The
Fifth Amendment to the
United States Constitution, which
is part of the
Bill of
Rights, protects against abuse of government authority in a
legal procedure. Its guarantees stem from
English common law which traces back to
the
Magna Carta in 1215. For instance,
grand juries and the phrase "
due
process" both trace their origin to the Magna Carta.
Text
Grand jury
Grand juries, which return
indictments in many criminal cases, are composed
of a jury of peers and operate in closed deliberation proceedings;
they are given
specific instructions
regarding the law by the judge. Many constitutional
restrictions do not apply during grand jury proceedings. The
exclusionary rule, which prevents
evidence seized in violation of the Fourth, Fifth or Sixth
amendments from being introduced in court, does not apply to
evidence presented to a grand jury. (
United States v. Calandra ). Defendants do not
have the right to have their attorneys present in grand jury rooms
during hearings; they would normally have such a right when during
questioning by the police while in custody. The grand jury
indictment clause of the Fifth Amendment has not been
incorporated under the
Fourteenth
Amendment; in other words, it has not been ruled applicable to
the states. States are thus free to abolish grand juries, and many
(though not all) have indeed replaced them with
preliminary hearings. This was decided
in
Hurtado v.
California, 110 U.S.
516 (1884), since "except in cases arising in the land and naval
forces, or in the Militia," is held to indicate federal
jurisdiction.
Whether a crime is "infamous" is determined by the nature of the
punishment that may be imposed, not the punishment that is actually
imposed) (
Ex parte Wilson,
) though crimes punishable by
capital punishment
are explicitly required within the text of the Fifth Amendment to
be tried upon indictments. In
United States v. Moreland, , the Supreme Court
held that imprisonment in a prison or penitentiary, as opposed to a
correction or reformation house, attaches infamy to a crime.
Currently, federal law permits the trial of
misdemeanors without indictments (
Duke v. United States, ) and in cases
involving felonies, except those in which capital punishment may be
applied, the prosecution may proceed without indictments if the
defendants waive their Fifth Amendment right.
Indictments found by grand juries may be amended by the prosecution
only in limited circumstances. In
Ex
Parte Bain (1887), the Supreme Court held that the
indictment could not be changed at all by the prosecution.
United States v.
Miller, partly
reversed the previous ruling; now, an indictment's scope may be
narrowed by the prosecution. Thus, lesser included charges may be
dropped, but new charges may not be added.
The grand jury clause of the Fifth Amendment does not protect those
serving in the armed forces, whether during wartime or peacetime.
Members of the state militia called up to serve with federal forces
are not protected under the clause either. In
O'Callahan v. Parker, , the Supreme Court held
that only charges relating to service may be brought against
members of the militia without indictments. That decision was
overturned in 1987, when the Court held that members of the militia
in actual service may be tried for any offense with
indictments.
Double jeopardy
The fifth amendment refers to being put in "jeopardy of life or
limb." The clause, however, has been interpreted as providing
protection regarding "every indictment or information charging a
party with a known and defined crime or misdemeanor." The clause,
it has been held, does not prevent separate trials by different
governments, and the state and federal governments are considered
"separate sovereigns". Therefore, one may be prosecuted for a crime
in a state court, and prosecuted for the same crime in another
state, a foreign country, or (most commonly) in a federal
court.
Once acquitted, a defendant may not be retried for the same
offense:
Ball v. U.S. "A verdict of acquittal, although not
followed by any judgment, is a bar to a subsequent prosecution for
the same offense." 163 U.S. 662 at 672 (1896). Acquittal by a jury
is generally final and cannot be appealed by the prosecution,
Fong Foo v.
United States,
369 U.S. 141 (1962). An acquittal in a trial by judge (bench trial)
is also generally not appealable by the prosecution,
United States v. Jenkins, 420 U.S. 358 (1975).
A trial judge may normally enter an acquittal if he deems the
evidence insufficient for conviction. If the judge makes this
ruling before the jury reaches its verdict, the judge's
determination is final. If, however, the judge overrules a
conviction by the jury, the prosecution may appeal to have the
conviction reinstated. Additionally, although a judge may overrule
a guilty verdict by a jury, he or she does not have the same power
to overrule a not guilty verdict.
Defendants may not be retried following conviction except in
limited circumstances when the judge sees fit and proper. Bribing a
judge to get an acquittal is not valid because the party acquitted
has prevented themselves from being placed into "jeopardy" to begin
with.
Harry Aleman v. Judges of the Criminal Division,
Circuit Court of Cook County, Illinois, et al., 138 F.3d 302
(1998). If a defendant appeals a conviction and is successful in
having it overturned, they are subject to retrial. An exception
arises if the verdict is overturned on the grounds of evidentiary
insufficiency, rather than on the grounds of procedural faults. As
noted above, if the trial court made a determination of evidentiary
insufficiency, the determination would constitute a final
acquittal; in
Burks
v. United
States 437 U.S. 1, (1978), it was held that "it should
make no difference that the reviewing court, rather than the trial
court, determined the evidence to be insufficient." Another
exception arises in cases of conviction for lesser offenses. For
instance, if a defendant is charged with
murder in the first degree, and is convicted by the
jury of murder in the second degree, and later the jury's
conviction is overturned on procedural grounds, the defendant may
be retried for second degree but not first degree murder; the jury,
by convicting the defendant of second degree murder, is deemed to
have implicitly acquitted them of first degree murder.
The defendant may not be punished twice for the same offense. In
certain circumstances, however, a sentence may be increased. It has
been held that sentences do not have the same "finality" as
acquittals, and may therefore be reviewed by the courts. Sentence
increases may not, however, be made once the defendant has already
begun serving his term of imprisonment. If a defendant's conviction
is overturned on procedural grounds, the retrial may result in a
harsher penalty than the original trial. The only exception is that
the prosecution may not seek capital punishment in the retrial if
the jury did not impose it in the original trial. The reason for
this exception is that before imposing the death penalty the jury
has to make several factual determinations and if the jury does not
make these it is seen as the equivalent of an acquittal of a more
serious offense.
In
Arizona v.
Rumsey, 467 U.S. 203
(1984), it was ruled that in a bench trial, when a judge was
holding a separate hearing after the jury trial, to decide if the
defendant should be sentenced to death or life imprisonment, the
judge decided that the circumstances of the case did not permit
death to be imposed. On appeal the judge's ruling was found to be
erroneous. However, even though the decision to impose life instead
of death was based on an erroneous interpretation of the law by the
judge, the conclusion of life imprisonment in the original case
constituted an acquittal of the death penalty and thus death could
not be imposed upon a subsequent trial. Even though the acquittal
of the death penalty was erroneous in that case, the acquittal must
stand.
Mistrials are generally not covered by the double jeopardy clause.
If a judge dismisses the case or concludes the trial without
deciding the facts in the defendant's favor (for example, by
dismissing the case on procedural grounds), the case is a mistrial
and may normally be retried. Furthermore, if a jury cannot reach a
verdict, the judge may declare a mistrial and order a retrial. When
the defendant moves for a mistrial, there is no bar to retrial,
even if the prosecutor or judge caused the error that forms the
basis of the motion. An exception exists, however, where the
prosecutor or judge has acted in
bad
faith. In
Oregon v.
Kennedy, 456 U.S. 667,
(1982), the Supreme Court held that "only where the governmental
conduct in question is intended to 'goad' the defendant into moving
for a mistrial may a defendant raise the bar of double jeopardy to
a second trial after having succeeded in aborting the first on his
own motion."
Defendants may not more than once be placed in jeopardy for the
"same offense". Sometimes, however, the same conduct may violate
different statutes. In
Blockburger v.
United States,
284 U.S. 299 (1932), the Supreme Court held that "where the same
act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether
there are two offenses or only one, is whether each provision
requires proof of an additional fact which the other does not". For
example, the test was applied in
Brown
v. Ohio, 432 U.S.
161 (1977). The defendant had first been convicted of operating an
automobile without the owner's consent, and later of stealing the
same automobile. The Supreme Court concluded that the same evidence
was necessary to prove both offenses, and that in effect there was
only one offense. Therefore, it overturned the second
conviction.
In other cases, the same conduct may constitute multiple offenses
under the same statute, for instance where one robs many
individuals at the same time. There is no explicit bar to separate
prosecutions for different offenses arising under the same
"criminal transaction", but it is not permissible for the
prosecution to re-litigate facts already determined by a jury. In
Ashe v. Swenson, 397 U.S. 436, (1970), the
defendant was accused of robbing seven
poker
players during a game. John Ashe was first tried for, and acquitted
of, robbing only one of the players; the defense did not contest
that a robbery actually took place. The state then tried the
defendant for robbing the second player; stronger identification
evidence led to a conviction. The Supreme Court, however,
overturned the conviction. It was held that in the first trial,
since the defense had not presented any evidence that there was no
robbery, the jury's acquittal had to be based on the conclusion
that the defendant's alibi was valid. Since one jury had held that
the defendant was not present at the crime scene, the State could
not re-litigate the issue.
Self-incrimination
The fifth amendment protects witnesses from being forced to
incriminate themselves. To
"
plead the Fifth" is to refuse to
answer a question because the response could provide
self-incriminating evidence of an illegal conduct punished by
fines, penalties or forfeiture.
Historically, the legal protection against self-incrimination is
directly related to the question of torture for extracting
information and confessions.
The legal
shift from widespread use of torture and forced confession dates to
turmoil of the late sixteenth and early seventeenth century in
England
. Anyone refusing to take the oath
ex
officio mero (confessions or swearing of innocence, usually
before hearing any charges) was taken for guilty. Suspected
Puritans were pressed to take the oath and
then reveal names of other Puritans. Coercion and torture were
commonly employed to compel "cooperation." Puritans, who were at
the time fleeing to the
New World, began a
practice of refusing to cooperate with interrogations. In the most
famous case
John Lilburne refused to
take the oath in 1637. His case and his call for "
freeborn rights" were rallying points for reforms
against forced oaths, forced self-incrimination, and other kinds of
coercion.
Oliver Cromwell's
revolution overturned the practice and incorporated protections, in
response to a popular group of English citizens known as the
Levellers. The Levellers presented
The
Humble Petition of Many Thousands to
Parliament in 1647 with thirteen demands, of
which the right against self-incrimination (in criminal cases only)
was listed at number three. These protections were brought to the
American shores by Puritans, and were later incorporated into the
United States Constitution through the Bill of Rights.
In terms of
Miranda rights, this is
often referred to as the "right to remain silent." This amendment
is also similar to
Section
13 of the Canadian Charter of Rights and Freedoms. In other
Commonwealth countries like Australia and New Zealand, the right to
silence of the accused both during questioning and at trial is
regarded as an important inherited common-law right, and is
protected in the New Zealand Bill of Rights and in Australia
through various federal and state Acts and Codes governing the
criminal justice system.
Legal proceeding
The fifth amendment privilege against compulsory self-incrimination
applies when an individual is called to testify in a legal
proceeding. The U.S. supreme court ruled that the right against
self-incrimination applies whether the witness is in a federal or
state court (see
Malloy v.
Hogan, (1964)), and whether
the proceeding itself is criminal or civil (see
McCarthy v. Arndstein, 266 U.S. 34
(1924)).
The right was asserted at grand jury or
congressional hearings in the
1950s, when witnesses testifying before the
House Committee on
Un-American Activities or the
Senate Internal Security
Subcommittee claimed the right in response to questions
concerning their alleged membership in the
Communist Party. Under the
Red Scare hysteria at the time of
McCarthyism, witnesses who refused to answer the
questions were accused as "fifth amendment communists". They lost
jobs or positions in unions and other political organizations, and
suffered other repercussions after "taking the fifth."
Senator
Joseph McCarthy (R-Wisc.)
asked, "Are you now, or have you ever been a member of the
Communist party," while he was chairman of the Senate Government
Operations Committee Permanent Subcommittee on Investigations.
Admitting to a previous communist party membership was not
sufficient. Witnesses were also required to "name names," to
implicate others they knew to be communists or who had been
communists in the past.
Academy Award winning director
Elia Kazan testified before the
House Committee on
Un-American Activities that he had belonged to the communist
party briefly in his youth. He also "named names," which incurred
enmity of many in Hollywood. Other entertainers such as
Zero Mostel found themselves on a
Hollywood blacklist after taking the
fifth, and were unable to find work for a while in the show
business.
The amendment has also been used, notably, by defendants and
witnesses in criminal cases involving the
Mafia. The supreme court has also used the
incorporation doctrine to apply the
self-incrimination clause against the states under the fourteenth
amendment.
The right against self-incrimination does not apply when an
individual testifies before a
self-regulatory organization
(SRO). SROs, such as the National Association of Securities Dealers
(
NASD), are generally not considered as state
actors subject to the restraints of the fifth amendment. Department
of Enforcement, United States v. Solomon, 509 F. 2d 863 (2d Cir.
1975); D. L. Cromwell Invs., Inc. v. NASD Regulation, Inc., 132 F.
Supp. 2d 248, 251-53 (S.D.N.Y. 2001), aff'd, 279 F.3d 155, 162 (2d
Cir. 2002), cert. denied, 537 U.S. 1028 (2002); Marchiano v. NASD,
134 F. Supp. 2d 90, 95 (D.D.C. 2001). SROs also lack subpoena
powers, so they rely heavily on requiring testimony from
individuals while wielding the threat of a bar from the industry
(permanent, if decided by the NASD) in the case of
noncompliance.
Custodial interrogation
The Fifth Amendment limits the use of evidence obtained illegally
by the law enforcement. Originally, at
common
law, even a confession obtained by torture was admissible. In
the eighteenth century, common law in England provided that coerced
confessions were inadmissible. The common law rule was incorporated
into American law by the courts. However, the use of brutal torture
to extract confessions was routine in some rural states as late as
the 1930s, and stopped only after the Supreme Court kept overruling
convictions based on such confessions, in cases like
Brown v. Mississippi, .
Law enforcement responded by switching to more subtle techniques,
but the courts held that such techniques, even if they do not
involve physical torture, may render a confession involuntary and
inadmissible. In
Chambers
v. Florida
(1940) the Court held a confession obtained after five days of
prolonged questioning, during which time the defendant was held
incommunicado, to be coerced. In
Ashcraft v. Tennessee (1944), the suspect had
been interrogated continuously for thirty-six hours under electric
lights. In
Haynes v.
Washington (1963) the
Court held that an "unfair and inherently coercive context"
including a prolonged interrogation rendered a confession
inadmissible.
Miranda v. Arizona (1966) was a landmark case
involving confessions.
Ernesto
Miranda had signed a statement confessing the crime, but the
Supreme Court held that the confession was inadmissible because the
defendant had not been warned of his rights.
The Court held, "the prosecution may not use statements [...]
stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure
the privilege against self-incrimination. Custodial interrogation
is initiated by law enforcement after a person has been taken into
custody or otherwise deprived of his freedom of movement.
As for the procedural safeguards to be employed, unless other fully
effective means are devised to inform accused persons of their
right of silence and to assure a continuous opportunity to exercise
it, the following measures are required. Before any questioning,
the person must be warned that he has a right to remain silent,
that any statement he does make may be used as evidence against
him, and that he has a right to the presence of an attorney, either
retained or appointed." The warning to which Chief Justice
Earl Warren referred is now called the
Miranda warning, and it is customarily
delivered by the police to an individual upon his or her
arrest.
Miranda has been clarified by several further Supreme
Court rulings. For the warning to be necessary, the questioning
must be conducted under "custodial" circumstances. A person
detained in jail or under arrest is, of course, deemed to be in
police custody. Alternatively, a person who is under the
reasonable belief that he may not freely leave from the
restraint of law enforcement is also deemed to be in "custody."
That determination of "reasonableness" is based on a totality of
the objective circumstances. A mere presence at a police station
may not be sufficient, but nor is it required. Traffic stops are
not deemed custodial. Additionally, the Court ruled in
Yarborough v. Alvarado that a suspect's age
and inexperience are not objective factors required to be
considered when determining whether it was reasonable for the
suspect to believe that he was not free to leave during the
questioning.
The questioning does not have to be explicit to trigger Miranda
rights. For example, two police officers engaging in a conversation
designed to elicit an incriminating statement from a suspect would
constitute questioning. A person may choose to waive his Miranda
rights, but the prosecution has the burden of showing that such a
waiver was actually made.
A confession not preceded by a Miranda warning where one was
necessary cannot be admitted as evidence against the confessing
party in a judicial proceeding. The Supreme Court, however, has
held that if a defendant voluntarily testifies at the trial that he
did not commit the crime, his confession may be introduced to
challenge his credibility, to "impeach" the witness, even if it had
been obtained without the warning.
In
Hiibel
v. Sixth Judicial
District Court of Nevada, the Supreme Court ruled 5–4 on
June 21, 2004 that the Fourth, Fifth, and Fourteenth Amendments do
not give people the right to refuse to give their name when
questioned by police.
Refusal to testify in a criminal case
The Supreme Court ruled that the government cannot punish a
criminal defendant for exercising his
right to silence, by allowing the
prosecutor to ask the jury to draw an inference of guilt from the
defendant's refusal to testify in his own defense.
Griffin v. California, (1965). In
Griffin, the Court overturned as unconstitutional under
the federal constitution a provision of the California state
constitution that explicitly granted such power to
prosecutors.
Refusal to testify in a civil case
While defendants are entitled to assert that right, there are
consequences to the assertion of the Fifth Amendment in a civil
action.
The Supreme Court has held that “the Fifth Amendment does not
forbid adverse inferences against parties to civil actions when
they refuse to testify in response to probative evidence offered
against them.” Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).
“[A]s Mr. Justice Brandeis declared, speaking for a unanimous court
in the Tod case, ‘Silence is often evidence of the most persuasive
character.’” Id. at 319 (quoting United States ex rel. Bilokumsky
v. Tod, 263 U.S. 149, 153-154 (1923)). “‘Failure to contest an
assertion...is considered evidence of acquiescence...if it would
have been natural under the circumstances to object to the
assertion in question.’” Id. (quoting United States v. Hale, 422
U.S. 171, 176 (1975)).
In
Baxter, the state was entitled to an adverse inference
against Palmigiano because of the evidence against him and his
assertion of the Fifth Amendment privilege.
Federal income tax
In some cases, individuals may be legally required to file reports
that call for information that may be used against them in criminal
cases. In
United States
v. Sullivan, (1927), the United
States Supreme Court ruled that a taxpayer could not invoke the
Fifth Amendment's protections as the basis for refusing to file a
required federal income tax return. The Court stated: "If the form
of return provided called for answers that the defendant was
privileged from making[,] he could have raised the objection in the
return, but could not on that account refuse to make any return at
all. We are not called on to decide what, if anything, he might
have withheld."
In
Garner v.
United States,
(1976) the defendant was convicted of crimes involving a conspiracy
to "fix” sporting contests and to transmit illegal bets. During the
trial the prosecutor introduced, as evidence, the taxpayer's
Federal income tax returns for various years. In one return the
taxpayer had showed his occupation to be “professional gambler.” In
various returns the taxpayer had reported income from “gambling” or
“wagering.” The prosecution used this to help contradict the
taxpayer's argument that his involvement was innocent. The taxpayer
tried unsuccessfully to keep the prosecutor from introducing the
tax returns as evidence, arguing that since the taxpayer was
legally required to report the illegal income on the returns, he
was being compelled to be a witness against himself. The Supreme
Court agreed that he was legally required to report the
illegal
income on the returns, but ruled that the privilege against
self-incrimination still did not apply. The Court stated that "if a
witness under compulsion to testify makes disclosures instead of
claiming the privilege, the Government has not 'compelled' him to
incriminate himself."
Sullivan and
Garner are viewed by some legal
scholars as standing, in tandem, for the proposition that on a
required Federal income tax return a taxpayer would probably have
to report the amount of the illegal income, but might validly claim
the privilege by labeling the item "Fifth Amendment" (instead of
"illegal gambling income," "illegal drug sales," etc.)
Grants of immunity
If the government gives an individual immunity, then that
individual may be compelled to testify. Immunity may be
"transactional immunity" or "use immunity"; in the former, the
witness is immune from prosecution for offenses related to the
testimony; in the latter, the witness may be prosecuted, but his
testimony may not be used against him. In
Kastigar v. United States, , the Supreme
Court held that the government need only grant use immunity to
compel testimony. The use immunity, however, must extend not only
to the testimony made by the witness, but also to all evidence
derived therefrom. This scenario most commonly arises in cases
related to
organized crime.
Record keeping
A statutorily required record-keeping system may go too far such
that it implicates a record-keeper's right against
self-incrimination. A three part test laid out by
Albertson
v. Subversive
Activities Control Board, 382 U.S. 70 (1965) is used to
determine this: 1. the law targets a highly selective group
inherently suspect of criminal activities; 2. the activities sought
to be regulated are already permeated with criminal statutes as
opposed to essentially being non-criminal and largely regulatory;
and 3. the disclosure compelled creates a likelihood of prosecution
and is used against the record-keeper.
In
Albertson
v. Subversive
Activities Control Board, (1965), the Supreme Court struck
down an order by the Subversive Activities Control Board requiring
members of the Communist Party to register with the government and
upheld an assertion of the privilege against self-incrimination, on
the grounds that statute under which the order had been issued was
"directed at a highly selective group inherently suspect of
criminal activities."
In
Leary v.
United States, 395
U.S. 6 (1969) the court struck down the
Marijuana Tax Act because its record
keeping statute required
self-incrimination.
In
Haynes v.
United States, 390
U.S. 85 (1968) the Supreme Court ruled that, since convicted felons
are prohibited from owning firearms, requiring felons to register
any firearms they owned constituted a form of
self-incrimination and was therefore
unconstitutional.
Other
Corporations may also be compelled to maintain and turn over
records; the supreme court has held that the fifth amendment
protections against self-incrimination extend only to "natural
persons." There are, however, a few restraints on the government;
it may not, for instance, compel a person to keep records for a
corporation if those records could be used against the
record-keeper himself.
As a condition of employment, workers may be required to answer
their employer's narrowly defined questions regarding conduct on
the job. If an employee invokes the
Garrity
rule (sometimes called the
Garrity
Warning or Garrity Rights) before answering the questions, then
the answers cannot be used in criminal prosecution of the employee.
This principle was developed in
Garrity v. New Jersey, 385 US 493 (1967).
The rule is most commonly applied to public employees such as
police officers.
In
United States
v. Boucher, 2007 WL 4246473, the
United
States District Court for the District of Vermont ruled that
the fifth amendment protects a defendant from having to reveal an
encryption passphrase, or even the existence of one. The decision
was reversed on appeal in February 2009.
In
Boyd v.
United States 116 US
616 (1886) the US Supreme Court stated that "It is equivalent to a
compulsory production of papers to make the nonproduction of them a
confession of the allegations which it is pretended they will
prove".
Due process
The fifth amendment prevents individuals from being deprived of
life, liberty, or property without "due process of law." Due
process extends to all persons and corporate entities. The
Fourteenth Amendment explicitly binds the states with due process
protections, through
selective incorporation.
Fifth Amendment due process protection has not always been granted
to corporations, but was first applied to corporations in 1893 by
the Supreme Court in
Noble v. Union River Logging . This
was not long after the Supreme Court first granted 14th Amendment
protection to corporations in
Santa Clara
County v. Southern Pacific
Railroad in 1886.
The fifth amendment applies to the federal government (see
Barron v. Baltimore), and the
Fourteenth
Amendment, by its own terms, applies against the States. While
the fifth amendment includes a due process clause, it does not
include—as the fourteenth amendment
does—an
equal
protection clause. However, in
Bolling v. Sharpe (1954), the Supreme Court
averred that it was absurd that the Constitution could deny the
states the power to abridge equal protection of the laws, yet
permit that power to the Congress. "[T]he concepts of equal
protection and due process, both stemming from our American ideal
of fairness, are not mutually exclusive," reasoned Chief Justice
Earl Warren. The Court thus interpreted
the fifth amendment's due process clause to include an equal
protection element but has continued to hold that there is a
difference between due process and equal protection in its
fourteenth
amendment jurisprudence.
Eminent domain
The Supreme Court has held that the federal government and each
state has the power of
eminent
domain—the power to take private property for "public use". The
Takings Clause, the last clause of the Fifth
Amendment, limits the power of eminent domain by requiring that
"just compensation" be paid if private property is taken for public
use. The just compensation provision of the Fifth Amendment did not
originally apply directly to the states, but the federal courts now
hold that the
Fourteenth
Amendment extended the effects of that provision to the states.
The federal courts, however, have shown much deference to the
determinations of Congress, and even more so to the determinations
of the state legislatures, what constitutes "public use". The
property need not actually be used by the public; rather, it must
be used or disposed of in such a manner as to benefit the public
welfare or public interest. One exception that restrains the
federal government is that the property must be used in exercise of
a government's enumerated powers.
The owner of the property that is taken by the government must be
justly compensated. When determining the amount that must be paid,
the government does not need to take into account any speculative
schemes that the owner claims the property was intended for use in.
Normally, the fair market value of the property determines "just
compensation". If the property is taken before the payment is made,
interest accrues (though the courts have refrained from using the
term "interest").
The federal courts have not restrained state and local governments
from seizing privately owned land for private commercial
development on behalf of private developers.
This was upheld on
June 23, 2005, when the Supreme Court issued its opinion in
Kelo
v.
City of New London. This 5–4 decision remains
controversial. The majority opinion, by Justice Stevens, found that
it was appropriate to defer to the city's decision that the
development plan had a public purpose, saying that "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." Justice Kennedy's
concurring opinion observed that in this particular case the
development plan was not "of primary benefit to . . . the
developer" and that if that was the case the plan might have been
impermissible. In the dissent, Justice
Sandra Day O'Connor argued that this
decision would allow the rich to benefit at the expense of the
poor, asserting that "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." She argued
that the decision eliminates "any distinction between private and
public use of property—and thereby effectively delete[s] the words
'for public use' from the Takings Clause of the Fifth Amendment". A
number of states, in response to Kelo, have passed laws and/or
state constitutional amendments which make it more difficult for
state governments to seize private land. Takings that are not "for
public use" are not directly covered by the doctrine, however such
a taking might violate
due process rights under
the
Fourteenth
amendment, or other applicable law.
The exercise of the police power of the state resulting in a taking
of private property was long held to be an exception to the
requirement of government paying just compensation. However the
growing trend under the various state constitution's taking clauses
is to compensate innocent third parties whose property was
destroyed or "taken" as a result of police action.
See also
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