LAW, ORDER, AND THE RIGHTS OF CRIMINAL DEFENDANTS | 115(except in death penalty cases, for which the state would provide a lawyer).^80
This changed in 1963 with Gideon v. Wainwright, when the Court overturned the
conviction of a man who had been accused of breaking into a pool hall to steal
beer, wine, and money. Unable to aff ord an attorney, Clarence Gideon defended
himself—quite well, in fact, but the (false) testimony of the actual guilty party
brought Gideon a conviction. Ultimately, the Court overturned it, saying, “In our
adversary system of criminal justice, any person hauled into court who is too
poor to hire a lawyer cannot be assured a fair trial unless counsel is provided
for him.”^81
The right to an attorney has been strengthened over time, through both legis-
lation and subsequent Court rulings. One year after Gideon, Congress passed the
Criminal Justice Act, which provided better legal representation for criminal
defendants in federal court; soon 23 states had taken similar action. The Court
has defi ned a general right to eff ective counsel (although the bar is set low in defi n-
ing eff ective) and recently mandated that defense attorneys must conduct any rea-
sonable investigation into possible lines of defense when presenting evidence that
could help the defendant.^82
The Sixth Amendment also protects the right to a speedy and public trial by
an impartial jury in criminal cases. The Court affi rmed the right to a speedy trial
in 1967,^83 and today under the Federal Speedy Trial Act a trial must begin within
70 days of the defendant’s arrest or fi rst appearance in court. In addition, a defen-
dant may not waive the right to a speedy trial.^84 The most important disputes over
the “impartial jury” issue concern jury selection and peremptory challenges, in
which lawyers may eliminate certain people from the jury pool without provid-
ing any reason. Race and gender may not be the basis for a peremptory challenge.^85
The Court has also ruled that the right to a jury trial limits the way that judges can
use sentencing guidelines.^86
The Eighth Amendment: Cruel and Unusual Punishment
The Founders would be surprised by the intense debates over whether the Eighth
Amendment prohibition against “cruel and unusual punishment” applies to the
death penalty. Clearly, the death penalty was accepted in their time (even stealing
a horse was a capital off ense!), and the language of the Constitution refl ects that.
Both the Fifth and Fourteenth Amendments say that a person may not be deprived
of “life, liberty, or property, without due process of law,” which implies that some-
one could be deprived of life as long as the state follows due process. In the United
States, 33 states still allow capital punishment. However, fi ve states have abol-
ished the death penalty since 2007, and dozens of other countries have done the
same in recent years.
After being silent on this issue for nearly two centuries, in 1972 the Supreme
Court ruled that the death penalty was unconstitutional because the process of
applying it was inconsistent. Thereafter, Congress and 35 states rushed to make
their laws compliant with the Court decision. The typical fi x was to make explicit
which crimes were punishable by death and to make capital sentencing a two-step
process: fi rst the determination of guilt or innocence, and then a sentencing phase
after a guilty fi nding. Four years later the Court allowed states to bring back the
death penalty.^87
THE FIGHT AGAINST TERRORISM HAS
raised controversial questions
about due process rights. After
the United States killed Anwar
al-Awlaki—an Al Qaeda leader living
in Yemen, and a U.S. citizen—critics
argued that his due process rights,
such as the right to a fair trial, had
been violated.