Sentencing Law and Policy
September 17, 2010
Quick textual reflections on Constitution Day
USCon Today, September 17, is the 223rd anniversary of the day in 1787 when the Constitutional Convention officially submitted its proposed constitution to the people of the United States. To honor the day, I thought I might quoting some of the key criminal justice provisions of the original U.S. Constitution (along with the Bill of Rights):
Part of Article I: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed."
Part of Article II: "The President ... shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."
Part of Article III: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed."
Amendment I: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Amendment II: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Amendment IV: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Amendment V: "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...."
Amendment VI: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."
Amendment VIII: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
I would be interested in readers' perspectives on which criminal justice parts or provisions of the US Constitution they believe or fear is being given the least respect or attention in modern times.
Regular readers should not be surprised that I believe that it is the Reprieves and Pardons Clause that is in the worst shape in modern times. Especially in the wake of the Supreme Court's recent work in cases like Heller and Blakely and Graham, I am not unduly worried about the state and fate of the even Amendments (which always seem to get less love than the leading odd Amendments). But modern presidents have largely ignored their clemency powers until late in their presidencies, and political cronyism rather than constitutional respect seems to best explain many of the major clemency actions of the last few Presidents. And, as noted here and in many prior posts, President Obama, now almost a full two years into his presidency, has not yet used this historically important constitutional authority a single time (except for two turkeys last Thanksgiving).
