Today's American: How Free? - Rule of law: criminal justice and property rights

The rule of law requires that laws be adopted in accordance with established procedures, that they be made known to the public, and that they be enforced consistently and even-handedly. The rule of law is intended to ensure that a government exercises its authority fairly, and it is crucial to securing liberty and justice for the people of any nation.

No country is perfect in this respect, but overall and as compared to other countries, the United States conforms to the rule of law. In America, those accused of breaking the law have the right to fair, speedy trials, and convicted criminals are protected by rules intended to ensure that they are treated humanely. Civil courts exist to remedy breaches of administrative and civil law and to enforce private contracts, and courts are generally considered fair and impartial (judges tend to fare better in public opinion polls than do members of Congress). Both the federal and state constitutions protect property rights. Federal law protects women, racial and ethnic minorities, and other historically oppressed groups from governmental discrimination and in some cases from discrimination by private actors as well.

U.S. law is derived from four sources: the Constitution, statutes passed by legislative bodies, administrative decisions by executive agencies, and common law based on the English legal tradition. The United States also divides the responsibility for enforcing the law among the federal, state, and local governments.

The U.S. Constitution is the "supreme law of the land" and establishes the authority of the federal Congress and the president to make laws and treaties. Federal and state judges are bound by the Constitution, and no state law may be passed in contravention of federal law or the federal Constitution.

The U.S. Congress has the power to pass laws for certain constitutionally limited purposes, such as regulating interstate commerce and protecting the rights of citizens from state power. Additionally, Congress may authorize the creation of executive branch agencies, which establish legally enforceable regulations and administrative rules. Federal laws and rules are published in the United States Code and the Code of Federal Regulations.

The rule of law must be evaluated in two distinct realms: criminal and civil.

American criminal law defines acts that are deemed to threaten the safety and security of society and punishes those who commit them. Murder, rape, and robbery are covered by criminal law because they are considered threats to the entire society, not merely to the individual victims, and they are among the most serious of crimes. Offenses such as reckless driving and selling marijuana are also believed to threaten society as a whole, and are categorized as criminal.

Civil law is used to settle disputes arising either among individuals or between individuals and governments. Civil law also governs the political process by which lawmakers are chosen and laws are made.

In the United States, most criminal and civil law is made and enforced by state and local governments. Each state retains a degree of sovereignty, with its own constitution, legislature, and legal codes, and states have wide powers to legislate matters not preempted by the federal Constitution or federal laws. The various states generally have similar laws on crimes such as rape and murder, but the treatment of lesser crimes and misdemeanors varies widely from state to state. States also establish their own laws governing the right to hold and dispose of property, the regulation of consumer products and services, business and corporate law, torts, and other civil matters. In short, the rights and responsibilities of citizens are not entirely uniform across the country.

Critics of the American system tend not to allege that the rule of law is stronger in other countries. Rather, they protest the ways in which they believe America fails to live up to its own ideals as expressed in its Constitution, its laws, and the rulings of its courts. Some critics cite disparities in the law's treatment of racial and other minorities as evidence of continuing institutional prejudice. Others note unequal access to high-quality (and high-cost) lawyers. They argue that overburdened courts and overcrowded jails and prisons result in the substandard treatment of suspected and convicted criminals. Many find fault in laws that severely punish nonviolent drug offenders, or object to recent legal and administrative decisions that have limited the rights of individuals to hold and use their property.

Criminal Justice

Incarceration. Today more than 7 out of every 1,000 residents of the United States are in jail or prison,1 giving America the highest reported incarceration rate in the world. More than 5.6 million people in the United States, or one of every 37 residents, have spent time behind bars.

Other countries with comparable rates of incarceration include Russia, Belarus, and Bermuda. However, some experts suggest that actual rates of incarceration in more repressive countries are higher than reported. Cuba, for example, reports a rate of only 4 in 1,000,2 but keeps lists of prisoners secret, making this number impossible to verify. Most Western European nations report incarceration rates of between 0.5 and 1.5 per 1,000 residents.

The rate of incarceration in the United States has risen steeply in the last 20 years, from 1.39 per 1,000 residents in 1980 to a high of 7.35 per 1,000 residents in 2005. Critics accuse the United States of using incarceration to deal with social problems, such as drug use, that many countries handle through treatment programs and other less drastic means. However, the U.S. system's defenders note that crime has declined sharply as prison sentences have increased; incarceration, they argue, is an effective way to reduce crime.3

Rates of incarceration in the United States are not uniform across all segments of the population. Women are incarcerated at one-ninth the rate of men, although the rate of incarceration for women is rising more rapidly than the rate for men. Six of every 10 prison inmates is a member of a racial or ethnic minority. A black male in the United States has a 1 in 3 chance of being imprisoned at some point in his lifetime, while a white male has only a 1 in 17 chance of going to prison.

The United States is one of only a handful of countries that bar prisoners from voting. Furthermore, people convicted of felonies in most U.S. jurisdictions are stripped permanently of their right to vote in local, state, and federal elections. Because of this, some critics argue that inequalities in the justice system contribute to political inequality by disenfranchising large groups of people, primarily minority men. At any one time, more than 4 million Americans – or 1 in 50 adult citizens – are ineligible to vote due to a past criminal conviction. Of those, 1.4 million are black men, comprising 14 percent of the nation's black male population.4 Recently, however, following years of advocacy by civil liberties and prisoner rights organizations, a number of states have restored voting rights and other civil rights to former prisoners.

Capital Punishment. Federal law permits the imposition of the death penalty for certain violent crimes and treason. Capital punishment is legal in 38 states as well. Since colonial times, about 13,000 people have been executed in the country.

The death penalty was widely used in the United States until the twentieth century, when it began to be considered inhumane. In Furman v. Georgia (1972), the U.S. Supreme Court suspended use of the death penalty, ruling that because of the variation in state laws and the wide discretion given to judges and juries in its application, capital punishment was "arbitrary and capricious" and therefore unconstitutional under the Eighth and Fourteenth Amendments. In a series of cases in 1976, the court reversed itself and permitted use of the death penalty for specified crimes and with appropriate procedures.

Death penalty cases are now conducted using bifurcated trials in which juries must first determine defendants' guilt or innocence and then, in a second stage, consider mitigating and aggravating circumstances in deciding whether to recommend a death sentence.5 Since 1976, more than 1,050 death sentences have been carried out. Some 3,370 people are currently on death row nationwide, although only about 10 percent of death-row inmates are ever executed.

The United States is unusual among democracies in permitting capital punishment. Most European and Latin American states have abolished the death penalty, although Guatemala, many Caribbean nations, and some African and Asian democracies retain it. In undemocratic countries the death penalty is common but not universal. In 2005 at least 80 percent of executions recorded worldwide took place in China, which reported executing 1,770 people (Amnesty International estimates that the actual number of Chinese executions might have been as high as 8,000).6 Iran reported 94 executions in 2005, and Saudi Arabia at least 86, while the United States executed 60 people.

U.S. courts have proscribed capital punishment for criminals with a diminished mental capacity. In 2002, the Supreme Court ruled in Atkins v. Virginia that executing mentally retarded criminals violated the Eighth Amendment's prohibition on cruel and unusual punishment. In the ruling, the court affirmed that the Eighth Amendment should be interpreted in light of the "evolving standards of decency that mark the progress of a maturing society." The justices cited the fact that a growing number of state legislatures had banned execution of the mentally retarded as evidence of a shift in the national consensus on the matter.

In the 2005 case Roper v. Simmons, the Supreme Court again used the "evolving standards of decency" test to limit the use of the death penalty, holding that capital punishment could only be imposed on defendants who were at least 18 years old at the time of their crimes. Here the court cited sociological and scientific evidence suggesting that juveniles' incomplete brain development mitigates their responsibility for their actions. Despite this evidence, minors may still be tried as adults for certain crimes, and 41 states allow life sentences without the possibility of parole for minors. In 2005, Amnesty International and Human Rights Watch found that at least 2,225 American children were serving sentences of life without parole.7

Opinion polls have consistently found that a substantial majority of Americans want to retain the death penalty. However, critics cite the abolition of the death penalty by other democracies as evidence that prevailing moral standards now preclude execution as a punishment.

Death penalty opponents also argue that courts are not able to determine guilt to the degree of certitude that would justify execution. Between 1973 and 2005, 122 people in 25 states were released from death row after new evidence or new testing of old evidence revealed that they were innocent of the crimes for which they had been sentenced.8 In 2006, Virginia Governor Mark Warner authorized the testing of DNA evidence in the case of Roger Keith Coleman, who was executed by the state in 1992. The evidence confirmed Coleman's guilt, and indeed no other case of wrongful execution has ever been proven in the United States. Nonetheless, the Coleman case may have set a precedent for the posthumous testing of evidence in other capital cases, and opponents of the death penalty say this could one day expose wrongful executions.

Some 42 percent of all death-row inmates are black men, and scholars have debated whether this reflects discrimination. In the 1987 case McCleskey v. Kemp, convicted murderer Warren McCleskey argued, ultimately without success, that Georgia's use of the death penalty constituted impermissible race discrimination under the Eighth and Fourteenth Amendments. McCleskey relied on a study – led by University of Iowa professor David Baldus – on capital sentencing in Georgia in the 1980s, which found that prosecutors sought the death penalty in 70 percent of cases where a black defendant was accused of murdering a white victim, but in only 15 percent of cases where a white defendant was accused of murdering a black victim.9

In another study by Baldus and his colleagues, blacks in Philadelphia were found to be sentenced to death at four times the rate of nonblack defendants convicted of similar crimes. More than 89 percent of prisoners sent to death row in Philadelphia since 1976 have been people of color.10 Similar reports have found significant sentencing disparities in other states. In Saldano v. Texas in 2000, the Supreme Court found that an expert witness had recommended the death penalty to a jury based on a calculus that included the defendant's race; the court overturned the death sentence in that case.

However, other studies have shown that black defendants in capital cases are no more likely to receive the death penalty than are whites. A 2004 article by John Blume, Theodore Eisenberg, and Martin T. Well argued that because of the reluctance to impose death sentences in cases of black-on-black crime, blacks convicted of murder are actually less likely than white defendants to end up on death row.11 Similarly, after adjusting data to account for the circumstances of each crime, such as level of brutality or premeditation, a 2006 RAND Corporation study of 652 federal cases involving capital offenses found that federal prosecutors were no more likely to seek the death penalty for black defendants than for whites.12

Several states have placed formal or de facto moratoriums on capital punishment until concerns about bias and wrongful convictions can be resolved. Maryland declared a moratorium on capital punishment between 2002 and 2004 pending the completion of a study on racial and geographic disparities in sentencing. Although the report found significant disparities, Republican governor Robert Ehrlich lifted the moratorium in 2004, and two prisoners have since been executed. New Jersey, which allows capital punishment but has not carried out an execution since 1963, passed a legislative measure halting capital punishment in January 2006.

The most discussed moratorium, though, was declared in 2000 by Illinois governor George H. Ryan. Between the reinstatement of Illinois' death penalty in 1977 and 2000, the state executed 12 people but freed 13 from death row because of new evidence. Ryan, a Republican, said he could not support a system that was "so fraught with error and has come so close to the ultimate nightmare, the state's taking of innocent life."13 Before leaving office in 2003, he emptied the state's death row in a historic mass commutation.

Fairness in Sentencing. Punishments for the most serious crimes, such as rape and murder, are generally similar across jurisdictional lines. However, sentences for less severe crimes vary widely by jurisdiction. To ensure fairness, federal and state governments have implemented guidelines that mandate sentence ranges based on the crime and the mitigating or aggravating circumstances. The guidelines are meant to protect defendants from sentences influenced by their (or judges') personal characteristics, and from other potentially discriminatory judgments.

However, sentencing guidelines have been challenged in recent years, and the Supreme Court has limited them in several cases. Many of these rulings have reduced the sentencing authority of judges by stressing defendants' right to have the facts of their cases decided by juries.

In the 2000 case Apprendi v. New Jersey, the Supreme Court invalidated a statute that allowed judges to exceed the legislatively determined maximum sentence if they found that a crime had been committed because of racial bias. The court said that allowing judges to consider bias as an aggravating factor violated defendants' Sixth Amendment right to a trial by jury. In Blakely v. Washington (2004), the Supreme Court ruled that giving judges the power to increase sentences based on their own determinations of facts not presented to a jury violated the defendant's due process rights. Defendant Robert Blakely had pleaded guilty to murdering his wife. During the sentencing phase of his trial, the judge had determined that Blakely acted with "deliberate cruelty," an aggravating factor that significantly increased the mandatory minimum sentence for his crime. The Supreme Court's ruling in the case invalidated most state sentencing guidelines that gave judges the discretion to increase sentences based on aggravating factors. Two subsequent decisions by the high court in 2005, United States v. Booker and United States v. Fanfan, overturned mandatory federal sentencing guidelines on the same Sixth Amendment grounds cited in Blakely and Apprendi.

Some 55 percent of all federal prisoners and more than 21 percent of inmates in state prisons are incarcerated for drug crimes.14 Although the percentage has declined, the absolute numbers of drug offenders in prison has risen steadily in recent years. This is due both to an increase in criminal prosecutions and to longer prison sentences for inmates convicted of drug crimes.

As of 2002, the average sentence for a federal inmate convicted of a drug-related felony (where the drug crime was the most serious offense for which the defendant was convicted) was 76 months, while overall the average felony sentence was 58.4 months.15 More than 80 percent of the increase in the federal prison population between 1985 and 1995 was due to drug convictions.16 The number of prisoners incarcerated for nonviolent crimes is now larger than the combined populations of Alaska and Wyoming.17

Most drug sentences under both federal and state law are based on legislatively determined guidelines that recommend minimum sentences based on the type of drug in question, the weight or amount of the drug entered into evidence, and the prosecutor's assessment of the defendant's intent to distribute or traffic the drug.

Even the form of the drug a defendant is convicted of possessing can affect his or her sentence. Notably, under current federal law, a person convicted of possessing five grams of crack cocaine would be subject to a five-year minimum sentence, while a defendant would have to be convicted of possessing at least 500 grams of powder cocaine in order to trigger the same sentence. Harsh sentences for the possession of crack cocaine were enacted during the 1980s in an effort to stem what the federal government and many urban community leaders believed was an epidemic linked to violent crime and unrest. However, the measures disproportionately affected poor and black defendants, since wealthier white drug users tended to use powder cocaine, leading to charges of racial bias. The Senate is currently considering a bipartisan bill that would bring the penalties for the two forms of cocaine closer together, although a significant gap would remain.18 Black Americans represent 13 percent of the U.S. population but account for 37 percent of those arrested on drug charges, 53 percent of those convicted of such charges, and 67 percent of people imprisoned for drug crimes.19

More than 90 percent of prisoners are eventually released into society. However, the rate of re-arrest for criminal offenders is 67.5 percent in the three years following release.20 Frustrated by this recidivism, states in the 1990s began passing laws aimed at habitual offenders, known colloquially as "three strikes and you're out" laws. Washington State passed the first such law by referendum in 1993. The measure mandated that any criminal convicted of a "most serious offense" three times be sentenced to life in prison without the possibility of parole. By 2004, the federal government and 26 states had passed similar laws.

Some "three strikes" laws have had unforeseen results. California's law, for instance, applies to any third felony conviction, even if it is nonviolent. In 1995, California felon Kevin Weber was sentenced to 26 years in prison for stealing four chocolate-chip cookies.21 Defendants in the state may also be convicted of two "third strikes" in a single case, resulting in two consecutive life sentences.

Police Methods. According to federal statistics, the racial breakdown of those arrested nationwide does not correspond to the racial breakdown of the general population. Black Americans in particular are arrested in disproportionate numbers. In 2005, blacks made up 12.8 percent of the U.S. population, but 27.8 percent of those arrested.22

With this disparity in mind, some police departments informally include race in the set of characteristics, or profile, that officers use to help distinguish likely law-breakers from the general population. Opponents of racial profiling argue that it creates a vicious circle, with heightened police scrutiny of certain groups reinforcing the racial disparity in arrest and conviction figures. Critics have also refuted the notion that racial profiling always targets likely criminals. When San Diego released statistics on traffic stops in 2000, it was found that blacks and Hispanics had a 10 percent chance of being searched, while whites had a 3 percent chance. However, 13 percent of both whites and blacks were found to have had contraband, while Hispanics were found to have contraband only 5 percent of the time.23

The most notorious recent case of alleged racial profiling began in 1986, when the Drug Enforcement Administration (DEA) began a program known as "Operation Pipeline." As part of the program, some 27,000 law enforcement officials were trained to recognize what the DEA termed "key characteristics, or indicators, that are shared by drug traffickers."24 Although the DEA maintained that "the program does not advocate such profiling by race or ethnic background," studies of police officers who received the training found that they were significantly more likely to stop minority drivers than white drivers. For example, a study of police behavior in Maryland between 1995 and 1999 found that African Americans constituted 63 percent of the motorists searched by state police on Interstate 95, even though only 18 percent of motorists on the highway were black.25

In the late 1990s, events in New Jersey began to reverse the widespread use of racial profiling. State troopers there were alleged to be detaining black motorists based on their race alone, and many troopers testified that their supervisors had ordered them to engage in racial profiling. A federal lawsuit on Fourteenth Amendment grounds ended with the placement of a federal monitor in the state police department and a consent decree in which the state police agreed not to detain individuals based on race unless they matched descriptions of specific criminal suspects.26 Since then, other states and municipalities have adopted bans on profiling, and President George W. Bush has spoken out against the practice.

In 2005, approximately 7,000 of America's 18,000 police departments used tasers or stun guns, up from 1,000 in 2001. Reports that these weapons have led to approximately 160 deaths since 2000 have raised questions about their safety and the situations in which they should be used. In notable cases, stun guns have been used against handcuffed suspects and children who have committed minor offenses. Proponents of stun guns argue that they save lives, as they provide police officers with an alternative to lethal force. Critics have called for greater regulation of the weapons, with detailed reporting and monitoring procedures.27

The use of police lineups has also received increased scrutiny in recent years. After several exonerations of inmates following DNA testing, a number of states began to change lineup procedures in the 1990s. Witnesses were shown each person individually, rather than as part of a group, with the reasoning that the witness could more objectively and accurately identify a suspect alone than in comparison to other individuals. However, subsequent studies have shown that the new lineups lead to more inaccurate identifications than the old system, and no uniform system of lineups is currently in place in the United States.

Legal Services for Indigent Defendants. The Sixth Amendment guarantees the right of each defendant in a criminal prosecution "to have the assistance of counsel for his defense." Since 1938 the Supreme Court has held that the right to counsel in federal proceedings applies to all defendants. Many states have extended this right to misdemeanor cases and to appeals, although federal jurisprudence does not require it. Under federal law, all defendants also have the right to have an attorney present during any custodial interrogation by police, and evidence collected from interrogations during which that right was denied is generally inadmissible in court.

States and localities historically called upon attorneys to represent indigent defendants pro bono and enacted a patchwork of laws to help ensure that counsel was available to them. While some legal-aid organizations were present in large cities, in most venues the provision of free and low-cost legal assistance was inadequate. In 1963, however, the Supreme Court unanimously ruled in Gideon v. Wainwright that the Sixth and Fourteenth Amendments required state courts to provide lawyers at no cost to defendants in criminal cases.

That decision sparked the creation of government-funded programs to provide legal counsel to indigent defendants in most jurisdictions. Some smaller jurisdictions pay private criminal defense attorneys to represent indigent defendants on a case-by-case basis. Others provide legal services through private, nonprofit legal-aid offices, which contract with the courts to accept cases. Many larger jurisdictions provide legal services through public defender's offices, which employ full-time attorneys at the expense of the government.28

Although the right to counsel in the United States is far stronger than in most other countries, some say the government has not done enough to protect the rights of criminal defendants. Attorneys and advocates for the poor complain that representation for the indigent is systematically underfunded and constitutionally inadequate. The American Bar Association has set standards for appropriate caseloads for criminal defense attorneys, but public defenders' caseloads frequently exceed the recommendations. In many jurisdictions, public defenders and prosecutors receive equal pay, but in others the pay for public defenders lags far behind compensation for prosecutors. Public defenders frequently complain that their resources – such as access to forensic testing, investigators, administrative support staff, and expert witnesses – are not comparable to those of prosecutors.

In 2005, the Louisiana Supreme Court ruled in State v. Citizen that a judge should "prohibit the State from going forward with prosecution" unless "adequate funds become available to provide [for the] constitutionally protected right to counsel." Louisiana and other states have since allocated more resources to criminal defense. In 2005 Texas passed the Fair Defense Act, which created a task force to study the need for indigent-defense reform. As cases challenging the adequacy of criminal defense counsel make their way through state and federal courts, states may be compelled to devote more resources to reforming legal defense services.

Prison Conditions. Prisons in the United States are operated both by the federal government and by individual state governments. For less serious crimes, offenders may be sentenced to short terms in local jails – which also hold defendants awaiting trial – or to alternative forms of punishment such as community service, probation, or restitution.

Conditions in American prisons are better than those in most other nations. In the United States and other industrialized democracies, prisoners are guaranteed adequate housing, nutrition, exercise, and medical care. Inmates have the right to practice their religions, to send and receive mail, to use exercise facilities, and to be free from unnecessary intrusions on their dignity and privacy. Many prisons also offer educational, work, and other opportunities that are designed both to keep inmates occupied and to train them to play productive roles in society when they are released. Coerced prison labor, common in some other countries, is prohibited in the United States. American prisoners have access to legal information to assist in their appeals, and to procedures for filing grievances about prison conditions.

However, the Prison Litigation Reform Act, passed in 1996, curtailed the courts' authority in responding to prisoners' complaints amid a perceived excess of cases – in 1993 these suits made up 23 percent of all civil filings in federal court. The act ordered that prisoners exhaust all administrative remedies available before filing in federal court, and mandated that all federal court orders in response to complaints would expire after two years.

Many American prisons are now overcrowded, as more criminals are sentenced to longer terms and prison construction fails to keep pace with demand. In 2005, state prisons nationwide housed between 101 and 116 percent of the prisoner capacity for which they were originally designed. Federal prisons operated at 131 percent of capacity.29

Although prison conditions in the United States are generally superior to conditions in many other countries, human rights advocates often criticize the system for failing to live up to standards prescribed by U.S. law. In particular, violence in prisons, which has been linked in several studies to overcrowding, is commonplace.

More than 20 percent of all prison and jail inmates report having been sexually assaulted by a fellow inmate or guard.30 In 2004, the Bureau of Justice Statistics reported 8,210 allegations of staff or inmate sexual violence. Many advocates for prison reform note that additional assaults may go unreported because of fear of reprisal, shame, or mistrust of prison staff. Although America generally treats rape as a serious crime, some experts assert that the public has become desensitized to prison rape.31 In September 2003, Congress passed the Prison Rape Elimination Act, which called for an in-depth survey of sexual violence in state and federal prisons. Congress in 2005 established the National Prison Rape Elimination Commission to monitor prison conditions.

Prisoners frequently complain that they receive inadequate nutrition and medical treatment. The Supreme Court set the standard for prison medical care in Estelle v. Gamble (1976), finding that "deliberate indifference by prison personnel to a prisoner's serious illness or injury constitutes cruel and unusual punishment contravening the Eighth Amendment." State courts have held this decision to require diagnosis and treatment of major medical conditions by qualified medical personnel. Nonetheless, medical care continues to be a frequent subject of prisoner lawsuits.

Because some of their illnesses cause them to become disruptive or threatening, the mentally ill are often imprisoned. One in six prisoners in the United States has a diagnosed mental illness, and there are three times as many mentally-ill people in prisons as in hospitals. Human Rights Watch reported in 2003 that prisons are ill-equipped to treat mental illness, and that additional funding is necessary to ensure the proper treatment of inmates.32

RICO. The Racketeer Influenced and Corrupt Organizations Act (RICO), passed in 1970 as part of a larger crime bill, was designed to prosecute individuals to whom no specific crime could be attributed, but who headed an organization that engaged in illegal acts. Any individual found to be operating an organization guilty of a "pattern of racketeering activity," such as extortion, bribery, homicide, or drug dealing, could be prosecuted under the act.33 Throughout the 1970s, RICO was primarily used against the Mafia, its intended target.

In the 1980s, however, the use of RICO increased as prosecutors and litigants were attracted by a clause that tripled damages in civil cases for anyone found to have been injured as a result of violations of the act. The broad interpretation of "racketeering activity" allowed prosecutors to use the act in cases involving corporate mail and wire fraud that were unrelated to organized crime in the traditional sense. A 1988 Supreme Court decision in H.J. Inc. v. Northwestern Bell Telephone Co. found that RICO need not apply only to Mafia cases, but could be used against legitimate corporations or businesspeople. From the 1980s onward, RICO has been applied to white-collar criminals, abortion protesters, and corrupt politicians. A RICO case brought against a business employing illegal immigrants is currently in the federal courts. Civil libertarians have objected to the expansive employment of the act, saying it has been stretched far beyond its intended scope.

Property Rights

The Constitution's Fifth Amendment protects the right to own and use private property, stating, "No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Property rights are also protected by precedent inherited from English common law and by state and federal laws that govern the use of private property.

Property rights are generally well respected in the United States. In most circumstances, property owners may use, sell, and develop their property without fear of government interference. However, the government may tax property to provide funding for public programs, and in limited cases it can compel the sale of private property or circumscribe the purposes for which the property may be used.

Property Takings. Under common law in America, the state retains an inherent power to exercise eminent domain, the right to expropriate private property without the owner's consent, either for the government's own use or for delegation to a third party who will develop it for public use. Common law systems in the United Kingdom, Australia, South Africa, Canada, and other countries also retain this right, which has historically been used to provide public amenities such as roads, bridges, and military installations.

However, in a controversial 2005 ruling, Kelo v. City of New London, the Supreme Court extended the government's right to take private property for public use. Suzette Kelo, a homeowner in New London, Connecticut, was notified by her city in 2000 that the area in which she lived had been declared economically depressed, and that the city would be buying her home and the homes of 115 of her neighbors as part of a comprehensive revitalization plan. The homes would be razed to make way for a resort, a park, and various new residential and commercial buildings. Kelo and several of her neighbors sued the city, arguing that the plan misused eminent domain because the seized property would benefit private developers rather than the general public. Under the provisions of the Williams County v. Hamilton Bank ruling in 1984, the plaintiff in a property-taking case must exhaust all other avenues of redress before appealing to the federal courts. After making its way through the Connecticut courts, Kelo's case reached the Supreme Court in 2005.

On June 23, 2005, the Supreme Court ruled, 5-4, in favor of the city, finding that economic development for a public purpose – in this case, to revitalize the city and broaden its tax base – met the public-use standard. The court said local governments should be afforded wide latitude in seizing property because land-use decisions are best made at the local level by individual communities. Justice John Paul Stevens wrote for the majority, "The city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue."

In a dissent, Justice Sandra Day O'Connor argued that the plain meaning of "public use" included only uses of land by public entities or for amenities open to the public. She wrote, "Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."

Immediately after the decision, opinion polls found overwhelming opposition to the use of eminent domain for private development.34 Representatives of the National Association for the Advancement of Colored People (NAACP) testified before Congress about the historical use of eminent domain to evict racial and ethnic minority homeowners from their property in the name of urban renewal, and predicted that Kelo would have a disparate impact on African Americans.35

The court's decision applied only to the rights of property owners under the federal Constitution and left open the possibility that both state and federal laws could limit the use of eminent domain. Eight states – Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina, and Washington – already prohibited the use of eminent domain for economic development, except to eliminate blight. Since the decision, 35 state legislatures have passed laws or constitutional amendments to limit the use of Kelo-style takings. And in November 2005, the U.S. House of Representatives passed a bill that would prevent the federal government from using eminent domain for private development as well as deny federal economic development funds to state and local governments that used eminent domain for such purposes. However, the bill was placed on hold in the Senate in December 2006, effectively halting its legislative progress.36

Regulatory Takings. Federal and state governments in the United States may also limit otherwise lawful uses of private property for zoning, environmental protection, public accommodation, and other reasons. These limitations can substantially burden landowners by prohibiting some profitable uses of their land.

For example, the Federal Water Pollution Control Act and the Clean Water Act prohibit the development of federally designated "wetlands" in ways that would jeopardize animal or plant habitats. If an entire piece of property is classified as wetland, the law prohibits any development of it. In 2005 and 2006, the court heard two cases, Carabell v. U.S. Army Corps of Engineers and Rapanos v. United States, which challenged the extent of federal power under the Clean Water Act. The cases sought to establish whether tributaries close to wetlands, but not part of the navigable waters to which the law refers, are under federal jurisdiction. A divided court found that the water on the property in question needed to have a "significant nexus" with a navigable body of water, but failed to provide a clear definition of the term, leaving the lower courts to make decisions on a case-by-case basis.37

In some cases, local authorities have rezoned land from commercial to residential use, or prohibited particular types of business from operating in specific areas. Owners who buy land with the intention of developing it in a way that is subsequently prohibited by regulation can lose much of their investment. These losses are therefore sometimes called "partial" or "regulatory takings." Partial takings often occur as a result of the Endangered Species Act, under which it is illegal to kill or harm any plant or animal listed as endangered. Private property that is identified as the habitat of an endangered species can be subject to development restrictions. Development is banned in large sections of forest in the Pacific Northwest due to the act.

In 1992, the Supreme Court ruled in Lucas v. South Carolina Coastal Council that the state was not required to compensate a landowner whose anticipated property development had been barred by state environmental protection law. The decision distinguished between takings, which deprive a landowner of the entire value of a piece of property by transferring ownership to another party, and regulations, which merely deprive the owner of part of the expected value of his or her property by precluding some of its valuable uses. To be eligible for compensation, the court said, the taking must render the property valueless, which environmental regulations do not do.

While Lucas held that the Constitution does not require federal and state governments to compensate owners for the regulatory devaluation of their land, states may pass laws offering such compensation. Opponents of such measures say this amounts to paying landowners to obey the law and could undermine environmental protection efforts. States have responded in various ways. A 2004 Oregon law mandated that landowners be reimbursed for regulatory takings, and Arizona voters approved a November 2006 referendum to the same effect. However, voters in California, Washington, and Idaho rejected similar initiatives that month.38

Taxation. Residents of the United States are subject to a variety of taxes on their property, expenditures, and importantly, income. The federal government gained the power to tax individual income in 1913 with the passage of the Sixteenth Amendment. Today the United States has a graduated, progressive income-tax system, wherein wealthy taxpayers shoulder a greater proportion of the tax burden than poorer taxpayers. Federal income-tax rates range from zero to 35 percent. Each individual's overall income-tax payments depend on his or her income, family status, spending, and eligibility for a variety of tax breaks and credits.

The federal government also taxes the estates of deceased persons before their assets may be passed on to their heirs. In recent years this estate tax has grown controversial and its status has become complex. Today, the rate of the tax ranges from 18 to 55 percent of an estate's value, but the first $2 million is exempt from taxation. However, the exempt portion of the tax is scheduled to rise to $3.5 million in 2009. The tax itself is scheduled to expire in 2010, and then to return at a higher rate with fewer exemptions in 2011. This confusing state of affairs – with its bizarre incentives to die or to hope for death in particular years – has led to agitation for congressional action.

Opponents of the estate tax, which they pejoratively call the "death tax," believe that it unduly burdens heirs and supersedes the wishes of decedents. They note that inheritors of family-owned businesses such as farms or stores, the value of which is tied up in nonliquid assets, are sometimes forced to sell off the businesses to pay the tax.

Proponents of the estate tax argue that it helps to prevent the perpetuation of class distinctions through inherited wealth. They argue that current exemptions protect family farms and small businesses, and that lowering or repealing the tax would only benefit wealthy families who seek to avoid paying their share.

Consumer Products and Services Regulations. Most states have laws designed to protect consumers from dangerous products and low-quality services. These measures include mandated health and safety inspections of businesses, labeling requirements for consumer products, and occupational-licensure requirements for certain professions.

While many of these laws enjoy wide support, some analysts argue that they restrict commerce and increase prices. Most local governments, for example, impose building codes and zoning restrictions on business owners to ensure that buildings are safe and businesses do not disturb the communities around them. However, the rules limit some freedoms and impose costs on owners.

Since the mid-1980s, some states and localities have banned smoking in many businesses. The first smoking bans applied to offices and other nonpublic workplaces, but since 1993, the District of Columbia and 21 states have banned smoking in most bars, restaurants, and other workplaces open to the public. These laws are intended to protect customers and staff from the danger of environmental tobacco smoke. However, some argue that property owners should be able to decide whether to allow a legal activity such as smoking on their premises.

State and local governments require licenses for professions ranging from medicine to hair braiding and fortune telling. These licenses can be expensive and difficult to obtain. Courts have ruled that states may regulate certain professions, but that these laws must be enforced fairly. The Supreme Court's 1976 decision in New Orleans v. Dukes, for example, held that a state could not prevent new street vendors from operating if it allowed existing vendors to continue. Recently courts and legislatures have eliminated or relaxed requirements for licensure in cosmetology, coffin selling, weed control, sign hanging, and interior design.39

Under the Commerce Clause of the Constitution, the federal government is empowered to regulate products and services that are provided across state lines. However, these regulations often require states to permit the free movement of goods. For instance, in 2005 the Supreme Court overturned statutes in New York and Michigan that forbade direct shipments from out-of-state wineries to consumers. The court held that states may not treat interstate commerce in alcohol differently from intrastate commerce.40

The federal government has traditionally controlled certain forms of interstate travel, including air travel. In recent years, however, it has deregulated air travel to spur innovation and efficiency. Since 1969, the government has moved from directly allocating takeoff and landing rights to overseeing self-regulation by the commercial airline industry, and then to allowing the private ownership of transferable property rights in airport slots.41 In the aftermath of this deregulation, which was completed in 1985, prices have fallen and available flights have dramatically expanded. A 1996 report by the U.S. General Accounting Office (now the Government Accountability Office) found that between 1976 and 1990, passenger fares had declined about 30 percent in inflation-adjusted dollars, and the number of miles flown had grown and was continuing to grow.

Some experts compare the federal government's deregulation of air travel to its management of the airwaves used for television and radio broadcasts and wireless communication. The government asserts that the airwaves are publicly owned, but issues licenses to private companies for their use. Since 1943, the Federal Communications Commission (FCC) has issued analog broadcast licenses to television and radio stations and required them to broadcast content of public interest. The FCC also has the authority to revoke licenses or levy fines against media outlets that broadcast content it considers indecent or inappropriate.

Until 1994, the FCC allocated commercial spectrum – a range of frequencies designated for commercial use – based on its view of the "best public use." Since then, however, the FCC has awarded licenses to the highest bidders in competitive auctions. This change has allowed wireless technology to proliferate and has catalyzed the creation of several new digital media outlets.42

Copyright and Intellectual Property. The U.S. Constitution grants Congress the power "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The result has been a system of federal copyrights and patents that guarantees inventors and those who generate intellectual property the exclusive rights to sell, license, and use their creations during a specified term.

U.S. courts have found that because copyright is intended to encourage the production of creative works, the public's interest in gaining access to those works may supersede the interests of their creators. These rulings have been formalized into a system of "fair use" laws which allow some copyrighted materials to be used in related or derivative works. For example, under the Copyright Act of 1976, an author may copy portions of another author's work without permission in order to critique the work or make a related argument. Additionally, the owner of a copy of a copyrighted work may make copies for his or her personal use, such as a backup copy of a compact disc (CD).

Digital reproduction has made the enforcement of copyrights more difficult. To protect themselves, many producers of digital video discs (DVDs) and CDs now incorporate digital-rights management (DRM) technology that prevents the unauthorized copying of movies and songs. In 1998, Congress passed the Digital Millennium Copyright Act, which criminalized the production and distribution of technology designed to circumvent DRM and increased penalties for internet copyright infringement. The law has prevented the sale of some technologies, such as specially designed DVD-copying machines, and critics say it has also chilled the legitimate use of copyrighted materials.

In 2005, the Supreme Court ruled in Metro-Goldwyn-Mayer Studios Inc. v. Grokster that an online service that allowed users to download unlicensed copies of copyrighted materials could be sued for inducing copyright infringement. The ruling caused several online file-sharing services to either close or alter their business practices to discourage the sharing of copyrighted materials.

Also debated is the matter of what information may be copyrighted. The Database and Collections of Information Misappropriation Act, now pending in Congress, would permit the copyrighting of aggregated factual data, such as databases of names and addresses. This measure would make it easier for the creators of databases to earn money. However, by preventing the copying of such aggregations, the measure would also restrict the use of publicly available information.

Rights of Gays, Lesbians, and Sexual Minorities

Federal law does not prohibit discrimination on the basis of sexual orientation. However, an executive order bars the federal government from such discrimination in hiring. In addition, 17 states, the District of Columbia, and more than 180 cities and localities prohibit discrimination by sexual orientation in private employment.

Battles are underway in many states to determine whether the right to marry should be extended to same-sex couples. Same-sex marriages or similar civil contracts are currently recognized in 20 countries and eight U.S. states, though in most cases civil unions, and not marriage, have been sanctioned. Twenty-six states have passed constitutional amendments that explicitly ban recognition of same-sex partnerships, and 43 states, including some of those that allow same-sex civil unions, define marriage by statute as a union between a man and a woman. The 1996 Defense of Marriage Act forbids the federal government from recognizing same-sex or polygamous marriages and allows states where such marriages are illegal to decline to recognize same-sex marriages performed in other states.

1 Bureau of Justice Statistics, "Prison and Jail Inmates at Midyear 2005," bulletin, May 2006,

2 International Centre for Prison Studies, "World Prison Brief," King's College, University of London,

3 Dan Seligman, "Lock 'Em Up," Forbes, May 23, 2005.

4 Brandon Rottinghouse, Incarceration and Enfranchisement: International Practices, Impact and Recommendations for Reform (Washington, D.C.: International Foundation for Election Systems, 2003).

5 See Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976); Gregg v. Georgia, 428 U.S. 153 (1976); Jurek v. Texas, 428 U.S. 262 (1976); and Proffitt v. Florida, 428 U.S. 242 (1976).

6 Amnesty International, "Death Penalty Developments in 2005," April 20, 2006,

7 Human Rights Watch and Amnesty International, The Rest of Their Lives: Life Without Parole for Child Offenders in the United States, October 12, 2005,

8 Death Penalty Information Center, "Innocence: List of Those Freed From Death Row,"

9 David C. Baldus, Charles Pulaski, and George Woodworth, "Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience," Journal of Criminal Law and Criminology 74, no. 3 (1983): 661-753.

10 Baldus, Pulaski, and Woodworth, Equal Justice and the Death Penalty: A Legal and Empirical Analysis (Northeastern University Press, 1990).

11 John Blume, Theodore Eisenberg, and Martin T. Well, "Explaining Death Row's Population and Racial Composition," Journal of Empirical Legal Studies 1, no. 1 (2004): 165-207.

12 RAND Corporation, "RAND Study Finds No Evidence of Racial Bias in Federal Prosecutors' Decisions to Seek Death Penalty from 1995 to 2000," news release, July 17, 2006,

13 Office of the Governor of the State of Illinois, "Governor Ryan Declares Moratorium On Executions, Will Appoint Commission To Review Capital Punishment System," news release, January 31, 2000,

14 Bureau of Justice Statistics, "Prisoners in 2004," bulletin, October 2005,

15 Bureau of Justice Statistics, "Federal Criminal Case Processing, 2002: With Trends 1982-2002," January 2005, 12, Table 6,

16 Bureau of Justice Statistics, "Prisoners in 1996," bulletin, June 1997,

17 John Irwin, Vincent Schiraldi, and Jason Ziedenberg, America's One Million Nonviolent Prisoners (Washington, D.C.: Justice Policy Institute, 1999), 4.

18 Drug Sentencing Reform Act of 2006, S 3725, 109th Cong., 2nd sess.

19 Ira Glasser, "Drug Busts = Jim Crow," Nation, July 10, 2006; Milton Friedman, "There's No Justice in the War on Drugs," New York Times, January 11, 1998.

20 Bureau of Justice Statistics, "Reentry Trends in the United States,"

21 Ken Ellingwood, "Three-Time Loser Gets Life in Cookie Theft," Los Angeles Times, October 28, 1995.

22 Federal Bureau of Investigation, "Crime in the United States 2005," September 2006,; U.S. Census Bureau, "Population Estimates by Race,"

23 John Cloud, "What's Race Got To Do With It?" Time, July 22, 2001.

24 Drug Enforcement Administration, "Inside the DEA: Operations Pipeline and Convoy,"

25 John Knowles, Nicola Persico, and Petra Todd, "Racial Bias in Motor Vehicle Searches: Theory and Evidence," Journal of Political Economy 109, no.1 (2001).

26 New Jersey Division of Criminal Justice, "Eradicating Racial Profiling," attorney general directive,….

27 Amnesty International, Excessive and Lethal Force? Amnesty International's Concerns About Deaths and Ill-treatment Involving Police Use of Tasers, November 30, 2004.

28 Bureau of Justice Statistics, "Indigent Defense," selected findings, February 1996,

29 Norman Seabrook, "Prison Violence on the Rise," USA Today Magazine, September 2005.

30 C. Struckman-Johnson, "Sexual Coercion Rates in Seven Midwestern Prison Facilities for Men," Prison Journal 80, no. 4 (2000): 379-90.

31 Robert Weisberg and David Mills, "Why No One Really Cares About Prison Violence," Slate, October 1, 2003.

32 Human Rights Watch, "Ill-Equipped: U.S. Prisons and Offenders with Mental Illness," October 2003,

33 LLC, "RICO in a Nutshell,"

34 See Gary J. Andres, "The Kelo Backlash," Washington Times, August 29, 2005; John Harwood, "Poll Shows Division on Court Pick," Wall Street Journal, July 15, 2005; Quinnipiac University, "Connecticut Voters Say 11-1 Stop Eminent Domain, Quinnipiac University Poll Finds; Saving Groton Sub Base Is High Priority," news release, July 28, 2005; Americans for Prosperity, "Public Opinion Poll on Eminent Domain," February 2006.

35 Senate Judiciary Committee, The Kelo Decision: Investigating Takings of Homes and other Private Property, 109th Cong., 1st sess., 2005.

36 Property Rights Protection Act of 2005, HR 4128, 109th Cong., 2nd sess.; and Private Property Rights Protection Act of 2006, S 3873, 109th Cong., 2nd sess.

37 Linda Greenhouse, "Justices Divided on Protections Over Wetlands," New York Times, June 20, 2006.

38 Kevin E. McCarthy, "Referenda and Initiatives on Eminent Domain in Other States," Connecticut Office of Legislative Research, November 17, 2006,

39 See Institute for Justice for a list of cases:

40 See Granholm v. Heald (2005).

41 Itai Sened and William H. Riker, "Common Property and Private Property: The Case of Air Slots," Journal of Theoretical Politics 8, no. 4 (1996): 427-47.

42 Federal Communications Commission, "About Auctions,"

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