The Eighth Amendment

Why is it that out of this amendment the one part that is contested the most is the fact that cruel and unusual punishment is never really defined.  During the time the Framers drafted these rights there were still implications of torture involved in the punishment of individuals for crimes committed.  Heck even afterwards the idea of being placed in the stocks in the middle of the town square was still a punishment inflicted on persons who committed crimes.  Although today this would be considered to be cruel because of the mental implications it was perfectly fine then.  What really defines the rest of the amendment though is the fact that we are looking at the fact that punishment in any form, whether it be bail, fines, shall not be excessive.  So cant we say that the cruel and unusual punishment aspect is to be referenced as excessive as well??  I believe so, and in the instance of punishment, there are far more things that can happen to a person as far as punishment that shouldn't be considered cruel but are.  =(

Video

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Cruel?  Unusual?  Not at all in my opinion.  The fact that first of all this man died the same way that he killed his victims is justice!  The debate that everyone has is whether or not the fact that legal "murder" is justifiable is just plain ridiculous.  The person in question who commits a murder, should in all cases receive the death penalty.  There is the question of morality in that, is it right to take one life for another, but as a god fearing nation we also know that there is an "eye for an eye" motif behind it.  As far as the firing squad goes, justice is served.  He felt the same pain that he inflicted on his victims and is in no way cruel or unusual.  In reference to others who commit murder and are sentenced to die, it should be instantaneous, directly after the court case and in no regard allowed for an appeal.  Most prisoners seeking appeal on cases as of late are doing so to prolong their own lives rather than actually seek justice.

Video

http://www.youtube.com/watch?v=VgXjNkwVyeE&feature=related

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In this clip from the video which I am sorry but you have to start we can see that the necessity for bail vs. the means at which bail was going to be granted are so far different than should have been.  The need for bail and the reason it is in place is to not only secure the defendant to showing up for trial but to also allow that same defendant a means at which to still support a family unit or business so as to not cause unusual punishment were the charges erroneous or whatnot.  I think this entire movie, "Law Abiding Citizen" is a perfect example of how broken the judicial system is in today's society.  Another is the movie "Fracture" with Anthony Hopkins, a movie in which what you can prove is all that matters.  Bail should be surmountable with the crime, as well as fines for that matter.  And now for something along the lines of excessive!!

 

Seventh Amendment

So we have the Framers of the Constitution using certain parts of British government to model the new government of the United States.  This amendment was put into place to preserve the right of civil cases to be heard by a jury, allowing the jury to "check" the judge, and leaving the judge to pass down how the law applies and how it is implied in the case at hand.  Opinions of the judge are mute in the instance of the case at hand.  This is a great idea in that a civil suit heard in a court where the plaintiff knows the judge or others of influence cannot be over weighted due to the fact that the jury is the deciding factor.

Court Case

Chauffeurs, Teamsters, and Helpers Local No. 391 v. Terry, 494 U.S. 558 (1990

McLean Trucking Corporation and the defendant/petitioner union, Chauffeurs, Teamsters, and Helpers Local No. 391, were parties to a collective bargaining agreement which governed employment at McLean. The plaintiffs/respondents in this matter were Union members employed as truck drivers by McLean. In 1982, McLean began to shut down some of its terminals and reorganizing others. The company transferred plaintiffs to its terminal in Winston-Salem, North Carolina, and granted them special seniority rights over inactive employees at that terminal who had been temporarily laid off.
After working at Winston-Salem for six weeks, the plaintiffs were alternately laid off and recalled several times. Some of the laid off truckers were stripped of their special seniority rights. The plaintiffs filed a grievance with the union, alleging that McLean had breached the collective bargaining agreement by giving inactive employees preference over them. The grievance committee ordered McLean to recall the plaintiffs and lay off the inactive drivers who had been recalled, and to recognize plaintiffs’ special seniority rights until the inactive employees were recalled properly. McLean obeyed the order of the grievance committee at first, but then recalled the inactive employees, causing them to gain seniority status over the plaintiffs. In the next round of layoffs, this meant that the plaintiffs were laid off first. Plaintiffs then filed another grievance with the union, alleging that McLean’s actions were intended to circumvent the grievance committee’s initial order. But the grievance committee held that McLean had acted legitimately. This pattern of temporary layoffs and recalls continued, prompting plaintiffs to file another grievance, but the Union did not refer the third grievance to a grievance committee, instead ruling that the relevant issues had already been decided.
In July 1983, plaintiffs brought suit against both the Union and McLean in the United States District Court for the Middle District of North Carolina, alleging that McLean had violated the collective bargaining agreement in violation of the Labor Management Relations Act, 29 U.S.C. § 185, and alleging that the Union had breached its duty of fair representation. Plaintiffs requested a permanent injunction requiring the defendants to restore their seniority and cease their illegal activity. They further requested compensatory damages for lost wages and health benefits. McLean filed for bankruptcy in 1986, and all the claims against it were voluntarily dismissed.
Plaintiffs had requested a jury trial in their pleadings, but the Union moved to strike the demand for a jury trial, on the grounds that the no right to a jury trial exists in a duty of fair representation suit. The District Court denied the defendant’s motion to strike, and the United States Court of Appeals for the Fourth Circuit affirmed, holding that the Seventh Amendment entitled the plaintiffs to a jury trial on their claims for monetary damages.

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In this case we see a lot of finger pointing, and looking for ways around different topics whether it be by the Union, the employer, or both.  In the end we see that the Union did not want to allow the hearing of the case by a jury as it was citing the case being a misrepresentation case.  The Supreme Court ruled that because of the monetary damages involved the case was one of "common law" and that it should be held by a jury if requested.  I think this is a perfect example of how the justice system should work as the petitioners should have their case heard by the jury in that a judge cannot weigh on everything personal about the decisions of the Union and employer regarded as legal or not.

Video

As we can see here the fact that there is a civil trial which is being deliberated by a jury is in place against Kid Rock and the plaintiff for damages incurred in a fight at a Waffle House.  What is funny is that the fight was three years prior to the civil case and that the damages for pain and suffering were not limited.  It is just as Kid Rock says at the end of the clip if this were any regular guy, there would be no civil trial, but under the monetary circumstances involved there is.  My question is, couldn't you just rent the waffle house with no reason to have others there?  Along the same lines did the plaintiff come in after, if so why did he sit RIGHT behind the other table in a restaurant void of people.  Oh well, that's for the jury to decide, as is the right of the accused.

The Sixth Amendment

Hmmmm, more about the rights of the accused!!  Let us see what different parts of the amendment are present here.  We have the right to a speedy and public trial, in so much as to say that the trial cannot be behind closed doors as that could just lead to tyrannical misgivings in the government as to quell resisters and dissenters alike.  The fact that the jury has to be impartial and from the same state and district in which the crime was committed lends to the fact that the morality of the area will be brought into the court room as the crime may not have the same significance as it would in a different area.  Burning a field in a rural area may not be the same thing as burning trash in an urban area, thus the jury selection.  The accused must know what they are being tried with, well of course because how are you to be punished and reformed if you know nothing about what it is that you did in the first place.  Here is the best part, that the accused has the right to be confronted with the witnesses against him.  How many times have we seen movies where a witness is "offed" before a trial?  Also, how many times have we seen a witness crumble when in the court room as they cannot say the same thing in front of the accused for whatever reason.  This makes it so as people cannot just accuse someone without due cause and be able to substantiate that claim in court against the person.  More on witnesses for the defense, as if this needed to be said.  You get your people to say I did it, I get mine to say I didn't, and then we go from there about whose witnesses are more convincing to the jury.  Last but not least the fact that the defendant has the right to assistance of counsel.  This can be looked at as a benefit to the intelligent and able to defend themselves and a godsend to those who cant!

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As this movie from 2003 shows almost ten years ago there is a science to picking a jury and there are obviously people out there who know how, use science and make money doing so to win the vote of the jury regardless.  On the same note is this wrong??  Not only is it wrong because it shows that the jury is not impartial, it shows that it is also influenced and manipulated against the common good, and in the air of what the purchaser wants.  So does this really mean that the system works, or is up for grabs to the highest bidder?  I think the later more so than the previous as the justice system is broke.

Information/Article

Obtained from:  http://www.usmarshals.gov/witsec/index.html

Witness Security Program

The U.S. Marshals Service provides for the security, health and safety of government witnesses, and their immediate dependents, whose lives are in danger as a result of their testimony against drug traffickers, terrorists, organized crime members and other major criminals.
The Witness Security Program was authorized by the Organized Crime Control Act of 1970 and amended by the Comprehensive Crime Control Act of 1984. The U.S. Marshals have protected, relocated and given new identities to more than 8,200 witnesses and 9,800 of their family members, since the program began in 1971.
The successful operation of this program is widely recognized as providing a unique and valuable tool in the government’s battle against major criminal conspirators and organized
crime.

Witnesses and their families typically get new identities with authentic documentation. Housing, subsistence for basic living expenses and medical care are provided to the witnesses. Job training and employment assistance may also be provided.
The U.S. Marshals provide 24-hour protection to all witnesses, while they are in a high-threat environment including pretrial conferences, trial testimonials and other court appearances.
No Witness Security Program participant, who followed security guidelines, has been harmed while under the active protection of the U.S. Marshals.
In both criminal and civil matters involving protected witnesses, the U.S. Marshals cooperate fully with local law enforcement and court authorities to bring witnesses to justice or to have
them fulfill their legal responsibilities.

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As we can see the idea of protecting witnesses, especially in the instances of high crimes, and major criminals is something of a priority so as they can confront the accused and be present at the trial.  The whole website is about information on how the program works and operates so as to provide the protection needed before, during and after the trial.  A wonderful decision of the government in the prosecution of the major criminals and those of infamy.  Although this is something that the justice system looms over peoples heads if they do not want to testify, it can offer protection from the bad guy, or maybe take it away and throw the witness to the wolves.

The Fifth Amendment - "thats all I have to say"

"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"

 Well there sure is a lot to be said here, lets see we have the first part which talks about the fact that a person cannot be held/arrested for a capital crime without the indictment of a grand jury.  On this regard the crime being a capital or infamous crime is on the nature of the punishment to be imposed for the crime, not the actual punishment itself.  Grand juries are also something that has not been incorporated to the states, which means the states do not have to abide by the law of having a grand jury, although most states have replaced these with preliminary hearings.  The act of a grand jury does not apply in the military or time of war in the military as the Uniform Code of Military Justice has different perameters which are followed such as article 32 hearings and such.  This safeguard into making evidence apparent for a crime before an actual arrest is a benefit to wrongful imprisonment by the police forces and the government.  Otherwise very many of us could be locked up under pure suspiscion.

The second part of the fifth amendment is the double jeopardy clause in which a person cannot be tried for the same offense twice.  Thus if a person is found innocent of a crime they cannot be tried for the same crime again.  Although a person can be tried by both a state and federal court for the same crime the decision of an acquittal cannot be overturned in most instances and the person not retried in any manner.  This however does not bode well as there are many different ways in which criminal and civil trials move around this, as in the OJ Simpson case.  The fact that he was acquitted for the murder, yet tried again for wrongful death is crazy.  The supreme court has ruled in cases such as Ashe v. Swenson (1970) that if acquitted of one crime the same evidence cannot be used in another, and that the same defense has to stand in the other.  Meaning if an alibi stood before it has to stand again and thus there cannot be "new evidence against that.

The third, and most talked about part of the fifth amendment is the self incrimination aspect of the amendment.  the "pleading the fifth" if you could say.  This prevents a person from incriminating themselves in any instance and that evidence and decision on that evidence is still required for conviction of the crime.  This protects the people who would, take the "rap" for someone else, as the evidence would not fit and that person be found innocent.  This is also used by people who wish not to speak until represented by a lawyer or other legal defense.

The fourth and shortest part of the amendment which is the most straight forward of the five is the fact that a person cannot be deprived of life, liberty, or property without due process of law.  These are the basic freedoms afforded to us which cannot be taken away regardless.

The fifth and final part of the amendment is the fact that private property cannot be taken for public use without compensation.  This is a provision called emmenint domain.  A person can have their land apportioned and taken away by the government for public/government use if compensated fairly by said government.  This is a rediculous nature of the government in that if they can prove that the benefit of taking your land will benefit more people than not taking it you have lost.  You may be provided compensation but this is never really the same as monetary value cannot take the place of inherent personal value.

Video

Although this video is complemented by another, the fact of the matter remains that the defendants are exercising their rights to counsel and plead the fifth to prevent self indicment.  Hilarious as it may be it comes later that he wont even say if he is here that day, continuing to plead his fifth amendment rights.  What is even more shocking is the fact that this was about him and his wife entering a White House dinner uninvited through security, and no one has a picture or anything.  Crazy!!


Another Video




This is about how it is, the battle of appraisers for property, but what is the value of the work that is put into the house, the value lost in the years spent cultivating the land etc.  What price is there to these homeowners, not in monetary value but the value lost to them as people, and ultimately the taxpayers that the school district is looking out for.  Its kind of hard to believe that the school district needs almost 36 acres for an elementary school and middle school.  Sure they should be able to take some of the land, not being used or as the video shows, being used for farming or whatnot, but to take it all, thats just wrong in my opinion, eminent domain is something that should not be.  The government should have to purchase the land just like anyone else, if available for sale.  Heck the government pays $15 for a hammer because they NEED it, why not extra for land they think they NEED.

The Fourth Amendment

Hmmm, the fourth amendment.  One that can be misused, misconstrued, turned around, and showed in the face of searchers and others, but oh wait they don't care or like it anyways.  The fact that there is a provision in the Constitution preventing the use of illegal activity to procure evidence is awesome.  The fact that there are so many different legal ways to misuse and get around it is horrifying.  As many TV shows and other media explicitly show the fourth amendment requires a warrant to search property, yet on cops there is no warrant when searching a car for anything.  Does this amendment really protect us as citizenry, or does it just give us that false hope that if need be, there is something that law can maybe fall back on to exonerate us of some potential misdeed or wrong doing.

Court Case!!

http://supreme.justia.com/us/433/1/case.html

Way to big to post the whole thing in the blog, but really an interesting read about unlawful seizure of vehicles and on the Framers intent in history and the drafting of the amendments.

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In the court case mentioned above three defendants were charged more or less with trafficking marijuana.  The officers seized control of the contraband in a footlocker which was doubly locked and then broke the locks to open the footlocker without a warrant. The entrance into the footlocker was based on the vehicle exemption clause in which vehicles are not privy to the search and seizure parts of the fourth amendment.  In review the supreme court ruled that the warrant could have been obtained, and should have since the footlocker and vehicle were in possession of the agents and in no danger of flight or risk to the public.  The vehicle clause notes the flight risk from jurisdictions as being the reason for exclusion.  Regardless the defendants won the case based on this technicality in law, but they were still trafficking marijuana as plainly observed and the evidence attested to.  Why should this not count??

A video, health official & trooper vs. homeowner




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In all cases this man is correct in his assumptions about the laws of the country and of the state, and as the woman states in the later half of the video the sheriff is there as a means of protection to her from the homeowner who she is trespassing against.  The fact that the sheriff is doing nothing when the man is saying that she is trespassing is amazing, and then later another sheriff shows up at the end.  The area that the woman is photographing is not in plain view or sight as she has to walk to it, and has no court order to do so.  I believe that the man should have been fully justified if the law allowed to subdue the woman by any means, pepper spray, etc since he informed her in front of law enforcement of her actions being illegal.
 

Amendment Number Three

This one has to be a bit tricky for those people in the world, or reading this that have never served in the military.  On one hand you have the fact that through provision of government that a soldier or member of the armed forces cannot be quartered in your house unless mandated by law.  On the other you have to wonder about what law is in place if you are not home, nor are you in the area if troops do occupy your house in a time of war, such as a fire fight.  Yes we can see that you would not want your house to get obliterated by incoming fire but at the same time if you were to stay in the combat zone the security of soldiers would probably be comforting.  Its a toss up, but in the times of peace the government should provide quarters for the standing military which it pays for via taxation, thus the private citizen should have no burden in that respect.

Court case for consideration

Engblom v. Carey, 677 F.2d 957, was a 1982 court case decided by the United States Court of Appeals for the Second Circuit. It is the only significant court decision based on a direct challenge under the Third Amendment to the United States Constitution. The case was initiated by a 1979 strike by New York State correction officers. While the officers were on strike, some of their duties were performed by National Guardsmen who were activated. At Mid-Orange Correctional Facility (and other facilities) striking employees were evicted from employee housing which was then used to house some of the National Guard. Two of the evicted officers at Mid-Orange C.F., Marianne E. Engblom and Charles E. Palmer, subsequently filed suit against the state of New York and its governor, Hugh L. Carey. The decision, rendered on May 3, 1982, established that the National Guardsmen legally qualify as soldiers under the Third Amendment, that the amendment applies to state as well as federal authorities, and that the protection of this amendment extends beyond home owners. The majority stated that the officers' occupancy in the rooms was covered under the legal rules of "tenancy" and was protected under the Third Amendment. There was a minority dissent which stated the officers' occupancy was covered under the lesser protection of employee housing and held that the special circumstances of residency on prison grounds superseded Third Amendment protection. The case was remanded to district court where it was decided in the defendants' favor, due to the principle that as agents of the state, the defendants were covered by a qualified immunity unless they were knowingly acting illegally. In the absence of previous precedents on this issue, the standard of knowing illegality was not met.


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In the court case above which is the only case to be held over the third amendment I am going to have to put my vote against the ruling.  As the case states the prison guards were on strike, thus in my opinion in forfeit of their privileges which included the housing which was afforded to them on the prison grounds.  Upon entering of the National Guard the guards were evicted, and for due cause as they were not performing the duties which entitled them to their properties on the grounds.  In the capacity of being tenants, yes they were consistent with the performance of their duties, and as such duties were being performed by another party thus tenancy was revoked.  Upon returning to their position tenancy should have been restored which I am sure that it was if they still maintained employment.

A crazy video!!



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Now although poorly shot this video depicts the truth behind the amendment and what it is supposed to do to protect you the citizen.  Under no circumstances can a soldier by any law commandeer your home for quarter or other means of support.  At the same time that same soldier as shown in the video cannot riffle through your cabinets and refrigerator.  This video shows the basics of what the amendment is for.  Now if this were a combat situation, I am sure the video would be a lot different and the idea of quarter a lot more interpreted than merely looking for a place to stay.  Quarter in my opinion is the support of a person on a day to day basis such as food and shelter.  Now if the soldier needed to move through your home, or position themselves for a time that is not quartering in my opinion, but this would be a war time situation needed to be explored by judiciary powers higher than mine.