Rights Consciousness and Civil Liberties

Americans are very conscious of their rights. Individual rights are rights that the government cannot abridge. Often, citizens don't know the content of specific rights, but they assert their entitlement to those rights anyway.

General versus specific rights

Belief in a specific right spurred a convicted felon, Clarence Gideon, to contest his conviction. The U.S. Supreme Court used this appeal as a means in Gideon v. Wainwright (1963) to establish an indigent defendant's right to an attorney at felony trials.

A general right can have applications beyond the case in which it is first established. The right to privacy, for example, has played a part in thousands of cases dealing with police procedures for conducting searches and seizures. Another general right is the right to be treated fairly. Americans are very conscious of their due process rights because so many rights are related to the procedures by which the government can take away life, liberty, and property.

The Bill of Rights

The main source of citizens' rights in America is the Bill of Rights, the first ten amendments to the Constitution. The Bill of Rights, which took effect in 1791, details the rights of the American people and forbids the government to violate those rights. Four of the amendments pertain directly to criminal justice. These amendments depict procedural rights that apply to citizens accused of crime, defendants in criminal cases, and inmates in jails and prisons.

  • The Fourth Amendment prohibits the government from conducting “unreasonable searches and seizures.”

  • The Fifth Amendment provides the privilege against self‐incrimination, forbids the government to try a person twice for the same offense (double jeopardy), and promises “due process of law.”

  • The Sixth Amendment sets out the requirements for criminal trials, including the defendant's right to counsel.

  • The Eighth Amendment forbids the government to subject inmates to “cruel and unusual punishments.”

Originally, the Bill of Rights imposed restrictions upon only the federal government. It provided no protection to citizens against state or local action.

The Fourteenth Amendment and due process

After the Civil War, the Fourteenth Amendment, ratified in 1868, was added to the Constitution. It bars states from violating people's right to due process of law. It states that “no State shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These rights of due process and equal protection were intended to protect individuals from abusive actions by state and local criminal justice officials. The terms “due process” and “equal protection” were left to the Supreme Court to define.

Earl Warren and the due process revolution

During Earl Warren's tenure as chief justice of the Supreme Court (1953–1969), the Court raised Americans' consciousness of their constitutional rights and adopted a liberal rights agenda, including freedom of speech, equality of minorities, and due process rights for defendants. Warren and his liberal brethren on the Court used the due process clause of the Fourteenth Amendment to nationalize the Bill of Rights. The due process clause stipulates that the government cannot take any citizen's life, liberty, or property without due process. The Warren Court broke with Court precedent that the Bill of Rights provided no protection against state or local action, but only against federal authority. It held that the due process clause did, indeed, apply to state and local governments. In a series of landmark decisions, the Court selectively incorporated certain provisions of the Bill of Rights and made them binding upon the states. The Court extended the Fourth, Fifth, Sixth, and Eighth Amendments to defendants in state criminal proceedings. This extension radically changed criminal justice as practiced in state and local governments by increasing individual rights in state and local criminal cases. Scholars refer to the Warren Court's expansion of the rights of criminal defendants and the application of the rights to state proceedings as the “due process revolution.”

Due process rights

The question at the heart of Earl Warren's approach to law during his 16 years as Chief Justice was “Is it fair?” This question captures the essence of due process. A basic principle of American criminal justice is that the government should treat people fairly. The Fifth and Fourteenth Amendments prohibit the government from depriving a person of life, liberty, or property “without due process of law.” Due process of law includes court procedures that protect persons accused of wrongdoing. For example:

  • The government cannot force a person to testify against himself or herself.

  • Citizens must be informed of the charges against them.

  • Citizens may demand a jury trial, which must be held soon after charges are filed.

  • If citizens cannot afford a lawyer, the government must provide one.

  • Persons on trial may cross‐examine their accusers and may force witnesses to testify.

Individual versus group rights

Whereas due process rights are individual rights, or civil liberties (in other words, rights as guarantees to a person against government interference), other rights are classified as group rights. Debate over the issue of racial equality in the mid‐20th century led Americans to become more conscious not only of individual rights but also of group rights. After the Warren Court's landmark ruling in Brown v. Board of Education (1954) requiring equal treatment regardless of race in schools, the need to consider remedies for segregation and racial discrimination focused attention on an individual's position as a member of a group—and thus on group rights. According to legal scholar Stephen Wasby, this shift was part of a change in concern from civil liberties to civil rights (in other words, rights as guarantees of equal treatment for all people). Civil rights include the right of all people to receive equal protection of the law. As Wasby points out, the extension of civil rights consciousness from African‐Americans to other groups also increased Americans' awareness of group rights. Group rights matter in criminal justice because criminal laws and criminal justice practices can be discriminatory in their effects on whole categories of people.