What Happened To The Fifth Amendment?

Fifth Amendment: 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.

The Fifth Amendment contains five separate rights:

1. The right to be indicted by an impartial grand jury before being tried for a federal criminal offense.

2. The right to be free from multiple prosecutions or multiple punishments for a single criminal offense.

3. The right to due process of law.

4. The right to be free from compelled self-incrimination.

5. The right to fair compensation when the government takes one’s property.

The right to a grand jury. A grand jury decides whether there is sufficient evidence to charge someone with committing a crime. The Founding Fathers included this provision to prevent the government from bringing prosecutions to harass citizens or for other improper purposes.

A grand jury is supposed to act as a gatekeeper between innocent citizens and a tyrannical government. A grand jury is shown evidence against a potential defendant to help determine if there is probable cause to prosecute. Unfortunately, the grand juries of today are so ineffective that a distinguished federal judge, the late William Campbell, declared, “Today the grand jury is the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury.”

The right to be free from double jeopardy. The Double Jeopardy Clause of the Fifth Amendment prohibits the government from prosecuting or punishing a citizen twice for the same crime. The Founding Fathers believed that the government, with all its vast resources and power, should not be allowed to make repeated efforts to convict someone for the same offense. Unfortunately, this very important right has been trampled to death over the years. The federal courts have held that a person can be tried over and over again by the states and the federal government and be punished multiple times in multiple courts for the same conduct. For example, in 1991, several Los Angeles policemen were charged with assaulting Rodney King and acquitted by a state court but later tried and convicted in federal court for the same conduct. With the staggering number of overlapping laws on the state and federal books, the government can simply try a defendant over and over again until, at the very least, he is bankrupt and his professional, personal, and family lives are destroyed.

The right to due process of law. This important right is supposed to protect citizens against governmental abuse in legal procedures. The Due Process Clause requires that legal proceedings be fair and that anyone involved in a legal proceeding be given an opportunity to defend himself. Due process also requires that the judge and jury be fair, that the trial be public and speedy, that the defendant have the opportunity to attend the trial and testify in his own defense, and that the law be written so that a reasonable person can understand it. Unfortunately, like so many other rights, this one has been severely diminished in the past decade.

No case better illustrates the extent to which the Due Process Clause has been decimated by the federal courts than Rasul v. Myers, 563 F.3d 527 (D.C.Cir.2009), a court of appeals decision that the Supreme Court let stand. This case declared that the torture of an innocent person captured in a war zone is an ordinary, expected consequence of military detention and held that anyone who is declared a “suspected enemy combatant” is no longer a person and therefore has no human or legal rights. The “non-person” could be an American citizen, although the Rasul case dealt with innocent British citizens. The torture occurred under President George W. Bush, but President Obama’s administration argued in this case that there is no constitutional right not to be tortured in a US prison abroad.

The last time a federal court declared certain people non-persons was in 1857, when the Supreme Court issued its infamous Dred Scott ruling, which held that people of African descent imported into the United States and held as slaves, or their descendants, even if they were free, were not protected by the Constitution and could never be citizens of the United States because they were not human beings.

Today, federal judges almost always side with the government. In most federal courts, for the average citizen, the right to a fair trial is a pipe dream.

The right to avoid self-incrimination. This right allows individuals to refuse to answer questions that can be used against them in criminal cases. The purpose of this right is to prevent the government from coercing confessions. But the government has proven to be quite creative in this area, rendering the right to avoid self-incrimination ineffective by coercing confessions through illicit means. Prosecutors now just offer innocent or guilty parties great deals (e.g., a guilty plea to a lesser charge and a greatly reduced sentence) in exchange for manufactured testimony against some other innocent party—who will then be offered an opportunity to plead guilty to a lesser charge and receive a reduced sentence.

For example, take an innocent man who is faced with charges that could result in a thirty-year sentence. He’s offered the chance to plead guilty to a lesser charge and take a three- or five-year sentence. He knows the government will produce two or more liars who have cut deals to support the charges against him. What should he do? Is that a coerced confession? How effective is his right to avoid self-incrimination?

The right to fair compensation when the government takes your property. This portion of the Fifth Amendment allows the government to appropriate private property for a public purpose, provided the property owner receives fair compensation. It comes from the Takings Clause, which was adopted after the American Revolutionary War, during which England confiscated property for the war without paying for it. The clause was adopted to prevent this from happening in the future.

Although the government’s right to confiscate property was instituted to enable the government to set up courthouses and police stations, it has expanded to include any public purpose. The two issues related to eminent domain will always be whether the “public purpose” is sufficient to override a citizen’s private-property rights and whether the price the government pays for the property is fair. The Institute for Justice, a DC-based law firm, came out with a report, “Public Power, Private Gain,” which documented 10,000 cases of abusive governmental confiscation of private property to hand over to private developers. The government almost always prevails in any eminent-domain dispute.