquitted. The three defendants then pleaded prior jeopardy, but all were re-indicted and all three were convicted of murder the second time. All three men appealed the conviction under the Double Jeopardy Clause. The Supreme Court reversed Ball’s conviction holding that under the Double Jeopardy clause, the fact that the first indictment was not sufficient, did not dispense the jeopardy for his acquittal.[12]

   2.Mutliple Punishment, including Prosecution after Conviction:

         “Blockburger v The United States” 284 U.S. 299 (1932) established the following test:

“The government may separately try and punish the defendant for two crimes if each crime contains an element not found in the other.”[13]

“Grady v. Corbin”, 495 U.S. 508 (1990), was a case where the Supreme Court employed “same conduct.” Mr. Corbin was driving under the influence in the fall of 1987, when he drove his car across the center line of a New York highway, and struck two on-coming vehicles. The driver of the second car in the accident while her husband was injured. Corbin was charged with DUI (driving under the influence) and pled guilty to this charge. The Supreme Court ruled in this case that Corbin could not be tried subsequently for homicide since he had already pled guilty and had been convicted of DUI in the same prosecution.[14] The Court interpreted that action as placing Corbin in “double jeopardy.”

(Note: The decision in “Grady v. Corbin” was overruled by “United States v. Dixon, 509 U.S. 688 (1993)”[15], which held that “subsequent convictions” for offenses that contained the same elements violated the Double Jeopardy Clause. This returned the courts to the principle set in “Blockburger v The United States” 284 U.S. 299 (1932))

  1. Prosecution after Mistrial:

               Rules for prosecution after a mistrial depends on who asked for a mistrial. If the defense moves for mistrial, there is no restriction on retrial unless the prosecution acted in “bad faith”. Prosecution after mistrial is also not barred if the prosecutor moves for a mistrial, if the trial judge in the case finds “manifest necessity” for granting mistrial.[16]  Manifest necessity can occur when a jury cannot reach a verdict, or when circumstances prevent the continuation of the trial.

  1. Prosecution in two Different States for the same Illegal Act:

                Double jeopardy does not include a person being tried for the same illegal acts in two different states. This is due to the principle of “Dual Sovereignty.”[17] This states that each state in the union, as well as the United States as a whole, possess sovereignty. In “Heath v Alabama” 474 U.S. 82 (1985), Larry Heath traveled from Russell County, Alabama to Troup County, Georgia and employed two individuals to come to his and his wife’s home in Russell County to murder his pregnant wife in 1981. He paid the individuals $2000.00.  In 1982, Heath pled guilty to the crime in Georgia. He was convicted and sentenced to life in prison in the State of Georgia.

 Sometimes after that, the State of Alabama (grand jury) indicted Heath for the crime murder during a kidnapping.[18] Heath pled “former jeopardy” under the Alabama as well as the United States Constitution stating that he was not eligible to be punished in Alabama because a Georgia court had already convicted and sentenced him for the same crime, which had not taken place in Alabama. (Mrs.  Heath was in fact, murdered in the State of Georgia as her assailants took her to Georgia before killing her.) Prosecutors in the States of Alabama argued that because the defendant’s wife had been kidnapped in Alabama, the murder may be punished in Alabama. On January 12, 1983, an Alabama jury convicted Heath of murder during a kidnapping in the first degree. Murder during kidnapping is a capital offense. Heath was sentenced to death.  Heath appealed the conviction to the Alabama Court of Criminal Appeals. The conviction was affirmed by the Alabama Court of Criminal Appeals as well as the Alabama Supreme Court. The United States Supreme Court ruled on December 3, 1985[19], that because of “Dual Sovereignty” of the states of Alabama and Georgia, the defendant Heath, had committed two distinct offenses that violated laws of two different states, therefore “double jeopardy” did not apply.  Heath’s sentences were upheld. Although Heath received a life sentence in the state of Georgia, he was executed in the States of Alabama on March 21,1992.

The Self- Incrimination Clause

     The Fifth Amendment protects individuals from being forced to implicate or incriminate themselves. This is defined as exposing oneself to being accused of or charged with a crime. The legal protection against “compelled” self- incrimination historically comes from widespread use of torture and forced confessions in the late 16th and early 17th century in England.[20] Any person refusing to take an oath of innocence, before any were even made, were considered guilty. Coerced confessions and torture were used to compel Puritans to identify other Puritans for persecution. John Lilburne refused to take the oath in 1637.

 His action helped to bring about the “Humble Petition of Many Thousands to Parliament” in 1647.[21]  The third demand in the petition was the “right against self-incrimination in criminal cases.” The Puritans brought this principle to the Americas and it was later incorporated into the United States Constitution, through the Bill of Rights. The most notable self-incrimination case is “Miranda v Arizona” 384 U.S. 436 (1966)[22].  This case protects the “right to remain silent.” Ernesto Miranda was arrested for theft of an item with a value of $8.00.[23]

 After his arrest, Miranda was interrogated for two hours. He confessed to kidnapping and raping a woman, days earlier. Miranda was not told that he could have an attorney present before and during questioning. He was also never told that he had the right to remain silent. Miranda was convicted based on his confession and was sentenced to twenty years in prison. His conviction was overturned and the principles of informing those arrested of their right to silence and right to legal counsel were established and named the “Miranda” warning. The Miranda warnings that all law enforcement officers must issue are that:

  1. They have the right to remain silent
  2. They have the right to talk with an attorney before being questioned
  3. They can have an attorney present during their questioning
  4. They can have a court-appointed attorney if they cannot afford to hire a private attorney
  5. Anything that they say during questioning can be used against them in court.

“Miranda v Arizona” also established that it was not sufficient that these rights can simply be read or told to the arrested person. The Supreme Court also stated that the arrested person must also “understand” the Miranda warning. Without this understanding by the arrested person, convictions have been overturned. The Supreme Court ruled that the protections of the Fifth Amendment in regards to the “right to remain silent” apply to questioning in other legal proceedings, such as other federal courts and state courts, under the “incorporation doctrine” of the Fourteenth Amendment.[24] This applies whether the court proceeding is civil or criminal.

The right to remain silent was sorely tested in United States Congressional hearings in the 1950’s. During this time, witnesses were brought before the House Committee on Unamerican Activities under Senator Joseph McCarthy. Witnesses who refused to answer questions were accused of being “Fifth Amendment communists.” Senator McCarthy not only asked witnesses whether they belonged to the communist party but asked them to identify other persons who they knew to be communists.

 These people lost jobs and positions in political and other organizations after asserting their Fifth Amendment rights.  This rendered many Hollywood actors, directors, producers and others connected to the entertainment industry unable to find work for years or lose their careers, altogether, even though being a member of the communist party was not illegal.

Self-Incrimination-Self-regulatory Organization

  The self- incrimination privilege does not extend to answering questions posed by a self-regulatory organization or non-governmental entity. A “self-regulatory organization” (SRO) possess the power to place a person in jail as it is not a court of law.  SROs lack subpoena powers.  If the individual or individuals refuse to testify before the SRO, she or he can lose membership in the organization which could restrict their participation in the industry. If the person does testify or give information to the SRO, the SRO may provide information about those statements to law enforcement agencies. Those agencies can then use the statements to prosecute the individual who made them.

Illegally Obtained Evidence

  The Fifth Amendment limits the use of evidence which was gotten illegally by members of law enforcement. This evidence includes confessions obtained by torture as being illegally obtained evidence.[25] In “Chambers v. Florida, 309 U.S. 227 (1940), four defendants were questioned for five days until they confessed to the murder of another man.  The men were convicted and sentenced to death in the State of Florida. They appealed their convictions on the grounds that their confessions were obtained through prolonged and coercive interrogation which led to a forced confession. The case was heard before the United States Supreme Court on January 6, 1940 by Thurgood Marshall, attorney for Chambers, one of the accused men. He argued that Chambers was questioned alone in a room with up to as many as ten police officers and other members of the general community.  Chambers was not given an opportunity to obtain legal counsel and was not charged for the crime of murder for an entire week, while being held in jail.  Chambers and the other men maintained their innocence, but after five days of coercive questioning, confessed to the crime. On February 13, 1940, the Supreme Court of the United States ruled in favor of Chambers and the other three men.  The Court stated that the facts showed that “the confessions had clearly been compelled and were therefore inadmissible.”[26] The Court ruled that the prosecution may not use statements stemming from “custodial interrogation”[27] of the defendant unless it can be shown that the accused person’s rights have been safe-guarded throughout the process of the interrogation. This would include the Miranda warning. Custodial Interrogation occurs when a person is questioned while they are in police custody.

In 2004, the Supreme court of the United States ruled in a 5 to 4 decision, that being required to identify oneself to police under states’ “stop and identify” statutes are not unreasonable search or seizure and is not self-incrimination, if the law enforcement officer has a reasonable suspicion that there is a crime already in progress or that a crime has already been committed by the person in question. The person refusing to identify himself or herself must comply with “self-identification” or be charged with obstruction of an officer discharging his or her duty. The person does not have to answer further questions beyond self-identification, as the court ruled that the person had “no reasonable belief that his name would be used to incriminate him.”[28] The case that featured this ruling was “Hiibel v. Sixth Judicial District Court of Nevada”, 542 U.S. 177 (2004). Traffic stops are not deemed to be “custodial.”

Age

  Age can also be a factor in Fifth Amendment protections, especially in police custody cases. In the case of “J. D. B. v. North Carolina”, 564 U.S. 261 (2011), a 13-year-old boy was questioned without Miranda warning at his school. He was not given an opportunity to contact his parents or legal guardians. The officials in North Carolina maintained that because the 13-year-old was not considered to be under arrest and was at school, there was no need to issue the Miranda warning. The Supreme Court ruled that the child’s ages should have been considered when extending the custody test.[29] The Court remanded the case to the State of North Carolina Supreme Court and instructed it to make a new finding on custody that would consider age.

Right to Remain Silent

  A person’s right to remain silent must be “unambiguous.” It must be clear. This was established by the Supreme Court in “Berghuis v. Thompkins”, 560 U.S. 370 (2010). The court stated that while there was no specific formula needed to assert the right to remain silent, a person cannot claim the right by simply “remaining silent.” Van Thompkins was considered a suspect in a fatal shooting in January 2010. After being advised of his Miranda rights, police officers interrogated him. Throughout 3 hours of interrogation, Thompkins did not respond to any questions. Thompkins, however had not informed the police officers after getting his Miranda warning that he would be relying on this right and would not answer any forms of their inquiries until the officers asked him if he believed in God, prayed to God and if he had prayed to God for forgiveness for having shot the victim.[30] Thompkins answered “yes” to all those questions and later claimed that he had invoked his Fifth Amendment “Right to Remain Silent” and that the answers he gave could not be used against him. The Supreme Court ruled that a person must “state” that her or she is “remaining silent.”[31]

Self-Incrimination- Providing Documents

  Self- Incrimination can also apply when documents are supplied in response to a subpoena. Under the “Act of Production Doctrine”,[32] when an individual produces documents as a result of a subpoena being served, the very submission and/or production of the documents may create a “testimonial aspect” which can be incriminating in itself. Submission confirms the existence, custody and authenticity information (documents) not already in the possession of law enforcement. This confirmation had been in effect since 1976. In 1996, Webster Hubbell had been indicted on various charges related to the Whitewater Investigation. These charges included tax-related violations as well as mail fraud and wire fraud charges based on documents the United States Government had gained from Hubbell through the subpoena process.  As Hubbell served a jail sentence in October 1996, then Independent Counsel’s office headed by, Kenneth Starr served him a “subpoena duces tecum”, calling for more documents for the grand jury.[33] Hubbell appeared before the grand jury in November of 1996 and at first invoked his Fifth Amendment privilege against self-incrimination. Hubbell refused to state that the documents requested by the Independent Counsel’s office even existed. But prosecutors in the case produced an order under 18, U.S.C.  Section 6003(a)[34] which directed Hubbell to respond to the subpoena. The prosecutors also granted him “immunity to the extent allowed by law.” Hubbell thane responded to a series of questions and produced the numerous documents called for in the subpoena. The prosecutors then used the information to prosecute Hubbell for a second time. Hubbell took the second prosecution to the United States District Court, where the second indictment was dismissed. The prosecutors appealed the district court decision to the United Stated Supreme Court. The United States Supreme Court ruled in favor of Hubbell. In an 8 to 1 decision, the Court held:

        “  ….. the Fifth Amendment privilege against self-incrimination protects a witness from being compelled to disclose the existence of incriminating documents that the government is unable to describe with reasonable particularity.”[35] The Court ruled further that if the witness produces said documents pursuant to a grant of immunity, the government may not use the documents to prepare criminal charges against the compelled witness.

Corporations-Providing Documents

  Corporations may be compelled to keep and turnover records as the United States Constitution only extends protections against self-incrimination to “natural persons.”[36] Individuals within a corporation still have Fifth Amendment protections. Individuals can assert those rights concerning their roles in corporate activities, but could not “plead” the Fifth Amendment concerning the corporation’s policies or about the behavior of other corporate officers.

Refusal to Testify in a Criminal Case

   When an individual refuse to testify in a criminal case, it is a violation of that person’s Fifth Amendment protections for the prosecution to comment or infer to the jury that the individual’s declination to testify is evidence of that individual’s guilt. This principle was decided by the United States Supreme court in “Griffin v. California”, 380 U.S. 609 (1965). Griffin was convicted of murder in this case and had refused to testify at trial. In the final summation the prosecution “made an issue” out of Griffin’s unwillingness to testify when it stated:

     “Essie Mae is dead. She can’t tell you her side of the story. The defendant won’t.”[37]

The prosecution’s reference to the defendant’s exercising his Fifth Amendment right not to testify as an inference of guilt and inferring to the jury to use that information when deciding the verdict, violated the defendant’s Fifth Amendment right. Though in 1965, this practice was legal under the California State Constitution, once again Federal law remain supreme. Mr. Griffin’s conviction was reversed on this basis. Griffin was re-tried twice more for the murder of Essie Mae Hodson and found guilty during the third trail. Griffin was sentenced to death but upon automatic appeal, that conviction was overturned.

Refusal to Testify in a Civil Case

   Refusal to testify in a Civil case has consequences. The United States Supreme Court in “Baxter v. Palmigiano,” 425 U.S. 308 (1976) held:

         “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.”[38]

In the case of Federal income taxes, the Supreme Court has ruled that a taxpayer cannot use Fifth Amendment rights to refuse to file a required Federal tax return. This was determined in “Garner v. United States”, 424 U.S. 648 (1976). Garner sought to refute the use of his tax returns by the prosecution to refute his claim that his involvement in fixing sporting contests and illegal betting as “innocent.” He contended that the use of his tax returns violated his Fifth Amendment right against self-incrimination. The Court concluded that Garner had not been compelled to self-incrimination by the use of information he disclosed on his tax returns as he was legally required to file the return. The Court stated:

      “…if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the Government has not “compelled” him to incriminate himself.”[39]

Grants of Immunity

   When the government gives an individual immunity from prosecution, that individual can be “compelled” (forced) to testify. Immunity may be either “transactional” or “use” immunity.  In transactional immunity, the witness is immune from prosecution for offenses related to the testimony being given. In use immunity the witness can be prosecuted, but his testimony cannot be used against him.[40] The Supreme Court further clarified in “Kastigar v. United States”, 406 U.S. 441 (1972), that the government need only give use immunity to compel testimony and that immunity not only extends to the witness’s testimony but to all evidence derived from it.[41]

Record Keeping

   Record keeping that is statutory may go too far as it may implicate the record keepers right against self-incrimination.  This was provided for by the Supreme Court’s decision in “Leary v. United States, 395 U.S. 6 (1969)”. Timothy Leary, activist and college professor was arrested for possession of marijuana after attempting to go to Mexico. When Leary was denied entry after crossing the bridge at Laredo, Texas, he drove back across the bridge and asserted that he and his passengers had nothing to declare as they were not admitted to Mexico. The inspector at the border asked to search Leary’s vehicle, where he found small amounts of marijuana.    Leary was arrested under the “Marijuana Tax Act of 1937, Pub.L. 75–238” because he did not follow the record-keeping requirements for the possession of marijuana, without paying the appropriate occupational tax involved.  In “Leary v. United States, 395 U.S. 6(1969)”[42], The Supreme Court ruled that because the Marijuana Tax Act compelled Leary to identify himself as a “member of a suspect group” (those who were “licensed transferrers” of marijuana”), he had a “real and appreciable” hazard of self-incrimination.[43]

The ruling in this case led to the repeal of the Marijuana Tax Act of 1937 by the United States Congress in 1970.

Combinations and Passwords

   Combinations and passwords raise issues of self-incrimination. While no case has come before the United States Supreme Court yet, lower courts have given conflicting rulings on whether computer passwords, compelled to be disclosed is in violation of the Fifth Amendment.[44]

Employer Coercion

   Workers may be required to answer questions regarding on-the-job conduct posed by their employers as a condition of employment.  These questions would be narrowly confined to “on the job” conduct and matters. The employee can invoke “Garrity Rights” before she or he answers the questions. This principle applies most commonly to police officers, teachers, and other public employees.  This principle was developed in “Garrity v. New Jersey, 385 U.S. 493 (1967).”[45]  In 1961, Edward Garrity and five other police officers in 2 New Jersey cities were questions about “ticket fixing.” The officers were not under arrest and were told that their responses to questions could bring about criminal charges against them. They were further told that they did not have to answer any questions but that their refusal to answer could cause them to lose their jobs. Based on this, the officers involved had criminal charges brought against them and subsequently lost their jobs. The officers were convicted and appealed their charges to the New Jersey State Supreme Court where their convictions were upheld.  The Supreme Court ruled in “Garrity v. New Jersey, 385 U.S. 493 (1967)” that the officers were “compelled” to testify against themselves”, which constituted “coercion. Their convictions were overturned.  Public employees should be given the “Garrity Warning” before they answer questions posed by their employer. If not, the employee can invoke “Garrity Rights”. The Supreme Court stated in its decision:

  “'The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury. * * * The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.”

“We conclude that policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.”[46]  Below is the typical wording of the Garrity warning, though it can vary slightly from state to state and from local jurisdictions:

“You are being asked to provide information as part of an internal and/or administrative investigation. This is a voluntary interview and you do not have to answer questions if your answers would tend to implicate you in a crime. No disciplinary action will be taken against you solely for refusing to answer questions. However, the evidentiary value of your silence may be considered in administrative proceedings as part of the facts surrounding your case. Any statement you do choose to provide may be used as evidence in criminal and/or administrative proceedings.”[47]

The Kalkines Warning below applies to usual federal employees and is stated:

“You are being questioned as part of an internal and/or administrative investigation. You will be asked a number of specific questions concerning your official duties, and you must answer these questions to the best of your ability. Failure to answer completely and truthfully may result in disciplinary action, including dismissal. Your answers and any information derived from them may be used against you in administrative proceedings. However, neither your answers nor any information derived from them may be used against you in criminal proceedings, except if you knowingly and willfully make false statements.”[48]

The Due Process Clause

   Under the Fifth Amendment the “Due Process” clause ensures that:

       “No person shall ... be deprived of life, liberty, or property, without due process of law ...”[49]

While this remains a bedrock in today’s laws and court decisions, this was not always so. The most famous or infamous case surrounding this clause and substantive due process was “Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).”[50] This case was heard by the Supreme court in 1857 and centered on the “property rights” of Sandford, a slave holder and Dred Scott, an enslaved person.

Mr. Scott contended that since Sandford had taken him out of the State of Missouri, a state where the holding of enslaved people was “legal” to the Louisiana Territory where the holding of enslaved people was illegal, granted Scott his freedom, even when Sandford brought Mr. Scott back to Missouri. Scott contended that he was a “free citizen” at the point he was taken into free territory. The Supreme Court ruled otherwise. It stated:

  1. Slaves, former slaves and their children could never be citizens of the United States nor were ever intended to be per the U.S. Constitution, and therefore have no standing to file a suit.
  2. The United States Congress had no authority to prohibit slavery in United States Territories.
  3. Slaves(“property”) could not be taken from their owners without “due process.”[51]

In one ruling, the Unites States Supreme Court relegated all peoples of African descent in the nation to being “non-citizens”, with no rights at all. The Court ruled that to free Dred Scott would deprive Sandford of his “due process” rights as well as his “property” under the Fifth Amendment simply because Sanford had moved to another location in the United States. This was regarded as the initial case employing “Substantive Due Process.” Substantive Due Process is defined as:

   “a behavior that is a protected right if the behavior is “deeply rooted” in this nation’s history or traditions.”[52]

Clearly in “Dred Scott v. Sandford”, Slavery was recognized as a “deeply rooted” tradition. This decision was overturned by the Fourteenth Amendment to the United States Constitution, adopted July 9, 1868, granting citizenship and corresponding rights to all enslaved peoples in the United States. This was part of the “Reconstruction Amendments.”  Subsequent Due Process cases relied on the Fourteenth Amendment and substantive due process. Notable among these cases was “Roe v. Wade, 410 U.S. 113 (1973).”[53]

The Takings Clause

   The last clause of the Fifth Amendment is referred to as the “Takings” clause and establishes that the federal government and every state has the power of “eminent domain,” the power to take private property for public use. The Fifth Amendment states:

       “No person shall…. without due process of law be obliged to relinquish his property, where it may be necessary for public use, without just compensation.”[54]

Eminent Domain is the taking of private property for “public use.” Federal and states governments are limited in the use of this power as they are required to pay “just compensation” if private property is taken for public use. This provision of the Fifth Amendment did not originally apply to state governments. This factor changed in the “Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897)” case.[55] The United States Supreme Court decided, in this case, that the Fourteenth Amendment extended the effects of the “takings clause” in the Fifth Amendment to the states. The majority opinion of the court was given by Justice John M. Harlan. Harlan argued that “due process of law” required fair compensation to be given for any private property seized by the state. The City of Chicago had claimed that “due process” had been served simply by allowing Chicago B&Q Railroad to “grieve” the taking of its land for public purpose. Justice Harlan maintained:

   “in determining what is due process of law, regard must be had to substance, not to form.”[56] The Supreme Court decided that part of the “substance” of due process requires the legislation to provide for fair compensation for private property. Justice Harlan further stated:

   “The legislature may prescribe a form of procedure to be observed in the taking of private property for public use, but it is not due process of law if provision not be made for compensation. Notice to the owner to appear in some judicial tribunal and show cause why his property shall not be taken for public use without compensation would be a mockery of justice.”

The Supreme Court decision goes further to state:

   “ In our opinion,  a judgement of a state court, even if it be authorized by statute, whereby private property is taken for the state or under its direction for public use, without compensation made or secured to the owner, is, upon principle and authority, wanting in the due process of law required by the Fourteenth Amendment of the Constitution of the United States, and the affirmance of such judgement by the highest court of the state is a denial by the state of a right secured by that instrument.”[57]

This case, for the first time, incorporated the Fifth Amendment “Takings” clause into the “Due Process” clause of the Fourteenth Amendment and apply the Bill of Rights against the states.

 This case illustrates that a private citizen or private entity sued a city government for following what then was a state law. In essence, this action represented the suing of the State of Illinois and federal law remained supreme.

(Note: The examples cited above illustrate how this amendment has been applied in specific cases.  Fifth Amendment claims are not limited to those case examples shown above.)

NOTE: Local government powers cannot violate or supersede the state constitutions and the state codes or state laws of the state where the entity is located.  Local government powers cannot supersede or violate the United States Constitution and Federal Codes or Federal Laws. The United States Constitution and Federal Codes or Federal Laws are always the supreme laws of the land.

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[1] United States Constitution, The Fifth Amendment, ratified December 1791.

[2] “Fifth Amendment to the United States Constitution” Wikipedia, The Free Encyclopedia, August 13, 2017, p.1-18

[3] Ibid., p 4, August 13,2017

[4] Ob.cit. “Fifth Amendment to the United States Constitution”, p.4, August 13, 2017.

[5] Ibid. p.4

[6] United States v. Miller,471 U.S. 130 (1985), Google Scholar, September 3, 2017 pgs.1-7

[7] Ibid., p. 2

[8] Ob.cit, “United States v. Miller”, p.2

[9] Ob. cit., p.4

[10]Ob. cit. “Fifth Amendment to the United States Constitution”, p.5, August 13, 2017.

[11] Ibid. p.5

[12] “Ball v United States”, 163 U.S. 662(1896), Wikipedia, The Free Encyclopedia, pg.1-2, September 4, 2017

[13] “Blockburger v The United States” 284 U.S. 299 (1932), Wikipedia, The Free Encyclopedia, pg.1-2, September 4, 2017

[14] Grady v. Corbin, 495 U.S. 508 (1990), Wikipedia, The Free Encyclopedia, pg.1-2, September 24, 2017

[15] United States v. Dixon, 509 U.S. 688 (1993), Wikipedia, The Free Encyclopedia, pg.1-2, September 24, 2017

16 “Fifth Amendment to the United States Constitution” Wikipedia, The Free Encyclopedia, August 13, 2017, p.5

17 Ibid., p.6

[18] Heath v. Alabama, 474 U.S. 82 (1985), Wikipedia, The Free Encyclopedia, pg.1-4, September 4, 2017

[19] Ibid., p3

[20] “Fifth Amendment to the United States Constitution” Wikipedia, The Free Encyclopedia, August 13, 2017, p.5

[21] Ibid., p. 4

[22] Miranda v. Arizona, 384 U.S. 436 (1966), Wikipedia, The Free Encyclopedia, pg.1-6, September 4, 2017

23 Ibid., p.4

[24] Ob.cit., Miranda v. Arizona, 384 U.S. 436 (1966), Wikipedia, The Free Encyclopedia, pg.5, September 4, 2017

 

[25] Chambers v. Florida, 309 U.S. 227 (1940), Wikipedia, The Free Encyclopedia, December 30, 2018 p.1-5

[26] Ibid. p. 2

[27] “What is custodial Interrogation” Criminal-law.freeadvice.com, p. 1-2 March 5 2019

[28] Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)

[29] J. D. B. v. North Carolina”, 564 U.S. 261 (2011), Wikipedia, The Free Encyclopedia, December 30, 2018 p.1-6

[30] Berghuis v. Thompkins, 560 U.S. 370 (2010), Wikipedia, The Free Encyclopedia, December 30, 2018, p.-1-14

[31] Ibid p.4

[32] “Act of Production Doctrine”, United States v. Hubbell, 530 U.S. 27 (2000), p 4, Wikipedia, The Free Encyclopedia, December 30, 2018

[33] United States v. Hubbell, 530 U.S. 27 (2000), p 1-4, Wikipedia, The Free Encyclopedia, December 30, 2018

[34]“18 U.S. Code § 6003. Court and grand jury proceedings” United States Code, www.law.cornell.edu, March 17, 2019.

[35] Ob.cit. United States v. Hubbell, 530 U.S. 27 (2000), p.2

[36] “Fifth Amendment to the United States Constitution” Wikipedia, The Free Encyclopedia, August 13, 2017, p.5

 

[37] “Griffin v. California”, 380 U.S. 609 (1965), Wikipedia, The Free Encyclopedia, December 30, 2018, p.1-6

[38] Ob.cit., “Fifth Amendment to the United States Constitution”, p.10

[39] Ibid. p 11

[40] Ob.cit., p.12

[41] “Kastigar v. United States, 406 U.S. 441 (1972)”, Wikipedia, The Free Encyclopedia, February 28, 2019, p.1-3

[42] Leary v. United States, 395 U.S. 6 (1969), Wikipedia, The Free Encyclopedia, November 24, 2018, p.1-3

[43] Ibid. p.2

[44] Ob.cit., “Fifth Amendment to the United States Constitution”, p.12

[45] “Garrity v. New Jersey, 385 U.S. 493 (1967)”, Wikipedia, The Free Encyclopedia, October 6, 2018, p.1-3

[46] Ibid. p.2

[47] Ibid.” Garrity Warning Statement” p 6.

[48] Ob.cit.

 

[49]“Due Process Clause” Wikipedia, The Free Encyclopedia, February 8, 2019, p.-1-15

[50] “Dred Scott v. Sandford”, 60 U.S. 393 (1857), Wikipedia, The Free Encyclopedia, March 24, 2019, p 1-13

[51] Ibid. p1

[52] Ob.cit., “Dred Scott v. Sandford”, 60 U.S. 393 (1857)” p.3

[53] “Roe v. Wade, 410 U.S. 113 (1973)” Wikipedia, The Free Encyclopedia, March 10, 2019 p.1-5                                                                  

[54] Ibid. “Fifth Amendment to the United States Constitution” p.12

[55] “Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897)”, Wikipedia, The Free Encyclopedia, January 25, 2019 p.1-5

[56] Ibid. p. 4

[57] Ob. cit. “Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897)”, p 5.

The Eighth Amendment

 

      The Eight Amendment to the United States Constitution ratified in 1791 states:

          “Excessive bail shall not be required, nor excessive fines imposed

            nor cruel and unusual punishment inflicted.”[1]

There are three provisions in the Eighth Amendment:

  1. Excessive Bail Clause
  2. Excessive Fines Clause
  3. Cruel and Unusual Punishment Clause[2]

 

The Excessive Bail Clause

       The Excessive Bail Clause comes from English law. In England, sheriffs originally determined whether to grant bail to suspects of crimes. In 1275, the English Parliament defined which offenses were bailable and non-bailable. The tendency remained that sheriffs and other officials still abused their power when granting bail. The English Bill of Rights, passed on 1689, held that “excessive bail ought not to be required…”[3] but did not make distinctions between bailable or nonbailable offenses. In this light, the Eighth Amendment has been interpreted to mean that bail may be denied if charges are sufficiently serious.  The Supreme Court of the United States established the definition for excessive bail in its ruling in the “Stack v. Boyle Case 342 U.S. 1 (1951)”.[4] In 1951 twelve members of the Communist Party were arrested in the Southern District of California. When they were arrested, bail was fixed in the District Court for the Southern District of California at $50,000.00 for each person arrested.  Lorretta Stack, along with the other 11 petitioners moved to reduce bail under the Eight Amendment, asserting that the bail amount was excessive. Ms. Stack and the other petitioners presented statements of their financial resources, family relationships and prior criminal records to show that they were not at risk of forfeiting bail. The government presented evidence that four of the petitioners had previously forfeited bail in the Southern District of New York and were convicted under the Smith Act.[5] The petitioners request was denied. Stack and the other petitioners then filed the same issue under “habeas corpus”[6]  in the Southern District of California and this petition was also denied. After this the petitioners filed a request for their case to be reviewed by the United States Supreme Court. The request for “Certiorari”[7] was granted and the Supreme Court ruled the $50,000 bail was excessive and that bail had not been “fixed by the proper methods in this case.” Chief Justice Vinson stated:

          “It is not denied that bail for each petitioner has been fixed in a sum much higher than that usually imposed for offenses with like penalties and yet there has been no factual showing to justify such action in this case...Such conduct would inject into our own system of government the very principles of totalitarianism which Congress was seeking to guard against in passing the statute under which petitioners have been indicted.”[8]

 

The Excessive Fines Clause

       The Eight Amendment clearly states that “excessive fines shall not be imposed.” A fine is regarded as being “excessive” when it exacts an amount that represents a deprivation of property without due process of law. In the “Waters-Pierce Oil Company v. Texas case in 1909, Waters-Pierce Oil Company asserted that the fine imposed against it (in the context of ant-trust violations) by the States of Texas was excessive and as such represented a deprivation of property.[9]

The Supreme Court stated:

      “The fixing of punishment for crimes and penalties for unlawful acts is within the police power of the state, and this court cannot interfere with state legislation in fixing fines, or judicial action in imposing them, unless so grossly excessive as to amount to deprivation of property without due process of law.”[10]

The Supreme Court ruled in favor of the State of Texas, as the court found that the fine imposed was not “grossly excessive.” In this case, the State of Texas fined Waters-Pierce Oil, $5000.00 per day for 300 days after a guilty verdict was rendered against the oil company. This brought the fine to $1,600,000 by 1909, which Waters-Pierce appealed as excessive. The court cited that the corporation had assets of more than $40, 000,000 and had declared dividends over several hundred percent.

 In the case of “United States v. Bajakajian” the Supreme Court ruled that it was unconstitutional to require that Mr. Hosep Bajakajian forfeit all of his funds due to his violation of the Bank Secrecy Act. Mr. Bajakajian and his family tried to fly to Cyprus via Italy with $357, 144.00 in order to pay a debt. Mr. Bajakajian failed to declare that he had an amount in excess of $10,000.00 when trying to leave the United States. The United States government made him forfeit the entire amount of $357, 144.00 for his violation.  Mr. Bajakajian appealed to the Supreme Court in 1997. It was decided by the United States Supreme Court in 1998 that this fine was “excessive”. Justice Clarence Thomas, writing for the Court stated:

            “Comparing the gravity of respondent’s crime with the $357,144.00 forfeiture the government seeks, we conclude that such a forfeiture would be grossly disproportional to the gravity of his offense. It is larger than the” $5000.00 fine imposed by the District Court by many orders of magnitude, and it bears no articulable correlation to any injury suffered by the government.”[11]

 

 

The Cruel and Unusual Punishment Clause

    The Eight Amendment states that “cruel and unusual punishment” shall not be “inflicted.”  The United States Supreme Court has established four principles for determining whether a punishment is “cruel and unusual.” This was set out in “Furman v. Georgia,408 U.S. 238 (1972)”[12], when Justice Brennen wrote in behalf of the court:

      “There are, then four principles by which we may determine whether a particular punishment is “cruel and unusual”:

  1. The “essential predicate” is “that punishment must not by its severity be degrading to human dignity, especially torture.”
  2. “A severe punishment that is obviously inflicted in wholly arbitrary fashion.”
  3. “A severe punishment that is clearly and totally rejected throughout society.”
  4. “A severe punishment that is patently unnecessary.”[13]

 

 The Supreme Court has further divided cruel and unusual into the following two categories:

  1. Permanently forbidden punishments regardless of the crime.
  2. Punishments excessive compared to the crime committed.
  3. Punishments excessive compared to the competence of the perpetrator.

 

Permanently Forbidden Punishments regardless of the Crime

     Regardless of the crime, The Supreme court has ruled that certain punishments will never be used. In “Wilkerson v. Utah 99 U.S. 130(1879)”[14], it was decided that certain punishments were “cruel and unusual” and would not be enforced. Wallace Wilkerson was convicted of first-degree murder and sentenced to die on December 14, 1877. He was given a choice of executions by the Supreme Court of the Territory of Utah. His choices included: decapitation, hanging and firing squad. Wilkerson chose firing squad and then appealed the decision of punishment citing that his right to Eight Amendment right to protection from cruel and unusual punishment had been violated. Wilkerson lost his appeal and was executed in 1979 by firing squad. The United States Supreme Court upheld the lower court’s decision to execute Wilkerson by firing squad, stating that this form of execution was not cruel and unusual but that “Old English practices of execution where prisoners were “emboweled alive, beheaded and quartered, publicly dissected and buried alive” were unconstitutional.[15] Other permanently forbidden punishments include the execution of persons under 18 when the crime was committed.  In “Thompson v. Oklahoma, 487 U.S. 815 (1988)”[16] ,  The Supreme Court decided that the death sentence for a then 15-year-old was “cruel and unusual” punishment. (This was the first case decided after the moratorium on the use of the death penalty that was imposed by “Furman v. Georgia,408 U. S. 238(1972))[17]. Thompson was a 15-year-old from Oklahoma who was convicted for the murder of his brother-in-law. It was stated during the trail that his brother-in-law beat both he and his sister. In overturning the death penalty in this case, Justice Stevens noted for the Court, in a plurality decision that:

 "evolving standards of decency that mark the progress of a maturing society” was the rationale for the decision and that “numerous U.S. jurisdictions and all industrialized Western nations had banned the execution of minors under 16 years of age.”[18]

“Thompson v. Oklahoma” was strengthened in 2005. “Roper v. Simmons, 543 U.S. 551 (2005)”[19] was a landmark decision where the United States Supreme Court held that it is unconstitutional to impose capital punishment on persons under the ages of 18 when they committed capital crimes. This ruling overturned statutes in 25 states and specifically overturned “Stanford v. Kentucky, 492 U.S. 361 (1989)”, where the court had previously ruled to uphold executions of offenders at or above age 16.[20] The Court held in “Roper v. Simmons”:

         “The Eight and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.”[21]

The Court held that “evolving standards of decency” had made it cruel and unusual to execute a person who was under age 18 when they committed murder. The Supreme Court developed these “evolving” standards of decency by studying sociological and scientific research. Justice Kennedy cited research that found:

   “…. juveniles have a lack of maturity and sense of responsibility compared to adults and that adolescents were found to be over-represented statistically in virtually every category of reckless behavior.”[22] Studies further noted that juveniles are more venerable to negative influences and outside pressures such as peer pressure. The Court further noted that “in recognition of the comparative immaturity and irresponsibility of juveniles, almost every state prohibited those under age 18 from voting, serving on juries, or marrying without parental consent.”  The Court noted that the states were reducing the frequency with which capital punishment was being applied in cases involving juveniles as only 3 states, Oklahoma, Texas and Virginia had executed prisoners under age 18 since 1994.[23] Decisions made after “Roper” maintain this standard.

 

Punishments Excessive compared to the Crime committed

    The Supreme Court has also concluded that there are punishments that can be “excessive” compared to the crime committed. The case of “Weems v. United States,217 U.S. 349(1910)” was the first time that the Court used judicial review to overturn a criminal sentence for being “cruel and unusual.”[24] Weems was a disbursing officer of the Bureau of Coast Guard and Transportation. He was charged with falsifying a public and official document for the purposes of defrauding the government of the Philippines. Weems was found guilty and sentenced to 15 years “hard and painful labor” plus a fine.  The “hard labor” included being chained from wrists to ankles for the entire 15-year sentence.

Weems appealed to the United States Supreme Court after his sentence was upheld by the Supreme Court of the Philippines. (Note: In 1909 when the case was heard by the United States Supreme Court, the Philippines was a U.S. Colony)

Weems attorneys made 3 valid arguments to the United States Supreme Court:

(note: 4 arguments were made but 1 was thrown out due to a “mistake of fact.”)[25]

  1. The Philippine Supreme Court erred when it overruled Weems’ “demurrer”[26].This point is based on the plaintiff being described as a “disbursing officer of the Bureau of the Coast Guard and Transportation of the Philippine Islands,” a non-existent, political entity.[27]
  2. The court did not demonstrate that Weems was present when he was tried or that he was actually in court at any time.
  3. The Philippine court sentence of 15 years in prison constituted cruel and unusual punishment, making a reversal of the decision necessary.[28]

In the decision rendered by the United States Supreme Court, it was determined that the sentence of 15 years in prison was unconstitutionally cruel and unusual. The Court noted that the conditions of Weems’ imprisonment specifically included him being  “ chained from wrist to ankle and  forced to work at hard and painful labor.”[29] The Court further cited that even if the least severe punishment allowed in this case had been rendered, it would have been “ repugnant to the Bill of Rights.” The United States Supreme Court saw that the problem with the sentencing was actually a problem with the law itself. The Court ordered that the judgement against Weems be reversed and all charges be dismissed entirely.

Punishments Excessive compared to the Competence of the Perpetrator

   The Supreme Court has further decided that the death penalty is “cruel and unusual punishment” for persons who have intellectual disabilities. This principle was established in the “Atkins v. Virginia, 536 U.S. 304 (2002)” case. The defendant, Daryl Atkins was convicted of capital murder at age 18 and sentenced to death in the States of Virginia. During the penalty phases of the trial, the defense produced Atkins’ school records showing that his I.Q. test score was 59. This test had been administered by a clinical psychologist and was part of his school record. This score suggested that Atkins was “mildly mentally retarded” but Atkins was still convicted and sentenced to death. On appeals, the Supreme Court of the State of Virginia upheld the conviction but reversed the sentence after concluding that an improper verdict form had been used.[30] Atkins was re-tried and was again found guilty and again sentenced to death. When the case was heard before the Untied States Supreme Court, the court ruled:

           “Unlike other provisions of the Constitution, the Eighth Amendment should be interpreted in light of the “evolving standards” of decency that mark the progress of a mature society.” The Court took into account the judgement of state legislatures.  The State of Georgia was the first state to outlaw the death penalty for the “mentally retarded”[31] in 1988.  In 1989, the State of Maryland followed.  More states followed in the next 12 years. While the discretion to determine the standard for executing those with intellectual disabilities was left to the states in the “Atkins v. Virginia” decision, there was still confusion within the states as to how to equally apply the standard set forth in “Atkins.” In cases adjudicated after “Atkins”, specifically that of Georgia inmate, Warren Lee Hill, the 11th Circuit in 2008 stated:

   "While it is true that Atkins left it to the states to develop ways to ensure that those mentally retarded offenders 'about whom there is a national consensus' are not subject to
capital punishment, … the Court did not give the states unfettered authority to develop procedures that nullify the Eighth Amendment's prohibition on the execution of the mentally retarded."

The discretion afforded to the states 'is not unbounded," the majority of the panel held, "and the means used to discriminate must be 'appropriate.'… [I]t would not be an 'appropriate' means to impose a burden of proof that is so insuperably high that it inevitably excluded from Atkins' protection a substantial number of mentally retarded persons. Yet because of the highly subjective nature of the factual inquiry necessary to establish mental retardation, that is precisely what Georgia's once-path breaking statute effectively has done by requiring proof beyond a reasonable doubt."

In its opinion, the appellate panel observed that the standard of proof applied "will affect whether the risk of an erroneous conclusion will more often fall on the side of convicting an innocent person or releasing a guilty one."

In criminal cases, the United States has mandated that the highest standard of proof—guilt beyond a reasonable doubt—be applied "and placing the burden of proof on the government, we make it clear that we will tolerate almost no error with respect to the reliability of the evidence leading to the deprivation of one's liberty. This burden and standard of proof reflect society's belief that 'it is far worse to convict an innocent man than to let a guilty man go free.”[32]

 

The Eighth Amendment to the Unites States Constitution continues to prohibit the Federal as well as State governments from imposing excessive bail, excessive fines or punishments considered “cruel and unusual” upon the people.

 

(Note: The examples cited above illustrate how this amendment has been applied in specific cases.  Eighth Amendment claims are not limited to those case examples shown above.)

NOTE: Local government powers cannot violate or supersede the state constitutions and the state codes or state laws of the state where the entity is located.  Local government powers cannot supersede or violate the United States Constitution and Federal Codes or Federal Laws. The United States Constitution and Federal Codes or Federal Laws are always the supreme laws of the land.

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[1] United States Constitution, The Eighth Amendment, ratified December 15, 1791.

[2] “Eighth Amendment to the United States Constitution” Wikipedia, The Free Encyclopedia, May 9, 2019 p.1-16

[3] “English Bill of Rights 1689” Wikipedia, The Free Encyclopedia, May 9, 2019 p. 4

[4] “Stack v Boyle” 342 U.S. 1 (1951), Wikipedia, The Free Encyclopedia, May 9, 2019 p. 1-6

[5] Ibid. p.2

[6]Habeas corpus”-definition- is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, to bring the prisoner to court, to determine whether the detention is lawful.[2], Wikipedia, The Free Encyclopedia, May 9, 2019, p.1-21

[7] “Certiorari”- In the United States, certiorari is most often seen as the writ that the Supreme Court of the United States issues to a lower court to review the lower court's judgment for legal error (reversible error) and review where no appeal is available as a matter of right., Wikipedia, The Free Encyclopedia, May 9, 2019, p.1-8

 

[8] Ob. Cit. “Stack v Boyle” 342 U.S. 1 (1951), p.4

[9]Waters-Pierce Oil Co. v. Texas, 212 U.S. 86 (1909)”, Eight Amendment Wikipedia, The Free Encyclopedia,  May 9, 2019 p.5

[10] Ibid. p 5.

[11] “United States v. Bajakajian, 524 U.S. 321 (1998)”, Opinion of the Court-decided June 22,1998, Wikipedia, The Free Encyclopedia, February 14, 2019, p.2

[12] “Furman v. Georgia, 408 U.S. 238 (1972)” “Eighth Amendment to the United States Constitution” Wikipedia, The Free Encyclopedia, May 9, 2019 p.1-16

 

[13] Ibid. p.7

[14] “Wilkerson v. Utah, 99 U.S. 130 (1879)”, Wikipedia, The Free Encyclopedia, June 18, 2019, p.1-6

 

[15] Ibid. p.2

[16] “Thompson v. Oklahoma, 487 U.S. 815 (1988)”, Wikipedia, The Free Encyclopedia, June 18, 2019, p.1-3

[17] Ob.cit. “Furman v. Georgia, 408 U.S. 238 (1972)” p.5

[18] Ob. cit. “Thompson v. Oklahoma, 487 U.S. 815 (1988)” p.2

[19] “Roper v. Simmons, 543 U.S. 551 (2005)”, Wikipedia, The Free Encyclopedia, June 18, 2019,

[20] Ibid. p2.

[21] Ob.cit. “Roper v. Simmons, 543 U.S. 551(2005)”, p.2

[22] Ibid. p.2

[23] Ibid. p.3

[24] Ob.cit.,” Weems v. United States 217 U.S. 349 (1910) “Eighth Amendment to the United States Constitution” Wikipedia, The Free Encyclopedia, May 9, 2019 p.8

 

[25] “Weems v. United States,217 U.S. 349 (1910), Wikipedia, The Free Encyclopedia, June 25, 2019, p.1-4

[26] “Demurrer”- “an assertion by the defendant that although the facts alleged by the plaintiff in the complaint may be true, they do not entitle the plaintiff to prevail in the law suit.”  Definition of “Demurrer”- The Free Dictionary by Farlex, June 25, 2019 p.1

[27] Ob.cit. “Weems v. United States” p.2

[28] Ibid. p.2

[29] Ob.cit. “Weems v. United States” p.2

[30] “Atkins v. Virginia, 536 U.S. 304 (2002)”, Wikipedia, The Free Encyclopedia, June 25, 2019, p.1-4

 

[31] McDonald, R. Robin, “Mental retardation ruling reversed:11th Circuit finds state law violates death penalty defendants' Eighth Amendment rights”, “Southern Center for Human Rights”, July 1 2010.

[32] Ibid., McDonald, p.2