Chapter Two

1. Chapter Two Constitutional Limits on Criminal Law Joel Samaha

2. Chapter 2: Learning Objectives • To understand and appreciate the reasons for the limits on criminal law and criminal punishment in the U.S. constitutional democracy. • To understand the principle of legality and the importance of its relationship to the limits of criminal law and punishment. • To appreciate the nature and importance of retroactive criminal law making. • To know the criteria for identifying vague laws, and understand and appreciate their constitutional significance and the consequences. • To know, understand, and appreciate the limits placed on the criminal law and criminal punishment by the specific provisions in the Bill of Rights. • To understand and appreciate the constitutional significance and consequences of the principle of proportionality in criminal punishment. • To understand the importance of the right to a jury determination in the process of sentencing convicted offenders.

3. U.S. Constitution: Context of Limits Constitutional drafters were concerned about power of government officials Drafters wanted individual autonomy without governmental interference Drafters also sought order Constitution is a balance of government power and individual liberty

4. Constitutional Democracy • In a constitutional democracy– not true majority rule—criminal laws may not be made when the Constitution protects the behavior as a fundamental right • Examples • Free speech • Constitutional democracy limits the power of government to create certain crimes

5. Discussion Activity Go to the link below and click on your home state http://www.law.cornell.edu/statutes.html Click the link for your State’s constitution. What information do you find in your states constitution? What information do you find in your states Bill of Rights? Did you find anything interesting or surprising in your review of your State’s constitution or Bill or Rights?

6. Rule of Law Rule of law is the idea that no individual is above the law; Rule of law is manifested in the practice that government officials cannot pass laws that conflict with the Constitution; that the constitution is the supreme law of the land, and that all other conflicting laws must fail and the constitution must trump them

7. The Principle of Legality First principle of criminal law No crime without law No punishment without law No one can be punished for a crime that did not exist at the time they engaged in the behavior

8. Principle of Legality and Ex Post Facto The principle of legality is articulated in Article I, Section 9 of the U.S. Constitution Ex Post Facto clause bans Congress from retroactive criminal law making States have similar constitutional provisions

9. Ex Post Facto (cont.) Ex Post Facto Laws • Criminalize an act that was innocent when committed • Increase the punishment for a crime after the crime was committed • Take away a defense that was available to a defendant when the crime was committed • Purposes of ex post facto ban • Protect private individuals by ensuring that legislatures give fair warning about what is criminal • Prevent legislatures from passing arbitrary and vindictive laws

10. Void for Vagueness Doctrine • Purpose similar to ex post facto ban • Strike down laws that fail to give fair warning as to what is prohibited • Strike down laws that allow arbitrary and discriminatory administration of criminal justice • Derives from 5th Amendment (applicable to Feds) and 14th Amendment (applicable to States) due process requirement • Lanzetta v. New Jersey (1939) • Regardless of what test is used to determine if a statute violates void for vagueness/due process requirement, there is the issue of defining what a vague statute is • Words do not provide mathematical certainty

11. Void for Vagueness (cont.) • Fair notice requirement of Lanzetta • Objective test: would an ordinary, reasonable person know that what he was doing was criminal? • 1983, Court held that providing minimal guidance to limit arbitrary and discriminatory discretion was more important than the fair notice aim (Kolender v. Lawson) • Presumption of constitutionality • If there is a doubt whether the statute is vague or not, then assume that it is NOT vague (presume that it does not violate the constitution) • In effect, this requires the criminal defendant to prove the law is vague… (It is presumed to be not vague)

12. Case: State v. Metzger • Facts: Metzger, the defendant, was seen by another resident, standing naked with his arms at his sides in his apartment window for a period of five seconds. The court ruled it is unlawful for any persons within the city limits to commit any indecent act that a person passing by might see. • Issue: Is the ordinance too vague that is unconstitutional? • Holding: Yes. Since the ordinance is criminal in nature, it is a fundamental requirement of due process of law that such criminal ordinances must be reasonably clear and definite

13. Equal Protections Clause • 14th Amendment (applies to States) • Doesn’t require government to treat everybody the same • When criminal laws distinguish between groups of people, the court will examine the characteristics of the selected group and decide how closely to examine the law • When classification is “non-suspect” class then the courts will give the statute “normal scrutiny” • As long as the state has a rational basis for treating the groups differently then the law won’t be said to violate the Equal Protection Clause • Example: treating habitual criminals more harshly than first time offenders • Example: treating minors differently than adults for the purpose of possession/consumption of alcohol

14. Equal Protections Clause (cont.) • Rational basis is often tied to the state’s interest in maintaining the public health and welfare of the citizens of the state • State’s “police power” • Note, Federal government has no “police power” and Congress must tie its legislation to some power given to it in the constitution (example, interstate commerce clause, contracts clause) • Gender classifications—heightened scrutiny • State must show a fair and substantial relationship between classification based on gender and a legitimate state end

15. Bill of Rights and Criminal Law: First Amendment • First Amendment includes • Free speech • Religion • Association • There is a ban on making crime out of conduct that is an exercise of the individual’s First Amendment rights

16. Free Speech • Congress can’t make a law limiting freedom of speech • Applied to States in Gitlow v. New York • Expansive definition of speech • Not just spoken or written words • Includes expressive conduct • Includes symbolic speech • Includes, to some extent, commercial speech

17. Free Speech • Categories of speech not protected by 1st • Obscenity • Profanity • Libel and slander • Fighting words • Clear and present danger • Why? • Slight value, any benefit is outweighed by social interest in order and morality • Void for Overbreadth doctrine gives teeth to the protection • Any laws which are written so broadly that fear of prosecution creates a chilling effect that discourages people from exercising their freedom of speech violate the constitution

18. Case: People v. Rokicki • Facts: Rokicki, the defendant, was charged under the hate crime statute for calling a Pizza Hut employee a “faggot” and other derogatory names. The underlying offense was disorderly conduct. • Issue: Does the hate crime statute violate free speech? • Holding: No. Not when underlying offense is disorderly conduct because the statute reaches only conduct, not speech

19. Case: Barnes v. Glen Theatre, Inc. et. Al. • Facts: Indiana state prohibits nude dancing in public • Issue: Does this violate right to free speech? • Holding: NO. Nude dancing is expressive conduct and statute interest is in protecting public order and morality.

20. Case: Texas v. Johnson • Facts: Johnson, the defendant, burned an American flag during a political demonstration. He was charged with violating the “desecration of a venerated object” statute • Issue: Did the flag burning statute violate Johnson’s right to free speech? • Holding: Yes, the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable

21. Second Amendment:Right to Bear Arms • Few cases • Lots of regulations • Hot debates between gun rights and gun control activists May ban • Carrying concealed weapons • Felons possessing firearms • Mentally ill persons possessing firearms • Carrying firearms in sensitive places such as school and government buildings • Laws imposing conditions and qualifications on the commercial sale of arms • District of Columbia v. Heller (2008) • The first successful Second Amendment Challenge • US Supreme Court ruled it is the right of law-abiding, responsible citizens to use arms in defense of hearth and home • Importance of Heller case • Renders irrelevant the wording in 2nd Amendment concerning militia • Limits of Heller case • D.C. law was very broad • Qualified right to possession of handgun by law-abiding citizen in home, for purpose of protection

22. Case: GeorgiaCarry. Org v. Georgia • Facts: Georgia law prohibits the carrying of firearms in a place of worship • Issue: Does this law violate the right to bear arms? • Holding: No. The law plays a substantial role in the goal of protecting the attendees for the fear or threat of intimidation or an armed attach

23. Right to Privacy • Found in the penumbra of the Constitution (not in any specific clause or amendment) • Fundamental right, so government needs a compelling interest to invade it • Originates from six separate amendments • 1st, 3rd, 4th, 9th, 5th, and 14th • Right to be left alone • Griswold v. Connecticut • Intermediate scrutiny-law is constitutional as long as it is substantially related to an important government interest • Constitutional right to privacy-bans “all governmental invasions of the sanctity of a man’s home and privacies of life” • Fundamental right to privacy-requires the government to prove that a compelling interest justifies invading it.

24. Case: Lawrence v. Texas • Facts: Lawrence, the defendant, and another man were engaging in a sexual act. The act was in private and consensual. The act was deemed to be deviate sexual intercourse which Texas statute prohibits • Issue: Do consenting adults have the right to privacy in their private sexual conduct? • Holding: Yes. People of the right to engage in private conduct without government intervention

25. Case: Stanley v. Georgia • Facts: During a search warrant for alleged bookmaking activities, officers found 2 pornographic films. Stanley, the defendant, was charged with possession of obscene matter. • Issue: Does the right to privacy protect pornography? • Holding: Yes. People of the right to be left alone

26. 8th Amendment: Cruel and Unusual Punishment ClauseThe Constitution and Criminal Sentencing • Cruel and unusual punishments should not be inflicted • Cruel and unusual punishments include • Barbaric punishment- no longer allowed: burning at stake, torturing, extreme forms of solitary confinement, etc.) • Disproportionate punishment: punishment should fit the crime

27. In re Kemmler William Kemmler sentenced to death by the electric chair argued electrocution was cruel and unusual punishment US Supreme Court stated punishment by death is not cruel as long as it isn’t “something more than the mere extinguishment of life”. Death has to be both instantaneous and painless and can’t involve unnecessary mutilation of the body

28. Case: Kennedy v. Louisiana • Facts: Pursuant, to Louisiana statute, Kennedy, the defendant, was sentenced to death for the aggravated rape of his 8 year-old stepdaughter. • Issue: Is execution cruel and unusual punishment because it is disproportionate to the offense. • Holding: Yes, it is an excessive penalty for rape as it did not result in the loss of human life

29. Disproportionate Punishments (cont.) • The Death Penalty for Mentally Retarded Murderers • Atkins v. Virginia • The Death Penalty for Juvenile Murderers • Roper v. Simmons • Life without Parole for Juveniles • Graham v. Texas

30. Discussion Activity Review the website below regarding the death penalty http://www.deathpenaltyinfo.org/documents/FactSheet.pdf How many states/jurisdictions have the death penalty? How many do not? What state has the most inmates on death row? What state has the least? Does your state have the death penalty? According to the information provided in this link, the death penalty does not deter the crime of murder. If this is true, discuss whether you believe the death penalty should or shouldn’t continue to be a punishment option for criminal offenses.

31. Case: State v. Ninham • Facts: Ninham, the defendant, was convicted of the intentional murder of Zong Vang (age 13) and was sentenced to life in prison. Ninham was 14 years old when he committed the murder. • Issue: Is it cruel and unusual to sentence the defendant to “death in prison” • Holding: No. The sentence is not unduly harsh or excessive

32. Discussion Activity Review the website below regarding the “Three Strikes & You’re Out” Law in California http://www.law.stanford.edu/organizations/programs-and-centers/stanford-three-strikes-project/three-strikes-basics What crimes must an offender commit to be subject to qualify for sentencing under the “Three Strikes and You’re Out” law? What impact has the “Three Strikes and You’re Out” law had on the prison population? What is your opinion of the “Three Strikes and You’re Out” law? Do you think it’s a good law to have.

33. Sentences of Imprisonment • Mandatory minimum sentences-Judges impose non-discretionary minimum of prison time that all offenders have to serve • Fixed (determinate) sentences—length of sentences determined by the seriousness of the offense (determined by legislators in advance of the crime) • Sentencing guidelines—ranges of penalties from which judges choose a specific (presumptive) sentence within the range • Sentence outside that range is a “departure”

34. The Right to Trial By Jury and Criminal Sentencing Before judge can give an upward departure sentence based on aggravating factors, a jury must determine the existence of those factors beyond a reasonable doubt (Apprendi rule) Sentencing guidelines, to the extent that they allow for judges to impose departure sentences without jury findings are unconstitutional (Blakely) Federal Sentencing Guideline structure was unconstitutional if mandatory, but may be used as a guide for judges (Booker) Since federal sentencing guidelines are advisory, the appellate court needs to determine if the imposed sentence was reasonable. The appellate courts need to give deference to the sentencing judge and only overturn sentences when the sentencing judge abused his or her discretion (Gall)

35. Discussion Activity Review the link below regarding Sentencing Guideline’s sentences http://www.msgc.state.mn.us/guidelines/grids/Sentencing%20Guidelines%20Grid%20August%201%202011.pdf What does the shaded area of the grid represent? What does the white area represent? What is the recommended sentence for a person with a criminal history score of 4 who commits a severity level 2 offense? What happens if the same person commits a severity level 3 offense? Discuss whether or not your believes the use of sentencing guidelines is an appropriate method of sentencing.

36. Case: Gall v. U.S. • Facts: Gall, the defendant, participated in a conspiracy of selling ecstasy for 7 months while in college. 3 yrs. later he pled guilty to his involvement in the offense. The Defendant had no other known criminal involvement. The sentencing guidelines sentence was 30-37 months in prison. The judge sentenced Gall to 36 month probation • Issue: Do extraordinary circumstance exist to sentence outside the guidelines sentence • Holding: Yes. Decision upheld