Due Process Rights

"Due process" rights are constitutional protections of individual liberties drawn from the fourth, fifth, sixth, and eighth Amendments of the Constitution (Pynn, Amer. Pol.). The fifth and fourteenth Amendments prohibit deprivation of "life, liberty, or property without due process of law" (Pynn, FR, 288). These rights include protection from unreasonable search and seizure, abstention from self-incrimination, a jury trial, right to counsel, and freedom from excessive bail or cruel or unusual punishment (FR, 522).

The Supreme Court, headed by Justice Warren ('53-'69) made strides in safeguarding the rights of the accused. I support this court's emphasis of due process rights and I feel the Warren Court significantly advanced the establishment of the routine safeguarding of individual liberties as part of our legal and procedural fabric. Miranda vs. Arizona (1966) required police to warn arrested suspects of their rights (JBG, 646, Wermeil, 6/28/91 WSJ). Gideon vs. Wainwright (1963) required free counsel for indigent persons (FR, 288, JBG, 645) who requested it. Mapp vs. Ohio (1961) extended the exclusionary rule, which excludes evidence at trial obtained through illegal search or seizure, to state criminal proceedings (Pynn, Wermeil).

The Burger Court ('69-'86) backed away from this active protection of these rights by limiting some of the Warren Court's rulings. Nix vs. Williams (1984) allowed use of evidence collected by police misconduct if such evidence would have "inevitably" been found (Pynn). U.S. vs. Leon (1984) established the "good faith" exception, allowing evidence obtained illegally if police thought, at the time, the search or seizure was legal (Pynn, JBG, 647, Kannar, 12/19/88, N.R.). Moran vs. Burbine (1986) said police failure to inform a suspect of a lawyer's effort to contact him did not violate his Miranda rights (Pynn).

This misguided trend of order over freedom has continued in the Rehnquist Court ('86-). Contrary to the common-law tradition of 24-delay, County of Riverside vs. McLaughlin (1991) said people arrested without a warrant could be detained up to 48 hours (Greenhouse, 5/14/91, NYT). Harmelin vs. Michigan (1991) said a life sentence for cocaine possession was not cruel (Wermeil). California vs. Greenwood (1988) decided officers may search a citizen's trash without a warrant (Taylor, 5/17/88, NYT). Murray vs. U.S. (1988) allowed evidence found in an illegal search to be used in a trial if the evidence is "rediscovered" in a second, legal search (6/28/88, NYT). Thompson tells us (5/8/90) that due to the drug war, judges in over 200 rulings in 1990 are upholding random searches of citizens on the street.

In a choice of freedom or order, the Burger and Rehnquist Courts have clearly been leaning toward order (Wermeil). However, I do not believe freedom and order are mutually exclusive. I agree with Seigal and Pynn who maintain the exclusionary rule is the chief means of defining the Fourth Amendment as well as the key incentive for police to obey the law.

Schlesinger (File D) and conservatives (Siegal 2/83, CL, Kannar) argue the exclusionary rule and the Miranda warnings allow criminals to go free. But both Kannar and Friedman (File D) cite a 1982 study of 2,804 cases (before the good faith exception) in which only .4 % to .65 % of cases were declined because of search and seizure problems. Attorney General of New York Giuliani affirms that Miranda warnings work; they are simple and easily enforceable (Kannar).

Although conservatives believe eroding due process rights will make the system more efficient (Kannar, Wermeil, 2/15/81 SFC), I agree with Kannar: trusting solely in an officer's good faith would result in a lawless system and I support Seigal and Thompson when they point out that these rights are not to protect criminals, as conservatives assert, but to prevent governmental abuse of power. Therefore, in any workable system, there must be a balance between freedom and order, never sacrificing one for the other. I believe the Warren Court's efforts in this regard were simple and workable so that individual freedoms were protected without endangering order.

As Kannar points out, efficiency is not the only goal. Justice and the maintainence of a free society are also important. Trials are often not " efficient," but freedom and justice were important enough to our Founding Fathers to ensure these basic rights to all citizens and I believe they are to be guarded at all costs. My position on this issue is best summed up in a quote from Edwards: "Our rights are most urgently to be protected when they are least popular" (Thompson).

Affirmative Action

The Civil Rights Act of 1964 passed legislation that made discrimination unlawful in employment, public accommodations, and housing (Mc&F, 186). The government's affirmative action program is an outgrowth of this act, calling on employers to examine their hiring and personnel policies to identify and eliminate discriminatory practices (Squires, 12/19-25-/90, In These...) This can be done in a variety of ways such as advertising job openings in papers circulated in racially mixed neighborhoods and setting numerical goals. Numerical goals are flexible, voluntary, and are set by the employers according to estimates of what the workforce would consist of without discrimination. Hill agrees (Mc&F, 199) with Squires that without the use of quotas, goals, or timetables to measure progress, affirmative action would be meaningless.

In contrast, Squire says, there are court ordered numerical remedies, called consent decrees, that affect a small portion of the work force and are used as a last resort to legally enforce the halting of discrimination. This was the case in Local 28 of the Sheet Metal Workers International Association v. EEOC in which the union was required to adopt an affirmative action plan and a 29% minority membership goal (Hill, Mc&F, 199).

Wilkerson points out (9/15/91, NYT) that opportunity of access does not equal acceptance. But despite its limitations, affirmative action has enabled minorities and women to make gains in the workplace (FR, 417).

Conservatives disagree; they call affirmative action "manipulative social engineering" (FR, 414). Some feel it injures self-esteem by implying that admission to a given school or promotion in the workplace is based on race or sex rather than performance (Raspberry, 2/27/87 SFE). Others call it reverse discrimination, a perception which engenders resentment (Halstuk, 9/26/89, SFC).

We liberals think (FR, 417) affirmative action allows minorities and women to reap benefits given to whites in the past. Hill (Mc&F, 197) says it is the removal of special treatment enjoyed by whites, citing that for decades minorities were banned from union membership and employment. Pollitt (3/9/86, SFC) agrees that practices favoring white males are firmly entrenched and considerations besides merit are used to choose candidates including money, family, and social connections.

Conservatives point out that other minorities integrated into society without special treatment (FR, 415). But Hill points out (Mc&F, 197) that white immigrants achieved assimilation through collective advancement within organized labor, while racial minorities were banned from unions, thus being denied this gate of access to society.

Affirmative action has secured positive changes. The 1990 census figures (McLeod, 9/20/91, SFC) report that the black middle class continues to grow and the percentage of black families earning $50,000 or more has jumped from 6% in 1970 to 14% in 1989. Black women are within 10% of white women's earnings. Women earned 70% of men's earnings in 1989 compared with 60% in 1980 (Kleinman, 9/24/89, SFE). I believe statistics such as 31% of blacks still in poverty in 1989, a percentage barely altered since 1969 (McLeod, 9/20/91, SFC) do not reflect the failure of affirmative action but indicate the influence of factors other than civil rights issues.

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