This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article discusses slavery in light of the Constitution of the United States, thereby analyzing the Thirteenth Amendment to the Constitution and its insights in present times. 

It has been published by Rachit Garg.

Introduction

The term ‘slavery’ always stands in association with individual liberty. Confining individuals to satisfy the needs of the elite class is a poignant practice that has traveled with the human race and has been recognized as slavery. When it comes to the United States, slavery is a practice that has received a lot of discussion over a significant period of time. The Thirteenth Amendment to the US Constitution abolished slavery in the US. This amendment stood as a milestone in the struggle for civil rights that began in the 18th century. It has left a lasting impact on US history, politics, and culture. Slavery in the US dates back to the 1600s, when it was first introduced by the Dutch to the American colonies. It was a form of labor used to exploit the African population and create economic benefits for the slaveholders. Initially, the US Constitution did not outlaw slavery. Instead, it allowed it to exist in the US. The Constitution also allowed for the expansion of slavery into newly acquired territories. This led to a sharp divide between the North and the South on the issue of slavery. The Southern states were heavily dependent on slave labor, and they saw slavery as essential to their economic success. The Northern States, on the other hand, wanted to abolish slavery and viewed it as an immoral practice. This was the basis of the Sectional Crisis that led to the American Civil War. The article aims to explore the evolution of the concept of slavery with respect to the United States, alongside discussing the well-known Thirteenth Amendment to the Constitution of the United States that has continued its legacy even today. 

Slavery in the United States of America

The Africans were the first group of people who were subjected to slavery after several decades of being brought to the American colonies. The underlying reason for the same can be presumed to be racism. Several types of scientific research have revealed that blacks were considered to be a less evolved-a subspecies of the human race by the whites. They were denied fundamental human rights, thereby being enslaved as chattels, which had lasted for over two centuries. Salvers used to whip slaves when they displeased them. Preaching by the Clergy revealed that slavery was nothing but the will of the almighty God. 

With the increased advent of European powers trying to establish long-term colonies in America, there was a rise in the number of Africans who came in, generally against their will. By the late 16th century, Africans who were enslaved resided in Spanish Florida. Further, a group of 20 African people was brought captive to the Jamestown colony in Virginia, England, a year before the arrival of English pilgrims at Plymouth, Massachusetts. The human suffering that was collectively making room in Europe, America, and Africa was reflected in the web of slavery, which was used as a means of building international trade and commerce. As it expanded, profound changes were brought about in not only politics and society but also in everyday aspects of living on multiple continents, thereby shaping the African experience in America for decades to come. 

The event that solidified the relevance of slavery was the invention of the cotton gin in 1793. It did not take much time for anti-slavery debates to echo in parts of the United States as by the mid-19th century, followed by America’s westward expansion, the American Civil War (1861-65) precipitated. Although four million slaves in the nation were set free following the Union’s victory, American history was very much influenced by the legacy carried by slavery, which began from the chaotic years of Reconstruction (1865-77) to the civil rights movement that emerged in the 1950s.

How did Africans suffer globally by the slave trade practice

The transatlantic slave trade that disrupted Western and Central societies in Africa had its origins when Europeans made a connection with African societies centuries ago. With the expansion of European colonies in America, Africa was looked at as a source of cost-effective labor in order to power plantations, grow farmlands, and mines. At the beginning of the 16th century, large numbers of African people were purchased systematically by Spanish, Portuguese, French, and Dutch traders for the purpose of enslaving them permanently. Although slavery in some form was prevalent in these regions, what came as a surprise was the large-scale abduction and transportation of individuals for slavery, as well as treating enslaved individuals and their descendants as permanent properties. Shiploads of shackled people were being carried to America thereafter, crossing the Atlantic in several cargo ships. In exchange for these people, raw materials were imported into Europe. It has been estimated that more than 10 million people were transported from Africa as slaves to America during this period. Although the internet doesn’t provide us with the accurate number of people who lost their lives during such transportation, an estimate of about 1 million people can be said to have died on the journey to America. Those who had survived had to face a harsh life and an undignified living because of the white crowd. 

The legal basis for slavery in the US

When it comes to the legal standing of African Americans, the scenario has remained dynamic in North America. If we take into consideration the earliest years of settlement, laws surrounding the delineation of the African laborers’ civil status were ambiguous. The black workers then seemed to have occupied a similar social status to that of the white European servants who were serving their employers for a contract-bound time period. While it will not be a surprise to state that the black workers (generally in New Amsterdam) were frequently subject to vulnerability and ill-treatment by their masters, it is also ideal to note that these workers also enjoyed certain privileges that were subsequently denied as well. One of the prime privileges of black laborers was the right to approach the court with a suit against their employers, just like the right of white servants. Some, like Pedro Negretto and Manuel Rues, who had sued their employer for unpaid wages, had even won their cases. Documents available also reflect that Dutch courts had occasionally granted blacks the freedom to which they were entitled. Black people in the New Netherlands occupied a range of positions that ranged between slavery and freedom. Further, the Dutch West India Company had often given half-freedom to elderly blacks. This practice was also advantageous for the company, for whom older slaves were viewed as liabilities instead of assets. 

Even as enslaved African Americans made progress toward freedom and equal rights, they experienced setbacks in the late eighteenth and first half of the nineteenth centuries. Under gradual emancipation in the North, many blacks were forced into long periods of indenture or servitude. Meanwhile, a steadily growing black population in the North contributed to white anxiety and intensified racial animosities. Race riots broke out in U.S. cities, and in many areas where slavery had been abolished, governments were passing new discriminatory laws and reviving old ones. During the 1820s and 1830s, the Northern states were eliminating white men’s property qualifications for voting and for holding political office, yet simultaneously they were also enacting provisions outlawing black male suffrage. Like their southern counterparts, blacks in the North continued to face curfews and travel restrictions. They were forbidden from participating in the militia, and they could not sit on juries.

The legal basis for slavery in the US was based on the Three-Fifths Compromise. This compromise was included in the US Constitution and stated that for the purposes of taxation and representation, slaves would be counted as three-fifths of a person. This allowed the slave-owning states to gain more representation in Congress and gave them more power in the government. The Supreme Court also played an important role in upholding the legal basis for slavery in the US. The Court held in Prigg v. Pennsylvania (1842) that the states had the right to enforce the Fugitive Slave Act, which allowed for the return of escaped slaves. This ruling was used to justify the continuation of slavery in the US.

Legal standing of slavery across states in the US 

The legal standing of slavery that developed through events and judicial decisions has been discussed point by point, as follows: 

1. Virginia legally recognized slavery as a lifelong condition in 1662. Blacks were being held as slaves, much before the recognition had taken place, as they were used as a replacement for white laborers for agricultural purposes during the second half of the seventeenth century. It was during this period that slavery was codified as a race-based system. The Better Ordering and Governing of Negroes and Slaves, 1696 was passed by South Carolina, which outlined robust deterrents for different types of offenses that were committed by blacks thereby making room for exceptions that apply only to the whites who were charged with causing the death of a slave while the slave was carrying out a punishment. 
2. The afore-mentioned Act dated 1696 was introduced as slave codes of Barbados and thereafter, became the prototype for other American colonies that were formulating oppression towards the blacks into law. Notably, it was Virginia that became the first colony to define slaves’ status, dated 1705, by means of using  explicit legal terms. According to the law dated 1705, the term ‘slaves’  comprised all blacks, mulattoes, Native Americans, and non-Christian persons. Slaves were also categorized as ‘real estate’ by this law. Limiting all powers of governing the slaves in the hands of the master, the enslaved men and women were made to face severe ramifications of the law. There were several restrictions that were placed on black individuals, among which one was to seek official permission from the White authorities in order to open a shop, which stood out to be notable (1717 Connecticut law). 
3. Black immigration was prohibited in several states such as Indiana, Michigan, Wisconsin, and Lowa, as a number of such individuals were flooding the West in the  late eighteenth and early nineteenth centuries. Ohio had also passed a law named as ‘black laws’ in such a scenario. Introduced in 1804, the Ohio law required all blacks and mulattoes, who were free, to showcase the same with evidence before the county clerk’s office. Alongside this, the slaves who were registered had to submit a fee to the office, for them to issue a certificate confirming the slaves’ freedom. 
4. The sovereignty of slaveholders in America was upheld in the landmark decision of Dred Scott v. Sanford (1857). In this case, Dred Scott, a slave, had approached the Supreme Court with the plea that as he was residing with his master in several territories where slavery was free, such as Wisconsin and Illinois, he was entitled to freedom. While rejecting the plea, the Apex Court had affirmed that the blacks could not be considered citizens and therefore were not able to avail the rights that were guaranteed under the Constitution of the United States. 
5. The ratification of the Fourteenth and the Fifteenth Amendments in 1868 and 1870 respectively, made room for the blacks to be declared citizens by the law along with which black males had received the right to vote. There were several other laws that had given African Americans those rights that were initially denied to them, such as the right to sit on juries, be testified in court, the right to have their accounts recognized, and the right to hold office. Thus, it can be said that slaves were enjoying their newly acquired freedom and citizenship. It was during the Reconstruction years (1865-1877), that the blacks were actively involved in extending their political involvement as voters, activists, and elected officials. It is interesting to note that almost 800 blacks were said to be serving in state legislatures, and in every southern state, the posts of local offices had blacks holding the same. 
6. Although we have seen progression in terms of slaves’ welfare, one cannot ignore that blacks in the South continued facing detriments as they tried to gain autonomy within their society. As have been discussed previously, the Fourteenth and Fifteenth Amendments were responsible for guaranteeing fundamental rights to the black, but the same was not enforced which turned out not to be much of a help. The Civil Rights Bills that made headlines in the 1860s and 1870s, were the outcome of the violent climate in the South. The government’s change of heart concerning the Black citizens was noticed following the presidential election in 1877 that eventually removed existing Union troops from the South. Tennessee passed the first “Jim Crow” laws in the year 1888 in the US. Eventually, other states followed suit and legalized segregation. It is notable to mention that the effect of the 14th Amendment would not be felt if the Civil Rights Movement of the 1960s had not seen the light of the day.

The Sectional Crisis and the Jacksonian Court

The Sectional Crisis was a period of growing tension between the North and the South over the issue of slavery. It was the Western expansion, along with the Mexican War, that was particularly responsible for initiating the differences between the North and South concerning slavery. This debate over slavery was a matter that extended for fifteen years, resulting in the Civil War in the long run. This tension was fueled by the Supreme Court decision in Dred Scott v. Sandford (1857). The Court held that Congress had no power to abolish slavery in the US and that the US Constitution protected the right to own slaves.

The call for banning slavery germinated out of the Wilmot Proviso (bill), which was introduced in the Lower House in 1846 at the beginning of the Mexican War. Although it called for slavery banning in the Mexican Cession, the same was never passed by the Senate. Following Mexico, it was the leader of the Democrat’s Southern faction, South Carolinian John C. Calhoun, who had contended that the limitation on slavery was inclusive of the rights to life, liberty, and property, with enslaved workers serving as their property, guaranteed by the Fifth Amendment, to the Whites. Further, it was Echoing Aristotle, whose argument in affirmation of slavery stated that the same is essential for any democracy as it is the practice of slavery that binds free people together.  

The violence in Kansas and Washington reflected how gruesome these divisions had turned out to be. An antislavery condition that had aroused in the middle of the 1850s, recognized as the Republican Party, was a spurt of enthusiasm amid the full-throated endorsement of slavery that was prevalent at that time. The Sectional Crisis led to the election of President Andrew Jackson and the creation of the Jacksonian Court. This court was dominated by conservative judges who were sympathetic to the interests of the slave-owning states. The court issued a number of rulings that upheld the legal basis for slavery in the US and protected the interests of the slave-owning states.

The two landmark Supreme Court judgments that made notable marks in the pages of US history were Prigg v. Pennsylvania (1842) and Dred Scott v. Sandford (1857). While in the 1842 case, the opinion of the Apex Court was that the right to enforce the Fugitive Slave Act, 1850 did rest with the States, thereby allowing the return of escaped slaves and continuing the practice of slavery in the United States, the case of 1857 upheld Congress’s lack of power to abolish slavery. The case of 1857 affirmed that the right to own slaves was a constitutional right and valid under the US Constitution. It was this decision that was overturned by means of the Thirteenth Amendment to the US Constitution, thereby marking the end of slavery practice in the United States. 

Prigg v. Pennsylvania (1842)

In the landmark case of Prigg v. Pennsylvania (1842), a citizen of the State of Maryland named, Edward Prigg was charged with the offense of kidnapping a negro woman named Margaret Morgan, with the intent to disrobe and sell her as a slave by the Court of Oyer and Terminer of York County, Pennsylvania. This decision stood contrary to the statute of Pennsylvania that was passed on the 26th  day of March 1826. Following the same, Edward Prigg had pleaded innocent, and the jury’s verdict that was delivered for the found Commonwealth of Pennsylvania became noteworthy, as has been pointed out hereunder. Alongside that, when the case approached the Supreme Court, the conviction of Prigg was overturned :

1. The Constitution goes beyond merely outlining the owner’s ability to apprehend his evading or fugitive slave in the State to which he may have fled. If it had, it would have frequently left the slave’s owner completely without any kind of appropriate recourse.
2. The Constitution also declares that the fugitive slave shall be delivered on the basis that a party’s claim for service is due to the same. The fact that this decision of the Constitution stands opposite to the concept of personal liberty is exceedingly true.
3. The right to seize and retake fugitive slaves alongside the duty of delivering them to their origin State is recognized as a positive right and duty by the Constitution. This, therefore, provides the Union with equal and progressive authority to ensure uniformity among States, which is not shadowed by any state sovereignty or state legislation.
4. It was further opined that the legislation which had established the indictment against Edward Prigg stood unconstitutional and void. While the Constitution being the mother of all legislations upheld the act of seizing and removing a slave by his master, the alleged legislation of Pennsylvania denied the same thereby standing in contradiction with the supreme law of the land. 

Dred Scott v. Sandford (1857)

In this article, there have been many times the reference to the landmark case of Dred Scott v. Sandford (1857) was made.  The case has provided an ideal understanding of the concept of slavery that was prevalent in the United States of America and has also been a catalyst in shaping slavery jurisprudence in the States. It was just four years after this case that the Civil War began with the secession of the southern states of America. Initially, the Civil War was not considered a war over the prevalent system of slavery or a quest for the Blacks, but the history books reflected it only in that way. In 1863, amidst the war, the Emancipation Proclamation was issued by then-President Lincoln, thereby freeing slaves in the rebel states. With the advent of the war coming to an end in 1865, the introduction of the 13th Amendment to the US Constitution marked a beginning and a robust step towards abolishing slavery throughout the nation. 

Origin and analysis of the Thirteenth Amendment

When it comes to the origins of the Thirteenth Amendment, the same can be found both in the American Revolution as well as in the period of Reconstruction, when the American people ratified it into the US Constitution. The Americans emphasized the human value of liberty during both of these periods of time. The 13th Amendment was proposed in 1865 and ratified in December of that year. It was the first amendment to the US Constitution that abolished slavery in the US. The amendment reads, “neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

It is noteworthy to mention that the root of the amendment was the Northwest Ordinance (1787), whose words it repeated.  The 1787 statute was the outcome of Thomas Jefferson’s rejected words in the Ordinance of 1784, which aimed to ban slavery after the year 1800 in all the western territories. It was Jefferson who was in favor of the phrase “neither slavery nor involuntary servitude.”

The 13th Amendment was required to be introduced because the Emancipation Proclamation, which was issued by President Abraham Lincoln in January of 1863, as we had discussed previously, was not successful enough to bring the poignant practice of slavery to an end. It remained incompetent in freeing the slaves in the border states. The proclamation had kept the issue of slavery prevalent in territories, which would become states in the near future, in abeyance as well. It was as a consequence of this that Lincoln and other leaders realized the necessity of amending the Constitution so as to put a full stop to the practice of slavery. It was the 13th Amendment, which permanently abolished slavery as an institution in every US state and territory. 

The amendment was a result of the long struggle for abolition and the efforts of the anti-slavery movement. It was a major victory for the movement and an important step towards the end of slavery in the US. The amendment was a direct response to the US Supreme Court decision in Dred Scott v. Sandford (1857). 

The amendment remains a subject of discussion because, alongside banning slavery, it was responsible for outlawing the practice of involuntary servitude. Involuntary servitude is a term that is attached to individuals who have been forced to work so as to pay off debts that are due to them. The 13th Amendment, while bringing an end to this concept, has kept the window for it open for those convicted of a crime and those who have been drafted to serve in the military. It is ideal to note that the 13th Amendment to the Constitution did not pay any attention to the discrimination that was prevalent against those who had been enslaved already and were black but instead initiated the prolonged goal of achieving equality for all Americans.

The debate over the Thirteenth Amendment

The debate over the Thirteenth Amendment was a major part of the Sectional Crisis. The amendment was seen as a major threat to the interests of the slave-owning states. They argued that the amendment was unconstitutional and would lead to the destruction of the Union. Although some states saw the introduction of the progressive constitutional change as a better tomorrow, there were many states that were against this introduction and had contentions to raise. This resulted in the debate that has been the subject of discussion under the present administration. The discussed debate raised an important question concerning the situation of the rights of African-Americans in the US. This debate continued for long after the Civil War and remains a relevant discussion in today’s time as well.

The legacy of slavery and the Thirteenth Amendment

The promise of liberty that needs to be ensured for every individual, irrespective of the background he or she is coming from, is the burden of the states. The discussion concerning slavery and the 13th Amendment as a progressive remedy to counter the prevalent custom showcases the response of the government authorities toward securing dignified life and personal liberty. Although the discussion in this article has been an amalgamation of the history and present context of slavery in the United States, it is ideal to state that the infusion of the constitutional amendment alongside judicial responses on a similar subject matter, makes this article a relevant one.  

When talking about the legacy the practice and the amendment have left behind, it is necessary to talk about the current scenario of the same. Although we do not get express evidence of slavery being practiced in a developed nation like the United States, the perception towards Blacks remains a matter of concern at a global level, for racial discrimination has not come to an end even when we are living in the 21st century powered by artificial intelligence and robotic advancement. What we need in today’s time is the implementation of the precedent set by the progressive amendment to the US Constitution, along with changing our mindset towards a more inclusive living environment where dignity rises above the background or origin of an individual. 

Conclusion

As we come to the end of our article, it is necessary to state that the Thirteenth Amendment was a major milestone in the struggle for civil rights in the US. It abolished slavery in the US and paved the way for the end of the American Civil War. The amendment can be viewed as a symbol of justice and secured freedom, thereby leaving a legacy not only for the United States but for the world in general. The legacy of slavery in the US is still felt today in the way African-Americans are treated, and it is important to remember the history of slavery and the Thirteenth Amendment.

References

1. https://education.nationalgeographic.org/resource/13th-amendment-united-states-constitution/.
2. https://www.jstor.org/stable/10.7312/tses14144.

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This article is written by Sushree Surekha Choudhury from KIIT School of Law, Bhubaneswar. The article describes the laws prevailing in Texas in relation to the use and possession of arms and weapons. It talks about the prevailing issues and gaps and outlines a way forward for addressing those gaps. 

It has been published by Rachit Garg.

Introduction 

Are you one of those who has always wanted to live abroad? Were you inspired by popular TV shows like The Big Bang Theory, F.R.I.E.N.D.S., etc., and imagined a glamorous, lively life in the US? The answer is probably yes. Or, as one might say, are you on the other side of the coin? Are you someone who was born and brought up in the cities of the United States? At some point in your life, you must have come across a story related to guns or have seen one yourself. Given the current state of affairs, it is even possible that you are afraid of the prevailing gun violence in the States. US gun violence scenes have made headlines in national and international news time and again. The increasing cases of violence and deaths due to gun violence are on the rise, and so is the concern associated with it. The US government and citizens have been divided in their opinions relating to the sufficiency or insufficiency of regulations and restrictions governing the possession and use of weapons by civilians. 

Gun violence is a serious crime that has concerned the US government and judiciary for the longest time. Federal laws provide people with the right to bear arms under the US Constitution, along with prescribing certain minimum restrictions. Apart from this, each state has framed its own set of regulations to govern the use and possession of weapons by people in their respective states. In this article, we will learn about the laws and regulations governing the use, possession, transfer, sale, etc. of different categories of weapons in Texas. We will learn about the prevailing laws and analyze the gaps that should be addressed. 

Gun laws in the US : an overview 

The US Constitution is the supreme law of the land in the country and is responsible for framing regulations and the governance of the country as a whole. Ratified and incorporated in 1791 was the US Bill of Rights, which added ten crucial amendments to the US Constitution in the form of rights, freedom, and liberties for people and restrictions on the exercise of power by the government and its officials. One such amendment, the Second Amendment right, is the “Right to bear arms.” Under the Second Amendment rights of the US Bill of Rights, a citizen in any part of the US has the right to keep and bear arms and weapons without any restriction or interference from the government. These rights are further regulated by the respective state legislatures to govern the bearing of arms in different states. However, as a right provided under the Second Amendment of the Bill of Rights, a US citizen has the right to keep weapons like handguns, shotguns, etc., and use them in their defense. 

The history behind guaranteeing this right to the US citizen dates back to times of war when civilians were, at times, needed to take part in the wars of the state. Thus, the language of the legislation was also formulated as the right to bear arms in the form of “a well-regulated Militia, necessary to the security of a free State.” However, with the changing times, the validity of this right is debatable. Various US courts, through judicial interpretations, have also clarified that the right is now restricted as a measure of self-defense. The Second Amendment right of US citizens is a restriction on the US federal government’s ability to interfere with the right of citizens to bear arms. This was reiterated in the case of United States v. Cruikshank (1875). Therefore, the Second Amendment right does not restrict the state governments from regulating their laws relating to the use of arms in their respective states. 

Precedents have helped in better understanding the prevailing gun laws in the US. In the landmark judgment of United States v. Miller (1939), the US Supreme Court allowed the regulations on the use of shotguns under the National Firearms Act, 1934, since shotguns were not considered “military weapons” in terms of the language of the Second Amendment right. Thus, it was further clarified that the state allowed the use of arms without restrictions or interference in the militia when such necessity was found. 

However, civilians are no longer required to use arms for the purpose of participating in the military. Thus, the US Supreme Court updated the interpretation of the regulation in the case of District of Columbia v. Heller (2008), where the court stated that civilians have the right to bear arms even for self-defense as their Second Amendment right. 

Gun laws : issues and controversies 

Unlike other countries in the world, the US has taken a different approach towards gun laws by making them a constitutional right of citizens free from the government’s interference. While it seems merely like a choice of regulation, it comes with serious repercussions. When a country full of civilians is given a constitutional right to bear and use guns in their defense without any restriction by the government, irregularities are bound to happen. It becomes especially challenging to balance people’s right to bear arms with others’ right to live without fear, which is a constant threat. While the law guarantees a right to civilians to bear arms for self-defense, the same can be construed in different ways. Chances of misinterpretation and molding circumstances to justify the use of guns can be a threat to humankind. This has been seen in the United States time and again. 

Gun violence and mass killings have been increasing in the country, and with restricted interference from the government, gun crimes have become dangerously common in the country. Such instances became global news headlines in recent years. Mass killings of school children were reported in 2012. 2016 witnessed yet another mass killing at a nightclub in Orlando. The 2022 gun violence news was the worst, where reportedly two mass shootings took cover in global media news and became a burning topic. Mass shootings in a grocery store in Atlanta and six other locations in which many people lost their lives, including women, children, and a police officer. Over 300 mass shootings and 19,000 deaths were reported in 2022 alone.

Texas gun regulations

Texas has been infamous for its relaxed gun regulations. This has caused many criminal activities and caused innocent people to lose their lives due to gun violence. The El Paso shooting in 2019 created a turbulence of debates on the prevailing gun laws in Texas. Another mass shooting followed in the same year, where 19 children and two adults were killed in an elementary school in Uvalde. The Centers for Disease Control and Prevention stated that the annual deaths in Texas from gun violence have increased from 2117 in 1999 to 3522 in 2018. The citizens’ opinions and demands about the gun laws in Texas seem divided. A poll study by the University of Texas and Texas Tribune suggested that 50% of Texas citizens want strict gun laws in the state, while others are of the opposite opinion. Even so, a close interpretation of the prevailing gun laws in Texas suggests that the state legislature has only been easing out the restrictions for citizens. 

Texas Penal Code

The Texas legislature has expanded the ambit for people to carry arms in public and even on school campuses. The state legislature has also reduced the fees for acquiring a gun license in the state and the state also allows its citizens to openly carry assault rifles in public places. Texas laws are also lenient on the kinds of weapons that can be carried in the state by civilians. The general rule under the Texas Criminal Code is inspired by federal laws. Title 10, Chapter 46 of the Texas Criminal Code talks about the regulations governing “weapons” in the state with the intent to protect “public health, safety and morals.” 

Section 46.01 and Section 46.02

This law states that weapons or rifles with a barrel length of 16 inches or less, shotguns with a barrel length of 18 inches or less, and any other altered form of shotgun or rifle with a barrel length of 26 inches or less are restricted to be used in the state. However, the state legislation makes an exception to this rule. Weapons, machine guns, or silencers that are registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives along with the payment of $200 taxes are given exceptions from the general provision or restriction. This exception makes the restriction less imposing and expands the ambit of owning weapons in the state.

The Texas Criminal Code, Title 10, Chapter 46 also talks about the circumstances under which carrying arms is considered unlawful in the state. It states that a person must be at least 18 years old to be legally competent to buy a rifle and at least 21 years old to buy a handgun. Such a purchase must be done from a licensed dealer. When a person carries a handgun recklessly, intentionally and with the knowledge of such an act, it will be construed unlawful. Further, if a person has, within a period of preceding five years, committed “assault” under Section 22.01 of the Code, “deadly conduct causing serious bodily injury” under Section 22.05, “terroristic threat to any person or property” under Section 22.07, “disorderly conduct” under Section 42.01, clause (a), (7), or (8) causes an instant offense, will be considered as unlawful carrying of weapons. Under federal laws, a person who has attained the age of 18 years or above is legally competent and not otherwise, except for situations when the weapon is used in defense against a trespasser or intruder, and/or in hunting.

Section 46.03

This section talks about the particular places where Texas laws have prohibited the carrying and use of weapons. This law is applicable to weapons, firearms, and all other restricted weapons as per the provisions of this Chapter of the Code when such reckless carrying is coupled with the intention and knowledge of the person doing so. Mentioned below is a list of places where the prohibition applies:

• Campuses of schools, universities, or other educational institutions.
• Premises of any land or building where an event of any school, university, or other educational institution is being held.
• Any means of transportation vehicle of any school, university, or educational institution. 
• Premises where election votings are conducted and on the day of such voting.
• Unless otherwise permitted and authorized in writing, on the premises of any government building or court of law, or court offices.
• Premises of a racetrack. 
• Secured airport areas.
• Within 1000 ft premises of any area or location which has been designated by the Texas Department of Criminal Justice for execution under Article 43.19 of the Code of Criminal Procedure; on the day of such execution. This provision applies when it is notified through a written notice.

For the purpose of this section, schools, universities, and all other educational institutions are covered within the territorial jurisdiction of Texas laws, whether such an educational institution is public or private. An exception prevails to the general restriction on carrying weapons onto the premises of educational institutions. A person can carry weapons onto the campus if he has obtained written authorization to do so or if a written regulation to that effect persists. Another exception is for enlisted weapons and persons carrying concealed handguns with licensed permission under Subchapter H, Chapter 411 of the Government Code. 

Further, a person must not carry a restricted knife in the following areas:

• On the premises of a business that is indulgent in the sale or services of alcohol as per the provisions of Section 104.06 of the Alcoholic Beverage Code and determined by the Texas Alcoholic Beverage Commission. 
• On the premises of any event taking place in schools or any professional sporting event, unless a location-restricted knife is used in that event or competition.
• In any correctional facility.
• On the premises of any hospital or nursing facility registered under the Health and Safety Code, unless written permission and authorization are obtained. 
• Unless authorized in writing, on the premises of any mental hospital as per the provisions of Section 571.003 of the Health and Safety Code.
• On the premises of any amusement park.
• On the premises of any religious worship.

However, an officer of the armed forces or national guard is provided with the exception to carry firearms in places like hospitals, nursing homes, mental hospitals, etc., when there is a need to do so by wearing a distinctive uniform and holding the firearm in plain view.

Section 46.035 further discusses the carrying of firearms by a licensed holder. A licensed holder must carry firearms, and other weapons in the manner prescribed by law, failing which such an act of carrying firearms will be unlawful. A licensed holder must not intentionally cause the display of his or her firearm in plain view to another person in a public area or on the premises of schools, universities, and other educational institutions. The licensed holder carrying firearms must abide by all regulatory requirements in doing so. 

Section 46.04

This section reflects on people and circumstances where possession of firearms is considered unlawful under Texas laws. The possession of firearms by the following categories of people is considered unlawful under the provisions of this section:

• In case a person who was convicted of a felony, commits another offense using firearms within a period of five years from the date of his release under supervision, parole, or otherwise. When the offense is committed beyond the premises of the ordinary residence of the convicted offender, the act is considered unlawful even when the time period of five years has lapsed. 
• When a person who was convicted of a Class A misdemeanor under Section 22.01 of the Code, commits another offense within five years from his release from confinement.
• Except a peace officer, when a full-time employee of a state agency or political division is sent an order under Section 6.504 or Chapter 85 of Family Code, under Article 17.292 or Subchapter A Chapter 7B of the Code of Criminal Procedure, or under Chapter 88 of the Family Code, commits an offense using firearms after receiving such order.

Section 46.041 makes a provision that restricts metal armor or body armor by felons. This section states that the possession of armor by a felon is an unlawful possession and shall be treated as a third degree felony.

Section 46.05

Section 46.05 makes a list of the prohibited weapons as per Texas law. The reckless use, possession, manufacturing, transportation, repair, buying, and selling of these prohibited weapons are considered unlawful as per the provisions of this section. The following weapons are categorized as prohibited under Section 46.05 of the Code:

• explosive weapons, 
• machine guns,
• short-barrel firearms,
• armor-piercing ammunitions,
• chemical dispensing devices, 
• zip guns,
• tire deflation devices,
• firearm silencers (unless otherwise permitted),
• improvised explosive devices.

As a general provision, the aforementioned categories of weapons are prohibited in public areas and other restricted areas, as mentioned under Section 46.03 of the Code. An exception lies to this provision for weapons registered under the National Firearms Registration and under the Transfer Records of the Bureau of Alcohol, Tobacco, Firearms and Explosives, in which case, carrying of these weapons can be permitted. Another exception is provided for any weapon that is categorized as a curio or relic by the US Department of Justice. An exception also prevails for the officers of the armed forces, the national guard, a government law enforcement agency, or a correctional facility who are permitted to carry these weapons.

Section 46.06

This section deals with the provision relating to the unlawful transfer of weapons. Transfer of unlawful weapons can be in the form of selling, leasing, renting, or any other form in which one person hands over the possession or ownership of a weapon to another. This section talks about the circumstances under which such an act of transfer will be considered unlawful. A transfer of the possession or ownership of a weapon is unlawful when:

• The person transferring such possession or ownership by way of sale, rent, lease, loans, or otherwise does so to another person, knowing that the person will use such a weapon in the pursuance of an unlawful act, or when the transfer is unlawful in nature. 
• The person transferring such possession or ownership by way of sale, rent, lease, loans, or otherwise is of the knowledge that the transferee is a child below 18 years of age to whom a location-restricted knife, firearm, or club is transferred. 
• The person transferring such possession or ownership by way of sale, rent, lease, loans, or otherwise, does so, to an intoxicated person knowing of his state of intoxication, intentionally, or recklessly.
• The person transferring such possession or ownership by way of sale, rent, lease, loans, or otherwise knowingly makes such a transfer to a person who was convicted of a felony, before the completion of five years from the date of his release.
• The person transferring such possession or ownership by way of sale, rent, lease, loans, or otherwise knowingly makes the transfer to a person to whom an active protection order has been directed. 
• When the person having knowledge of an active protection order directed at a person, purchases, rents, leases or receives a handgun from him. 

The prosecution can take a defense if the transfer by way of sale, rent, lease, loan, or otherwise to a minor was done with the active consent of a parent or legal guardian in writing.

Section 46.07

This section talks about the interstate purchase of weapons and the laws prevailing in Texas in regulating the same. This section makes a provision for the citizens of Texas to buy “firearms, ammunition, reloading components, or firearms accessories” from another state. The provisions of this section make it easier for any citizen to procure handguns, firearms, etc., from any state in the US, unless specifically restricted under any law in practice. The authorization of purchase under this section is in accordance with the provisions of 18 U.S.C. Section 922(B)(3)(A) which makes an exception for the interstate transfer of firearms, handguns, etc., from being an unlawful act under the US laws. 

Section 46.08

This section makes the manufacture, sale, purchase, transfer, or possession of hoax bombs illegal in certain circumstances. Under the provisions of this section, a person commits an offense of Class A misdemeanor if and when he knowingly manufactures, sells, purchases, transfers, or possesses hoax bombs with the intention to make another person believe that the hoax bomb is an explosive or an incendiary device. An offense under the provisions of this section is also committed when a person uses a hoax bomb to create an alarm and reaction of any public safety or emergency officer. 

Section 46.09

Section 46.09 of the Texas Penal Code talks about the situation where carrying or possessing the components of explosives is considered unlawful. This section states that when a person knowingly possesses the components of an explosive weapon with the intent to assemble them to create an explosive weapon and with a criminal motive, i.e., in furtherance of a criminal act, such an act of possessing components or parts of an explosive weapon is considered unlawful. This act is categorized as a felony of the third degree under the provisions of this section.

Section 46.10

This section talks about the circumstances when an individual carries deadly weapons inside a penal institution. When a person is confined to any penal institution by the authority of law, he or she is restricted from carrying any kind of weapon inside the premises of the place. This section states that it is an offense under Texas law if a person confined inside a penal institution intentionally carries or conceals a deadly weapon, knowing that such a weapon is deadly, and that carrying, possessing, or concealing it is an offense under the provisions of this section. An offense committed under the provisions of this section is considered a felony of the third degree. 

Section 46.11

This section talks about a “weapon-free school zone” and prescribes a penalty for carrying weapons in this zone. The section states that the penalty is increased to the penalty applicable for the next degree of offense under this section if a person carries weapons or commits a crime using weapons intentionally. This section applies when the offense is committed by a person who has knowledge that the location falls within a 300 feet radius of the premises of a school. It also applies when the offense is committed in a location where any event conducted by a school or sanctioned by a university is taking place. 

An exception to this general provision is provided to the exceptions as per Section 46.03(a)(1) of the Code, where a weapon is permitted in these premises subject to written authorization or under government license and authorization.

Section 46.12

This section is an extension to the previous Section 46.11, which talks about “weapon-free zones.” This section states that maps can be produced as evidence to locate an area. A map produced or reproduced by a municipal officer or a county officer is admissible as prima facie evidence in the case of an offense committed in a weapon-free zone, and thereby, an increased punishment is prescribed under the provisions of Section 46.11 of the Code. Such copies or revised copies of the maps shall be submitted by the county officer or municipal officer to the court of law, if and when required to do so. 

Section 46.13

This section states that it is an unlawful act if a person gives access to a firearm to a child. For the purpose of this section, access to firearms is prohibited to a child below the age of 17 years. The person who fails to prevent the access of a child to the loaded firearm by keeping it in a place accessible to the child or who fails to secure the child from accessing the loaded ammunition commits an offense under this section of the Code. 

A possible defense for the prosecution is if the child was under the supervision of an adult of 18 years of age or older at the time when the child had access to the firearm. The prosecution cannot be punished for an offense under this section if the child entered the property in violation of this Code. The court also looks into the fact that a child does not take an unlawful defense under this section against the prosecution. Additionally, the prosecution cannot be held guilty if, at the time of the incident, the person was involved in agricultural activities. 

As a general provision, an offense committed under this section will be treated as a Class C misdemeanor. However, if the child that gained access to a loaded firearm, thereby causes death or serious bodily injury to himself or to another, then such an offense will be treated as a Class A misdemeanor. 

In case an arrest is consequential under the provisions of this section and a peace officer is given the duty to do so, the peace officer will make the arrest only after the completion of 17 days from the date of commission of the offense, if:

• The child in question is a member of the family of the person who is charged with the offense, or 
• if the act of discharge has caused serious bodily injury or death of the child.

This section also makes a mandatory provision for the dealer of the firearm to put up a notice stating that the person buying a firearm must not store, transport, or otherwise, a firearm from a place that can be accessed by a child.

Section 46.14

This section deals with the offense of smuggling firearms. This section makes it an offense for anyone who is involved in the transportation of firearms that the person knows have been procured illegally. An illegal procurement or transportation is when the firearm is purchased or is sold/transported in violation of the laws in the US. Any person who is involved in this act on more than one occasion or in exchange for remuneration is held liable for committing the offense of firearm smuggling. Such a person will be charged with the commission of a third degree or second degree felony, depending upon the circumstances governing the case.

Section 46.15

The final provisions relating to the use of weapons in Texas are provided under this section of the Code. Section 46.15 of the Code talks about the exceptions or non-applicability of the laws under Sections 46.02 and 46.03 in certain circumstances. The non-applicable provisions as per Section 46.15 are:

• Peace officers and special investigators can carry weapons within the state and even in public places while discharging their official duty. Such an officer is also exempted from the restrictions when he or she possesses weapons as per the Texas Department of Criminal Justice in the discharge of official duties.
• A corrections department officer or a community supervision officer discharging official duties or having permission to possess weapons under the Government Code is exempted from the restrictions under Sections 46.02 and 46.03 of the Code. 
• A judicial officer who is carrying a handgun as per the Government Code is exempted from the restrictions of carrying handguns in public areas. 
• An honorably retired peace officer or a law enforcement officer under the provisions of 18 U.S.C. Section 926C holding a certificate of proficiency as per the Occupations Code, and carrying an identification proof to that effect from any national, local, or state agency is exempted from the restrictions of the aforementioned sections of the Code.
• The exemption also applies to attorneys, like general attorneys, United States attorneys, district attorneys, county attorneys, municipal attorneys, etc., as per the provisions of the Government Code. This also includes the assistant attorneys, including general assistant attorneys, assistant United States attorneys, assistant district attorneys, assistant county attorneys, assistant municipal attorneys, etc., holding licenses regarding the possession of handguns. 
• A bailiff who is designated to escort a judicial officer or holds a license to possess handguns under the Government Code comes within the ambit of exceptions to the general provisions.
• A juvenile probation officer licensed to possess firearms under the Human Resources Code is another exception.
• An emergency services volunteer who holds permission to carry weapons is exempted under the provisions of this section. 

Additionally, the prohibitions of Section 46.02 of the Code is not applicable to:

• An officer of the armed forces who is in the process of discharging his official duties. 
• A person who is traveling, during the entire duration of travel.
• A person engaged in hunting, water sporting, fishing, etc., in the premises of the activity being held and covers the areas within the place of such an event and the place of residence of the person.
• A security officer commissioned under the Texas Private Security Board to perform official duties.
• A personal protection officer authorized for such a role.
• A person holding a license to carry handguns as per the provisions of the Government Code.
• A person holding an alcohol permit license or an employee thereof, while engaging in the supervision of operations in the permitted premises.
• A law enforcement student engaging in an activity that requires the use of any weapon, in the premises of the activity as well as within the areas covering the place of activity and the place of residence of such student. 
• The provisions of Section 46.02 do not apply to a public safety officer under the adjutant general as per the provisions of the Government Code, during the course of employment, or during the time he travels to his place of duty.
• The restriction of carrying a location-restricted knife under Section 46.02 does not apply to a person involved in a show or exhibition that involves the show of such a location-restricted knife.
• An officer of armed forces, the national military, or a penal institution while discharging official duties. 
• The restriction on carrying a club under Section 46.03 is not applicable to animal control officers while discharging official duties and while traveling to their place of duty. Additionally, this restriction also does not apply to people carrying a club who are doing so after obtaining a license in that regard as per the Occupations Code.
• The restrictions under Section 46.02 do not apply to a person who is carrying a handgun for the purposes of enacting a historic performance. 
• None of the restrictions apply to a person carrying a handgun who is trying to escape an area that has been declared as a state of disaster, locally or federally. Such relief of restrictions is usually granted for 168 hours from the time of declaration and may be extended as may deem necessary. Such a declaration is made by the governor of a particular state. 
• The restrictions under Section 46.02 is also relaxed for a person who is not specifically barred by federal laws or the laws of a particular state in regard to carrying firearms. 
• The restrictions do not apply to an officer carrying handguns in an emergency shelter while a state of disaster has been declared. This is also applicable to the owner, operator, or controller of such premises. However, such a person or officer must not be barred by any state or federal law from carrying weapons. 

A way forward : addressing the gaps

Federal law in the US establishes laws and regulations at a federal level with the intent to control the misuse or reckless use of weapons in the states. Under federal laws, citizens are restricted from possessing firearms and weapons in different circumstances and in certain places where the use of arms is prohibited. Different states in the US also follow these principles and prohibit people from using firearms in public places, schools, universities, etc. However, even while following the basic federal standards, the specific laws in the states vary. These gun-related laws are strict in some parts of the US and not so strict in other parts. Texas is one such state in the US that has been infamous for its lenient laws relating to the use and possession of firearms and other weapons. Deviations from federal laws and existing gaps are among the reasons for increasing gun violence in the states. 

For instance, federal laws restrict felons from owning, possessing, or using firearms. Under Texas laws, this restriction is applicable for five years from the date of release from a penal institution, after which they can again use and own firearms as per Texas laws. Carrying rifles and shotguns in Texas meets with the fewest restrictions, as no registration or license is required to do so. While most other states make it mandatory to register and obtain licenses to possess and use rifles and shotguns too, Texas laws have taken a different approach. The only restriction that prevails is that people carrying a rifle or shotgun must not do so in plain view of another person, in a way that will create an alarm. Even the waiting period for getting a firearm in Texas is minimal. 

With the continuing lenient provisions, Texas laws in September 2021 made it legal for people of 21 years of age or older to carry handguns in public (openly or in a concealed manner) without the need to obtain a permit for doing so. Texas is also one of the few states in the US that has not banned the possession of assault weapons. Texas’s gun laws have adopted a “Castle Doctrine,” under which people are permitted to use deadly weapons inside their homes in self-defense. The state certainly puts certain restrictions on people by prohibiting the use or carrying of weapons in schools, government offices, airports, etc.; however, people can do so with a permit. Texas laws make a list of weapons that are prohibited from being kept or used in the state. However, as gun-related violence continues to soar, it is time for legislators to frame certain restrictions on the use and possession of weapons in the state with the intent to curb crimes.

Conclusion

Gun laws in Texas can be highly debatable. Even the citizens’ and lawmakers’ opinions are equally divided when the topic of the flexibility of gun laws in Texas comes into question. While some people are of the opinion that the prevailing laws are appropriate and there is no harm in having lenient laws regulating guns, others believe the opposite. The opposite belief is rooted in the soaring levels of violence using weapons in Texas as well as in other states in the US. The US Constitution has been fairly lenient in regulating gun violence in the states at the federal level. Furthermore, Texas has been infamous for articulating the most lenient regulations and gun laws which allow people the greatest control and ease in possessing and using weapons. Everything seems fine until the number of victims of gun violence starts increasing and in the worst news, school children, teachers, innocents, and the elderly in public places are becoming everyday victims of gun violence. This clearly shows a need to amend the laws in a way that continues to provide freedom to citizens to own arms in their defense, as well as prevent the misuse and violence arising from the same. Special provisions need to be added to prevent violence in public places in addition to the existing laws which are not proving to be enough. While gun laws and autonomy date back to American war history, the times have changed and so have the needs of society. Therefore, in order to adapt to the prevailing social needs and prevent violence and harm to innocent people, examining the laws is a  good idea. 

Frequently Asked Questions (FAQs)

What weapons are not permitted to be carried openly in Texas?

Texas Penal Code makes a list of “prohibited weapons” under Section 46.05 wherein the citizens are prohibited from obtaining, possessing, and using these weapons in public places and are subjected to other restrictions. 

Are schools required to put up signs saying “weapon-free school zone” on their premises?

No, schools do not need to put up signs saying “weapon-free school zone” as all schools, universities, and other educational institutions are considered to be these zones by default, under the provisions of Section 46.11 of the Texas Penal Code. Except as otherwise permitted, no person is allowed to carry weapons in these zones. 

Is there a limit on the number of weapons that one can carry in Texas?

No, neither the Texas Penal Code nor any other regulation specifies a limit on the number of handguns or arms that a person is legally restricted to possess. As long as a person obtains each weapon as per the prevailing laws of the state, he or she is not bound by a number. 

Can a person carry weapons while wearing a mask?

Yes, a person can carry arms openly or in a concealed manner even while wearing a mask. Even though the thought of it appears to be suspicious, there is no specific law prohibiting people from doing so.

Can a person carry a gun in their car?

There are no different regulations when it comes to carrying a gun in a car. If someone is lawfully permitted to carry arms in Texas, they can do so in their cars as well. The law does not regulate this in a way different from the generic approach.  

References      

• https://www.texastribune.org/2019/08/06/texas-gun-laws/
• https://jerrytidwell.com/information/a-brief-summary-of-texas-gun-laws/
• https://guides.sll.texas.gov/gun-laws/carry-of-firearms
• https://www.archives.gov/founding-docs/constitution-transcript 
• https://www.archives.gov/founding-docs/bill-of-rights-transcript 
• https://statutes.capitol.texas.gov/Docs/PE/htm/PE.1.htm 

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This article is written by Deena Nawab, an Advocate by profession. The author has explained about simple assault under the US law and how the Judiciary of the US has given more scope to the definition of simple assault. 

It has been published by Rachit Garg.

Introduction

What would you do if someone threatens you or you have a fear of being hit physically by an acquaintance or stranger in a heated argument?  If not, for instance, a person who dislikes your joke comes forward to physically attack you but does no harm. In this state to have fear of being threatened to be hit physically or attacked is an assault, this action accounts for a felony or misdemeanour. 

Many have an assumption that assault is just about a grievous hurt or an attack. But to be precise, assault is referred to as an action or intention to cause fear or threat and may not always culminate in physical harm. For instance, if someone threatens you with a knife or a cricket bat but there is no physical contact with the object, then this is an attempt to cause an assault. The tort law of the US gives scope for this type of non-physical threat to be subjected as an assault. Often assault and battery go hand-in-hand, as the battery is the physical misconduct post-assault. If you assume that a man walking in your opposite direction, seems dangerous but does not harm you then there’s no assault committed by him. Assault is of varying degrees under US law, and depending on this the punishment is imposed on the accused. 

Therefore assault is not primarily only the non-physical conduct but also the bodily harm or wound caused by violent behaviour. This does not just attract the tort law but the criminal law as well and the punishment imposed varies from state to state. This article seeks to elucidate about simple assault under the US law with the types of assaults and landmark cases passed to broaden the perspective on the use of the term simple assault. 

What is considered an assault under US Law

Assault is the apprehension of fear given to the other person to sustain any physical injury irrespective of how serious it is. To clear any confusion, assault and battery are however considered to be separate offences under the US law but a person can be charged with assault and battery if both these actions cause physical injury or damage. Battery is the aftermath of assault, it is the actual physical injury caused by unlawful or forceful conduct against the victim by the accused. The accused can be either punished with criminal or civil offense on the charge of assault. One main factor under US law to consider whether an assault has been committed is whether a weapon was used by the accused. Under the law, an assault is determined on the condition whether a weapon is used. And depending on the weapon used, the degree of assault is decided whether it be simple or aggravated assault. 

Title 18 of the United States Code (U.S.C) § 113 sets out the provision of assault. This provision states that assault is of two types. First is in respect of felony, an offense punishable with 10 years of imprisonment along with a fine is imposed. And the other for simple offences, with punishment of not more than 6 months or 1 year is imposed along with a fine. 

There has been a punishment set under US law because this in one way avoids people to be uncivilized and violative by showing aggressive behaviour towards each other.

Types of Assault

Simple assault and aggravated assault are measured on the degree of harm caused to the victim. Under the US law, the types of assaults which are punishable along with the simple and aggravated assault are listed below- Assault in the US are not just limited to simple or aggravated but are extended to the below-mentioned categories of assaults as well-

1. Simple Assault- Simple assault is the least offensive one under the US law, as there are less instances of harm being caused to the person. 
2. Aggravated Assault- This type of assault is much more offensive than a simple assault as the accused uses a weapon that causes serious physical injury to the victim. You may notice that these assaults are pretty common in gangs engaged with the supply of guns, knives or drugs where there are high chances of any arguments getting heated and physical. Or else a burglar threatening the victim with the knife and causing physical injury, on not doing as what the accused asked for. The accused commits these assaults with the intention of causing bodily injury to the victim, intention of causing either temporary or permanent impairment to the victim making him incapable to perform day-day activities. Irrespective of whether the injury caused is minor on the victim, the accused is still charged with aggravated assault since there is an existence of a deadly weapon with him whether it be gun, knife or car. 
3. Assault by a deadly weapon– This is one type of aggravated assault; here the definition for deadly weapon also extends to the use of bottles, bats, rocks or cars to harm the victim. In some states of the US, use of deadly weapons is considered to be an aggravated assault whereas if not, it’s also considered to be a separate crime from aggravated assault.
4. Assault by vehicle- In this type of assault, the accused seems to be reckless and irresponsible on driving his vehicle with high probabilities of causing an accident towards a car and its passengers inside or causing damage to public or private property. The same is the case for drink and drive.
5. Sexual assault- As understood from the word, sexual assault is the forceful intercourse without consent done on the victim by the accused. In some states of US, sexual assault has the same punishment as rape. Whereas in other few, these states distinguish sexual assault to be as the action of physical contact on somebody’s body ( breasts, buttocks, genital area,) without their consent. 
6. Felony assault- A heinous act which causes serious physical disformation whether it be by aggravated sexual assault, aggravated assault by use of deadly weapon or severe disformation by the reason of vehicle assault.

Simple Assault

Simple assault could be described as an offense involving the assault of causing fear by a threat to the victim and this excludes any physical misconduct. This is a clear indication that the accused wants to threaten the victim for any future conduct that seems to displease him. Simple assault may not be considered a grave problem but this is the stepping stone for any misconduct to give way for aggravated assault.

The courts in the US have convicted men for simple assault just on the ground that touching is a sexual offense under Section 113(a)(5), such as in the cases of United States v. Bayes(2000), United States v. Smith(1987) and States v. Guilbert (1983). 

Punishment for simple assault

As described above regarding the types of assaults, there’s also a varying degree of punishment that the person will be subject to based on the assault committed by him. For committing the offense of simple assault, the punishment is of a lower degree. Depending on the severity of the assault, the charge of misdemeanor or felony can be imposed.

For simple assault, the accused receives misdemeanor punishment with imprisonment less than or  up to a year with or without a fine. Whereas aggravated assault is subject to felony under the US law, and the accused in this respect is imposed with not less than a year of imprisonment but up to 10 years along with a fine.  

However, not every accused held liable for simple assault will be sentenced to jail for a year, but this greatly depends on whether or not a weapon was used and whether the accused really had intention to harm the victim.

Landmark cases on Simple Assault

United States v. Delis (2009) 

In this case, a passenger named Delis was traveling in American Airlines. During this journey, he got engaged in an argument with a flight attendant named Louisa Willaims Beauvil, she alleged that Delis had pushed her hand away from his face. And upon landing, he was charged under 49 U.S.C § 46506 on the grounds of assaulting and behaving in an ill-manner with the cabin crew. Not only was he charged under this Code but the government also charged him with simple assault under 18 U.S.C §113 (a)(5). 

Magistrate Judge,  Azrack took charge of this case, and on 7th March 2007 a Bench trial was held with the presence of several witnesses along with Delis and William Beauvil. The main argument arose from the flight attendant William Beauvil, saying that they ran out of chicken meal for the passengers, on which the discussion turned into a heated argument with Delis. She submitted that the blow given by Delis ended on her left breast. Delis contended that he only moved her finger away which she pointed at him, thereafter he remained calm throughout the journey. Delis counsel had submitted before the Judge that his sole intention was to move her finger away from his face and in fact not inflict harm to her which is the requirement for an assault. The judge had found Delis guilty of simple assault, stating that just an offensive conduct fulfills the requirements for simple assault and not the intention to inflict injury. Further stating that the proof submitted by the government gave way for simple assault, making Delis serve a sentence of time along with a fine of $ 10 under. 

Delis however was not happy with this conviction and appealed to the United States District Court for Eastern District of New York. Submitting that for simple assault an intent to injure must be present. The Court put down the contentions made by Delis and followed the conviction passed by the Magistrate Judge. 

State v. Edwards (1958)

In this case, the defendant- Edwards was held accountable for atrocious assault and battery. The victim named Mary Harbochuk on September 1st, 1957 was attacked by the defendant. The victim stated that she was attacked for refusing to kiss the defendant in public, whereas the defendant stated that she refused to pay him $ 40 that she owed him. The police had found her in an awful bleeding situation for the harm caused by the defendant. The police found the victim bleeding from the defendant’s degree of assault. Edwards made an appeal from the Bergen County Court to the Supreme Court of New Jersey contending that he only struck her with his fist on the face then pushed her towards the branches, after which he took money and left from there.  Thereby, he was not accountable for atrocious assault and battery but instead only for simple assault. The Court relied on the cases State v Riley (1958) and State v McGrath (1954) to determine whether simple or aggravated assault is on the seriousness and brutality of the assault. The Court reversed the previous judgment on the ground that most of the harm sustained was artificial and not by the misconduct of the defendant as he did not cause any aggravated assault or felony towards her. 

U.S v. McCulligan (2001)

In this case, the appellant, McCulligan, was sentenced by the District Court for simple assault and all other cases under 18 U.S.C §111(a) which sets out 1 year imprisonment for simple assault and three years of imprisonment for other cases. The appellant was held accountable for assaulting the deputies with his car by trying to harm and damage their property, even though no harm was inflicted on the deputies. The appeal was with regards to the conviction made for simple assault and other cases as well, praying that the appellant  must be convicted for just one crime and not both. The Circuit Judge had agreed to reduce the sentence to one year for one crime and not 3 years imprisonment on the ground that the appellant could be sentenced only for one crime and not be accountable for another under the same guidelines. 

U.S v. Yates (2002)

In this case, Yates was held responsible for forcibly assaulting federal officers that’s in violation of 18 U.S.C §111. Yate was in a truck while the arrest was to be made by the officers, and had accelerated towards the officers making them swerve to save themselves on being struck by Yate’s truck. He was sentenced to three years imprisonment under Section111 (a) along with 18 months which was for violation of his supervised release condition. Yate appealed on the ground that he must only be served with one year imprisonment since no physical injury or damage was sustained by the officers. The Circuit Court did not remand the sentence as the truck here was used as a deadly weapon to harm the officers and this does not account for simple assault. 

Conclusion

In conclusion, the US recognizes majorly two types of assault for deciding the punishment of the accused, first is simple assault, whereas the other is aggravated assault. The punishment for assault under the US court is based on the degree of harm caused to the victim by the accused. Simple assault is seen as a misdemeanor offense whereas aggravated assault is seen to be a felony. The US courts have played a significant role in reversing lower courts convictions by broadening the scope of simple assault and how it must be applied under the law. That is, simple assault cannot be applied for the artificial injury sustained after how the accused tried to harm the victim. Simple assault is not led by an intention in most cases but offensive misconduct is enough to prove the accused guilty. Non-consensual sexual touch is one type of simple assault and it is still a simple assault if a deadly weapon is used for misconduct but the opposite person does not sustain any injury with the weapon. The US law thus gives simple assault a broader perspective thereby giving offenders only a limited time period of punishment for their misconduct and not being entitled for an unfair punishment beyond that.

Frequently asked Questions (FAQs) 

What is the definition of assault? 

Assault is defined as a simple crime under US law. There are two types of assault, one is simple assault whereas the other is aggravated assault. The type of assault committed by the accused is decided on the degree of harm caused and the weapon used. 

Is simple assault different from aggravated assault? 

Yes, simple assault is defined as the misconduct involving no deadly weapon and is just an apprehension of fear caused to the victim whereas in aggravated assault the accused uses a deadly weapon with the intention of causing grievous hurt to the victim by either inflicting harm or death.  

Is assault and battery the same? 

Assault and battery is not the same but the accused may be charged with assault and battery depending on his offense. For battery, there must be a physical contact by the accused to the victim to cause fear whereas for assault there is an apprehension of fear caused by threat or verbal abuse. 

How is misdemeanor offense different from felony? 

An offense that is less serious, has caused no harm to the victim, and with imprisonment of less than a year is a misdemeanor such as simple assault. And as for felony, the offense committed is grievous with imprisonment of not less than a year but which may extend depending on the offense of the accused. 

Can assault be taken as a ground of self defense? 

Yes, depending upon the case. But the most common ground for self defense on the commission of assault is intoxication, revenge and joke. This however is proved based on the evidence made before the court and not just by verbal submission. 

References

• https://www.justice.gov/archives/jm/criminal-resource-manual-1610-assault-18-usc-351e
• https://www.justice.gov/archives/jm/criminal-resource-manual-1610-assault-18-usc-351e
• https://www.shouselaw.com/ca/blog/assault-vs-battery/
• https://www.hg.org/assault.html#:~:text=Most%20state%20criminal%20codes%20make,to%2020%20years%20in%20prison
• https://www.newjerseycriminallawattorney.com/blog/difference-between-aggravated-assault-simple-assault/

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This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article discusses the due process of law in the United States, its role in law-making, the judiciary’s reflection on it and the current status in the developed nation of the US.

It has been published by Rachit Garg. 

Introduction

Due process of law is a fundamental legal principle that guarantees individuals the right to have their disputes and grievances heard and resolved in a fair and impartial manner. It is an essential element of the American legal system and has been a part of the US Constitution since its inception. The Fifth Amendment to the US Constitution has directed the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The Fourteenth Amendment which was ratified in 1868, has used the same words, calling it as the Due Process Clause, which describes legal obligation for the states to abide by. These words provide an assurance to the citizens that all levels of the American government must operate within the law thereby providing fair procedures.  The Supreme Court of the United States while deciding on the case of Arnett v. Kennedy (1974) had opined that the Fourteenth Amendment’s Due Process Clause imposes similar procedure due process restrictions upon the states as the Fifth Amendment in respect to the federal government. Generally speaking, the due process procedure requires state actors to provide procedural safeguards before they deprive any individual of their life, liberty, or property-associated interest. The due process clause can only be applicable if the mentioned interests are said to be at stake. 

In this blog article, we will explore the origins of due process of law in the US, from the early history of the due process clause to the application of the Bill of Rights to the states and beyond. We will also examine the concept of procedural due process, as well as the notion of substantive due process, and explore the landmark case of Medina v. California (1992).

Defining due process of law

Due process of law is a legal principle that is derived from the Fifth Amendment to the United States Constitution. It states that no person shall be deprived of life, liberty, or property without due process of law. This means that the government must provide individuals with a fair and impartial hearing and process before it can take away any of their rights or privileges. It is an essential element of the US legal system and serves to protect individuals from arbitrary and unjust government action. In the US, due process of law is divided into two distinct categories: procedural due process and substantive due process. Procedural due process refers to the procedures that must be followed in order for the government to take away an individual’s rights or privileges. This includes the right to a hearing, the right to be informed of the charges, the right to a fair and impartial trial, and the right to appeal. 

Substantive due process, on the other hand, refers to the substantive rights and privileges that are protected by the government. This includes the rights to life, liberty, and property, as well as the right to privacy, freedom of speech, and freedom of religion, among others. Substantive due process has been interpreted over time to include things ranging from the right to work in an ordinary job, to that of marriage, raising children, etc. The ideal case of Lochner v. New York (1905) is where the Supreme Court of the United States discovered that a New York law that regulated working hours of bakers, was ultra vires the Constitution and thereby ruled that the public benefit of the law was not enough to justify the substantive due process right of the bakers to work under their own terms. It is necessary to note that although substantive due process is still invoked in several cases in present times, it does follow criticism.

History of the due process clause

The concept of due process of law has its roots in English common law and was first enshrined in the Magna Carta of 1215. This document, which was written by the English barons to limit the power of the monarchy, stated that “no free man shall be taken or imprisoned…unless by the lawful judgement of his peers or by the law of the land.” This phrase was later interpreted to mean that individuals must be given a fair hearing before they can be deprived of their rights or privileges.

Historically, the due process clause reflected the Magna Carta of Great Britain, in which King John had promised his noblemen that he would only be acting legally and that everyone would be subjected to the ordinary processes (procedures) of law. While this promise echoed in the 13th century, Great Britain’s seventeenth-century struggles surrounding political and legal regularity, alongside the strong insistence of the American colonies’ during the pre-Revolutionary period as the backdrop, led to the observance of a regular legal order. The essence of due process of law is reflected in the government’s legally sound functioning. Every legal system should function with legality that is in a just and fair procedure and this being the sole commitment of the system it is embodied in the due process clause. 

The fundamental trait of the due process clause is the promise it makes to the citizens to not deprive them of their right to life, liberty or property thereby vesting a legal duty on the government to maintain the same. It is noteworthy to mention that the government is not restricted to function according to the express operating statutes of the United States but can also function in a way it deems fit provided it is done in a fair and justified manner. The due process clause also signifies that any action that denies the process that is otherwise ‘due’ will ipso facto be termed as unconstitutional. 

The Fourteenth Amendment to the US Constitution in light of due process of law

The Fourteenth Amendment to the US Constitution, which was ratified on July 9, 1868,  granted citizenship to “all persons born or naturalized in the United States,” which was inclusive of former slaves who were recently freed. In addition to the same, the amendment also prohibited states from depriving any individual “life, liberty or property, without due process of law” or denying “any person who came under its jurisdiction the equal protection of the laws.” The principal father of the Fourteenth Amendment, John Armor Bingham was an Ohio Representative, who also served on the Joint Committee on Reconstruction. 

It is ideal to mention that the congressional opponents who had argued against the Fourteenth Amendment were of the opinion that the discussed amendment would be responsible for undermining the legislative power of the states. On the contrary, Bingham was of the belief that an appropriate interpretation of the amendment’s “privileges and immunities” clause would make it clear that it was the reflection of most of the rights already present in the first eight amendments of the Bill of Rights. Therefore, it was clear that the amendment required state governments to adhere to similar standards like that of the federal government in protecting the rights of their citizens. Alongside this, as an extension of support to the amendment before the Congress, the founding father had also ensured that the amendment was the fulfillment of the Constitution’s guaranteed right to the enjoyment of life, liberty, and property.

The slaughter-house cases

The Slaughter-House Cases were a series of cases that were heard by the US Supreme Court which determined the extent to which the Fourteenth Amendment to the US Constitution could place limits on the legislative powers of the states. While the majority of the court attached a narrow interpretation to the amendment, it was Justice Stephen J. Field’s who dissented with an argument that the amendment safeguarded individuals from state legislation which infringed their “privileges and immunities”, which were guaranteed by the federal Constitution. Field’s dissenting opinion is generally viewed as a significant step towards the modern doctrine of substantive due process, which is a theory developed by the courts for defending those rights that are not explicitly mentioned in the Constitution.

The Miranda decision (1966)

In the case of Miranda v. Arizona (1966), Miranda was arrested at his home and was taken to the police custody where he was made to be identified by the complaining witness. Further interrogated by two police officers for over a period of two hours, Miranda was made to sign his written confession. At the trial, both the oral and written confessions were presented before the jury which resulted in Miranda being held guilty of kidnapping and rape and was therefore sentenced to 20-30 years imprisonment on each count. Miranda had further appealed before the Supreme Court of Arizona, where order was in accordance with the decision made by the trial court thereby concluding that Miranda’s constitutional rights were not violated in obtaining his confession and being used in the trial.

The opinion given by Chief Justice Earl Warren in the case of Miranda v. Arizona (1966) has remained a remarkable one. The opinion required police officials to make the arrested individual aware that the information collected about him, can be used by the government in the form of evidence, alongside the right to be silent and right to counsel, that are available to him. Viewing it as a requirement against the right against self-incrimination guaranteed by the Fifth Amendment to the US Constitution, Warren had provided his opinion. Warren had also recalled the trial of John Lilburne who was the seventeenth-century radical politician, in which Liburne contended that the freedom from compulsory self-incrimination be recognized as one of the fundamental rights of an English subject.

Procedural due process

Procedural due process refers to the procedures that must be followed in order for the government to take away an individual’s rights or privileges. This includes the right to a hearing, the right to be informed of the charges, the right to a fair and impartial trial, and the right to appeal. Procedural due process ensures that the government cannot take away an individual’s rights arbitrarily or without cause. In order to prevent individuals and their interests from being subjected to arbitrary actions of the government thereby putting both at stake, due process requires the procedures that help in the application of laws to be handled evenly. Satisfying due process varies from one circumstance to that of the other. One of the prime considerations in the process of determining what procedure to follow so as to reflect abidance of due process is to understand whether the government’s conduct in discussion is part of a criminal or civil proceeding. 

In the case of Medina v. California (1992), the court of law had held that the framework that is needed for an accurate analysis of criminal procedures in line with due process is a thin inquiry into the nature of the procedure being followed so as to figure out whether it is offensive to the subject-matter of fundamental fairness or not. A balancing test that aids in evaluating the procedure chosen by the government to look into private interest infringement matters, is generally applied by courts in civil cases (Mathews v. Eldridge (1976)). 

The instant in the case of Ballard v. Hunter (1907) reflects that the government does deprive individuals of their protected interest without helping in instituting judicial proceedings thereby walking away from the application of due process. Such applications are common in both civil and criminal proceedings. In cases of administrative and executive proceedings, denial of due process is observed on the part of the government with them citing that such proceedings are not judicial in nature. The fact that even though such proceedings are not judicial in nature, they may satisfy the requirements of the ‘due process clause’, is generally ignored in these proceedings (as was seen in the case of McMillen v. Anderson (1877)). The due process clause does not mandate judicial review of agency proceedings or agency decisions, as was seen in the case of Moore v. Johnson (1978), where the preclusion of judicial review of decisions of the Veterans Administration regarding veterans’ benefits was upheld. 

The decision made in the case of Carfer v. Caldwell (1906) stated that while separation of powers among the three branches of the federal government has been favored by the Constitution, states are said to be enjoying greater flexibility and have been vested with an implied power to determine the extent of separation of powers among the three organs. Therefore, the due process clause can be said to neither prohibit a state from being conferred with judicial responsibilities nor delegate legislative powers to the courts.

Substantive due process

Substantive due process refers to the substantive rights and privileges that are protected by the government. This includes the rights to life, liberty, and property, as well as the right to privacy, freedom of speech, and freedom of religion, among others. Substantive due process ensures that individuals are not deprived of their rights or privileges without a legitimate reason.

The landmark case of  Dr. Thomas Bonham had knocked on the doors of the British Court of Common Pleas in 1610 and was heard by Chief Justice Edward Coke. The issue concerned a  law that vested the London College of Physicians with the power to imprison anyone who was practising medicine without a license. Justice Coke was of the opinion that the alleged law was void as it was against common right and reason. This landmark decision has been cited by several American jurists in cases where statutes were in conflict with fundamental laws of the land. This judgment is often held to be an antecedent for both the doctrine of substantive due process and judicial review.

The concept of substantive due process under American law is one of the controversial ones. This form of due process has been put to use in the present century to safeguard individual liberties. Although the concept of the substantive due process remains translucent for judges of the US Supreme Court, they have stated that the word ‘liberty’ mentioned in the due process clause, vests fundamental right on the parents to have custody of their children (Santosky v. Krame (1982)). Thus, if one distinguishes between procedural and substantive due process, one can state that if the government feels the need to terminate parental custody (in reference to the above instance), it has to give notice and a hearing opportunity, before doing so, the same will be termed as procedural due process. Whereas, if the government has to terminate the custody, it has to provide compelling reasons that would be serving as an adequate justification for its decision-making, the same would constitute substantive due process. 

The usage of substantive due process, initially used to protect the economic liberties of individuals, is reflected in the landmark case of Lochner v. New York (1905). As we have talked about this case previously, it is ideal to state that in this case, the US Supreme Court had struck down a New York law that was made up to limit the maximum number of hours for which bakers could work. Observing that the freedom of contract was protected as a fundamental right under the term ‘liberty’ in the due process clause, the Apex Court declared the law to be ultra vires the Constitution. 

Further, while deciding the case of Pierce v. Society of Sisters (1925), the Supreme Court declared an Oregon law that prohibited parochial school education as unconstitutional. The reasoning given by the Court for such a decision was a substantive due process but then after 1937, the same court had withdrawn itself from basing any decision on the ground of substantive due process, for the same being understood as ambiguous. 

How can we know whether process is due, when it is due, and what procedures have to be followed

The fact that this heading deals with a substantial set of questions and has remained unanswered for a long, tells us that the ‘due process’ concept is purely procedural. When it comes to the judiciary, denial of existing legislation or challenging of certain provisions, make them think beyond the codified procedure thereby throwing light on these questions. The Supreme Court of the United States has long struggled for interpret the substantial aspect of ‘due process’ but has not been able to come to a conclusion thereby limiting its reasoning to the general nature of the relationship between citizens and government.

Back in the 19th century, the actions of the government were simple and limited as the majority of the time it wished to deprive its citizens of life, liberty or property, it was done through criminal law. The Bill of Rights also laid down a few procedures that were to be abided by, for example, the right to a jury trial. The Supreme Court’s opinion in the case of  Bi-Metallic Investment Co. v. State Board of Equalization (1915) is worth discussing for it stated that when it came to settling tax levels, it was only politics which was the reflection of  citizen’s “power, immediate or remote, over those who make the rule”, that controlled the state’s action. In cases where the dispute surrounded the taxpayer’s individual liability, the taxpayer’s right to a hearing (which involved the right to support his allegations by means of contentious arguments). This had by default kept room for the state to decide the procedure it is going to provide but restricted states from misusing the same. 

The aforementioned case established that the Constitution was not in need of ‘due process’ for the purpose of laying down laws. Instead, the ‘due process clause’ comes into the application when a state acts against an individual on individualistic grounds thereby imposing threat on their fundamentally secured and codified rights. Individualistic ground signifies certain traits that are exclusive to a particular individual and differs from another individual. The ‘due process clause’ therefore does not govern how a state regulates student discipline in high schools; instead, it looks into how the state applies such regulations to individual students when they are said to be in violation of such regulation. For example, if a student is caught cheating in a state-wide competitive examination, he is said to be in violation of the established regulation concerning that and comes with the purview of ‘due process clause’. 

Although the student will be held for violation, another aspect that needs to be looked into is whether alleging the student of cheating by the school amounts to deprivation of his life, liberty and property rights. The ‘due process clause’ shall only come into application if state action is involved, for in case private schools take disciplinary actions against their students, the due process clause will not be invoked. 

When process is said to be due

In several of its earlier decisions, the Supreme Court of the United States seemed to hint at the fact that only when the guaranteed property rights were at stake, urgent hearings could be subject to postponement in order to make them follow provisional and irreversible action of the government. Scenarios changed after 1970 following the decision in the case of Goldberg v. Kelly (1970). This was a case that arose out of a welfare program that was administered by the state. The court of law, in this case, had observed that before a state took any action to terminate the benefits of the welfare recipients, it stood mandatory for such a state to provide a hearing opportunity to the recipients, before a hearing officer, on grounds that due process clause required such a hearing to take place.  

What procedures are said to be due 

As we developed an idea as to when due process apply, there have been cases that have helped to determine the procedures that are said to be constitutionally due. This is a question that is typically raised in cases of criminal trials, where the Bill of Rights might provide answers, in cases of civil trials and also administrative proceedings, which were invisible in the legal landscape even after a century of the introduction of the due process clause.  In the previously discussed case of Goldberg v. Kelly (1970), the court answered our present issue in hand by stating that it is one of the key responsibilities of the state to provide room for hearing before a judicial officer, who has to be impartial, and which shall include:

1. The right to be provided with attorney’s help and aid.
2. The right to present evidence before the hearing officer.
3. The right to present oral arguments before the hearing officer. 
4. The opportunity to examine and cross-examine witnesses appearing before the hearing officer.  

Following this decision, many raised arguments against the 1970 decision declaring the same to be divergent instead of being specific and therefore the US Supreme Court had to adopt a discriminating approach in recent times. The Court had noted that the process that will be ‘due’ for a student suspended from school for a considerable period will be different from that of a doctor who has been kept in deprivation of his license to practice medicine. Similarly, the ‘due’ of a process will differ from an accused individual to that of a person alleged to have committed theft. The conclusion that was reached from this observation is that whatever be the situation, there could be no prepared list of the procedures that are always said to be ‘due’. Therefore, what procedures are due cannot have a single uniform answer as what the Constitution requires would be an inevitable dependent upon a situation. 

A method of statement as to what procedures are due was developed by a successor case named Mathews v. Eldridge (1976) in which the method discussed could be successful in helping lawyers present due process questions before the courts. Currently, the same approach is used for determining due procedures and resolving questions surrounding the same. 

Due process beyond the Bill of Rights

The due process clause of the US Constitution does not only protect the rights listed in the Bill of Rights. This clause has been extended to protect a variety of other rights, including the right to privacy, the right to a fair trial, the right to equal protection under the law, and the right to procedural and substantive due process. This means that the government must provide individuals with a fair and impartial hearing and process before it can take away any of their rights or privileges.

Protection from police power and vagueness in laws

Due process of law also protects individuals from laws that are overly vague or that give the government too much power. Laws must be specific and clear so that individuals know what is expected of them and can act accordingly. Vague laws give the government too much discretion and can lead to arbitrary and unjust punishments.

It is ideal to note that the US Supreme Court had initiated a ‘rights revolution’ in order to initiate a new set of limitations on police searches and interrogations, in light of the dominant model of policing that was prevalent in large parts of the United States. In the notable case of Mapp v. Ohio (1961), the court of the law extended the exclusionary rule to the states thereby forbidding the usage of evidence obtained by means of illegal search and seizure, in trials. The court in the case of Escobedo v. Illinois (1964) went ahead to state that a suspected individual will be entitled to seek help from an attorney during interrogation by police officials. Denial of this right will be viewed as a violation of constitutional rights which renders any statement that is made by the suspect inadmissible in a court of law. The decision made in the previously discussed case of Miranda v. Arizona (1966) stated that states are also required to make the suspect acknowledge his rights that are available before the police in cases of custodial interrogations. 

The above-discussed decisions have been responsible for directly affecting the day-to-day investigative activities of police thereby helping in initiating professionalism among police officers. This initiative accelerated as departments reacted to their increased liability by raising recruitment standards improving legal training for officers and also establishing procedures for investigating officers to abide by while moving ahead with arresting suspects. 

Equal protection before the law guaranteed by due process clause

The due process clause of the US Constitution also guarantees individuals the right to equal protection under the law. This means that all individuals must be treated equally and without discrimination. The government must provide equal justice to all individuals, regardless of race, gender, religion, or any other factor.

Equal protection represents the idea that it is not favourable for a government body to deny people equal protection of its governing laws. Therefore, it is the responsibility of the governing body to treat an individual in the same manner as others under similar conditions and circumstances. It is also necessary to acknowledge that a government is given allowance to discriminate against individuals, as long as such discrimination is in terms of equal protection clause. The due process clause of the Fifth Amendment requires the United States government to practice equal protection in terms of its everyday functioning. The equal protection clause as has been provided by the Fourteenth Amendment also requires states to practice equal protection while governing its citizens. Equal protection makes room for a state to be impartial while governing thereby not allowing the state to draw distinctions between individuals solely on irrelevant differences when it comes to fulfilling governmental objectives. Thus, to protect civil rights, the equal protection clause has an imperative role to play. The individuals also have the right to bring in a  lawsuit against the state or the deferral government before the court of law if their guaranteed rights are infringed. 

An analysis of the case of Medina v. California (1992)

The landmark case of Medina v. California (1992), is a prime example of the US Supreme Court applying the due process clause of the US Constitution to protect individual’s rights. As have already been explained and mentioned in this article previously, the case has received a valid discussion hereunder. 

Facts of the case 

Medina was held guilty of an alleged first-degree murder. On the basis of his pleading before the California Supreme Court, his motion for a fair hearing pursuant to the prevalent state law that forbids unsound mind individuals to be tried or punished was granted.  The state law also placed a burden on the petitioner to establish a presumption of the incompetence of the preponderance. 

Judgment delivered by the US Supreme Court 

Although Medina had defended his conduct, the jury who had empanelled for the competency hearing had established Medina to be competent to stand trial and thereby was convicted and sentenced to death. The US Supreme Court had affirmed the jury’s decision thus rejecting Medina’s claim that his right to due process was violated by the competency statute’s burden of proof and presumption.

Analysis of the judgment delivered by the US Supreme Court 

It is necessary to note that the due process clause makes way for a state to require a defendant to face trial and bear the burden of proving preponderance, when claiming incompetence.  It is ideal to note that there lies no historical basis that concludes that vesting the burden of proof on a criminal defendant in order to prove his incompetence, is in violation of due process.  Further, the Court had reasoned that a state’s allocation of the burden of proof to an accused defendant does not transgress the principle of fundamental fairness, going by the decision made in the case of Leland v. Oregon (1952), which had upheld a state’s right to place the burden of proof on the defendant for pleading insanity and the same is not unconstitutional. Thus the decision made in our discussed case clears the air that the judgment was fair and reasonable. 

Conclusion

Due process of law is a fundamental legal principle that guarantees individuals the right to have their disputes and grievances heard and resolved in a fair and impartial manner. It is an essential element of the American legal system and has been a part of the US Constitution since its inception. This blog article has explored the origins of due process of law in the US, from the early history of the due process clause to the application of the Bill of Rights to the states and beyond. We have also examined the concept of procedural due process, as well as the notion of substantive due process, and explored the landmark case of Medina v. California (1992). Due process of law is a crucial element of our legal system and provides individuals with vital protections against arbitrary and unjust government action. It is essential that we continue to uphold this principle and ensure that individuals are provided with a fair and impartial hearing and process before their rights or privileges can be taken away.

References

1. https://digitalcommons.tourolaw.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2480&context=lawreview.
2. https://www.law.cornell.edu/wex/due_process.
3. https://www.loc.gov/exhibits/magna-carta-muse-and-mentor/due-process-of-law.html.

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Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. The article explains the Sixth Amendment to the US Constitution, which prescribes the rights of an accused. It further elaborates all the rights mentioned therein in detail along with case laws. 

It has been published by Rachit Garg.

Introduction

Have you ever wondered why a justice system is so important for any country? Why is it necessary to give certain rights to an accused? What rights have been given to them? 

If you do not know the answer to these questions, you need not worry. This article will help you understand that, in a country, the justice system plays an important role. It serves justice to those against whom any kind of wrong has been committed. For this purpose, the elements of the justice system have to be fair and free from any kind of discrimination. The accused have the right to a fair and impartial trial, for which judges are required to be neutral and impartial. Most of the countries in the world have recognized certain human rights, which include the rights of the accused as well. One such country is the United States of America, wherein the rights of accused persons have been recognized and enshrined in the Constitution. These rights were added to the Bill of Rights through the Sixth Amendment. 

The Sixth Amendment of the United States Constitution has a long and varied history. It has been interpreted over the years in different ways and has had a significant impact on criminal justice proceedings in the United States. In this article, we will look at what the Sixth Amendment is and its various components, like the right to a speedy trial, the right to a public trial, an impartial jury, etc. It further provides how the amendment has been interpreted over the years with the help of landmark court decisions. 

What is the Sixth Amendment

The Sixth Amendment is part of the United States Bill of Rights and was adopted in 1791. It states that the accused in the US enjoy the following rights:

• Right to a speedy trial. 
• Right to public trial.
• Trial by an impartial jury. 
• Right to be informed about the nature of charge and reason of accusations.
• Right to confront the witness. 
• Right to call witnesses in order to prove the accused’s innocence. 
• Right to assistance. 

The Sixth Amendment is also closely related to the Fifth Amendment, which deals with the right to due process of law. It gives the accused the right to remain silent in cases of capital and infamous crimes. It also provides rights against double jeopardy and guarantees that he will not be deprived of his life, liberty, or property without following due process. Both amendments guarantee a fair trial for those accused of a crime. In addition, the Sixth Amendment also gives the accused the right to a speedy trial, as well as the right to an impartial jury and the right to the assistance of counsel.

Interesting facts about the Sixth Amendment

The Sixth Amendment was part of the Bill of Rights and added to the US Constitution in 1791. Here are some interesting facts about the amendment:

• A trial can be conducted at another place instead where the crime was committed in order to have an impartial jury.
• The defendants under the Amendment are also entitled to represent themselves on their own without any lawyer. 
• It is also known as “Amendment VI”. 
• Under the Amendment, a witness can be called to testify and come to court forcefully which is known as “subpoena”. 

History of the Sixth Amendment

The history of the Sixth Amendment can be traced back to English common law. The principles on which the Sixth Amendment is based and the rights guaranteed therein existed in England and were also seen in its colonies. During the 12th century, trials were done by the old, respected people on the defendant’s side or by neighbors who also decided the fate of the accused. These were also known as the earliest juries. However, these trials were not impartial, and even the government of the time either fined or punished the jurors for not finding the defendant guilty. This was the situation until 1670, when public outrage was witnessed after a defendant was found to be innocent by the juror and he was punished for the same. This case is known as Bushell’s case, which also put an end to such punishments. 

American colonies enjoyed more rights than their counterparts. A set of fundamental laws was established in West Jersey in 1676, guaranteeing a public trial to the accused by a jury consisting of good and lawful men. Similarly, Pennsylvania framed a government charter known as the “Frame of Government of Pennsylvania” in 1683, which guaranteed the right to speedy trial to the people. After the war between Great Britain and America in 1775, most of the colonies in the USA adopted the Bill of Rights by 1781, which also included the right to a jury trial. In 1781, the Articles of Confederation were ratified, creating a union of colonies where most of the governmental power was enjoyed by the states. After the adoption of the US Constitution, a strong national government was established with division of power among the three branches, namely, the legislature, executive, and judiciary. 

In the new Constitution, several rights were incorporated later. James Madison, the fourth President of the USA, spent congress sessions writing and promoting certain amendments that later were incorporated as the Bill of Rights. One of the proposals among these was the protection of the rights of the accused, which was taken and made a part of the constitution by the Sixth Amendment. 

The constitutional right to a speedy trial

The Sixth Amendment guarantees the accused the right to a speedy trial. This right is intended to prevent the accused from being held in pre-trial detention for an unreasonable amount of time. In the case of United States v. Becker (2000), the Supreme Court established a four-pronged test to determine if a criminal trial was conducted in a timely manner. According to this test, four factors are considered to determine whether the trial was speedy or delayed:

• Length of the delay.
• The reason for the delay.
• Whether the defendant was prejudiced in any way. 
• Whether the defendant waived the right to a speedy trial.

The concept of a speedy trial was interpreted for the first time in the case of Beavers v. Haubert (1905). In this case, the defendant was charged with crimes in two different places, i.e., New York and the District of Columbia. The State Court in New York permitted the District of Columbia to conduct the trial first. The defendant argued that his right to a speedy trial has been violated in this case due to trials at two different places. The Supreme Court held that every case must be judged on the basis of its own circumstances. It was observed that the delay in this case was caused by another trial, so the public’s right to try the defendant outweighed his right to a speedy trial. 

In another case, Klopfer v. North Carolina (1967), the defendant was charged with an offense of criminal trespass. His charge was dismissed because the jury was not able to decide his case, but they retained their right to charge him again at any time. It was argued that this decision of the jury violated his rights mentioned in the Sixth Amendment. The Supreme Court in this case gave judgment in favor of the accused and held that keeping him under suspicion for an indefinite period violates his right to a speedy trial and is invalid. On the other hand, a defendant in Barker v. Wingo (1972) gave up his right to a speedy trial due to his own fault in objecting to the continuances to delay his trial. In this case, the prosecution sought 16 continuances in Barker’s trial. Barker did not object to the first eleven continuances but filed a motion on the twelfth continuance to dismiss his trial on the grounds of speedy trial, which was rejected. He further did not object to other continuances and was finally convicted. The Supreme Court gave a balancing test to determine whether the defendant’s right to speedy trial has been violated or not. It was further held that the requirement of public trial is not absolute and that a closed trial can be requested  by the government and the defendant in some cases. 

Further, in the case of Doggett v. United States (1992), there was a delay of eight and a half years between the arrest or indictment of the accused and his prosecution. The Supreme Court observed this extraordinary delay and ruled that the government was to be blamed for the same. 

Scope and applicability of the right to a speedy trial

The right to a speedy trial can be considered as the most rights preserved by the Constitution of the US. In the case of Klopfer v. North Carolina (1967), the Supreme Court held that this right is one of those fundamental liberties that is applicable to states by virtue of the Fourteenth Amendment to the Constitution. However, the major question with respect to its applicability is when this right will be detached or violated, and what are the remedies.  

In the case of United States v. Marion (1971), it was held that the protection given by this right can only be activated when the criminal prosecution has started and extends to only those who have been accused of the crime. Further, in the case of Betterment v. Montana (2016), it was held by the US Supreme Court that this right to a speedy trial detaches when the accused has been convicted. It does not provide protection from delays in sentencing. 

The statutory right to a speedy trial

In addition to the constitutional right to a speedy trial, a number of states have enacted statutory rights to a speedy trial. The federal law dealing with this right is the Speedy Trial Act of 1974. On the other hand, different states have different laws that provide time limits for the trial and sentencing. For example, Section 30.30 of the Criminal Procedure Law (CPL) in New York deals with time limits for trials in different offenses. These statutes are intended to provide additional protection to the accused by limiting the length of pre-trial detention. Statutory rights to a speedy trial vary from state to state and may include factors such as the amount of time a defendant can be held in pre-trial detention, the amount of time a defense attorney has to file motions, and the amount of time a court has to render a decision.

The right to a public trial

The Sixth Amendment also guarantees the accused the right to a public trial. This right is intended to ensure that the proceedings are conducted in a fair and open manner. It is an important safeguard against corruption and abuse of the judicial system, which also prevents the officers from using their power arbitrarily. Moreover, when a trial is conducted in the open, it also helps in creating awareness and fear in the minds of people not to commit crimes in the future.  

In the United States, trials are usually open to the public, with some exceptions, such as cases involving minors or other sensitive matters. In addition, the accused may request that their trial be closed to the public if they feel that their right to a fair trial would be compromised by an open courtroom.

The Sixth Amendment tries to increase the confidence of the public in the justice system by giving its citizens the right to a public trial. It prohibits closed and secret trials, unlike the one that happened in the Star Chamber in England in the 16th century. The term ‘star chamber’ means a secret court proceeding that is used to persecute people. It consisted of a committee of council of the English King and was reorganized in 1487 to include four high officers of state, a temporal lord of council, and two justices of the Westminster Court. It had the power to impose penalty, whipping, prison sentences but not death sentences. Originally, it was famous for protecting people from their oppressors, but later it abused its powers and tortured people. In 1641, the court was finally abolished.

The right to a public trial is not absolute in nature and has certain restrictions. The court has a right to exclude the public from a trial if a witness is not comfortable due to the presence of the public. But this exclusion is temporary. It can also limit the number of spectators witnessing a trial. In the case of Waller v. Georgia (1984), the Court of Georgia closed a part of the trial in order to protect the right to privacy of one of the witnesses. The case was closed after seven days, during which less than three hours were spent on issues involving the witness. The Supreme Court in this case observed that this step violated the Sixth Amendment and ruled that the closure of a trial must not be longer than the necessary time limit. 

The right to an impartial trial

The Sixth Amendment also guarantees the accused the right to an impartial trial. This right is intended to ensure that the accused receives a fair trial and is not prejudiced by bias on the part of the jury.

The right to an impartial trial is composed of several different components. These are:

• the right to a jury trial,
• the right to jury impartiality,
• the right to pretrial impartiality,
• the right to voir dire of the jury.
• the right to the selection of jurors,
• the right to challenge jurors, 
• the right to an attitude toward the death penalty, 
• the right to a certain number of jurors, etc. 

All these rights help ensure that the principles of a fair trial are followed properly and that no state violates any of these principles. It also ensures that the accused person is aware of their rights and exercises them. 

Right to jury trial

The objective of a jury trial is to prevent abuse of powers by the judges or prosecutors by placing simple citizens between the accused and the government. This right to trial by jury depends largely on the nature of the offense. Most petty offenses are kept outside its purview. Moreover, this right does not extend to juvenile proceedings. This was observed in the case of McKeiver v. Pennsylvania (1971). 

The previous position of the jury trial meant a trial by jury as adopted and applied by common law. In the case of Callan v. Wilson (1888), it was held that a trial by jury consisting of 12 people must be done during the first court proceeding and not at the appellate stage. However, as the right extended to states, it was indicated that the standards of a jury trial were open to re-examination.

Another important thing to be noted is that this right to a jury trial can be waived by the defendant depending upon the jurisdiction of the court. For example, in a federal district court, in order to waive the right, the same must be approved by the court and the prosecutor. However, it cannot be waived if there is a possibility of punishing the defendant with the death penalty.

Jury impartiality

The Sixth Amendment provides that the trial must be conducted by an impartial jury. To achieve the goal of a fair trial, it is necessary that the judges be neutral and unbiased  towards any party. 

In the case of Pena-Rodriguez v. Colorado (2017), one of the jury members made some biased statements against the ethnicity of the defendant. The Supreme Court ruled that a court must investigate the verdict of the jury after it has been delivered to determine whether it was based on racial bias. In order to prove this, the defendant must prove that racial bias was a significant factor that motivated a juror’s vote. 

Selection of jurors

Earlier, a jury consisted of twelve people, like the one in England. This was also reaffirmed by the Supreme Court in the case of Patton v. United States (1930). However, this decision was overruled by the US Supreme Court in the case of Williams v. Florida (1970), wherein a jury of 12 people was called a historical accident and that even six people could serve the purpose of a jury. Further, in the case of Apodaca v. Oregon (1972), it was held that the unanimous verdict in criminal trials by states is not a requirement of the Constitution. The importance lies in the common sense of judgment by jury between the accused and the accuser, and to achieve this purpose, it is not necessary to pass a unanimous verdict. 

The selection of a jury is not an easy task. A jury is selected at the start of the trial by defense and prosecution lawyers from a large group of potential jurors. Attorneys from both sides ask the members of the group certain questions, and the judge may exclude certain members for different reasons. This process is known as voir dire for the jury. In the case of Connors v. United States (1895), potential jurors were asked about their preferences in the political party and to which party they belonged. However, the judge objected to the question, stating that this information is irrelevant to the case and cannot form a basis for deciding the case by the jury. 

Place of trial – jury of the vicinage

Section 2 of Article III of the US Constitution provides that criminal cases in federal court can be tried by jury in the district or state where the crime has been committed. The criticism can be found in the absence of any guarantee that a jury can be drawn from the neighborhood where the crime has been committed, also known as “vicinage.” In the case of Salinger v. Loisel (1924), it was held that no accused can be tried in a district other than where the crime has been committed, even if there is an indictment. Further, the US Supreme Court in the case of Beavers v. Henkel (1904) held that the place where the offense has been committed determines the place of trial. 

In case an offense is committed against federal laws that does not involve commission of offense in any state or there is confusion as to the place where the crime has been committed, the Congress has been given the sole power to decide the place of trial. Such offenses are not local, and trials can be done at a place prescribed by Congress. This was also held by the US Supreme Court in the case of Jones v. United States (1890). However, the place of trial can also be decided by a statute after the commission of the offense. This was mentioned in the case of United States v. Johnson (1944). 

Non unanimous verdict in state courts

Recently, the US Supreme Court banned non-unanimous jury verdicts in serious cases. This decision of the Court was given in the case of Ramos v. Louisiana (2020). In this case, a man residing in Louisiana was convicted in 2016 of murdering a woman in New Orleans. The jury vote in this case was 10 to 2. Two of the jurors in this case felt that the prosecution failed to prove the guilt of the man beyond a reasonable doubt and that he must be acquitted. In history, courts in Louisiana have punished accused on such verdicts, even though in other states, a single vote to acquit amongst the jurors is enough to acquit a person. But the man in this case was sentenced to life imprisonment without any scope of parole. Louisiana later amended its Constitution to bar non-unanimous decisions, and now Oregon is the last and only state to permit such kinds of judgments. 

It was also observed by the Supreme Court in various cases that non-unanimous verdicts are prohibited by the Sixth Amendment as well. This was initially applicable to federal trials only. But after the 14th Amendment, the Sixth Amendment has widened its scope to include state trials as well, which also means that such verdicts will be barred in state trials as well. 

Attitude towards death penalty 

In some serious and heinous crimes, the death penalty is awarded to the offender. However, to award this penalty, a jury trial is required, which is different from other jury trials. In these trials, the jury does not only have to decide the guilt of the accused but also finalize whether to impose the death penalty. In cases where there is no possibility of awarding the death penalty, a single trial is conducted. However, in death penalty cases, a jury is chosen from the potential jurors for the trial. 

The death penalty cases are usually divided into two separate trials. In one trial, the jury examines the evidence in order to prove the guilt of the accused. If this is proved, the court proceeds with the second trial, in which the punishment is decided. During this trial, the jury has to decide the punishment from two options available to them. These are life imprisonment or the death penalty. This is done by weighing the aggravating factors against the mitigating factors presented by the prosecution. 

The right of the accused to be informed of the nature and cause of accusation

In order to serve the whole purpose of a trial, it is important that the accused be informed about the charges against him and why he has been accused of a particular offense so that he can consult assistance in this regard and present his side in quest of the truth. The Sixth Amendment guarantees the accused the right to be informed of the nature and cause of the accusation. This right is intended to ensure that the accused is aware of the charges against them and has the opportunity to adequately prepare a defense.

Under the Sixth Amendment, the accused must be given the opportunity to review the evidence against them and question any witnesses that may be called to testify. The accused must also be made aware of any changes to the charges and be given the opportunity to challenge any evidence that is presented against them.

In the case of Cruikshank v. United States (1875), the Supreme Court held that merely informing the accused of charges against him is not sufficient. The indictment or notice must provide other necessary details, like time and place of the crime, evidence against him, the punishment to be awarded if he pleads guilty, etc. Similarly, the Supreme Court in the case of Rosen v. United States (1896) held that the notice must describe the charges framed against the defendant or accused. This will help him/her to avoid double jeopardy in the future. 

Confrontation clause and right to cross-examine

The confrontation clause in the Sixth Amendment further prevents the admission of hearsay evidence. This is done because the accused did not have any opportunity to challenge its credibility or cross-examine the witness making such statements. The mandatory clause, on the other hand, in the amendment allows the defendant to call the witnesses to support his/her case. The Supreme Court of the US in the case of Bruton v. United States (1968) held that statements made by a defendant outside court can be admissible in court to prove his guilt, but the same is inadmissible against another defendant. 

The right to cross-examine a witness allows the accused to present his side of the story and prove his innocence. This also prevents the prosecution from asking questions that might convict the accused. The United States’ Supreme Court in the case of Crawford v. Washington (2004) widened the scope of the confrontation clause by stating that statements made outside court are inadmissible if the accused is not given an opportunity to cross-examine the person making such statements. It was observed that rights given in the Sixth Amendment were violated when the state admitted the statements of the accused’s wife that she made to the police. 

The right to assistance of counsel

The Sixth Amendment also guarantees the accused the right to assistance of counsel. This right is intended to ensure that the accused is given the opportunity to receive legal advice and representation during the criminal trial. If accused persons are deprived of this right, then they won’t be able to present their side, which will ultimately defeat the purpose of justice and the judicial department. One of the most important and established maxims in this regard, i.e., “audi alteram partem” which means “hear both the sides” also serves this purpose. The right to the assistance of counsel is a fundamental right in criminal proceedings and is one of the most important protections afforded to the accused. The assistance of counsel can be provided by a private attorney, a public defender, or a court-appointed lawyer.

The history of the right to the assistance of counsel can be traced back to the case of Powell v. Alabama (1932). In this case, Powell, along with nine other young defendants, was charged with the offense of rape. They did not have any friends or relatives in the area where the crime was committed. Due to the seriousness of the offense, they faced the public’s aggression. On the day of trial, two lawyers were appointed by the judge. They represented the defendants without any preparation, and they were convicted and sentenced to death in just one day of trial. The Supreme Court in this case ruled that assistance of counsel is an important and fundamental part of the accused’s right to a fair trial. The Court further directed the states to provide sufficient assistance to all the defendants who cannot afford to take assistance from a legal counsel. This assistance or help must be extended to illiterate and feeble minded people as well. 

Further, the Supreme Court extended its ruling in the Powell case to guarantee assistance of counsel to accused persons in all criminal cases at the federal level in the case of Johnson v. Zerbst (1938). In another historic case of Gideon v. Wainwright (1963), this assistance was further extended to felony cases at the state level. In this case, Gideon was arrested for the offense of burglary. Before his trial, he researched and came to know that he has the right to assistance of counsel under the Sixth Amendment and the 14th Amendment. As a result, he argued the same and filed a petition with the Supreme Court. 

The right to plead guilty

The Sixth Amendment also guarantees the accused the right to plead guilty. This right is intended to ensure that the accused is free to choose whether or not to enter a plea of guilty or not guilty.

Under the Sixth Amendment, the accused must be made aware of the charges against them and given the opportunity to enter a plea of guilty or not guilty. The plea must be entered freely and voluntarily, without coercion or duress. The concept of plea bargaining is also established and accepted in the US, wherein the prosecution and defense negotiate at a pretrial stage and the accused pleads guilty to the charges in exchange for a lesser punishment. However, the whole process is voluntary, and the accused decides whether he wants to do it or not. 

Case laws

United States v. Gonzalez-Lopez (2006)

Facts of the case

Gonzalez Lopez hired an attorney in this case to represent him, but the district court refused the attorney’s request to do so because he violated some rules in his previous case. As a result of this, Lopez was convicted. He appealed that his right under the Sixth Amendment to the paid chosen counsel had been violated and so the conviction must be overturned. 

Issues involved in this case

Whether the court should overturn the conviction of Lopez in this case?

Judgment of the Court

This case concerned the right to assistance of counsel, and the Supreme Court ruled that the accused had the right to be represented by an attorney of their choice. The Court held that the accused’s right to assistance of counsel had been violated when the trial court denied the defendant’s request to be represented by a particular attorney and so the conviction must be reversed. The Court also observed that the accused’s Sixth Amendment rights had been violated when the trial court failed to inform the defendant of all the charges against him and the reason for the accusation, along with other details of the case.  

Maryland v. Shatzer (2010)

Facts of the case

In this case, Mr. Shatzer was accused of sexually abusing a three-year-old child. Subsequently, he was interrogated for the same, during which he invoked his right to remain silent and the Fifth Amendment to the US Constitution. As a result of which the interrogation was terminated. The case was reopened in 2006 when his wife made specific allegations against him. This time he confessed his guilt, but before the trial he argued to suppress his confession, stating that he still had the right to remain silent. But the trial court of Maryland denied his motion and convicted him. During his interrogation, he remained in Miranda’s custody for more than 2 weeks, during which he alleged that his rights under the Sixth Amendment had been violated. 

Issues involved in the case

Whether there has been a violation of the Sixth Amendment?

Judgment of the Court

The Court held that the accused’s Sixth Amendment right to assistance of counsel had been violated when the defendant was denied access to counsel for 14 months while in pre-trial detention. It was also observed that a 14-day period is appropriate for a person to be re-acclimated. Since he remained in custody for more than two weeks, his rights to confrontation have been violated under the Sixth Amendment. 

Missouri v. Frye (2012) 

Facts of the case

In this case, Frye was charged with driving without a proper license. He was also convicted of the same offense thrice before the current case. Due to this, he was charged with a felony. His counsel was sent two plea bargains by the prosecution, which were never communicated to Frye. Before his hearing, he was again arrested for the same offense, pleaded guilty, and sentenced to three years of imprisonment. He further alleged that his counsel failed to inform him regarding the plea offers given by the prosecution. 

Issues involved in the case

Whether the right to effective assistance of counsel given under the Sixth Amendment of the US Constitution was violated in this case?

Judgment of the Court

The Roberts Court in this case observed that the right to effective assistance also applied to guilty pleas. It is the duty of the defense counsel to inform the accused of any offers made by the prosecution regarding a plea bargain. If he fails to do so, it renders the assistance ineffective. Thus, the accused’s rights in this case were violated. However, the Court in this case concluded that the state appellate court failed by not asking the accused to prove that there existed a reasonable opportunity where he would have accepted the plea that lapsed and also that the prosecution would have adhered to it. 

Conclusion

In any justice system, a fair trial can only happen if its principles are adhered to. One of the most improved principles is to hear both sides. This also means that where the victim is represented by a prosecutor, the accused must also be represented by a counsel. He must also be given certain rights to present his case and prove his innocence. Otherwise, the justice system would fall apart. Another important principle of a fair trial is having an impartial judge or jury. Only an impartial or neutral judge can give proper justice. All these rights have been granted to the citizens of the United States by the Sixth Amendment, which incorporated these rights into the Constitution. 

The Sixth Amendment of the United States Constitution is an important part of the Bill of Rights. It guarantees the accused the right to a speedy and public trial, the right to an impartial jury, the right to be informed of the nature and cause of the accusation, etc., which also forms a part of a fair trial. The Sixth Amendment has been interpreted in several landmark Supreme Court cases, such as United States v. Gonzalez-Lopez, Maryland v. Shatzer, and so on, which have helped in extending its scope to the extent that the accused persons are now aware of their rights and cannot be exploited. 

Frequently asked questions (FAQs)

How is the Fourteenth Amendment related to the Sixth Amendment?

The Fourteenth Amendment to the US Constitution established equal protection for all citizens and required due process to be followed. This further created the idea that all citizens must be treated equally under all laws, whether federal or state. As a result, the Sixth Amendment, which was initially applicable to federal laws only, is now applicable to state laws as well. 

What happens if the Sixth Amendment is violated ?

The remedy against the violation of the Sixth Amendment would be to dismiss the charges against the accused without any prejudice. This was held in the case of Strunk v. United States (1973).

What do you mean by right to effective assistance?

Whenever assistance is provided to the accused under the Sixth Amendment, the counsel must fulfill his duties effectively and without any prejudice or bias. He must represent the defendant properly. In the case of Strickland v. Washington (1984), the Supreme Court adopted a standard to determine whether the counsel was effective or not. According to the standard, if the defendant is able to prove that his counsel made serious mistakes and that if there had been another counsel, the verdict would have been different, then the court will reverse the conviction. 

References

• https://www.law.cornell.edu/constitution/sixth_amendment
• https://constitutioncenter.org/the-constitution/amendments/amendment-vi
• https://www.britannica.com/topic/amendment
• https://www.govinfo.gov/content/pkg/GPO-CONAN-1992/pdf/GPO-CONAN-1992-10-7.pdf
• https://www.encyclopedia.com/law/legal-and-political-magazines/sixth-amendment
• https://www.britannica.com/topic/Bushells-case
• https://www.britannica.com/topic/Sixth-Amendment
• https://www.nytimes.com/2020/04/20/us/politics/supreme-court-unanimous-verdicts.html
• https://www.law.cornell.edu/wex/voir_dire
• https://files.deathpenaltyinfo.org/legacy/podcast/resources/Episode14LegalProcess.pdf 
• https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2204512
• 6th Amendment US Constitution–Rights of Accused in Criminal Prosecutions (govinfo.gov)
• https://www.google.com/url?q=https://law.justia.com/constitution/us/amendment-06/&sa=D&source=docs&ust=1679589925718221&usg=AOvVaw0nCGzanszOyeQ4TjoVP70U 

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This article has been written by Oishka Banerji of Amity Law School, Kolkata. This article discusses the concept of writ of Habeas Corpus in light of the United State of America. 

‍It has been published by Rachit Garg.

Introduction

The concept of habeas corpus is one of the most important ones in the United States. It is a centuries-old principle that safeguards individual liberty and is enshrined in the US Constitution. An ancient writ under the common law, a writ of habeas corpus indicates having a body before the court. When we talk about individual liberty, the prime related subject-matter that comes into discussion is unlawful and indefinite imprisonment of an individual on the basis of unreasoned decision-making by the country’s judicial authorities. Generally issued to a detaining authority to submit the person detained before the court of law in order to know the ground of such detention, the writ of habeas corpus serves as a safeguarding order by the court of law for the detained individual.  In this article, we’ll explore what habeas corpus is, its origins, its importance, and how it has been used in the US.

What is Habeas Corpus

Habeas corpus is a Latin term that translates to “produce the body” and refers to a writ or legal order issued by a court that requires a person to be brought before it for review. It is primarily used as an instrument to ensure that the law is followed and that individuals are not being unlawfully detained. The writ of habeas corpus has been regarded as a cornerstone of human freedom in England as a foundation of human freedom and this freedom was insisted by the British citizens, to be made available to them, wherever they went for business or colonization. Following this very road, the writ established a prominent place in the Constitution of the United States, which also made ways for the independence of British colonies in America. It is ideal to mention the position of this writ with respect to India as in the democratic nation where personal liberty remains at stake often due to the conflict between executive and individuals. The Supreme Court of India alongside high courts across the nation have time and again proved to be the guardian protector of such rights guaranteed under the Constitution of India. Recognized as an effective measure to provide with a speedy remedy for safeguarding personal liberty, the writ of habeas corpus is a writ of right is grantable ex debito justitae (to do justice between the parties).

In the United States, the writ of habeas corpus is enshrined in the Constitution, which states that “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or Invasion the public Safety may require it.” 

Former Chief Justice Marshall of the Supreme Court of the United States had referred to habeas corpus as the “great writ” in the case of Ex parte Bollman (1807). The ancient legal device which challenged the lawfulness of any detention made, is presently put to use by the state prisoners who have been serving sentences as a consequence of conviction of a crime by the state courts.  Although the Supreme Court of the United States while deciding the case of Preiser v. Rodriguez (1973) has approved the relief provided in form of the writ of habeas corpus to such category of prisoners on grounds of prejudicial or constitutional error notice in their state criminal proceedings, for certain decades now, the availability of such relief to state prisoners have been compacted.  This restriction on the existing relief can be said to be the not so favorable consequence of implementing the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA’). By means of this statute, the Congress had aimed to amend the existing habeas corpus law alongside doctrinal development made by the judiciary over the years. 

On similar grounds was the decision in the case of Edwards v. Vannoy (2021) made, which continued the tightening process in terms of relief to state prisoners. Holding that the “writs of habeas corpus may be granted, not that they must be granted”, the Supreme Court’s decision remains theoretically significant in today’s time and is often seen to be practically reflected as well. The Court went on to state that the writ of habeas corpus does not exist to authorize any federal court to revisit a judgment that has been issued by a concerned court, vested with competent jurisdiction, once the same has been declared final. Thus viewed in 2023, the relief guaranteed by the writ of habeas corpus has become difficult for state prisoners to abstain as compared to the scene in 1971. 

Origin of habeas corpus

Habeas corpus has its roots in English common law, which is the legal system that was in place in England before the American Revolution. It was first codified in the Habeas Corpus Act, 1679, which established a procedural right for those detained to challenge their imprisonment in court and receive a fair hearing. The writ of habeas corpus was later incorporated into the US Constitution and can only be suspended in times of war or national emergency. It is interesting to state that during the time of the American revolution, the rights that protected individual liberty were recognized as the right to habeas corpus by the British colonies in North America. 

Considered to be the cornerstone of American jurisprudence, the writ of habeas corpus serves as an extraordinary remedy for confined individuals thereby ensuring that such confinement is not illegal. The framers of the US Constitution ideally considered this writ to be extremely relevant because of which, they had written the ‘Suspension Clause’ in the Constitution which did not even have the Bill of Rights incorporated in it back then. Found in Article 1, Section 9, the Suspension Clause laid down that the privilege that the writ of habeas corpus has to offer must not be suspended or taken away unless a situation such as invasion of public safety or rebellion arises. The very history of habeas corpus in America reflects how fundamental the founding fathers of the Constitution believed the right of exercising the writ of habeas corpus to be.

Like all other legal doctrines that have been developing over centuries, habeas corpus is also a complex legal area that undercover in-depth explanations. The federal courts were first vested with the authority to issue a writ of habeas corpus by means of the Judiciary Act of 1789. This statute was broadened in 1867 in order to extend the right of federal habeas corpus to that of state prisoners. In 1948, a series of statutes were adopted by Congress to supersede habeas corpus. Nevertheless, providing prisoners with an identical form of remedy was available. The statute, 28 U.S.C. 2255, was enacted keeping in mind federal prisoners and this became one of the well-known developments in the history of habeas corpus in America.

Section 2255 of the statute states that habeas corpus is a broad remedy that makes room for a federal prisoner to plead before a court to vacate, set aside or correct a federal sentence on the grounds that the same stood in violation of the Constitution and its established principles, or the court that directed the sentence was incompetent to do for was without jurisdiction to impose such sentence, or that the sentence that was directed was in excess of what has been legally prescribed. In case of a federal prisoner who wishes to invoke habeas corpus in order to challenge his detention,  the aforementioned provision lays down the vehicle which can help in overcoming such a challenge.

Importance of the writ of habeas corpus

The importance of the writ of habeas corpus lies in the very name of the writ. As has been discussed previously, the writ signifies producing the body which means determining the authority of the body who is responsible for restraining personal liberty of an individual by detaining him. Considered to be one of the significant legal principles in the United States, the writ of habeas corpus has been designed to extend protection to individuals from being detained arbitrarily and unlawfully. It allows individuals who are unlawfully detained to challenge their imprisonment in court and receive a fair hearing. Prevention of executive overreach is another important feature that the writ of habeas corpus has added to its feathers. This indeed signifies that government authorities are restrained from abusing the vested power by means of detaining individuals without any reasonable cause. The writ of habeas corpus is also recognized as a critical tool for ensuring justice thereby also safeguarding individual liberty. 

When the writ of habeas corpus may apply 

It is necessary to note that the writ of habeas corpus is available as a form of remedy in every case that includes infringement of personal liberty. It involves a process for protecting the liberty of its subjects by means of affording and from any kind of illegal detention that directly impacts individual liberty.

When may the writ of habeas corpus not apply 

The writ of habeas corpus does not find any application in the listed cases: 

1. The territorial jurisdiction of the court does not allow it to have authority to decide the writ petition seeking application of the writ of habeas corpus, or
2. The alleged detention has been done lawfully and in accordance with the decision delivered by the competent court. 

Controversy surrounding the writ of habeas corpus in the United States

The writ of habeas corpus in the United States has been through major events that have time and again been brought under the radar of inspection that has turned to be controversies. While mentioning all is not a possible task, a few have been discussed hereunder:

1. It was after the 9/11 attacks and the War on Terror that the Bush administration alongside Congress decided to repeal the right to habeas corpus. It was in 2006 that the Military Commissions Act was passed thereby reversing the mandated right of habeas corpus to be applicable to all detainees that were under the jurisdiction of the government of the United States. 
2. The Act of 2006 was responsible for erasing the liability of courts to hear habeas corpus petition by any individual who is considered to be a foe of the US government and is likely to cause harm to the very administration. The Act, as has been discussed later as well, strips any non-US citizen of their right to be heard by the competent court for establishing their innocence, as can be seen to have been applied on the Guantanamo Bay detainees, who are considered to be perpetrators of anti-American terrorism. 
3. In the summer of 2020, the right guaranteed by the writ of habeas corpus was suspended in several New York City metro area counties, namely, Manhattan, Bronx, Brooklyn, because of mass arrests that were carried out upon the individuals involved in the Black Lives Matter protests.

How does the writ of habeas corpus protect individual freedom

The writ of habeas corpus is an important tool for protecting individual freedom. It prevents the government from arbitrarily detaining individuals without cause. It also allows individuals to challenge their imprisonment in court and receive a fair hearing. The writ of habeas corpus also ensures that the government follows the law and does not abuse its power. This means that the government cannot hold individuals in prison for an indefinite period of time without due process. The writ also ensures that individuals are not detained without sufficient evidence to support their imprisonment.

The previously discussed case of Edwards v. Vannoy (2021) has an interesting note to be discussed under this heading which is the concurring opinions by Justice Thomas and Justice Gorsuch. While these opinions had agreed with the limited scope of application of the writ of habeas corpus, they also suggested having divergent thought processes behind the same. The concerned opinions stated that traditionally, there arose no relief by means of the writ of habeas corpus for the prisoners as it was held pursuant to judgment delivered in a criminal conviction case. The indication that this traditional rule will be a torchbearer for the judgements on similar instances to come, was also made by these opinions. Put simply, the Justices want to indicate that whenever a habeas relief is sought by a state prisoner before a federal court, the court is only left with the issue to check whether the state court that had sentenced the prisoner had competence to do so or not. If the answer to this issue should be in affirmative, the federal court is supposed to deny the relief to be granted to the state prisoner irrespective of whether the state court’s proceeding contributed to violation of federal constitutional rights of the state prisoners. These rights generally range from prisoner’s right to a jury trial, to that of counsel assistance of counsel, calling witnesses, etc. 

Protection of individual freedom is therefore a matter resting solely with the courts of law and their decision-making. The fact that the judiciary eliminates injustice to establish justice for the aggrieved parties with an intention to abide by the very Constitution makes room for incorporating reasoning and principles of fairness, equity and justice in such decision-making. 

US Constitution and habeas corpus

As have been explained previously, the scope of habeas corpus lies in Article I, Section 9 of the US Constitution which deals with the Suspension Clause and the writ of habeas corpus. According to this Clause, it is only the federal government and not the states that are limited to it. The discussion surrounding habeas corpus revolves around this Clause for it has very diligently chosen not to disclose as to on whom does the power to determine the grounds for warrant suspension of the writ’s privilege, rests.  

But, the majority of the clauses of Section 9 directs the power to be resting on the Congress. At the Federal Convention, 1787, it was the legislature who was given such determining authority, but as the same failed to see the daylight, Congress’s power on the same was assumed and also stated by the judiciary in the Bollam’s case (1807). Further, it was President Abraham Lincoln who suspended this privilege on his own motion in the early Civil War period. This had invited opposition on ground as to whether he had received congressional authorization in his decision or not. Following this, three other suspensions were ordered which were generally on the basis of express authorizations from Congress.

The second question that arises in this regard is that when the suspension is operating, what exactly was getting suspended? To answer the same, it could be stated that the writ cannot be said to be suspended, instead the attached privilege to it has been. This was because when the writ is issued by the issuing court, the court is supposed to determine as to whether the person applying for the same can proceed, thereby ipso facto passing on the suspension’s constitutionality. It would also determine whether the petitioner was within the terms of the suspension or not. This was observed in the Ex parte Milligan case (1866).

Habeas Corpus Act 1867

The Habeas Corpus Act of 1867 was an important Act passed by Congress. This Act established the procedure for obtaining a writ of habeas corpus and specified the circumstances under which the writ could be suspended. The Act also established a system of federal habeas corpus courts and made it easier for individuals to challenge their imprisonment in court. The Act also clarified the process for obtaining a writ of habeas corpus and ensured that individuals were not detained without due process.

The Act was passed on 5th February, 1867 for amending the then-existing Judiciary Act, 1789 in order to grant the courts with the power of issuing the writ of habeas corpus for the purpose of safeguarding the dignity and liberty of illegally detained individuals whose detention was prima facie in violation with any relevant law of the United States of the very Constitution. Before the Act of 1867 had germinated, prayer petitions for issuing the writ of habeas corpus could only be granted to the detained individuals by the state courts thereby barring the federal court system from issuing the similar writs. The prior scenario was also not reasoned and justified for the fact that the court could also deliver a decision without technicalities being followed. 

The Act of 1789 was responsible for restoring habeas corpus to a significant extent before its suspension by Congress in 1863 thereby extending the power to issue the writ of habeas corpus by the Federal courts as well upon detention challenged by state prisoners. But the Act denied habeas relief to anyone belonging to the military custody for committing any military offense or having aided the Confederacy. 

Procedure for obtaining a writ of habeas corpus in the US

The procedure involved in obtaining the writ of habeas corpus in the United States have been laid down hereunder: 

1. When an individual seeks to obtain a writ of habeas corpus, he or she must first file a petition before the federal district court where the individual is being held. 
2. The petition must include a statement of the grounds on which the writ is sought and any legal authority that the petitioner believes supports their claim. 
3. It is upon the court to decide whether the writ plead for must be issued or not, taking into account the circumstances that surrounds the delivery of such a writ. 
4. If the court decides to issue the writ, it will then issue an order directing that the individual be brought before the court for a hearing on their petition.

Military Commissions Act, 2006

The Supreme Court of the United States in June 2006 while deciding the case of Hamdan v. Rumsfeld (2005) had opined that military commissions at Guantanamo that were given birth by President Bush were invalid. The Court had further ruled that the rules laid down by President Bush were in violation of Common Article 3 of the Geneva Conventions that dealt with treatment offered to detainees in terms of their right to life. Following this decision, President Bush asked Congress to make way for legislation which would allow military commission trials thereby stripping of the habeas corpus right from the detainees. This is how the Military Commission Act, 2005 had seen the light of the day. 

Section 6 of the Act interestingly rips off the non-citizens who are declared as “enemy combatant” by the President, of the right to be heard by the court in order to prove his innocence, irrespective of how long he is being confined without charge. It is notable to mention that Section 6 which is applicable to detainees who are held in prison in Guantanamo Bay and elsewhere, stands ultra vires the Constitution and the basic values of the Americans. 

Reforming the application of habeas corpus in present times

As has been discussed previously, both Justices Thomas and Gorsuch have proposed radical changes in the habeas corpus model that exists presently. Currently, the Supreme Court of the United States exercises the relief granted by the writ of habeas corpus in the form of  ‘constrained certiorari substitute’ model. This model provides that when a federal court is said to be considering a petition asking for issue and implementation of the writ of habeas corpus from a state prisoner, the relief of habeas corpus can only be granted on the following grounds:

1. The prisoner’s sentence was vacated by the Supreme Court, if at all
2. The Supreme Court had granted the petition asking for a writ of certiorari from the prisoner while the prisoner’s case was under the direct review of the Apex Court.

One of the prime noticeable features of this model is its treatment of habeas corpus as an exemption from preclusion. It is necessary to note that a federal court which is considering a habeas corpus petition can reconsider the same and reach a different conclusion when placed in comparison with the decision given by the state courts, in relation to the prisoner’s case. Thus, under the current model of habeas corpus, the writ has been serving prisoners as a restricted substitute for being reviewed by the Apex Court by means of a writ of certiorari.

Case laws related to habeas corpus

This section of the article holds relevance because habeas corpus was developed and interpreted majorly through the judiciary and when it comes to the United States, the two very important case laws, focusing only on its ratio, surrounding the writ of habeas corpus which has also seen its mentioning in the article, have been discussed hereunder. 

Wade v. Mayo (1948)

In the case of Wade v. Mayo (1948), the detained individual, convicted of a noncapital offense under a state court of Florida, sought release by means of habeas corpus in a state court thereby claiming denial of his federal constitutional right to counsel. The prayer was initially denied thereby making the detainee undergo five years of imprisonment. Followed by this, the doors of the US Supreme Court were knocked. The Apex Court was of the opinion that denial of appointment of counsel when requested by the arrested individual in a criminal case, on the ground that he lacks proportionate funds, is a clear representation of denial of due process of law under the Fourteenth Amendment of the US Constitution. On such reasoning, the decision of the state supreme court was overturned thereby restoring the guaranteed rights of the illegally detained individual. 

Harris v. Nelson (1969)

The case of Harris v. Nelson (1969) marks to be one of the landmark decision-making on the issuance of the writ of habeas corpus in the United States. In this case, a state detainee had filed a habeas corpus petition before the federal district court alleging improper admission of evidence during his trial as they were based on the information given by an unreliable informant. The district court had ordered an evidentiary hearing, followed by which the prisoner had served on the respondent a series of interrogatories, in pursuant to Rule 33 of the Federal Rules of Civil Procedure, which was designed to establish the unreliability claimed of the informant. Upon such a claim and the reasoning provided by the district court, it was concluded that the objections that were raised by the respondent stood overruled as there was no authority that existed for the issuance of the interrogatories. The respondent had thereafter prayed for a writ of mandamus or prohibition before the Court of Appeals and had vacated the order delivered by the district court (authorizing the interrogatories). The order was scrapped on the basis of Rule 81(a)(2) of the Civil Procedure that made the discovery procedures of the Federal Rules of Civil Procedure inapplicable to habeas corpus proceedings, thereby not authorizing interrogatories to use their discoveries in any habeas corpus proceedings (28 U.S.C. § 2246). 

Wainwright v. Sykes (1977)

The Wainwright v. Sykes (1977) case is an important example of how the writ of habeas corpus can be used to protect individual freedom. In this case, the United States Supreme Court ruled that the state of Florida had violated the right of the defendant, Clarence Earl Gideon, to a fair trial by denying him the right to counsel. The court ruled that the state of Florida had violated the right to due process under the Sixth Amendment and ordered that a new trial be held with the provision of counsel.  The case has been remarkable in deciding that the federal court when deciding upon a habeas corpus petition, can have a different opinion from that of the state court’s decision upon the detainee’s confinement, even if the decision made by the state court was declared to be final. Thus, the federal court will not be bound by the determining criteria of the state courts and make a decision of its own. This case is an important example of how the writ of habeas corpus can be used to ensure justice and protect individual liberty.

Boumediene v. Bush (2008)

The Boumediene v. Bush (2008) case is another important example of how the writ of habeas corpus can be used to protect individual freedom. In this case, the United States Supreme Court ruled that the US government had violated the right of the detainees at Guantanamo Bay to a fair hearing by denying them access to the US court system. The court ruled that the government had violated the right to due process under the Fifth Amendment and ordered that the detainees be allowed access to the US court system. This case is an important example of how the writ of habeas corpus can be used to ensure justice and protect individual liberty.

The D.C. Circuit in this case had ruled in favour of the government (Bush). It had held that the Suspension Clause is restricted to safeguarding the writ of habeas corpus as it was existing in 1789, and that the writ would not have been understood in 1789 to have been applied to an overseas military base that was leased from a foreign government. Thus, it was clear that when it comes to constitutional rights, applicability to aliens outside of the United States, is limited and the leased military base in Cuba, in this case, did not qualify to be inside the territorial extent of the United States. 

Subsequent proceedings

In subsequent proceedings, the US Supreme Court has clarified the scope of the writ of habeas corpus and its application in the US. The court had opined that the writ applies to individuals detained in US military prisons and that those individuals have a right to a fair hearing. In addition, the court also clarified that the writ applies to individuals detained in non-military facilities as well, such as immigration detention centers. In this case, a five-judge bench had overturned the decision of the D.C. Circuit stating that the detainees could not be barred from seeking habeas corpus relief or invoking the Suspension Clause merely because they were designated as enemy combatants or held at Guantanamo Bay. This means that individuals detained in these facilities have a right to challenge their imprisonment in court and receive a fair hearing.

Conclusion

The writ of habeas corpus is a centuries-old legal principle that safeguards individual liberty. It is a critical tool for ensuring justice and protecting individual freedom. It is enshrined in the US Constitution and has been used in numerous cases to ensure that individuals are not arbitrarily detained and that the government follows the law. The writ of habeas corpus is an important legal principle that must be respected and upheld. It is essential to maintaining justice and protecting individual liberty in the United States. Over the ages, it continues to hold relevance because it is the judiciary who have kept it alive by means of different cases that knocks on its doors. 

References

1. https://constitution.congress.gov/browse/essay/artI-S9-C2-1/ALDE_00001087/.
2. https://www.britannica.com/topic/habeas-corpus.
3. https://2255motion.com/history-habeas-corpus-america/.

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This article has been written by Ayush Tiwari, a student of Symbiosis Law School, NOIDA. This article elaborates on the Executive Branch of the United States Government by making one understand the role and powers of the President.

It has been published by Rachit Garg.

Introduction

The executive branch of the US government is one of the most powerful entities in the world. It is responsible for carrying out the laws of the United States and exercising the executive powers vested in the president. The executive branch of the United States has evolved throughout its history, and its powers and duties have significantly increased since the country’s establishment. These days, the executive branch is in charge of several critical domestic and global policy problems, such as global defense, trade, and economic growth. The President of the United States is the head of the executive branch and the nation’s top executive, as well as the commander-in-chief of the armed forces. The executive branch is made up of several agencies and departments, with each one in charge of a certain set of duties. The major agencies of the executive branch include the Department of Defense, the Department of State, the Department of Homeland Security, and the Department of Justice. The checks and balances system is a major aspect of the American executive branch. This framework is intended to prevent any one branch of government from being overly powerful, and to guarantee that all three branches function together to serve the greatest interests of the American people.  In this article, we will discuss the history and role of the president, the powers and duties of the president, impeachment, legislative versus executive powers, presidential succession, and presidential appointments.

Who is the Executive in the US

The US executive branch comprises of the President of the United States, the Vice President, and a number of government agencies, departments, offices, and organizations that work to carry out and enforce the laws that govern the country. The executive branch is in charge of overseeing the federal government’s day-to-day operations and is entrusted with enacting and executing the laws established by the legislative branch.

The president is the head of the executive branch and the commander-in-chief of the armed forces. The president also has a wide range of powers, including the power to make treaties, appoint ambassadors, grant pardons, and veto bills. The executive branch is responsible for enforcing the laws of the United States and carrying out the policies of the president. The executive branch is also responsible for making sure that the government runs efficiently and effectively. The executive branch has the power to issue executive orders, which are binding on all government agencies, making them legally enforceable. 

The Vice President of the United States is second in command and responsible for assisting the President in his or her duties as well as acting as President of the Senate. The cabinet is made up of the heads of the various executive departments, such as the secretaries of state, defense, and treasury.

The executive branch also includes a slew of government agencies and departments, each of which is in charge of carrying out certain responsibilities and providing services on behalf of the American people.

These executive departments include the Departments of Defense, Justice, Homeland Security, State, and Treasury. Each of these departments is led by a secretary, whom the President appoints and are confirmed by the Senate.

In addition to the executive departments, there are multiple executive agencies and offices that play critical roles in the federal government’s daily operations, such as the Central Intelligence Agency (CIA), the Environmental Protection Agency (EPA), the Federal Bureau of Investigation (FBI), and the National Aeronautics and Space Administration (NASA).

History and Role of the President

The role of the president has evolved dramatically since the founding of the United States. The president was originally seen as a symbol of the nation, with very little actual power. This changed with the passage of the Constitution in 1787, which granted the president the power to appoint cabinet members, ambassadors, and other government officials, as well as the power to veto laws passed by Congress. The President of the United States is the leader of the executive arm of government and the country’s highest-ranking official. The post of president is created by the United States Constitution, which describes the president’s duties and responsibilities, as well as the criteria for holding the office.

The history of the president in the United States stretches as far back as the late 18th century, when the country was formed as an independent nation. George Washington became the first president in 1789 and served two terms before stepping down. Since then, the country has had 46 presidents, each with a distinct role in molding the country as well as its policies. The role of the president as commander-in-chief of the armed forces is one of the most important. This means that the president has the ability to direct military operations and make strategic national defense choices. Presidents have used this power in a number of ways throughout American history, from declaring war to approving military actions in foreign nations.

Another key role that the president plays is to serve as the United States’ chief diplomat. This entails representing the country on the international stage and engaging with other foreign leaders to further US interests. Presidents have used this authority to mediate peace treaties, encourage economic and trade ties, and address global issues like climate change and terrorism. In addition to these duties, the president has a variety of domestic authorities, such as the ability to introduce and approve legislation, appoint federal judges and other officials, and issue executive orders with legal effect. These authorities have been utilized to address a wide range of topics, from civil rights to healthcare reform, and have frequently sparked controversy and discussion. The presidency has changed dramatically throughout American history, with individual presidents taking on varied tasks and responsibilities based on the political and social circumstances of their time in office. Some presidents, such as Abraham Lincoln and Franklin D. Roosevelt, are renowned for their courageous leadership during times of crisis, but others, such as Ronald Reagan and Bill Clinton, are regarded for their ability to work with Congress and achieve consensus and unity on critical subjects.

Powers and Duties of the President

The powers and duties of the president are outlined in the Constitution. The president is the head of state, head of government, and commander-in-chief of the armed forces. The president is also responsible for appointing cabinet members, ambassadors, Supreme Court justices, and other government officials. It encompasses the powers officially provided to the president of the United States by Article II of the United States Constitution, powers granted by Acts of Congress, implied powers, and a vast deal of “soft power” linked to the office of the president.

The president is specifically given the authority to sign or veto legislation, command the armed forces, request the written response of their Cabinet, convene or adjourn Congress, award reprieves and pardons, and receive ambassadors, according to the Constitution. The president directs and dismisses executive officials to ensure that federal laws are followed. The president may make treaties, which must be confirmed by two-thirds of the Senate, and is given foreign-affairs duties that Congress does not normally have or share with the Senate.

As a result, the president has influence over the formulation and transmission of foreign policy, as well as the direction of the nation’s diplomatic corps. With the advice and approval of the United States Senate, the president could also appoint judges under Article III of the US Constitution and other offices. The president can issue a temporary appointment during a Senate recess.

Commander-in-chief

The president is expressly designated in Article II of the Constitution as “Commander in Chief of the Army and Navy of the United States, as well as the Militia of the several States, when called into the actual service of the United States”- since 1947, this has been understood to mean all United States Armed Forces. As commander-in-chief, the president has supreme operational command over the military, including the authority to launch, direct, and supervise military operations, order or authorize troop deployment (in foreign countries), and formulate military policy in collaboration with the Departments of Defense and Homeland Security. But, only Congress has the constitutional authority to declare war.

Executive powers

Within the executive branch, the president has considerable authority to handle national affairs and government agendas. Executive orders are rules, regulations, and directions issued by the president that have the force of law but do not need the approval of the United States Congress. Judicial review and interpretation are available for executive orders.

The Budget and Accounting Act of 1921 gave the presidency greater duties for preparing the United States federal budget, though Congress had to approve it. The statute mandated that the Office of Management and Budget assist the president in budget formulation.

The act mandated that the Office of Management and Budget assist the president in budget formulation. Past presidents had the authority to impound cash as they deemed appropriate, but the United States Supreme Court abolished that authority in 1998, citing a violation of the Presentment Clause. The authority was given to all presidents and was considered an inherent power of the office. The Congressional Budget and Impoundment Control Act of 1974 was enacted in reaction to President Nixon’s large-scale power exercises. As a legislative counterpart to the Office of Management and Budget, the legislation also established the Congressional Budget Office. 

Legislation-related powers

When presented with a bill from Congress, the president has various alternatives. If the president approves of the measure, he has 10 days to sign it into law after receiving it. If the president objects to the measure, he can reject it and return it to Congress with a veto message recommending revisions, unless Congress is not in session, in which case the president may use a pocket veto. Presidents are obligated to approve all or none of a measure; selective vetoes are not allowed. In 1996, Congress granted President Bill Clinton a line-item veto over portions of a measure requiring the use of federal funds.

In Clinton v. New York City (1997), the Supreme Court ruled that Clinton’s veto of pork barrel expenditures for New York City was unconstitutional since only a constitutional amendment can grant the president line-item veto authority. When a bill is presented for approval, the president may also issue a statement with that approval in which they express their views on the constitutionality of the terms of the bill. The president also might declare them unenforceable, although the Supreme Court has yet to rule on the matter. By a two-thirds vote in both the House and Senate, Congress can overturn vetoes. Historically, the procedure has been difficult and uncommon. The fear of a presidential veto has usually put enough pressure on Congress to amend a law so that the president will sign it. A large portion of the legislation that Congress deals with is prepared on the executive branch’s initiative. In yearly and special communications to Congress, including the annual State of the Union address and joint sessions of Congress, the president may directly propose legislation. If Congress adjourns without acting on proposals, the president has the authority to summon a special session of Congress.

Traditional Powers of the President

The traditional powers of the president include the powers to make treaties, declare war, appoint cabinet members and ambassadors, and grant pardons and reprieves. The president also has the power to veto laws passed by Congress and to issue executive orders. The president also has the power to make recess appointments, which allow the president to fill vacant positions in the executive branch without the approval of the Senate.

Powers of appointment

The president-elect and his transition team must fill over 6,000 federal positions before taking office. The appointments span from top executives in US federal agencies to members of the White House staff and the US diplomatic corps. Many, but not all, of these high-level posts are filled by the president with the advice and approval of the United States Senate. The president also appoints people to fill federal judicial vacancies, including federal judges on the United States Courts of Appeals and the United States Supreme Court. These nominees require Senate approval, which may be a major roadblock for presidents seeking to influence the federal court in a certain ideological direction. As head of the executive branch, the president picks the senior executives for almost all federal agencies. These positions are detailed in the Plum Book, which lists nearly 6,000 appointive roles in the government. The president makes many of these appointments. The president has the authority to designate a new agency head for 10 agencies.

It is not uncommon for the president to replace the Director of the CIA or the Administrator of NASA after his appointment. Some federal regulatory organizations, such as the Federal Reserve Board and the Securities and Exchange Commission, have tenures that frequently outlast presidential terms. Governors of the Federal Reserve, for example, serve for fourteen years to preserve agency independence. The president also selects board members for government-owned enterprises such as Amtrak. If a job has to be filled when Congress is not in session, the president can make a recess appointment at his discretion.

Foreign policy

Under the Constitution, the president is the federal authority who is principally responsible for the United States’ ties with foreign nations. The president selects ambassadors, ministries, and consuls and receives foreign ambassadors and other public officials (subject to Senate approval). The president coordinates all formal relations with foreign governments with the help of the secretary of state.

Emergency powers

In times of national emergency, the president is not specifically granted extra powers under the Constitution. Several historians believe that the Framers indicated these powers because the Executive Branch’s structural framework allows it to act faster than the Legislative Branch. Because the Constitution is silent on the subject, the courts are unable to award the Executive Branch these powers when it seeks to exercise them. The courts will only acknowledge the Executive Branch’s right to employ emergency powers if Congress has granted the president such authority.

During World War II, President Franklin D. Roosevelt also used emergency powers when he issued an order authorizing the incarceration of all Japanese Americans living on the West Coast.

President Abraham Lincoln’s suspension of habeas corpus without Congressional approval in 1861 was based on a claim of emergency powers. Lincoln maintained that the revolt constituted an emergency that gave him the unusual ability to suspend the writ unilaterally. The Federal District Court of Maryland, presided over by Chief Justice Roger Taney, overturned the suspension in Ex parte Merryman, but Lincoln ignored the order.

In 1952, Harry Truman declared an emergency and nationalized private steel plants that were unable to manufacture steel due to a worker strike. With the Korean War still running, Truman said that he would be unable to conduct war successfully if the economy failed to give him the material resources required to keep the troops well-equipped. Nevertheless, in Youngstown Sheet & Tube Co. v. Sawyer (1952), the United States Supreme Court ruled 6-3 that neither commander-in-chief powers nor any alleged emergency powers provided the president the right to remove private property unilaterally without Congressional authorization.

Impeachment of the President

Impeachment in the United States refers to the procedure through which a public official can be investigated for removal from office, which may also result in his or her restriction from holding future public office. According to the US Constitution, “the President, the Vice President, and other civil officials” of the federal government may be impeached and removed if they are accused of “treason, bribery, or other grave crimes and misdemeanors.” The phrase “high crimes and misdemeanors” was included by the founders to refer to acts or behaviors done by a public official that cause harm to the state, regardless of whether law enforcement has recognized the behavior as unlawful or pursued charges. 

Congress alone has the authority to impeach federal officials. The US House of Representatives (the House) is in charge of looking into and submitting impeachment allegations, while the Senate is the court that hears impeachment cases. The Senate has three options: acquittal, removal from office, or removal including prohibition from holding future office. As impeachment is a political rather than a criminal procedure, any allegations made by law enforcement are dealt with by the courts. As a result, impeachment can be used to probe a person’s fitness to keep office as well as charges of unlawful and unethical activity. Apart from the federal government, every state except Oregon, which relies on recall elections to remove elected leaders, allows for state officials to be impeached.

While a presidential impeachment hasn’t ever ultimately resulted in a conviction and the president being removed from office, the House Judiciary Committee approved three articles of impeachment against President Richard Nixon in July 1974 after a criminal investigation linked a 1972 break-in at the Democratic National Committee to Nixon reelection campaign operatives. The articles that were passed accused Nixon with abuse of power, contempt of Congress, and obstructing justice, and the House was very certain to send the accusations to the Senate for trial, where a conviction was almost certain. Meanwhile,  Nixon opted to resign from office before the House vote. So, it can be said that impeaching a president has generally been seen as a last resort by lawmakers and political scientists, who note that the process can harm the country’s prestige, create political instability, and harm the economy.

Process of impeachment

• Everything begins with a Congressional committee investigation. Each member of the House of Representatives has the ability to introduce an impeachment resolution. The House Judicial Committee investigates the resolution, frames the charges, and votes on it with a simple majority.
• If one or more of the articles of impeachment receive a majority vote in the House, the president is impeached. The Senate will then hear the proceedings.
• The articles are sent to the Senate for consideration, and the Senate Trials are presided over by the Chief Justice of the United States Supreme Court. The prosecution is handled by a team of House lawmakers known as managers. The President is represented by defense lawyers, while the Senate functions as a jury. If at least two-thirds of the Senators present declare the President guilty, he is removed from office and the Vice President assumes the office of the President.

Legislative v. Executive Powers

The executive and legislative branches of government have different powers. The checks and balances system is related to the separation of powers in the United States. The system of checks and balances, where both branches of the government are given distinct rights to check the other branches, prevents any one branch from becoming too strong.

Congress has the authority to enact laws, and the President has the authority to veto them. Congress is divided into two houses: the Senate and the House of Representatives, and a 2/3 vote in both houses is required to overturn a presidential veto.

The Checks and Balances System also gives the two branches the authority to nominate and dismiss members from other branches. Congress has the authority to impeach and convict the president for high crimes such as treason or bribery. The House of Representatives can pursue impeachment accusations against the president, while the Senate can convict and remove the president from office. Moreover, Supreme Court nominees are appointed by the President and ratified by the Senate.  The executive branch is responsible for the day-to-day enforcement and implementation of federal legislation through federal agencies. These federal agencies and departments have purposes and duties that range from protection of the environment to border protection. Whereas the legislative branch has the authority to approve presidential appointments and manage the budget.

The relationship between the executive and legislative branches is often tense, as each branch seeks to protect its own powers. In the US, the president is often seen as the leader of the country, while Congress is seen as the body that makes the laws. This tension is often referred to as the “separation of powers.”

Presidential Succession

The Constitution provides for the succession of the president in the event of the death, resignation, or removal of the president. The order of succession is set by Congress and is in the following order:

• Vice President
• Speaker of the House
• President Pro Tempore of the Senate (typically, the Senator with the longest tenure in the Senate)
• Secretary of State
• Secretary of the Treasury
• Secretary of Defense
• Attorney General
• Secretary of the Interior
• Secretary of Agriculture
• Secretary of Commerce
• Secretary of Labor
• Secretary of Health and Human Services
• Secretary of Housing and Urban Development
• Secretary of Transportation
• Secretary of Energy
• Secretary of Education
• Secretary of Veterans Affairs
• Secretary of Homeland Security

It has been used nine times in American history. Eight of those occasions involved the death of a sitting president, and one (Richard Nixon) involved a resignation. In chronological order, the eight presidents who died in office are: William Henry Harrison, Zachary Taylor, Abraham Lincoln, James A. Garfield, William McKinley, Warren G. Harding, Franklin D. Roosevelt, and John F. Kennedy.

Conclusion

The executive branch of the United States government is considered to be the most powerful organization in the world. The executive branch of the United States government is a critical component of the nation’s political structure, responsible for enacting policies, enforcing the law, and representing the country on the global stage. The President is the head of this branch, exerting significant authority and influence over the country’s direction. He is entrusted with carrying out the laws of the United States and exercising the powers vested in him. The President has a broad set of powers and responsibilities, including the ability to appoint officials and negotiate treaties, as well as commanding the armed forces, issuing executive orders, granting pardons and reprieves, and appointing secretaries, ambassadors, Supreme Court justices, and other government officials. The president’s power, however, is not absolute and is subject to checks and balances from other branches of the government, including the judiciary and the legislative branch. The impeachment process, which empowers Congress to remove the president from office if they engage in misbehavior or misconduct, is one of the most critical checks on the president’s power. This procedure is an important safeguard against authoritarianism and emphasizes the significance of responsibility in a democratic government. While the President has the authority to propose legislation and set the agenda for Congress, it is ultimately the responsibility of Congress to adopt laws and provide funds. So, it can be said that the executive and legislative parts of government have different powers, but many a times they overlap, resulting in conflict between them frequently. Ultimately, the executive branch of the US government is essential for developing national policy and safeguarding the interests of its citizens. The president is the country’s leader and is in charge of determining the country’s agenda. The president and the executive branch are significant forces in the US government, and it is critical to understand the president’s function as well as his powers and duties.

Frequently Asked Questions (FAQs)

What is the Executive Branch of the US government responsible for?

The executive branch is mostly responsible for enforcing the laws of the United States.

What is the composition of the US executive?

The president, vice president, and various government departments and agencies comprise the majority of the US executive.

What is the job of the President?

The Executive Branch is led by the President of the United States, who also acts as the country’s head of state and Commander-in-Chief of the armed forces. The President is in charge of executing and implementing the laws established by Congress, as well as appointing the heads of government agencies, including the Cabinet.

What is the job of the Vice President?

The Vice President is also a member of the Executive Branch; he is the President of the Senate and is first in line for presidential succession if the President is unable to serve.

References

• https://www.everycrsreport.com/files/19970107_97-73_4ada5794f7e959b9fa71b60372892dcd446546e3.pdf
• https://www.whitehouse.gov/about-the-white-house/our-government/the-executive-branch/#:~:text=The%20President%20is%20responsible%20for,Presidency%20should%20the%20need%20arise. 
• https://ar.usembassy.gov/wp-content/uploads/sites/26/2016/02/us_governed.pdf 
• https://www.govinfo.gov/content/pkg/CDOC-108hdoc94/pdf/CDOC-108hdoc94.pdf 
• https://www.gale.com/open-access/impeachment 
• https://bipartisanpolicy.org/blog/continuity-of-government-what-is-the-presidential-succession-act/ 

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This article is written by Sneha Mahawar. This article includes the elements, penalties, defenses, degrees, and differences between assault and battery. 

It has been published by Rachit Garg.

Introduction 

The term “assault” has been derived from two Latin terms, “ad” and “salire,” which mean “towards” and “to leap or jump,” respectively. According to tort, assault is an act that causes someone to apprehend imminent bodily harm. It is an act that causes fear in the mind of another person without any kind of physical contact. Assault is commonly defined as a deliberate act that is intended to cause apprehension or fear in the mind of the victim. This states that the person committing the act need not have made any physical contact with the sufferer. 

As per the FBI’s Uniform Crime Reporting (UCR) Program, “Aggravated assault is an unlawful attack by one person upon another for the purpose of inflicting severe or aggravated bodily injury.” According to the UCR Program, aggravated assault involves the use of a weapon or other methods that can result in death or cause serious bodily harm. Aggravated assaults are where a gun, knife, or other weapon is displayed or threatened to be used that would probably cause serious injury. When burglaries and aggravated assaults occur simultaneously, the crime is classified as robbery. 

In the US, an estimated 821,182 aggravated assaults occurred nationwide in 2019. In comparison to the 2018 estimate and the 2010 estimate, the estimated number of aggravated assaults increased by 1.3 percent and 5.0 percent, respectively.

Under US Law, degrees of assault are mainly of three degrees, i.e., First Degree Assault, Second Degree Assault, and Third Degree Assault. But it may vary from state to state. In some states, there is also a fourth-degree assault. Under what degree an act of assault will fall depends upon a case’s circumstances. An act of assault can be done by a person without laying a hand on the other person. It is a voluntary act committed by the offender.

Elements that made the assault “aggravated”

The prosecutor must establish all factors of the crime, including the act of assault and the factors that made the assault “aggravated,” beyond a reasonable doubt in order to secure a conviction for aggravated assault. Charges may be dropped or reduced from aggravated to simple assault if the assault or “aggravating” elements are not proven.

The prosecution must demonstrate that the defendant either attempted a physical attack or purposefully threatened an attack and made the victim apprehensive. Additionally, the prosecution must show that the defendant used a dangerous weapon, caused severe injuries, conducted the assault in support of another serious crime, or specifically targeted a victim who belonged to a protected class.

Aggravated assault involves intentionally using or threatening to use violence or force against another where-

• the assault causes severe or significant bodily harm;
• the attacker possessed or used a deadly weapon; or
• the victim belonged to a class that was protected.

The aggravated assault caused severe or significant bodily harm

When someone threatens or inflicts mild to severe bodily harm, such as bruising, soreness, or a cut lip, simple assault charges may be brought. However, when a crime poses a risk of death or causes serious, significant, or considerable bodily harm, aggravating penalties are inflicted. Aggravated assault is said to have taken place when injuries must be permanent, life-threatening, significant enough to inflict long-term pain, require several stitches, or necessitate surgery in order to qualify as severe assault. Aggravated assault also includes injuries that leave behind lasting scars, a limp, or the loss of physical function.

Aggravated assault where the attacker used or possessed a deadly weapon

If the assailant had a weapon and threatened to use it or actually used it during the assault, he could be charged with aggravated assault under the laws of the state. Further, a state may distinguish between simple assault with a deadly weapon and aggravated assault with a deadly weapon. A weapon that has the potential to kill or seriously injure someone is considered deadly. By definition, deadly weapons are those that can cause great bodily harm, such as a gun and a large knife. When used in a way that poses a severe risk of death or serious physical harm, other objects, including rocks, stones, or even a human body part, can qualify as dangerous weapons.

Aggravated assault where the victim belonged to a class that was protected

If the victim belongs to a protected class, several states consider a simple assault to be an aggravated assault. Typically, these protected victims are those who hold sensitive or risky jobs, such as first responders, judges, inmates, and jail staff. In some states, there are additional vulnerable victims, such as elderly people or people targeted because of bias or hatred.

Penalties for aggravated assault

Penalties for aggravated assault vary from the legislation of state to state and the circumstances of the crime. In general, aggravated assault is a felony punishable by a minimum of 1–5 years in prison and a maximum of a life term in prison. While awarding a punishment or delivering a verdict, the judges also take into account the circumstances of the crime, the victim, the injury caused, the defendant’s past record, and repentance. A first-time offender will normally receive a sentence at the low end of the range, while a repeat offender will typically receive a sentence at the high end. Usually, the severity of the punishment increases with the severity of the harm or injury inflicted.

Aggravated assault carries very serious charges in every state of the US; however, the penalties vary from state to state. The severity of the assault and the victim’s injuries determine the appropriate penalties. A person convicted of aggravated assault may be charged with a felony in some states and a misdemeanor in others. For less serious offenses of aggravated assault, the minimum fine in some states is $150, while the maximum jail sentence is one year. However, for more serious offenses and accusations of aggravated assault, convictions can result in fines of approximately $10,000 and up to 15 years in prison in states that prosecute more vigorously. 

Based on the suspect’s level of repentance and whether or not they have a criminal background, sentences may vary. The sentence for an aggravated assault conviction might also be impacted by the severity of the victim’s injuries and the weapon involved. Penalty not only refers to imprisonment and fines but also includes loss of the ability to possess a weapon, paying of costs and court fees, compulsory anger management sessions, probation, electronic monitoring, etc. 

An offense of aggravated assault is a criminal offense and would have significant lifetime repercussions and consequences on the offender’s life. For instance, it would be extremely difficult for the offender to get hired by any good firm as most reputable institutions will not hire an individual with a criminal record, specifically if the individual was convicted of a felony.

Many states in the US classify felonies into subcategories such as A, B, and C classes or 1, 2, and 3 levels in order to determine penalties award sentences. Other states determine penalties on a crime-by-crime basis, and one can find the punishment and penalty specified for the criminal act in the criminal legislation. Some states also undertake a hybrid approach by classifying offenses as either first, second, or third-degree or as unclassified.

Classification of penalties by class, level, or degree for aggravated assault

Class A, Class 1 and Level 1 felonies

Under this category, Class A, Class 1, and Level 1 felonies may be imposed with the death penalty or life in prison in various states. However, other states, on the other hand, adopt Class A, Class 1, and Level 1 felonies to impose the longest prison term in years, such as 30 to 40 years in prison.

Class B, Class 2 and Level 2 felonies

Under this category, Class B, Class 2, and Level 2 felonies, the actual penalty imposed is based on a variety of factors such as circumstances of the crime, the victim, injury caused, the defendant’s past record, and repentance. When a penalty has to be imposed, judges have a great deal of discretion and can generally impose any term up to the maximum permitted by the law of that state of the country. In Class B, Class 2, or Level 2 felony carries a maximum sentence of 35 years in prison.

Class C, Class 3 and Level 3 felonies

Under this category, Class C, Class 3, and Level 3 felonies, a sentence handed out by a judge is based on a variety of factors, such as circumstances of the crime, the victim, injury caused, the defendant’s past record, and repentance. Class C, Class 3, or Level 3 felony carries a maximum sentence of 10–15 years in prison.

Class D, Class 4 and Level 4 felonies 

Under this category, Class D, Class 4, and Level 4 felonies, a sentence handed out by a judge is based on a variety of factors such as circumstances of the crime, the victim, injury caused, the defendant’s past record, and repentance. Class D, Class 4, or Level 4 felony carries a maximum sentence of 10 years in prison.

Class E, Class 5 and Level 5 felonies

Under this category, Class E, Class 5, and Level 5 felonies, a sentence handed out by a judge is based on a variety of factors such as circumstances of the crime, the victim, injury caused, the defendant’s past record, and repentance. Class E, Class 5, and Level 5 felonies carry a maximum prison sentence of only 1 to 5 years.

Penalties on a crime-by-crime basis

In US states, the punishment and sentence stipulated for each crime are listed in the criminal statute of several states where the penalty is decided on a crime-by-crime basis. For instance, a statute against arson would state that anyone found guilty of the crime is subject to a maximum sentence of 20 years in prison.

A penalty by hybrid approaches

Some states in the US also undertake a hybrid approach by classifying offenses as either first, second, or third-degree or as unclassified. A hybrid approach is the perfect combination of both felony penalties by class, level, or degree and felony penalty on a crime-by-crime basis. Under this category, states subcategories class, level and degree for most offenses and also list the punishment and sentence for some crimes in the statutes defining such criminal acts.

Will aggravated assault result in jail or prison time

The terms, jail and prison, are two very distinct terminologies of the criminal justice system. Individuals who are on trial or detained for being a suspect or are serving sentences of less than a year are often confined in jails, while criminal offenders serving sentences of more than a year are generally confined in prisons. Jails serve primarily as a place to lock people away on a temporary basis, whereas prisons are to detain a criminal offender for a long term.

While awarding a punishment or delivering a verdict, the judges also take into account the defenses raised by the defendant at a trial, such as circumstances of the crime, the victim, injury caused, the type of weapon used, the defendant’s past criminal record, and repentance. In some scenarios, the judges also take into consideration the background of the victim and the victim’s relationship with the accused. The duration of the sentence and whether any part of it can be served on probation rather than in prison are left up to the judge’s discretion. However, because aggravated assault is a violent offense, the majority of those found guilty will serve time in jail or prison.

Defenses available to all criminal defendants in an aggravated assault case

Alibi defense

An alibi defense is one based on evidence that a defendant was not present at the scene of the crime when it happened, that the accused was elsewhere, and so could not be the guilty. To establish an alibi defense, the defense can summon witnesses to the stand and provide evidence during the trial.

Self defense

Self defense is the pleading made by the defendant where the defendant claims that the alleged victim initiated the conflict and that the defendant was defending himself against the attack by the alleged victim.

Protection of another 

The defendant claims that the alleged victim initiated the conflict and that the defendant was protecting other indiviadual/s against the attack by the alleged victim. Thus, the defendant made a move against the alleged victim  for the protection of others and not with the intention to cause any harm or injury.

Accident

According to the general rule of criminal law, a person cannot be convicted for a crime that was unintentional. However, the prosecution must establish that the defendant acted accidentally and without mens rea, or malicious intent. In accordance with the general rule, accidents are not considered to be assaults; nevertheless, intentional, knowingly conducted, or reckless acts may be. The prosecution must show that the defendant assaulted the victim intentionally, knowingly, or recklessly.

For example, if someone purposefully shoved someone, even though they had no intention of injuring them, that person most likely committed assault.

The victim made the first move 

The defendant contends that the victim initiated the dispute and suffered injuries as a result of that dispute. Here, the prosecutor must establish that the victim had possession of a weapon, or made the initial threat, or struck the initial blow.

Intoxication 

Intoxication is used as a legal defense by the defendant in certain circumstances because it hinders a person’s ability to act as a prudent man. Furthermore, the defendant must have no intention of doing such an act. However, intoxication should not be voluntary, which means that the defendant should not have voluntarily agreed to be intoxicated. In addition, he should not be aware that he was given an intoxicating substance.

Lack of evidence 

If there is insufficient evidence to support the alleged victim’s claim, the accused cannot be convicted. In such circumstances, lack of evidence might be used as a legal defense.

Difference between assault and battery

Historically, battery and assault were considered to be separate offenses since, in a battery, the victim had to be physically struck or subjected to inappropriate touch. A battery is an “executed” assault in this perspective. The term “assault and battery” has become as common as “salt and pepper,” which is an indication that many modern statutes do not differentiate between the two offenses. Nowadays, offenses involving actual physical violence are often referred to as assaults in legislation. 

However, battery and assault are two separate but strongly linked offenses, with assault being an act that puts another person in immediate fear of bodily injury and battery being the unlawful use of physical force against another.

Basis of distinction	Assault	Battery
Meaning	Assault is a deliberate act that is intended to cause apprehension or fear in the mind of the victim.	Battery is an unlawful use of physical force against another.
Physical contact	There is no need for physical contact.	There must be physical contact.
Intent	To cause apprehension or fear in the mind of the victim.	To injure or harm the victim.

Difference between aggravated assault and assault

A person who intentionally harms another is guilty of assault, assault and battery, and aggravated assault. Ordinarily, any offense that involves a physical assault or even the threat of one is categorized as either an assault, a battery, or both. An assault may qualify as aggravated assault depending on the severity of the assault or the kind of weapon used. According to the severity of the harm caused, many states categorize assaults as either simple or aggravated in their respective criminal statutes.

Basis of distinction	Assault	Aggravated assault
Meaning	Assault is a deliberate act that is intended to cause apprehension or fear in the mind of the victim.	Aggravated assault is an unlawful attack by one person upon another for the purpose of inflicting severe or aggravated bodily injury.
Classification	Assaults are classified as misdemeanors.	Aggravated assaults are classified as felonies.
Punishment and penalty	Assault is a criminal offense for which a penalty of a small fine and punishment of little to no jail time may be imposed.	Aggravated assault is a criminal offense  for which a huge penalty and punishment of lengthy prison sentences may be imposed.
Nature	Assault includes minor injuries, creating fear in the mind, touching, and threatening words or behavior.	Aggravated assault includes serious injuries or the use of weapons to cause injury.
Example	A person lifting his or her fist towards another as if to strike shall be considered assault even if he or she does not actually strike or injure another.	Late at night, a lady is walking alone when a man suddenly appears in front of her and takes her into the bushes. The man punches her several times and starts ripping her clothes. Fortunately, the lady strikes the man with a rock and flees to safety. Because the circumstances indicate that the man assaulted the lady with the purpose to rape her, he is guilty of aggravated assault.

What makes an assault an aggravated assault

Prosecutors may charge someone with assault or aggravated assault depending on:-

•  how the victim was injured;
•  severity of the injuries.

A person may be charged with assault for intentionally causing injury to someone or for threatening to injure someone. However, if a person used a “deadly weapon” while threatening injury, it would likely elevate the charge to an aggravated assault. A person may be charged with aggravated assault for inflicting serious bodily injury or threatening someone with a deadly weapon.

A simple assault charge can be elevated to an aggravated assault charge  in the instance of a victim who is a peace officer, such as a police officer or a firefighter. In addition, an attack on a pregnant woman may be elevated to aggravated assault.

Judges have some discretion in determining a specific sentence. A lower sentence entails that the court articulate “mitigating” circumstances, whereas a higher sentence necessitates the establishment of “aggravating” factors.

Aggravating factors 

• Prior convictions
• Vulnerable victim
• Weapon 
• Hate crime
• Severe injury 
• Planned offense  

Mitigating/Extenuating circumstances 

• No prior criminal record
• Extreme mental or emotional disturbance at the time of the crime
• Belief that the crime was justified
• Small role in the crime
• Old age or minor
• Act under threat or force

Degrees of aggravated assault

If the crime took place with criminal intent and premeditation, it is generally defined as first-degree aggravated assault. Whereas second-degree aggravated assault is referred to assaults that are carried out without intent, i.e., malice. Charges of third-degree and fourth-degree aggravated assault may be brought for less serious crimes, such as when the accused aims to cause the victim substantial rather than serious physical harm.

First Degree

An intentional act, including prior planning by the offender, is first-degree aggravated assault. The offender must have intended to cause grave bodily harm or have made an attempt to do so. When someone willfully uses a deadly weapon to inflict significant injury or death to another person, it is considered an aggravated assault in the first degree. A criminal may also face first-degree aggravated assault charges if they expose, administer, or transmit poison, HIV, or other dangerous material to any individual.

Second Degree

Second-degree aggravated assault is the legal term for intentional conduct without prior planning. This considers the offender’s mental condition at the scene of the assault. A few instances that fall under the broad definition of second-degree assault are strangling another individual, hurting an unborn child, delivering poison with the intent to injure, etc. A defendant must act with the intent to assault and recklessly cause serious bodily damage in order to be charged with second-degree assault.

Third Degree

Third-degree assault is regarded as a wobbler offense in some US states. The expression “wobbler offense” refers to crimes that, based on the circumstances of the particular case, may be charged as either felonies or misdemeanors. In a maximum number of cases related to aggravated assault of the third degree, the prosecutor decides whether to charge the defendant with a felony or a misdemeanor.

Third-degree assault is regarded as the least serious form of aggravated assault under US law because it calls for no premeditated conduct. Repeat assault charges, which could have major repercussions, are some circumstances that could make a third-degree assault accusation into a felony offense. In other cases, a defendant is typically charged with assault in the third degree when they assault a public worker, such as a police officer, bus driver, nurse, court employee, or firefighter. Assault in the third degree occurs when a public servant is attacked while performing their official duties, such as driving a school bus or maintaining peace.

Fourth Degree

When someone attempts to physically hurt another person and, as a result, establishes contact that the victim finds offensive, the act is classified as a fourth-degree assault. The most frequent assault charges a person may encounter are those of the fourth degree. A person may also be prosecuted with 4th-degree assault if they accuse someone else of domestic violence, making minor threats of harm, or making the victim fear for their life.

A 4th-degree assault charge is brought against a person when they are alleged to have assaulted a particular group of persons. Most people are under the assumption that this is a felony by default. However, unless there is proof of a specific level of harm, it is presumed that it is a gross misdemeanor. The least serious assault charge one can get is 4th-degree assault. It might, however, have serious repercussions. In a nutshell, a 4th-degree assault is any assault where there is demonstrable harm to a member of a protected class.

Aggravated assault laws by states of US

Alabama 

When someone willfully, recklessly, or negligently causes physical harm to another person, it is termed as an assault in Alabama. The risk and severity of the harm involved are considered when the state distinguishes between misdemeanor and felony assaults. In Alabama, felony assault is classified as either a first- or second-degree offense, and misdemeanor assault is classified as a third-degree offense.

Alaska

When someone deliberately or carelessly causes physical harm to another person, it is considered an assault in Alaska. The state distinguishes between misdemeanors and felony assaults, the latter is more serious. In Alaska, felony assault is broken down into three categories: 

• assault in the first degree; 
• assault in the second degree; and 
• assault in the third degree;
• fourth-degree assault is regarded as a misdemeanor.

Arizona 

In Arizona, an individual is regarded as an aggravated assaulter when he commits misdemeanor assault plus one of the following:

• causing major physical injury to another individual;
• usage of a deadly weapon or any other kind of hazardous tool while committing the crime;
• using any kind of force that results in a body part being injured, a body part being significantly impaired, or a body part being temporarily but significantly disfigured;
• trespassing with the intention to commit the assault; 
• assaulting a minor i.e., 15 years old with a weapon while the assaulter is at least of 18 years; 
• intentionally interfering with a protective order by making a physical contact with another indiviadual with the motive to injure, insult, or provoke them;
• attempting to obtain control of certain officers’ firearms, weapons, or implements is a form of aggravated assault, if the defendant knows or has reason to believe that the individual is an officer and the officer is performing official duties;
• assaulting an individual while jailed or under one‘s custody who works for the state department of corrections, the department of juvenile corrections, a law enforcement agency, or a county or city jail or detention facility, provided the defendant is aware of or has a reasonable belief that the victim is acting in the course of their employment;
• if the assault is the result of the victim’s official obligations, the offense is still classified as aggravated assault. For instance, waiting until a police officer is “off-duty” before punching him or her in retribution for a speeding ticket is still constituted as aggravated assault.

Arkansas 

An assault in Arkansas occurs when a person willfully causes a victim to fear immediate harm or engages in conduct that puts another person in danger. If the conduct causes physical harm, Arkansas considers it a battery.

Assault is defined in Arkansas as any purposeful conduct that causes the victim to fear, or puts the victim in danger of imminent physical harm. The more significant the potential injury, the harsher the penalty. The facts of the case determine whether an assault can be charged as a felony or a misdemeanor.

California 

In California, assault is defined as an intentional attempt to physically injure another or a hostile or threatening act or speech that gives the other person the impression that they are about to be attacked. However, there is no actual physical contact between the offender and the victim in such an offense.

In California, someone who commits a simple assault or battery is normally prosecuted with a misdemeanor, while certain assault and battery charges might be tried as either a misdemeanor or a felony at the prosecutor’s discretion. When a simple assault or battery is prosecuted as a felony, the court has the authority to reduce the crime to a misdemeanor during the course of the prosecution.

Colorado

In Colorado, there are three levels of assault, but only the first and second levels are serious enough to be deemed aggravated assault. Both are felonies, while third-degree assault is a misdemeanor. Aggravated assault includes first and second-degree assault, which means the accused planned or inflicted grievous physical injury, used a dangerous weapon, or injured a peace officer or other protected class of person in the line of duty. 

Connecticut

In Connecticut, assault is defined as knowingly or negligently causing physical harm to another person. The state categorizes assault charges based on the severity of the resulting harm, the offender’s conduct and intent, and the victim targeted.

Connecticut classifies assault charges into three levels, with first-degree assault being the most serious and third-degree assault being the least serious. Assault offenses can vary from a misdemeanor to a felony. 

Florida 

In Florida, an aggravated assault can result in harsh felony consequences, including mandatory jail time. These offenses usually entail an assault with a weapon, or they result in serious bodily harm. Repeat battery offenses, battery to advance a riot, and domestic battery by strangulation all carry felony penalties under the law. Assault or on a vulnerable victim carries harsher punishment.

Georgia 

In Georgia, aggravated assault is a crime. It is defined as an assault that involves the use of a dangerous weapon, any instrument that can cause substantial bodily harm or strangulation, or the discharge of a firearm from a moving vehicle, with the purpose to rob, rape, or kill.

Hawaii 

In Hawaii, an attack is considered as an aggravated assault when someone hurts another person physically without being justified in doing so. The most serious assault offense, assault in the first degree is a Class B felony. Second-degree assault is a Class C felony. A misdemeanor is a third-degree assault. 

Idaho 

In Idaho, assault is defined as an intentional act to physically harm another person, such as making an unsuccessful strike with an object or otherwise. Intentional acts or threats that reasonably arouse fear of impending violence are also considered assault. If the aggressor looks to have the power to carry out the threat and the victim believes or reasonably could believe that he is about to be attacked or hurt, then it constitutes assault.

Illinois 

An assault becomes an aggravated assault:

• if the offender is hooded or robed with the intention to conceal his identity;
• a deadly weapon is used by the offender; 
• if the offender uses an object which looks like a real firearm;
• when the offender operates a vehicle in a way that creates fear in the mind of the victim; or
• when the offender knowingly records the assault with the intention to disseminate the recording.

Furthermore, simple assault turns into aggravated assault if it occurs in certain locations, such as places of worship, public roads, or public places, or if it’s committed against protected individuals.

Kansas 

In Kansas, aggravated assault is a level 7 felony. An offense  with a severity level of 6 is an aggravated assault on a law enforcement officer who is wearing a uniform or who is properly identifiable and performing his duties. In Kansas, aggravated assault is an assault that is committed:

• by using a deadly weapon;
• if the offender is hooded or robbed with the intention to conceal his identity;
• when a felony is committed with an intention.

Kentucky 

In Kentucky, it is an assault when someone intentionally harms another person physically. First, second, and third-degree assaults in Kentucky are felonies in Class B, C, and D range, while fourth-degree assault is a misdemeanor.

The severity of the victim’s harm, whether the defendant intended to inflict the injury, and whether Kentucky law provides the victim with special protection are among the several degrees or levels of assault. 

Louisiana

In Louisiana, assault is defined as an intentional act to physically harm another person, such as making an unsuccessful strike with an object or otherwise. Intentional acts or threats that reasonably arouse fear of impending violence are also considered assault. A threat to attack or hurt someone with words alone is not considered an assault, but if the threat is accompanied by the appearance of the ability to follow through on it and gives the victim grounds to believe that he is about to be hit or hurt, that is considered an assault.

Michigan 

In Michigan, assault is an intentional act to physically harm another person, such as making an unsuccessful strike with an object or otherwise. Intentional acts or threats that reasonably arouse fear of impending violence are also considered assault.

When an assault is performed with the aim to kill, cause serious bodily harm, or to commit another felony, like kidnapping or robbery, it is a felony offense. When committed against specific victims, such as a worker for a human services organization, a police officer, or a pregnant woman, assault or battery is also a felony. Additionally, using a firearm or any deadly weapon in an assault or battery is a felony.

Mississippi

In Mississippi, a charge of aggravated assault may be filed by prosecutors in the following situations:

• when a serious bodily injury is caused to another person;
• when an intentionally serious bodily injury is caused to another while acting with extreme indifference to human life;
• when someone uses a deadly weapon and causes bodily injury to another person which could cause death or serious bodily injury, or
• when someone causes injury to a minor who while he was  boarding or exiting a school bus and the offender has failed to stop for the bus according to traffic laws.

Taking into account the victim’s age, profession, and the offender’s intent, aggravated assault in Mississippi is a felony punishable by up to sixty years in prison or a year in jail.

Missouri 

In Missouri, assault is committed when:

• a person who intentionally causes another individual physical harm or attempts to do so is guilty of assault;
• a person can assault someone by making offensive or provocative physical contact with them; or
• a person can assault someone if they cause apprehension of fear in mind.

Montana

Aggravated assault is the legal term for felony assault in Montana, and those convicted might face harsh punishments like hefty fines and lengthy sentences in state prison. When physical contact causes or may reasonably be expected to cause substantial permanent deformities, such as severe facial scars from boiling water or acid, or when a part of the body or organ is lost for an extended period of time, it is considered an aggravating assault. The loss must not only be substantial but also irreparable.

Nevada 

In Nevada, assault is an intentional act to physically harm another person, such as making an unsuccessful strike with an object or otherwise. Intentional acts or threats that reasonably arouse fear of impending violence are also considered assault. An assault is not just based on words. However, an attack has been committed if the criminal also makes a frightening gesture, like approaching the victim or raising a fist.

New Jersey

In New Jersey, it is considered an assault when someone intentionally hurts or tries to hurt another person. Simple assault or aggravated assault are two possible charges for assault. The severity of the victim’s injuries, whether a weapon or other object was used to inflict the injury, and if New Jersey law offers a victim additional protection are some of the elements that determine the different levels of assault.

New Jersey law defines a number of instances that constitute aggravated assault:

• The injury must have been caused either intentionally, deliberately, or carelessly. 
• Injury caused when a defendant acted under “ways that show excessive disregard for the worth of human life.”
• The use of deadly weapons. 

New Mexico

Unless there are aggravating factors, such as the use of a dangerous weapon, or when an individual engages in an assault with the intent to conduct a serious felony, assault in New Mexico is often a misdemeanor. In New Mexico, assault with the intent to commit a violent offense  is a third-degree felony punishable by a lengthy prison sentence, probation, and penalties.

New York

In New York, injuring another person without cause is considered an assault. A Class D felony or a more serious Class B felony prosecution for assault is possible. The degree of the victim’s injuries, the use of a weapon or other item, whether the defendant caused the harm while conducting another crime, and whether the victim is entitled to special protection under New York law are all considerations that affect the different categories of assault.

Ohio 

Aggravated assault happens when the victim in some way provokes the offender’s heightened emotional state or sudden anger at the time of the offense. It occurs when:

• the offender injures the victim or the victim’s unborn child by inflicting severe physical harm, or
• the offender uses a dangerous weapon or firearm to injure the victim or the victim’s unborn child or attempts to do so.

Aggravated assault is categorized under a 4th-degree felony in Ohio, but if the victim is a law enforcement officer, it is categorized under a 2nd-degree felony.

Pennsylvania

In Pennsylvania, assault is a criminal offense  that can be either a felony or a misdemeanor. When someone strikes another person physically, it is considered an assault. A felony assault, often known as aggravated assault, covers assaults against certain protected public officers or workers, as well as assaults that result in substantial bodily harm to another person.

Rhode Island

Any assault in Rhode Island that uses a deadly weapon or causes substantial physical harm qualifies as a felony assault. Additionally, Rhode Island elevates simple assault to felony assault when committed: Additionally, when done with specific intent or for a specific reason against vulnerable victims or against certain public officials, Rhode Island escalates simple assault to felony assault.

South Dakota

Aggravated assault is a crime in South Dakota that is committed when someone intentionally causes or attempts to intentionally cause substantial bodily harm to another person, uses a hazardous weapon to inflict harm, or puts another person in danger of suffering serious bodily harm. Aggravated violence against an unborn child or an infant, assaulting a member of law enforcement or a correctional officer, or engaging in simple assault if you have two prior convictions for specific assault crimes are all felonies in South Dakota.

Tennessee 

A simple assault that involves the use or exhibition of a dangerous weapon is also known as an aggravated assault. Aggravated assault is committed in Tennessee if:

• purposefully, carelessly, or knowingly causes severe bodily harm to another individual;
• attempts to intentionally or knowingly harm another person by strangling;
• is a parent or guardian of a child or adult, and fails or declines to protect the kid or adult from a serious assault or serious child abuse;
• intentionally or knowingly causes or attempts to cause bodily harm to another, or engages in or attempts to engage in an assault while in violation of a court order, diversion plan, or probation agreement, or
• purposefully harms a public worker or a transportation system employee while they are carrying out their duty.

Texas 

In Texas, the aggravated assault includes:-

• the deliberate, reckless, or negligent infliction of significant bodily harm upon another person, or
• any assault felony involving the use or display of a lethal weapon, including making threats of physical harm or acting in a way that the victim is likely to find offensive.

Examples of aggravated assault

• Using a metal bar, bat, or knife to strike or threaten to strike an individual.
• Assaulting a social worker, developmentally delayed person, police officer, healthcare professional, or elderly or disabled person.
• Firing a gun at someone or threatening to shoot someone while pointing a gun at the victim.
• Throwing a vase at an individual or shoving another person into a glass object leads to severe injuries.
• Attacking an individual with the intention of committing another criminal offense, like robbery or rape.
• Threatening an individual while hiding and concealing one’s identity.
• Breaking the bone of an individual by pushing him down the stairs.

Case laws

Hill v. State

Facts 

In this case, two witnesses yelled at the defendant to put the gun away. However, the defendant shot the victim and further testified stating that he was under the impression that the victim was carrying a gun behind the victim’s leg when the victim walked out of the vehicle. Moreover, the defendant stated that when the victim walked out of the vehicle he heard someone yell “bust,” which the defendant misunderstood as “shoot”. However, during cross-examination, it was found that another witness heard no such statement and saw nothing in the victim’s hands when the victim got out of the car.

Judgment 

Held, that the defendant was found guilty of felony murder and aggravated assault because his defense lacked merit, and evidence supported the victim. Hence, the defendant was liable for punishment under the crime of aggravated assault and possession of a firearm during the commission of a crime.

Johnson v. United States

Facts 

In this case, the defendant pushed a revolver through the door of an ex-lover’s apartment, aimed it at the ex-lover and demanded to know if the ex-lover would make a phone call to the defendant again. When the ex-lover declined and closed the door, the defendant then fired two rounds through the door. Two shell casings were discovered on the apartment floor, and another love interest’s home also discovered a matched shell casing and a photo of the defendant holding a weapon.

Judgment 

Held, there must be evidence to convict someone of aggravated assault with a firearm and in this case, the evidence helped to convict the defendant for the crime of aggravated assault. 

Ingram v. State

Facts 

In this case, the defendant was riding in a car when the accused made certain inappropriate gestures to some people on the street. In response to their inappropriate gestures, the defendant pulled out a gun and fired at them which led to the death of two individuals and caused injury to another. In his defense, the defendant contended that he was protecting himself and others in the car. Moreover, he fired into the air and absolutely had no intention to hurt or injure anyone. This defense was found to be without merit.

Judgment 

Held, the defendant was found guilty because the evidence was adequate to support convictions for felony murder, aggravated assault, and possession of a firearm while committing a crime.

Borden v. United States

Facts 

In this case, the authorities found the accused with a pistol during a traffic encounter and he subsequently pleaded guilty to possessing the firearm as a crime in violation of 18 U.S.C. § 922(g)(1). Based on prior Tennessee aggravated assault convictions, the government recommended punishing Borden as an armed career criminal under the Armed Career Criminal Act (ACCA) which mandates a 15-year minimum sentence for persons found guilty of illegally possessing a firearm who have three or more prior convictions for a “violent felony.”. Borden objected, claiming that one of his earlier convictions—reckless aggravated assault—did not qualify as a “violent crime” under the Armed Career Criminal Act’s (ACCA’s) “use of force” clause. Borden contended that reckless aggravated assault required simply a reckless mental state, and that reckless use of force does not constitute a violent felony under the Armed Career Criminal Act (ACCA). Borden contended that under the Armed Career Criminal Act’s (ACCA’s) components clause, this act is not a violent felony because a mental state of carelessness suffices for conviction. The District Court disagreed and sentenced Borden as a career offender.

Judgment 

The judgment was overturned, with the conclusion that a crime involving recklessness does not qualify as a “violent felony” under the Armed Career Criminal Act’s (ACCA’s) ingredients clause.

Ladner v. United States

Facts 

In this case, the petitioner was convicted in a district court on two separate charges of assaulting two federal officials with a deadly weapon in violation of 18 U.S.C. § 254 at the time. He was sentenced to ten years in jail for each assault conviction, with the sentences to run consecutively. Following the conclusion of the first 10-year term, he filed a motion in district court to correct the second, and subsequent, sentence. He claimed that the evidence at his trial revealed that he fired only one shot from a shotgun, injuring two federal policemen and that under these circumstances, he could be guilty of only one assault. The District Court refused his request, holding that wounding two cops with a single shotgun fire would constitute a separate offense against each officer under the Act.

Judgment 

It was held that the petitioner’s single shotgun discharge, in this case, would only amount to one violation of § 254; the judgment is reversed, and the case is remanded for further proceedings. The petitioner is entitled to the chance to prove that his conviction for two assaults was based on evidence that the two officers’ injuries were caused by the single shotgun discharge.

Illustrations of aggravated assault 

• Late at night, a girl was strolling alone when suddenly a man lunged in front of her and took her into the bushes. After a few blows, the man starts tearing at her clothing. Fortunately, the girl throws a rock at the assailant and escapes to safety. Because the circumstances suggest that the perpetrator assaulted the girl with the intention of raping her, he is guilty of aggravated assault.
• An elderly patient being fondled by a nurse in a nursing institution. In US states that have passed specific legislation to safeguard elderly or mentally ill patients against violence by carers, the nurse may be found guilty of aggravated assault.

Conclusion

According to tort, assault is an act that causes someone to apprehend imminent bodily harm. It is an act that causes fear in the mind of another person without any kind of physical contact. Assault is commonly defined as a deliberate act that is intended to cause apprehension or fear in the mind of the victim. This states that the person committing the act need not have made any physical contact with the sufferer. Aggravated assaults are where a gun, knife, or other weapon is displayed or threatened to be used that would probably cause serious injury. When burglaries and aggravated assaults occur simultaneously, the crime is classified as robbery.

Frequently Asked Questions (FAQs) 

How does federal law classify felonies?

18 U.S. Code § 3559 envisages sentencing classification of offenses as follows:-

An offense that is not specifically classified by a letter grade rather is classified if the maximum term of imprisonment authorized is –

Class A felony: Life imprisonment or the death penalty;

Class B felony: 25 years or more imprisonment;

Class C felony: minimum of 10 years but less or equal to 25 years of imprisonment;

Class D felony: Minimum of 5 years but not more than 10 years of imprisonment;  

Class E felony: Minimum of 1 year but not more than 5 years of imprisonment; 

Class A misdemeanor: Minimum of 6 months but not more than 1 year of imprisonment; 

Class B misdemeanor: Minimum of 30 days but not more than 6 months of imprisonment; 

Class C misdemeanor: Minimum of 5 days but not more than 30 days of imprisonment;

Federal offenses are also committed. When a crime is committed, it may be punished either under federal or state law (such as bank robbery) or only under federal law (like immigration offenses). Federal legislation determines punishments for each offense separately.

The criminal statute will specify the punishment for some offenses. For instance, according to the statute against drug possession, a second conviction for drug possession entails a sentence of 15 days to two years in jail. Other legal provisions may have two statutes, one outlining all the offenses and the other outlining the punishments. One example is possessing weapons illegally. Section 922 of Title 18 of the United States Code deals with unlawful conduct, and Section 924 deals with sanctions for such acts.

What are mandatory or enhanced penalties in aggravated assault cases?

If a firearm was used as a fatal weapon, many states’ laws would impose additional penalties that are either mandatory or more severe (rather than a knife, bat, or another object). The penalties may be even worse for some types of firearms, such as automatic weapons, machine guns, or firearms that fire metal-resistant bullets. In some places, if there are many aggravating circumstances, the court may be required to impose a mandatory minimum term on a guilty criminal.

For instance, suppose the crime resulted in significant physical harm (a gunshot wound to a victim who was protected) (a police officer). A judge may be required by law to impose a minimum sentence of 20 years in jail without the possibility of probation or release.

References 

• https://lawsstudy.com/tort-of-assault-and-its-remedies-in-tort-of-law/
• https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/topic-pages/aggravated-assault#:~:text=Definition,severe%20or%20aggravated%20bodily%20injury.
• https://www.law.cornell.edu/wex/aggravated_assault
• https://www.criminaldefenselawyer.com/resources/i-shoved-someone-and-was-charged-with-assult.htm
• https://www.britannica.com/topic/assault-and-battery
• https://www.newjerseycriminallawattorney.com/blog/difference-between-aggravated-assault-simple-assault/
• https://www.reaveslegal.com/faqs/what-is-the-difference-between-simple-assault-and-aggravated-assault-in-texas-.cfm
• https://www.robertguest.com/what-are-the-different-types-of-assault-and-punishment-ranges.html
• https://law.justia.com/codes/georgia/2020/title-16/chapter-5/article-2/section-16-5-21/
• https://www.defendyourvolusiacase.com/blog/2021/december/common-reasons-why-aggravated-assault-occurs/

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This article has been written by Ayush Tiwari, a student at Symbiosis Law School, NOIDA. This article aims to discuss the history and the legislation that dealt with gun violence in the US, a detailed analysis of the ban, the impact of the ban on the gun culture, and how the newer laws should be framed.

it has been published by Rachit Garg.

Introduction

Mass shootings in public places are a serious public health issue that needs ongoing systematic observation to evaluate and guide gun injury prevention initiatives. The necessity of action to avert mass shootings in public places is widely acknowledged, but opinions on the specific actions that should be taken, such as banning assault weapons and high-capacity magazines, are divided. Between 1968 and 2017, there were 1.5 million deaths caused by gun violence, which is more than the number of US soldiers killed in all conflicts since the American War Independence in 1775.

The number of Americans who died by suicide or homicide with a gun in 2020 alone was more than in any other year on record. The number is up 43% from 2010 and 25% more than it was five years ago. However, it is a very political subject that pits proponents of gun control against groups of people who are strongly defending their constitutionally guaranteed right to keep and carry guns. American President, Joe Biden, has reiterated his stance many times in his public speeches for a ban on assault weapons. President Joe Biden, who as a senator in 1994 played a key role in securing the first semi-automatic weapons ban. His administration declared that assault weapons and large-capacity magazines would save lives and added that during the ten years the ban was in effect, the number of mass shootings decreased. The United States is set to pass new legislation on the ban of assault weapons that will be similar to the 1994 legislation known as the “Public Safety and Recreational Firearms Use Protection Act, 1994.” 

This article will help you understand the 1994 ban on assault weapons in the US, its impact, and why it was not continued.

History of guns and laws regulating them in the US

The United States’ deeply ingrained gun culture is the main impediment to widespread gun regulation in the Nation. In the country’s early history, weapons gave people power, and the association between firearms and personal freedom has shaped how Americans see gun usage and gun regulation. In America, owning and using firearms are associated with an idealized history of resistance to the despotic British Crown. Guns were required to settle the wide, unpopulated countryside after independence. As a result, owning a gun was intimately linked to patriotism. Both then and now, possessing and using a gun is a representation of independence for many American gun owners. Since the country’s founding, self-defense has been a core cultural value.

To escape the control of a repressive monarchy that did not have their best interests in mind, American colonists sought to secede from British dominion. The American colonists won that battle by defending their intended liberty with the might of their rifles.

It is essential to remember that not all American gun owners share this trait. Some people just possess weapons for self-defense, while others also use them for hunting, collecting, ranching, amongst a variety of other activities. While many gun owners respect their constitutional right to bear arms, there are many individuals who support some form of gun control. The discourse employed by American gun rights activists is shaped by the deeply ingrained links that exist between firearms and personal freedom and self-defense, as well as by the constitutional authorization of firearm ownership. The laws governing guns previously mentioned were all state-level laws, but in the 1930s, the federal government’s involvement in gun control increased. The United States’ first federal gun control law was the National Firearms Act of 1934. This Bill put a significant tax on the production and sale of guns that were thought to be particularly dangerous, based on the taxing and spending power of Congress. Most individuals were discouraged from purchasing these weapons by the hefty taxes alone. The threat of “gangster” firearms was virtually eliminated since those who were not deterred by the cost were frequently jailed for failing to comply with the registration procedures. Because the National Firearms Act was promoted as an effort to curtail the violent crimes affecting the nation, it had overwhelming national support, even from the National Rifle Association.

The percentage of fatalities in mass shootings when an assault rifle was used was lower before the year 1981. However, the number of fatalities from mass shootings was growing at the time. Indeed, a drive for a ban on particular gun types was sparked by high-profile mass shootings utilizing assault weapons, such as the 1989 murder of five children in Stockton, California, and the 1993 attack on an office building in San Francisco that resulted in the deaths of eight people. Since 1934, there have been several pieces of national legislation that have either tightened or eased gun control, but the Assault Weapons Ban of 1994 was the most important. The 1994 Federal Assault Weapons Ban, also known as the Public Safety and Recreational Firearms Act, was enacted by Congress as part of the Violent Crime Control and Law Enforcement Act of 1994.

The Federal Assault Weapons Ban 1994

In 1994, the federal government banned military-style semi-automatic rifles and ammunition-feeding mechanisms that held more than 10 rounds of ammunition. The goal of this law, which is also known as the Federal Assault Weapons Ban, was to decrease the number of people who suffer critical injuries from guns by reducing the number of semi-automatic weapons available in the country that have attributes that make them suitable for criminal use. The fierce debate over the measure reflected the country’s larger political differences on the subject of gun regulation. Congress let the ban expire ten years later. Recent times have seen an increase in requests for a fresh look at the assault weapons debate. A number of mass shooting occurrences employing previously outlawed weapons or magazines have stoked this discussion. 

For example, since 2007, at least 11 incidents have occurred in which criminals used assault rifles or other semi-automatic weapons with magazines larger than 10 rounds to injure or murder eight or more people. The most well-known of these incidents include the following: 

1. A 2007 shooting at Virginia Tech that left 33 people dead and 17 others injured. 
2. Another shooting in 2011 in a parking lot in Arizona that left 6 people dead and 13 others injured, including Congresswoman Gabrielle Giffords. 
3. Another 2012 shooting in Aurora, Colorado, movie theater that left 12 people dead and 58 others wounded. 
4. Most recently, a shooting in a Newtown, Connecticut, elementary school that left 26 people dead, 20 of whom were children. 

Due to multiple exclusions and loopholes in the legislation, the prohibition had mixed results in terms of curbing crime using prohibited weapons. The limitation on ammunition magazines carrying more than 10 rounds was undoubtedly the most crucial component of the ban. 

What is an assault weapon

To gain a better understanding of the subject, let us first define an assault weapon. In general, an “assault weapon” is a military-style weapon with a selector switch that can provide either semi-automatic, i.e., the firearm discharges one round, then loads a new one, each time the trigger is pulled until the magazine is empty, or fully automatic, i.e., there is a continuous discharge of rounds while the trigger is depressed until all rounds are discharged. This is the definition of an assault weapon given in  federal legislation. The term “machinegun” refers to any weapon that discharges automatically more than one shot without manual reloading with a single function of the trigger. Semiautomatic guns, including assault weapons, are prohibited if they are “introduced with just semiautomatic firing capability.”

Provisions under the Act

Title XI, Subtitle A, of the Violent Crime Control and Law Enforcement Act of 1994, enacted on September 13, 1994, put a ten-year prohibition on the “production, transfer, and ownership” of certain semi-automatic rifles categorized as assault weapons. The assault weapon ban was not applicable to all semi-automatic weapons; rather, it targeted semi-automatic weapons with capabilities that appeared to be beneficial for military and criminal purposes but were inappropriate for target shooting or self-defense. Pistol grips on a rifle, flash hiders, folding rifle stocks, threaded barrels for attaching silencers, and the capacity to take ammunition magazines storing a significant number of rounds are examples of such characteristics. 

The law expressly barred 18 particular types and modifications, as well as revolving cylinder shotguns. This list contained a number of foreign guns that the federal government has prohibited from being imported into the nation since 1989. Furthermore, the prohibition included a generic “features test” clause that outlawed additional semi-automatic guns with two or more military-style characteristics. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) discovered 118 model and caliber variants that fit the ban’s assault weapon criteria. The legislation also prohibited “copies or duplicates” of the listed guns, but federal officials emphasized exact replicas of the prohibited guns. In this respect, the law is arguably best viewed as a regulation that prohibits weapon attachments rather than a gun prohibition. Several gun manufacturers began producing modified, legal copies of the prohibited firearms, albeit not all of these alternative weapons were as popular as the prohibited versions.

Other than the kind of firing mechanism, ammunition discharged, and ability to receive a detachable magazine, the prohibited assault weapons were identical to other permitted semi-automatic weapons.

Ban on large-capacity magazines

The federal assault weapon ban also included a restriction on most ammunition-feeding mechanisms that held more than 10 rounds of ammo (referred to as “large capacity magazines”).

For two reasons, the ban on large-capacity magazines was likely the most crucial component of the assault weapons legislation. First and foremost, a large-capacity magazine is the most significant functional element of an assault weapon-type handgun. According to the United States House of Representatives, most outlawed assault weapons came with magazines carrying 30 rounds and could take magazines holding 50 or 100 shots (United States Department of the Treasury, 1998). By removing large-capacity magazines from these guns, their firepower is considerably reduced.

Second, the large-capacity magazine ban had a considerably greater reach than the assault weapon ban since many semi-automatics that were not prohibited by the assault weapon provision could take large-capacity magazines. Prior to the ban, around 40% of semi-automatic pistol models and the bulk of semi-automatic rifle types that were made and promoted were sold with large capacity magazines or had a version that was offered with a large capacity magazine. Others may accept large-capacity magazines designed for different weapons and/or manufactured by other companies. According to a 1994 nationwide poll of gun owners, 18% of all civilian-owned weapons and 21% of civilian-owned pistols had magazines with 10 or more rounds.

Most large-capacity magazine-compatible weapons were unaffected by the assault weapon requirement, but the large-capacity magazine provision limited the capacity of their magazines to 10 rounds. The assault weapon prohibition also included significant exceptions. Assault weapons and large capacity magazines built prior to the ban’s effective date were “grandfathered” (exempted), making them legal to own and transfer. Though estimates vary, it is believed that there were around 1.5 million privately owned assault weapons in the United States when the prohibition went into effect.

Impact of the Federal Assault Weapon Ban

The impact of the ban on assault weapons and large-capacity magazine crimes

Although there was a surge in the production of assault-type weapons as Congress debated the ban in 1994, the law’s restriction of new assault weapon supply, as well as the interest of collectors and speculators in these weapons, helped to drive prices higher for many assault weapons (particularly assault pistols) through the end of the 1990s, making them less accessible and less affordable to criminal users. Analyses of many national and local datasets on firearms seized by police revealed that crime with assault weapons decreased after the prohibition.

The decrease in assault weapon-related crimes was mostly due to a decrease in the use of assault pistols. The assessment of trends in the use of assault weapons was confounded by the rarity of such crimes and, in some cases, the substitution of post-ban firearms that were remarkably similar to the prohibited types. In general, however, the substitution of post-ban assault weapon-type models only partially countered the reduction in assault weapon use. Throughout at least the late 1990s, the drop in assault weapon-related crimes appears to have been compensated by the stable or growing use of other semi-automatics mounted with large capacity magazines and the failure to limit large capacity magazine usage for at least several years following the prohibition. It was most likely due to the enormous stock of exempted pre-ban magazines, which, as previously stated, was augmented by post-ban imports.

The impact of the ban on gun violence

There was no clear justification for expecting the ban to reduce gun assaults and robberies because offenders could replace non-restricted firearms and small magazines with prohibited assault weapons and large capacity magazines. However, by requiring this weapon replacement, the prohibition had the potential to lower the number and severity of shooting deaths and injuries by limiting the number of bullets fired in gun violence. 

Only twice during the prohibition were more than ten people murdered in mass shootings, prompting supporters of the ban to assert that it was effective. A deeper examination of the statistics, however, reveals that 17 mass shootings occurred in the United States during the prohibition, killing 100 people and injuring 138 others. From 1982 to 1993, there was just one less gunshot, a 31% drop in deaths, and a 15.85% decrease in injuries. 

The Columbine High School tragedy was one of 17 mass shootings that happened under prohibition. The TEC-9, which could fire 36 bullets without reloading and was banned by the 1994 assault weapon ban, was used in this incident. The use of the TEC-9 contributed to the shooting’s devastating damage, which resulted in 15 deaths and 20 injuries. This incident proved that even firearms forbidden by the 1994 assault weapon ban were still available to those with the desire to conduct violent crimes, demonstrating the ban’s ineffectiveness.

The 1994 assault weapon ban: A path for newer legislations

Studies of America’s prior assault weapons prohibition offer a variety of insights that might be applied to future policies. New legislation identical to the old ban will have little effect on most gun crimes, but it may prevent certain shootings, especially those involving a large number of shots and victims. It may therefore contribute to a reduction in the number and intensity of mass shooting occurrences, as well as a slight drop in total shootings.

The prohibition on large-capacity ammunition magazines was the most crucial aspect of the earlier ban. A magazine is likely the most important aspect of an assault rifle, so the limitations on the capacity of the magazine have the potential to affect much more gun crimes than restrictions on military-style weapons.

The way forward

Suggestions for the new regulation

Definition of the banned weapons

A law enacting a federal prohibition must provide explicit descriptions of prohibited weapons in its statutory language to avoid any unfavorable interpretations. Because the purpose of such a prohibition is to prevent mass shootings, the specified weapons should, at the very least, be those used in the country’s deadliest occurrences. A new law should prioritize lightweight polymer semi-automatic weapons with large capacity magazines, or the ability to accept such modifications, similar to the assault weapon ban. The prohibition should be more detailed than the assault weapons ban of 1994. Because the AR-15 is a weapon regularly used in mass shootings, the weight restriction might be dictated by its weight. This criteria goes beyond decorative elements and focuses on the design components and mechanics that make firearms lethal in the context of mass shootings, as each attribute contributes to a weapon’s lethality. The ban targets ‘rifles’ because they have been used in some of the biggest mass shootings in recent years. This method would also address the issue of copycat shooters since it would eliminate the weapons typically used in mass shootings, giving the media little reason to focus on these especially lethal weapons. 

The prohibition should expressly include weapons like the AR-15, which are disproportionately popular in mass shootings in the United States. Previous state law challenges demonstrate that such a prohibition would pass the constitutional tests. The argument that these firearms, particularly the AR-15, are military weapons not often used for civil purposes has had a lot of success in court. As such, if a court determines that these guns are protected by the Second Amendment, the prohibition would be upheld under the intermediate scrutiny level of review since prohibiting such weapons serves the state’s interest in ensuring public safety.

Following these rules would result in a prohibition that is detailed enough to prevent gun makers from altering its terms. Furthermore, under overly broad definitions, ordinary firearms that are not disproportionately used in mass shootings would not be prohibited. At the same time, such a rule would be broad enough to combat mass shootings by outlawing the weapons most commonly used in such incidents.

A sunset provision

The legislation must not include a sunset provision, which causes the bill to expire after a certain time. Although the assault weapon ban was effective while it was in force, any gain toward avoiding mass shootings was rapidly reversed after the law expired. If a new prohibition is to have any chance of reducing mass shootings in the United States, it must be permanent. The American gun culture is too powerful to entirely transform in a ten-year period. To fully prevent mass shootings, the United States requires a ban that really works within the framework of American gun culture by keeping the ban in place for the long term, rather than hoping that adherents to American gun culture will lose interest in these weapons after ten years without them.

The sunset clause in the original assault weapon ban was added as a compromise to secure enough votes for the bill to succeed, but it is critical that future politicians do not make a similar concession. State bans without such safeguards have been shown to be effective in reducing gun violence.

Thus, including a sunset provision can be damaging to the effectiveness of a future ban.

Buyback program

It is critical to execute a buyback scheme rather than include a grandfather clause in the new prohibition. A grandfather provision would contradict the objective of the law because people who desire to perpetrate mass shootings with these weapons would still be able to do so.

For example, ATF may be the proper agency to manage a federal assault weapons buyback program. ATF should manage the program through its field offices around the country to make it more accessible to participants and to allow willing local governments to contribute the required resources. Federal agents would have to operate the program to prevent the appropriation of state resources. Without adequate means for tracking the number of weapons in the country and who owns them, the federal government would have to rely on the public to follow the new prohibition. However, given the high value that Americans place on firearms, many people are unlikely to comply. To discourage noncompliance, the government should offer a tax cut to individuals who engage in the buyback scheme.

Under this strategy, there is no Takings Clause issue requiring compensation because these weapons disproportionately contribute to the deadliest mass shootings in the United States, and prohibiting them will avoid such tragedies, benefiting public safety. To encourage participation, the federal government should pay a reasonable market price for the prohibited firearms.

Policymakers should keep in mind, however, that if new legislation exempts the current stock, it might take several years to achieve significant reductions in crimes with prohibited weapons and/or magazines. Exemption policies must also specifically address the status of imported firearms and magazines. Previous history implies that public discussion over restoring the ban or enacting a new one will raise costs and reduce the manufacturing of the firearms and magazines that are likely to be affected, temporarily saturating the market. A new prohibition on assault weapons and/or large-capacity magazines will not solve America’s gun violence issue, nor will it prevent all mass shootings.

Conclusion

The 1994 assault weapon ban was enacted with the goal of lowering the frequency and severity of mass shootings in the United States. Due to various loopholes and faults, the prohibition was unable to achieve its objectives. Among these were the grandfathering of firearms and large capacity magazines manufactured prior to the ban’s adoption, as well as the exclusion of almost 650 gun variants. The simplicity with which models identical to prohibited models could be produced, as well as the fact that only a small number of crimes were perpetrated using assault weapons prior to the prohibition, were both fundamental flaws in the legislation. But mass shootings have increased since the ban was lifted. In the US, the State Government come up with the laws, and the federal government fails to adopt significant gun control legislation. The United States is one of the world’s most powerful and influential countries, yet its approach to weapons is considered something to avoid rather than embrace. That stigma does not have to be a permanent part of American identity. While preserving the independence and individualism that are so highly cherished in American society, the US federal government may do more than offer thoughts and prayers. 

A new assault weapon ban is being enacted by the US, and there are a lot of expectations from the ban. The Biden Government is showing that they have learned from the past mistakes of the 1994 ban and have defined the term “assault weapons” and its attachments in detail. But will it help the country rise above the gun culture present in the US? This is a question that every person has.

References

• https://www.jstor.org/stable/23366709 
• https://www.ojp.gov/pdffiles1/173405.pdf 
• https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8103291/ 
• https://www.theguardian.com/us-news/2022/jul/29/us-house-assault-weapons-ban-bill-senate 
• https://newhampshirebulletin.com/2022/06/10/did-the-assault-weapons-ban-of-1994-bring-down-mass-shootings-commentary/ 

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Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. It provides an overview of the judicial department in the United States and its composition, powers, and jurisdiction. It further describes the hierarchy of courts in the United States. 

It has been published by Rachit Garg.

Introduction

The judiciary acts as one of the most important pillars of any democracy. It not only helps in the adjudication of cases and disputes but also acts as a defender of the constitution of any country. The judiciary upholds law and order in society, decides whether the enforced laws have been complied with, and punishes the wrongdoer or anyone who violates the law. Besides, it also ensures that the existing laws are in accordance with the requirements of society. For this, they are empowered to make guidelines, direct the legislature to enact laws on a particular issue, etc. The powers, functions, and jurisdictions of every court in a judicial department differ from country to country. 

The article provides an insight into the judicial department of the United States of America, also known as the US Department of Justice (DOJ), which is responsible for interpreting the laws of the United States and administering justice. It further discusses the different types of courts in the judicial department in the US, their terms and hierarchy, compensation, jurisdiction, treason, the cases they handle, their powers, and the role of the US Supreme Court.

Constitution of the US and its judicial department

Courts and the judicial department together form an essential part of all organized societies. Initially, the Articles of Confederation did not provide any provision for a federal judiciary. The task of creating the judicial department was given to the states. However, the need to formulate a judicial department was felt during the Philadelphia Convention. This need was further taken into consideration, and thus, the judicial department was created to deal with various kinds of disputes in the country.  

Article III of the US Constitution 

To fulfill the purpose and requirement of a department which could smoothly resolve any kind of dispute between citizens, or citizens and states, or between two different states or state and federal government and to maintain peace and order in society by awarding suitable punishment to the offenders and criminals, Article III of the Constitution of the US provides for a judicial branch. It establishes a court system with the Supreme Court at its top and other inferior courts. However, it does not provide the structure of inferior courts but gives power to the Congress to establish such courts.   

Vesting Clause 

According to Section 1 of Article III, the Constitution vests judicial power in the Supreme Court and other inferior courts that are established and ordained by the Congress. These inferior and subordinate courts will be established by Congress as per the requirement. It further provides that the judges of such courts will hold office during periods of good behavior and receive salaries and compensation until they hold office. 

Justiciability 

Section 2 of Article III provides that this judicial power can be exercised in all the cases arising under the US Constitution, any other statutes in the country, laws enacted by states, and the treaties. The dispute may involve the following:

• Public ministers, consuls and the ambassadors; 
• Cases related to admiralty or maritime;
• Any controversy arising between two or more states; 
• Cases in which the United States is one of the party; 
• Dispute between a state and citizens of different states;
• Disputes between citizens of different states or same states;
• Disputes related to claim of land under grants of different states and between a state or citizens and foreign states citizens or subjects. 

However, in cases that involve ambassadors or public ministers, the Supreme Court will have original jurisdiction, while in other cases it will have appellate jurisdiction. It further provides that the trials in criminal cases will be done by jury in the state where the crime has been committed. If the crime was not committed in any state, the place of trial will be decided by Congress. 

Treason 

The judicial department in the US has jurisdiction over cases involving treason. Treason is defined as the crime of betraying one’s country or attempting to overthrow the government. The US Constitution, under Section 3 of Article III, defines treason as waging war against the United States or giving aid and comfort to its enemies. 

In the case of Ex parte Bollman (1807), Justice Marshall defined “levying war” as waging war or attempting to do so against the government of the country. He also explained that to constitute an offense of levying war, there must be an assembly of people with such an intention, and every person involved in the assembly, whether actively or passively, will be punished for the same and treated as a traitor.  A conviction for treason carries a maximum penalty of death.

The authority to hear cases involving treason vests with the Supreme Court. In order to convict a person accused of treason, it is necessary to present at least two witnesses against him in court. The Supreme Court has issued numerous decisions on cases involving treason, including the famous Rosenberg v. US (1953) case, in which Julius and Ethel Rosenberg were convicted of espionage under the Espionage Act of 1917 for betraying the government by revealing atomic secrets and other important military information to the foreign government in times of war. So, they were convicted and awarded the death penalty in 1953. 

Judiciary Act of 1789

The discretion to decide the structure of the judiciary was given to the Congress. In lieu of this, the Judiciary Act of 1789 was passed by the Congress, which also established a federal hierarchy of courts. The Act established a three-tiered court structure for the federal judiciary, as well as their jurisdiction. The structure is as follows:

• Supreme Court: According to the Act of 1789, the Supreme Court in the US consisted of one Chief Justice and five other associate judges but as of now it consists of one Chief Justice and eight other associate judges. It was empowered by the Act to hear appeals in cases involving questions of constitutionality of federal laws or state laws. 
• Circuit Court: These courts acted as the trial courts of the federal judiciary and presided by two judges of the Supreme Court and one judge from the district court. It was given limited appellate jurisdiction apart from general jurisdiction to hear appeals in cases involving parties from different states. 
• District Court: According to the Act, each state had one district court which was presided by one judge and had jurisdiction to try admiralty and maritime cases. 

However, Section 13 of the Act was held unconstitutional by Justice Marshall while dealing with the case of Marbury v. Madison (1803) and established the power of judicial review. While dealing with the issue of whether the Supreme Court can issue the writ of mandamus, as was sought in the case, it was stated that Section 13 was inconsistent with Section 2 of Article III. 

Concept of judicial review

The origin of judicial review in the US lies in the case of Marbury v. Madison (1803), in which William Marbury asked the Supreme Court to issue a writ of mandamus that compels Madison to deliver the commission because he did not receive it before Thomas Jefferson became the President, and it was alleged that Jefferson also told James Madison, who was the Secretary of State, not to do so. Justice Marshall made the following observations in this case:

• The Constitution is a written document defining the powers of the government along with their limitations. 
• It is the fundamental law of law which is superior to any other ordinary legislation. 
• Any act, statute, or legislation that is in conflict with or contrary to the fundamental law is void. 

On the basis of these observations in the judgment, the power of judicial review was firmly embodied in the US judicial system.

The power of the judiciary to determine whether a law enacted by the Congress, any state law, any provision of the constitution of a state, or any regulation, rule, order, etc. are in consonance with the constitution is known as judicial review. Simply, it means to determine the constitutionality of any statute or any provision in the law. If the statute in question is unconstitutional, the court refuses to give effect to it. 

The citizens have been empowered to challenge the constitutionality of any act or statute if they think that the legislature has exceeded its power in the enactment of that particular legislation. While deciding its constitutionality, the court has to interpret the constitution and observe whether the disputed act or statute violates the provisions of the constitution. This power of interpreting the constitution while determining the constitutionality of challenged legislation is known as judicial review. Judicial review refers to the power to determine the constitutionality of challenged legislation by interpreting the constitution. 

This principle of judicial review has been recognized implicitly under Article III of the US Constitution. The US Supreme Court has the power of judicial review. This means that the Supreme Court can determine the constitutionality of or review the constitutions of states, treaties made by the federal government, orders, rules, regulations, etc. It restores the confidence of people in the Supreme Court and, ultimately, in the judiciary. 

Overview of the judicial department in the US

The judicial department in the United States is one of three branches of the federal government. The other two branches of government are the legislative and executive branches. The judicial branch has the Supreme Court at its apex, which is the highest court in the United States. It makes the final decision in cases that have been appealed from lower courts.

The judicial department in the US consists of federal courts and state courts. The courts that have been established under the US Constitution are called federal courts, while state courts are established according to the laws of each state and exercise jurisdiction accordingly. There are two kinds of courts at the federal and state levels. These are the trial courts that try different cases according to their jurisdiction and the appellate courts that hear appeals from the trial courts. 

The federal court system consists of the Supreme Court, Circuit Courts of Appeals, District Courts, and Specialty Courts. Apart from these courts, there are other courts like Article I courts, Bankruptcy Courts and Bankruptcy Appellate Panels, which have been dealt with later in the article. Each court is responsible for handling different types of legal cases and appeals. 

The judicial department in the US also includes the US Marshals Service, which has responsibility for  maintaining order in the court system at the federal level, and the Federal Public Defender System, which provides legal representation to individuals who cannot afford to hire their own attorney. The Legal Services Corporation also provides legal assistance to low-income people. 

Different types of Judges in the US

The judicial department in the US is made up of several different types of judges in federal and state courts who preside over different types of courts. 

Comparison between federal and state courts

The federal courts are an outcome of Article III of the US Constitution, wherein judicial power lies with one Supreme Court and other inferior courts at the federal level. The inferior courts are established by Congress as and when required. On the other hand, the state courts are the result of the laws and constitutions of each state. The court system in states usually consists of one Supreme Court, i.e., the Court of Last Resort, which is the highest court of the state, Intermediate Courts of Appeals, also known as intermediate appellate courts, and trial courts. 

Federal courts are empowered to deal with matters like the constitutionality of laws, disputes arising out of treaties, disputes between citizens or citizens and states or between two states, and disputes involving public ministers and ambassadors. Whereas state courts have special courts that deal with specific matters, like family courts that deal with family matters, probate courts that deal with probate matters, and juvenile courts that hear cases involving juveniles. 

In the court system at federal level, an appeal from the decision of the district court lies to the Courts of Appeals, while in state courts, it is made to the Intermediate Courts of Appeals. The Supreme Court of the US can also review the decision of the Courts of Appeals on the request of a party to dispute. This is however, subject to discretion of the court. On the other hand, the highest court at the state level i.e., the state Supreme Court, can hear cases on the request of parties. 

In cases that involve the US Constitution and federal laws, the US Supreme Court is considered as the final arbiter while where a case involves state laws and constitutions, the state Supreme Court is the final arbiter. However, an appeal can be made to the US Supreme Court in cases where the federal law has been interpreted by the state Supreme Court. 

Judges of federal courts

The following are different types of judges in federal courts:

Supreme Court judges

This court consists of a Chief Justice and eight Associate judges, appointed by the President upon confirmation by the Senate. The Chief Justice is the head of the Supreme Court and is also responsible for interpreting laws of the country. 

Courts of Appeals judges

The Circuit Court of Appeals is made up of judges nominated by the President and are appointed once they are confirmed by the Senate. The Court also consists of a panel of three judges responsible for hearing appeals from the district courts and federal administrative agencies.  

District court judges

The judges of a district court are responsible for hearing cases of both criminal and civil matters in a district. There are a total of 94 district courts across the country. These judges are appointed by the President after the names have been confirmed by the Senate. The judges are also responsible for issuing rulings on the facts and laws of a case. 

Senior judges

All the judges who have reached the age of 65 years and have served the post of judge for at least 15 years are known as senior judges. They are given an option to choose less number of cases in order to reduce their burden. 

Speciality courts judges

The specialty courts are made up of judges who have been appointed by the President and confirmed by the Senate. These judges preside over specialized cases such as copyright infringement, bankruptcy, and tax fraud.

Other judges

These include:

• Magistrate judges: The magistrate judges are appointed by a district court to handle any judicial proceedings and have been given power to issue warrants, hear cases of petty offenses, conduct preliminary proceedings etc. In order to get selected, they must meet the eligibility criteria and based on the majority of votes of district judges they are appointed for a term of eight years which can be renewed. 
• Bankruptcy judges: All the judges that sit in Bankruptcy courts and deal with matters related to bankruptcy are known as bankruptcy judges. They are appointed by the US Courts of Appeals for a renewable term of 14 years. 
• Recalled judges: Magistrate judges and bankruptcy judges can be recalled after their retirement to deal with a particular case and called recalled judges. These judges exercise those powers that they had during their tenure as active judges. The need for such judges is determined by Circuit Judicial Councils. 
• Visiting judges: These are some special judges who are approved by circuit chief judges to provide assistance in any federal court as per the need and requirement. 

State courts judges

The different types of judges in state courts are as follows:

• Municipal court judges who preside over municipal proceedings in a city.
• Specialty judges who preside over small claims courts. 
• Intermediate state court trial judges who conduct special trials of limited jurisdiction.
• Superior court judges presiding over trial courts having general jurisdiction. 
• State appellate courts judges. 
• State Supreme Court judges. 
• State administrative judges. 

Terms of judges in the US

The terms of judges in the US are set by the Constitution under Article III. Generally, the judges of the Supreme Court and the lower courts hold office during good behavior, but different courts can have different terms. 

• The Supreme Court Justices serve lifetime appointments. This means they are appointed for life and there is no fixed term for the judges. However, they can be removed by way of impeachment on the grounds of proven misbehavior or incapacity. 
• The Circuit Court of Appeals and District Court Judges serve terms of eight years, and the Specialty Court Judges serve terms of four years. 
• Magistrate judges are appointed for a term of eight years while bankruptcy courts judges are appointed for 14 years. Both the judges can renew their terms. 
• Recalled judges are called for service for a period not exceeding three years but can be renewed. 

Appointment of judges in the US

Federal court

Generally, the President has the power to appoint judges to the Supreme Court, Circuit Courts of Appeals, and District Courts. However, the Senate must confirm these appointments. He can also appoint judges to the specialty courts, but these appointments do not require confirmation from the Senate. But in the case of other judges, like magistrate judges, bankruptcy judges, etc., the process of appointment is different. This is given below:

• Magistrate judges are appointed by a district court and to be appointed they must fulfill the criteria and then on the votes of district judges, they are selected and appointed. 
• Bankruptcy judges are appointed by the judges of the Courts of Appeals with the help of Circuit Council. 

State courts

Each state can use different guidelines for the selection of judges but there are some main methods by which judges in state courts are appointed: 

• Elections, 
• Assisted appointment, 
• Direct appointment, 

Elections

The various kinds of election methods in the United States that are used in the selection of judges are as follows:

• Partisan elections: In this method of elections, judges are listed on a  ballot along with their political affiliations. The difference lies in the manner of elections that are conducted from state to state. For example, in Louisiana, the candidates first compete in primary elections; if no one gets 50% votes, the two candidates getting highest votes are selected for general elections. In New York, voters elect party delegates who choose candidates for general election. 
• Non-partisan elections: In this method, judges are listed on a ballot but there are no indications of their political affiliations. States like Kentuchy, Montana, Oregon etc., use this method for selection of judges at state Supreme Court level. However, the manner of elections differ in each state. For example, in Arkansas, all the candidates participate in primary elections. If a candidate receives more than 50% votes, he/she is selected; otherwise, the top two candidates participate in general elections. While in Kentucky, if no candidate can win primary elections, the top two candidates participate in general elections. 
• Michigan method: This type of selection method is used in Michigan. It is a combination of partisan and nonpartisan election methods. 
• Retention method: This method is used for retaining a judge in a court. Voters are asked whether a particular judge must be retained and allowed to continue his tenure again in any particular court. This method is usually used in combination with other methods like, assisted appointment in combination with retention method or partisan/non-partisan elections with retention method. States like Alaska, Maryland, Utah etc., use this method at the state supreme court level while Florida, Idaho, Colorado etc., use it for selection of judges in Intermediate appellate courts. 

Assisted appointment 

In this method, candidates are appointed by the governor of the state from a list of candidates submitted by a board or commission. This method is also known as the merit selection method or the Missouri plan. 

The commission usually consists of lawyers or other people chosen by the executive branch of state. A list of qualified candidates is shared with the governor, who makes the final selection. This method is further classified into three types based on the type of commission used to select candidates for the state Supreme Court. 

• Governor-controlled commission: Governor is given the responsibility to choose the majority of members for the commission who makes the nomination. 
• Bar-controlled commission: The members of the commission are chosen by the state bar association. 
• Hybrid commission: The members of the commission are chosen with the help of different rules in each state. 

States like the District of Columbia, Hawaii, Kansas, Vermont, etc., use this method for the selection of judges. 

Direct appointment 

Direct appointments for judges in the courts can be made in two ways. These are:

• Legislative elections: Judges are appointed by the state legislatures and the governor or the citizens have no role to play. However, the candidates are screened by the nominating commission before the appointment. For example, in South Carolina, the Judicial Merit Selection Commission shortlists the candidates through interview and then submits the names to the general assembly for final appointment. South Carolina and Virginia use this method for the appointment of judges in courts. 
• Gubernatorial appointment: In this method, judges are directly appointed by the governor without any help or nomination from the selection committee. However, the names must be confirmed by some authority in the state. For example, in California, names of candidates selected by the governor must be confirmed by the Commission on Judicial Appointments. States like Maine, California, New Jersey, New Hampshire etc., also use this method for the selection and appointment of judges. 

Compensation of Judges in the US

The compensation of judges in the US is set by Congress, which can be increased but cannot be decreased, and the concept of compensation is given under Section 1 of Article III of the US Constitution. According to the framers of the Constitution, paying compensation to the judges can help achieve the independence of the judiciary, where judges are under no obligation to give judgment under any pressure. 

According to a 2022 report on judicial compensation in the US: 

• The Chief Justice of the Supreme Court receives an annual salary of $298,500, while the Associate Justices of the Supreme Court receive an annual salary of $285,400. 
• The Circuit Court of Appeals and District Court Judges receive an annual salary of $246,600 and $232,600 respectively. 

Jurisdiction of the judicial department in the US

The Supreme Court and inferior courts have jurisdiction under Article III, Section 2 of the US Constitution. It also mentions the cases in which the Supreme Court will have different kinds of jurisdiction. 

• The Supreme Court has the ultimate authority to interpret the laws of the United States and make decisions on cases that have been appealed from lower courts. It has original and appellate jurisdiction and is also known as a court of review.
• The Circuit Courts of Appeals and District Courts have the authority to hear cases that have been appealed from lower courts, as well as cases involving federal law. 
• The Specialty Courts have the authority to hear cases involving specialized areas of law, such as copyright infringement, bankruptcy, and tax fraud.

Hierarchy of courts in US 

Supreme Court

The Supreme Court in the US lies at the top of the hierarchy of federal courts. Its establishment is provided by the Constitution under Article III and has two different kinds of jurisdictions. It is not only the guardian but also the arbiter of the Constitution. 

Appointment and tenure of judges

The judges of the Supreme Court are appointed by the President on the advice and consent of the Senate. Since the Constitution of the United States provides no qualification obligation for the judges, the President is free to appoint any person who is approved by the Senate. Though people with high prestige and ability are selected to be judges, they hold office for good behavior and can only be removed by the process of impeachment. However, judges may take early retirement at the age of seventy with their full salary if they have served the position for ten years. This means that the judges are appointed for life. 

The Supreme Court holds its first sessions on the first Monday in the month of October and continues until June or the first week of July. The term is divided into two parts. 

• In sitting, they hear cases and deliver their opinions. 
• In intervening recess, they write their opinions on the basis of arguments presented before them.   

Public sessions are conducted in the morning from 10 a.m. until they are concluded at noon. Occasional afternoon sessions are also scheduled if required. Such sessions are not conducted on Thursday and Friday. The discussions on the case are done on Friday, when they also vote on reviewing the petitions. Each week, the judges must evaluate approximately 130 petitions seeking to review federal and state court decisions. 

Jurisdiction

According to Section 2 of Article III of the US Constitution, the Supreme Court has both original and appellate jurisdiction. 

The original jurisdiction of the Supreme Court depends on the kinds of parties to a case. It is limited to:

• In cases where diplomats and other public ministers are involved,
• cases in which a state is one of the parties. 

Generally, the original jurisdiction lies in cases that involve questions of law or constitutionality 

On the other hand, the appeal lies to the Supreme Court in the following matters:

• Where the highest court has held the state law as invalid or where it is alleged to be violating federal law. 
• Where a federal law or a treaty has been held invalid.
• Cases involving the review of decisions of the court of claims and the courts of customs and patent appeals. 
• The Supreme Court also has the jurisdiction to review the decisions of a state court. 

Roles of Supreme Court

The Supreme Court in the US has the following powers and functions:

Protector of Federation 

In a federation, the powers are divided between the federal government, or the central government, and the states. This usually leads to disputes due to separation of powers, division, interference, etc. These are decided by the Supreme Court, and so it is called the “protector of the federation.” In the US, it is believed that the liberal interpretation by the Supreme Court has been the reason for the successful incorporation of federalism in the country and that it has been able to fulfill the requirements of the citizens till date. 

Savior of the Constitution

The Supreme Court of the US has the power to declare any law passed by the legislature null and void. It has been vested with the power of judicial review as well, which has helped keep a check on the powers of the President and the Congress. Thus, it can be said that it is the savior of the US Constitution.

Guardian of the Rights

The Constitution of the United States gives certain natural and fundamental rights to its citizens. The power to protect these rights from violation and interference is vested with the Supreme Court. The Court can issue writs of habeas corpus, mandamus, certiorari, and an order of injunction in this regard. It prevents encroachments on human rights by keeping the authorities within their limited roles and functions. It has also been vested with the power to declare any law unconstitutional based on due process. Over the years, the Supreme Court has acted as a guardian of rights and will continue to protect these rights. 

Development of the constitution

The court has also worked towards the development of the US Constitution. Initially, there were 13 states in the federation, but now it consists of 51 states, which means that the Constitution had to be changed accordingly to meet the needs and requirements of people and society. The Court, with its liberal interpretation, has helped to adopt necessary changes as the amendment procedure of the Constitution is rigid, which means that it cannot be amended easily. However, with the help of the Supreme Court, necessary changes have been adopted.  

Highest court of appeal

The Supreme Court in the US functions as the highest court of appeal. Its decision is final, and there is no authority to appeal it. It deals with appeals from high courts in states and lower federal courts. It can be called the autocratic political institution of the country because it is immune from the veto power of the President, and the overriding power of the Congress. 

Inferior Federal Courts

According to the hierarchy of courts in the US, the Supreme Court is at the top of the hierarchy, followed by the federal courts of appeals, which were created in 1891 for the disposal of cases and to reduce the burden of the Supreme Court. Then comes the lower courts, consisting of district courts and other special courts like customs courts, territorial courts, tax courts, etc. 

Federal Courts of Appeal

These courts are also known as Circuit Courts of Appeal and consist of three to six judges. The conference of the senior federal court judges from various circuits is presided over by the Chief Justice. The purpose of the conference is to conduct a survey of the work of the federal judiciary and make necessary recommendations. It also creates a sense of unity among the judges. 

The judges of the federal courts are appointed by the President with the advice and consent of the Senate. They serve the term during good behavior and have been given the privilege of retirement with full pay at the age of seventy years. The main function of these courts is to hear cases or appeals from the lower courts. If there is no question of unconstitutionality, the decision of the federal court is final. However, if a state law has been declared unconstitutional, it can be appealed to the Supreme Court. 

District courts

These courts have original jurisdiction and are constituted in every district. The judges in district court are appointed by the President for life. However, they can be impeached due to misbehavior. The only requirement for the judges is that they must be residents of the districts for which they are appointed. 

The district courts are vested with original jurisdiction and do not take any cases on appeal. It is the only court where a jury is used. The appeal from the decision of the district courts lies with the federal courts of appeal. In some cases, it may be directly appealed to the Supreme Court. 

Special federal courts

The above-mentioned courts are categorized as constitutional courts, as they have been established according to Article III of the US Constitution to exercise and formulate the judicial department in the country. There are some other courts as well, in addition to these, that have been termed “special courts” because they serve a special purpose. They are created by the Congress under special legislative powers given under Article II of the Constitution. The following are the special courts:

Customs court

The Customs Court was established in 1890 and consists of 9 judges who are appointed by the President for life on the advice and consent of the Senate. They serve the tenure during good behavior but can be impeached. The office of the court is located in New York, though its sessions are mostly conducted in other cities. This court deals with cases involving issues of valuation and duties under the tariff. 

Territorial courts

These have been established by Congress in the American territories and have jurisdiction to hear cases assigned to them directly or indirectly by the territorial government.  

Tax Court

This court was established in 1942. It decides cases involving disputes that arise from decisions of the federal agencies that collect taxes. As the name suggests, it deals with tax-related matters and disputes related to tax. 

Court of Military Appeals

The Court of Military Appeals was established in 1950 and consists of civilian judges that are appointed by the President with the approval of the Senate. It is an appellate court and decides appeals arising from the decisions of court martials. However, it has no original jurisdiction. 

Article I Courts

These are certain legislative courts that are created by the Congress and do not have complete judicial power. They cannot hear cases involving constitutional law or issues of habeas corpus. The following courts fall under the ambit of these courts:

• US Courts of Appeals for veteran claims;
• US Courts of Appeals for Armed Forces;
• US Tax Courts.

Bankruptcy Courts

These courts deal with bankruptcy cases and are part of the federal courts. No case related to bankruptcy can be filed in the state courts. Parties, in such cases, either seek liquidation of their assets or reorganization of their affairs in order to pay their debts. 

Bankruptcy Appellate Panel

This panel hears appeals from the judgments of bankruptcy courts. The panel is a unit of the federal Courts of Appeals and must be established by that circuit. It is composed of three judges. 

Authorities within judicial administration

In the judicial department of the US, apart from the different courts that hear and try cases depending upon their jurisdiction, there are other authorities as well. These authorities work towards the smooth administration of the judicial department. These are:

• Administrative Office;
• Federal judicial center;
• A judicial panel on the multidistrict litigation;
• Sentencing Commission.

Administrative office of the US courts

It is a kind of agency in the department that provides various services to the federal courts, like management, legal, financial, technical support, etc. It also makes the budget for the judiciary every year and gives it to the Congress for approval. It also has the responsibility to carry out policies made in judicial conferences. Another duty is to provide staff and counsel to the judicial committee in the conferences for its smooth conduct and functioning. 

Federal judicial center

The center provides facilities for training and research for the judiciary and was established by Congress in 1967. It also creates various programs of education for the judges and counsels in order to develop their skills and knowledge. It is the duty of the center to make recommendations to the department about any necessary improvements or changes for its smooth administration. 

Judicial panel on multidistrict litigation

The office of the panel is located in Washington and consists of seven appellate courts and district courts selected by the Chief Justice. The panel has the power to transfer a case to one district court when similar issues involved in numerous cases arise in different district courts.  

United States Sentencing Commission 

The United States Sentencing Commission is a bipartisan independent agency established by Congress in 1984 to develop sentencing guidelines for criminals. It collects, analyzes, and provides information regarding the sentencing process in the country and develops methods for the same. It consists of a chairman, three vice chairs, and three commissioners who are appointed by the President for a term of six years. 

Conclusion

The judiciary of any country is empowered to adjudicate and solve disputes between parties by applying the enacted law and correctly interpreting it. It may also establish precedents and provide guidelines on a specific issue to fill gaps in the law or where no law has been enacted. In the United States of America, this power vests with the Supreme Court and other lower courts. The courts are divided at the federal and state levels. All the courts of both levels have been explained in the article extensively. The judicial department in the US also consists of various other authorities, like the federal judicial center and the sentencing commission, etc., that ensure its smooth functioning and administration. 

The Supreme Court holds its sessions regularly, and all its decisions are published in the United States Report. However, it does not render any advice to the President on any constitutional matters. It has also refused to advise the executive on any such questions and does not deal with cases involving political questions. 

Frequently Asked Questions (FAQs)

Does the Constitution of the US provide any structure for the judiciary?

No, the Constitution does not provide any structure for the organization of the judiciary. It only provides that the judicial power vests with the Supreme Court and other lower courts. The federal courts in the country have been established by Congress. 

Does the Supreme Court in the US have advisory jurisdiction?

The Supreme Court in the US does not render any advice to the President on any constitutional matters, unlike the Indian Supreme Court, which gives advice to the President on certain matters of law, though the advice is not binding. Thus, it lacks advisory jurisdiction. 

How many district courts are there in the United States?

There are a total of 94 district courts in the US. These courts are also established in Puerto Rico, the Virgin Islands, the District of Columbia, Guam, and the Northern Mariana Islands. Some states, like Alaska, consist of a single judicial district, while others consist of a multi-judicial district. 

References

• https://www.uscourts.gov/about-federal-courts/judicial-administration
• https://constitution.congress.gov/browse/essay/artIII-S3-C1-4/ALDE_00013527/
• https://www.loc.gov/rr/program//bib/ourdocs/judiciary.html#:~:text=The%20Judiciary%20Act%20of%201789,lower%20federal%20courts%20as%20needed.
• https://www.whitehouse.gov/about-the-white-house/our-government/the-judicial-branch/
• https://www.supremecourt.gov/about/institution.aspx
• https://www.uscourts.gov/about-federal-courts/court-role-and-structure 

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