NCJ Number
222645
Journal
Criminal Justice Review Volume: 33 Issue: 1 Dated: March 2008 Pages: 29-47
Date Published
March 2008
Length
19 pages
Annotation
This study explored historical and analytic accounts of both the fifth amendment and torture.
Abstract
The framers of the U.S. Constitution believed that they had constructed a bulwark against torture in the fifth amendment especially its self-incrimination clause. The prohibition against self-incrimination did not protect defendants accused of crimes against the state in Tudor England, and it seems not to restrain the U.S. Government's current executive. Recent U.S. Supreme Court decisions such as United States v. Balsys and Chavez v. Martinez show an authoritarian trend in which the fifth amendment becomes a limited liberty. United States v. Padilla appears flimsy within a criminal context. Developed criminal justice systems prohibit torture and punish torturers; systems of law regulate torture, and many other crimes committed by individuals, in a reasonable, effective, and efficient manner. Private torture falls within the category of aggravated assault and, if death occurs, homicide. However, when the torturer acts on behalf of the state, complexities arise. Over the past several years, military and intelligence personnel of the United States have tortured captives, gained information from others' torture of captives, and sent captives to be tortured. Aside from statutory law and international treaties, conventions to which the United States is party, prohibition of torture by agents of the state is implicit in the very fabric of U.S. political society embodied in the Constitution, especially the fifth amendment. The rights guaranteed under the fifth amendment derive from English common law. Furthermore, common-law rights and protections permeate all of Anglo-American law. The fifth amendment plays a central role in these legal safeguards. Historical and analytic accounts of the fifth amendment and torture are discussed within the context of recent revelations of the use of torture. Notes, references