Back in the mid-nineties, I was obsessed with collectable trading card games like Magic: The Gathering (this is not a fact I take pride in). I ended up spending far too much time and money on several of these games, but the one I played the least and enjoyed the most was one called Illuminati: New World Order. The basic premise of the game was that there are several secret societies vying to take over the world, and each player takes the role of one of these groups.
There are a lot of reasons I loved it so much, but the biggest reason of all was a little quirk in the incredibly byzantine rules that made it ever so much fun: unlike all the other games I was playing at the time, if you didn’t claim an advantage you were due, tough shit. You were also under no obligation to inform another player of any bonuses or other benefits they were overlooking. It was every man for himself, and it was (and remains) a complex system. Particularly when you have several people with differing agendas involved at the same time, things can get crazy very quickly, and it’s easy to overlook something even if you know what you’re doing. Oh, and it’s perfectly acceptable to lie to other players (it’s right there in the rules) as long as you don’t get caught.
While all of this makes for a fun night of treachery and backstabbing at the game table, it does very little to make me feel good when I think about our law enforcement and judicial figures doing what amounts to the same thing, only with people’s lives. By not informing suspects of their Miranda rights, such as in the case of bombing suspect Dzokhar Tsarnaev, the police are effectively saying “tough shit, you’re on your own”. The thin veneer of an excuse that I have heard from some directions that “he still has his rights” holds about as much water as saying I have a right to an inheritance I know nothing about. Here we have a complex situation with many people who have different agendas, almost none of whom have the suspect’s interests at heart, and yet we’re supposed to assume that his rights will in no way be violated because he will of course be given the time to compose himself and request a lawyer, he won’t be put under undue pressure to speak, he will naturally be fully aware that he even has rights in the first place.
To further add to the concern, police can and will lie to suspects under normal circumstances, and it is perfectly legal (Frazier v Cupp). So now what should we believe: that a person who has been hunted down and arrested, who may be told anything and everything except his Constitutional rights, will be aware enough to make an informed or even rational decision? Or perhaps it is more likely that he will say something, anything, no matter how fabricated or distorted, to ingratiate himself in that moment? I don’t know, but that’s the point, isn’t it? We don’t know, and we can’t know. All we do know is that torture doesn’t work, so that’s out. Considering the alternative being interrogation that can take days or even weeks, how long are we comfortable denying someone something as basic as the reading of their Miranda rights? Or have we reached the point where there is no sacrifice too great, no cost we are no willing to pay in the name of “security”?
“But he’s a terrorist!” That’s the reasoning that drives this latest abridgment of rights, although frankly I am beginning to wonder if every act of violence will soon be labeled “terrorism” simply to get around the few protections we have left. “Innocent until proven guilty” seems to be the first to have gone.
“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.”
At last we get to the most popular amendment, and yet the one that people seem to know the least about. This clause is basically about preventing the State from using its power to abuse the rights of individuals. Everyone is aware of their right against self-incrimination (although good luck explaining it to your parents when you try to sneak in late at night), and most everyone knows what double jeopardy is (the Ashley Judd version, not the Alex Trebek version), but that last clause about eminent domain is a bit of a ringer, and the one that seems to be getting abused more and more of late. I’ll address each one in turn, along with my thoughts on each.
Grand juries show up in almost every court room drama, but we rarely think about them. One line an old buddy of mine was very fond of was “I can get a ham sandwich indicted”. Fortunately, it’s not quite that simple. This is the first line of defense against the overwhelming power of the State. “The prosecutor must recognize that the grand jury is an independent body, whose functions include not only the investigation of crime and the initiation of criminal prosecution but also the protection of the citizenry from unfounded criminal charges.” (US Attorneys Criminal Resource Manual)
Double jeopardy is another important defense against the power of the state for innocent people. It makes sure we don’t get dragged into court time and time again, constantly harassed just because the police or DA has managed to find (or “find”) some new evidence. I understand it can be daunting and even nerve-wracking sometimes to only have one chance to get it right, and there are a lot of good people on the job trying to get it right. But that’s the point, isn’t it? With all the resources dedicated to getting it right, how many resources are there dedicated to protecting the guy they decided is guilty who isn’t? How many times do they get to come after him before they finally say, “huh, maybe we should look into someone else?” This clause basically says “get your act together before you take your best shot, and no means no”. Nothing wrong with that.
Next, let’s talk about self-incrimination. This is central to the defense of innocent people in the power of the State. I know, I know, “if you’re innocent you have nothing to fear.” Sure. Just tell that to every person who’s been exonerated through DNA testing. Imagine that you’ve been arrested, and you can be compelled to testify against yourself. Where were you between two and four a.m. on the night of November 4, 2011? Don’t remember? Why not? You’re not hiding something, are you? Maybe I believe you, maybe I don’t. Or maybe you were at home, sleeping. Alone. With no witnesses… Or maybe you were doing something just a little illegal, but you don’t want to cop to it because it would implicate a friend. There’s any number of reasons you might not want to testify that I could turn against you if you have no choice in the matter. So yeah, I think this one is pretty important.
The one other thing I have to say on this is tangential, and it’s more of a pop culture pet peeve. It seems every time it comes up on a court room drama, someone is invoking their “Fifth Amendment privilege.” It’s not a privilege, it’s a right. A privilege is ice cream before bed, or hanging out with your friends at the mall. It’s something that can be taken away from you for not behaving the way you are supposed to. A right is something that is yours, and nobody can take it away. Get it straight, Hollywood.
Let’s not forget that due process gets covered here, too. This is particularly important in these days of terrorism, cyber-crime, and other horrific crimes such as mass shootings that get the public blood up. The “justice” of the lynch mob can be awfully tempting, but it is in truth simply awful, and the fact is that if we stoop to becoming that which we are fighting against, we lose the very thing we are fighting to protect. More to the point, there is no word here that says “citizen”, it is “person”. When we no longer hold ourselves to that high standard, acknowledging that people are born with rights, not granted them by a government, we lose the moral high ground and it becomes a simple matter of who has the biggest stick.
Finally we come to eminent domain, the “right” of the State to take property for “public use”. This is the one that seems to be getting the most abuse lately, as the definition of “public use” becomes more flexible with every passing day, as does the concept of “just compensation”. What exactly is “public use”? Is it a highway? A new school? According to the Supreme Court, it’s a forced transfer of private property from one private individual to another. As far as “just compensation”, that’s basically whatever the government says it is. It doesn’t matter if you wouldn’t take a million dollars for your home that your family has lived in for five generations, if the government says it is worth exactly $300,000, that’s what you get, and the city gets its new highway. Suck it up, it’s for the good of the community. You know, the community you were so proud to be a part of… until they bulldozed your house.
So maybe this last clause of the Fifth Amendment is not living up to what it should be. The rest are doing okay, although I still have concerns about self-incrimination in a world where the government is trying to compel people to turn over encrypted hard drives and get ISPs to give up your data even when you do everything in your power to keep it private (which also smacks of violating the First and Fourth Amendments, but hey, why not go for the hat trick?) At least we still have the Miranda decision working for us, which is something, and that brings up the best defense against government power: educate yourself. Not just on your rights, but on how to protect them, and on how they can be violated (and sometime are being violated). No piece of paper will do better than that.