Bill of Rights Day: Individual rights and our criminal justice system
When people refer to the “holiday season” at this time of year, they’re usually thinking of Christmas and Hanukkah. But let’s not forget that we also celebrate the Bill of Rights Day on December 15!
That’s right, the U.S. has a day not just to celebrate our Constitution (on September 17) but also specifically our Bill of Rights. On December 15, 1791, Congress ratified the first 10 Amendments to the U.S. Constitution – collectively known as the Bill of Rights.
Our Founding Fathers argued that the primary purpose of government is to protect individual rights, and the Bill of Rights was one way they put that belief into action.
In this newsletter, we often focus on the First Amendment in the Bill of Rights and the freedoms that it guarantees regarding free speech. But today, I want to highlight the criminal justice protections enshrined in the Bill of Rights because 40% of the Bill of Rights is devoted to protecting individuals within the criminal justice system against government overreach.
The founders were well aware of how a tyrant could abuse his power to prosecute, punish, and jail his subjects. The Declaration of Independence cites violations of the right to trial by jury and arbitrary deprivations of liberty and impositions of punishments as reasons the colonies were declaring independence.
With such violations fresh on their minds, our Founding Fathers created the Fourth, Fifth, Sixth, and Eighth Amendments to protect Americans against abuses of government power. These rights
- Protect individuals from unreasonable searches and seizures without a warrant (the Fourth Amendment);
- Ensure due process (the Fifth Amendment);
- Guarantee the rights to an attorney and to a timely and fair trial (the Sixth Amendment); and
- Prevent excessive punishment (the Eighth Amendment).
Here are a few ways 3 of those rights are under fire today.
The 4th Amendment
The Fourth Amendment’s presumption of individualized suspicion requires government searches to be justified by specific evidence of wrongdoing, not broad or indiscriminate measures.
But instead of following the Fourth Amendment, federal agencies have leveraged surveillance programs Congress authorized for use against foreign adversaries and spies to instead collect information on a Presidential campaign, members of Congress, and many regular American citizens.
By allowing this type of mass surveillance without individualized suspicion, these agencies violate the Fourth Amendment’s protections, eroding the very privacy and the freedoms our Founders meant to secure.
Americans for Prosperity fought alongside a large coalition of groups calling for Congress to require agencies to follow the Constitution before collecting information on Americans. Sadly, our country’s leaders in the House failed to uphold the Constitution and the proposal failed with a tied vote of 212-212.
The fight is not over though as the laws will need to be reauthorized again in 2026 – we hope you will join us in that fight!
The 5th Amendment
The practice of civil asset forfeiture undermines the Fifth Amendment guarantee of due process by flipping the foundational principle of “innocent until proven guilty” on its head.
Under civil forfeiture laws, the government can seize property merely suspected of being connected to a crime without ever securing a guilty verdict, or in many cases, even filing criminal charges. Individuals wanting to reclaim what’s rightfully theirs are forced to navigate a complex legal process to prove their innocence, often at great personal expense.
Since 2000, states and the federal government have seized more than $68.8 billion, though the total is likely much higher as more than half of states don’t report forfeiture data.
However, some states are taking steps in the right direction. In 2024, Americans for Prosperity worked with the Kansas legislature to pass S.B. 458 which reformed civil asset forfeiture practices in the state. Among other changes, this reform requires probable cause for seizures, shifts the burden of proof to the government, and raises the standard of evidence required for forfeiture to “clear and convincing.”
The 6th Amendment
My AFP colleague Jeremiah Mosteller has previously written about the Sixth Amendment and delayed justice, noting that “victims and defendants alike deserve swift justice”:
The backlog of pending criminal cases… has resulted in lengthy delays in the time it takes to resolve criminal cases. The average criminal case now takes nearly ten months to resolve if there is a guilty plea and more than two years if a trial is required. Many victims and defendants alike go without justice for months or even years.
As a result, individuals awaiting trial face prolonged uncertainty, potential loss of employment, and disruption to their personal lives, often while incarcerated under strict conditions.
Americans for Prosperity partnered with federal policy champions like Representatives Kelly Armstrong and Laurel Lee to prevent a budget error from making the crisis of delayed justice worse this year.
While Congress ultimately stepped up to ensure Americans can access their Sixth Amendment rights, many states still have opportunities to improve the way they uphold the Sixth Amendment.
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Together, the 4 amendments are the foundation for a fair and just criminal justice system – one that treats the accused as innocent until proven guilty and limits the government’s ability to trample on individual rights.
But today, we’ve fallen far short of what our Founding Fathers envisioned.
Instead, the U.S. has the highest incarceration rate in the world, with more than 2 million people behind bars at any given time, and an estimated $80 billion of taxpayer funds is spent annually just on corrections systems. The current system is failing to keep our communities safe and is ineffective at reducing criminal behavior yet is still wasting billions of taxpayer dollars every year.
It’s also used too often as a one-size-fits-all solution to the challenges facing society – even though every new law with criminal penalties means that enforcement could deprive someone of their freedom, property, or even life.
But the criminal justice system envisioned and designed by our Founding Fathers was one that could maintain appropriately tough consequences when warranted and hold individuals accountable – while also ensuring punishments are proportionate to the crime and the root causes of criminal behavior are addressed.
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What difference do these amendments make?
Here’s the story of one man who was sentenced to 35 years in federal prison for a nonviolent crime:
Matthew Charles was sentenced to 35 years in federal prison for selling crack cocaine. During his incarceration, Charles organized a Bible study, mentored other prisoners, and studied to become a law clerk. He was released in 2016, but 18 months later a federal court ruled his release was erroneous and ordered him to serve another nine years.
At the time he was forced back into prison, Charles was employed as a driver, had reconnected with his family, and had been volunteering at a food pantry.
In early 2019, Charles was one of the first people to be released under the [First Step Act]. He had served almost 22 years for a nonviolent offense.
The FSA has inspired countless reforms in state criminal justice systems. These laws, and continued FSA implementation, eventually will help millions of Americans restore their lives and use their own talents to benefit themselves and others.
As with many things, our Founding Fathers had remarkable foresight to recognize that the Constitution needed to explicitly protect individual rights from government overreach.
If you value protecting individual rights, a fair and effective criminal justice system, and safer communities, please reach out to me at freespeech@afphq.org!
Also, this will be the last time you hear from me in 2024. We’ll pick back up in 2025. Wishing you a happy holidays, including a happy New Year!
