Chapter Two

1. Chapter Two Constitutional Limits on Criminal Law

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.

3. Chapter 2: Learning Objectives • 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.

4. Chapter 2: Learning Objectives • 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.

5. 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

6. U.S. Constitution: Context of Limits “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty is this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.” --James Madison, 1787

7. Constitutional Democracy • Constitutional Democracy limits the power of government to create certain crimes • In a ConstitutionalDemocracy– not true majority rule—criminal laws may not be made when the Constitution protects the behavior as a fundamental right • Example: • Free speech which may offend the majority cannot be made illegal

8. 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. • The Rule of Law deems that the constitution is the supreme law of the land, and that all other conflicting laws must fail and the constitution must trump them

9. The Principle of Legality • The 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

10. Principle of Legality and Ex Post Facto • The principle of legality is articulated in Article I, Section 9 of the U.S. Constitution; The Ex Post Factoclause bans Congress from retroactive criminal law making • The State Ban on Ex Post Facto Laws is found in Article 1, Section 10 of the U.S. Constitution

11. Ex Post Facto (continued) • Purposes of ex post facto ban • Protect private individuals by ensuring that legislatures give fairwarningabout what is criminal • Prevent legislatures from passing arbitrary and vindictive laws

12. Void for Vagueness Doctrine • Purpose similartoexpostfactoban • Strike down laws that fail to give fairwarningas 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

13. Lanzetta v. New Jersey (1939) • Fair notice requirement of Lanzetta • Objective test: • Would an ordinary, reasonableperson know that what he was doing was criminal. • No one may be required, at peril of life, liberty or property to speculate as to the meaning of penal statutes.

14. Defining Void for Vagueness • Regardless of what test is used to determine if a statute violates the void for vagueness due process requirement, there is the issue of defining what a vague statute is • “Condemned to the use of words, we can never expect mathematical certainty from our language” --US Supreme Court Justice Thurgood Marshall

15. Void for Vagueness – Burden of Proof • 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)

16. State v. Metzger (1982) The language of the Lincoln Nebraska Municipal Code called into question: “It shall be unlawful for any person within the City of Lincoln…to commit any Indecent, Immodest or Filthy Act in the presence of any person, or in such a situation that persons passing might ordinarily see the same”

17. Equal Protection 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

18. Equal Protection Clause (continued) • 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 • Examples: • Treating habitual criminals more harshly than first time offenders • Treating minors differently than adults for the purpose of possession/consumption of alcohol

19. Equal Protection Clause (continued) • Rational basis is often tied to the state’s interest in maintaining the public health and welfare of the citizens of the state

20. Equal Protection Clause (continued) • Racial Classifications = “strict scrutiny” • In practice, strict scrutiny means that racial classifications are neverjustified • Any statute that invidiously classifies similarly situated people on the basis of immutable characteristics with which they were born. . . always violates the Constitution • State would have to show a compelling state interest for treating group differently (and it can not)

21. Equal Protection Clause (continued) • Gender classifications - “heightened scrutiny” • State must show a fair and substantial relationship between classification based on gender and a legitimate state end • Michael M. v. Superior Court of Sonoma County (1971) Crime for a male only… • The court upheld“An act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years” as “sufficiently related to the state’s objectives as to pass constitutional muster”

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

23. Free Speech • Congress can’t make a law limiting freedom of speech • Applied to States in Gitlow v. New York (1925) • Expansive definition of speech • Not just spoken or written words • Includes expressive conduct • Includes symbolic speech • Includes, to some extent, commercial speech

24. Free Speech • 5 Categories of speech notprotectedby the 1st Amendment: • 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

25. Free Speech • 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

26. R.A.V. v. City of St. Paul (1992) A juvenile burned a cross on a black family’s lawn, and was charged under St Paul Minnesota's Bias-Motivated Crime Ordinance which provided: “anyone who places a burning cross, Nazi swastika, or other symbol on private or public property knowing that the symbol would arouse anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender commits disorderly conduct and shall be guilty of a misdemeanor”

27. R.A.V. v. City of St. Paul (1992) The US Supreme Court concluded that the ordinance violated the first Amendment, as it would allow the proponents of racial tolerance and equality to use fighting words to argue in favor of tolerance, but would prohibit similar use by opponents to racial tolerance and equality.

28. People v. Rokicki (1999) The hate crime statute is not unconstitutional when the predicateoffenseis disorderly conduct because: • The statute reaches onlyconduct and does not punish speech itself • The statute does not impermissibly discriminate based on content, and • The statute does not chill the exercise of first amendment rights

29. Barnes v. Glen Theatre, Inc. et. Al. (1991) Although nude dancing is recognized as expressive conduct, the public indecency statue is justified because it “furthers a substantial government interest in protecting order and morality” The ban on public nudity was notrelatedto the erotic message the dancers wanted to send

30. Texas v. Johnson (1989) A divided US Supreme court recognized Flag burning as expressiveconduct

31. Right to Privacy • Found in the penumbra of the Constitution (not in any specific clause or amendment) • Recognized as a FundamentalRight, so government needs a compelling interest to invade it • Originates from sixseparateamendments: • 1st, 3rd, 4th, 9th, 5th, and 14th Amendments • Right to be left alone by the government

32. Griswold v. Connecticut (1965) The first US Supreme Court case that specifically recognized the fundamental constitutional right to privacy when it struck down a Connecticut statute that made it a crime for married couples to use contraceptives.

33. Stanley v. Georgia (1969) A government intrusion into the privacy of a home for an individual’s mere possession of pornography is unwarranted.

34. Lawrence v. Texas (2003) Consenting adults have a fundamental right to engage in private sexual activity, including consensual sodomy.

35. Second Amendment:Right to Bear Arms • Few cases • Lots of regulations • Hot debates between gun rights and gun control activists • U.S. v. Emerson (2001) decision from 5th Circuit • Individuals not in militia can privately possess and bear own firearms (ones suitable as personal, individual weapons)

36. District of Columbia v. Heller (2008) The first successful 2nd amendment challenge in 207 years, struck down the DC code provision banning possession of handguns andtherequirement that firearms in the home be kept nonfunctional.

37. Right to Bear arms (continued) • Importance of Heller case • Renders irrelevant the wording in 2nd Amendment concerning militia • Chicago handgun prohibitions have been struck down since this text was published • Alameda County (CA) case remains pending • Limits of Heller case • Qualified right to possession of a handgun by law-abiding citizen, in home, for purpose of protection

38. 8th Amendment: Cruel and Unusual Punishment Clause Constitutional Limits on Sentencing • Cruel and unusual punishments should not be inflicted • Cruel and unusual: • Barbaricpunishment • Disproportionate punishment

39. Barbaric Punishment • No longer acceptable to a civilized society: • burning at stake • crucifixion • breaking on the wheel • torturing • lingering death • drawing and quartering • rack and screw • extreme forms of solitary confinement

40. In re Kemmler (1890) Electrocution “unusual” but not cruel. According to the court, punishment by death isn’t cruel as long as it isn’t something more than the “mere extinguishment of life” Requirements of a lawfulexecution: • Instantaneous and painless • Can not involve unnecessary mutilation of the body

41. Principle of Proportionality • Punishment should fit the crime • Cases: • Weems v. US – 15 years prison with hard labor and lifetime forfeiture of civil rights was disproportionate for falsifying public document • Robinson v. California (1962) – 90 day sentence for drug addiction was disproportionate because addiction is an illness, and its cruel and unusual to punish someone for being sick

42. Kennedy v. Louisiana (2008) The US Supreme Court held that Consistent with “evolving standards of decency” and the teachings of our precedents, there is a distinction between intentional first degree murder and nonhomicide crimes including child rape…In terms of moral depravity and of the injury to the person and to the public, they cannot be compared to murder in severity and irrevocability.

43. Atkins v. Virginia (2002) The US Supreme Court ruled that executing anyone that proved the three elements in the American Association on Mental Retardation applied to them violated the ban on cruel and unusual punishment: • Substantial intellectual impairment • The impairment impacts the everyday life of the retarded individual • Retardation is present at birth or during childhood

44. Trop v. Dulles (1958) In the case of a war time army deserter who lost his citizenship, The US Supreme Court first adopted the “evolving standards” test to decide which sentences ran afoul of the 8th Amendment ban on cruel and unusual punishment. “the evolving standards of decency that mark the progress of a maturing society”

45. Roper v. Simmons (2005) In the case of a Juvenile Carjacker who murdered his victim, the US Supreme Court decided that the execution of a juvenile offended “standards of decency” in our society: “When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the state cannot extinguish his life and his potential to attain a mature understanding of his own humanity.” --US Supreme Court Justice Kennedy

46. Summary of Cruel and Unusual Punishment claims - Death Penalty • Death penalty is barbaric if is something more than instantaneous and painless; it cannot involve unnecessary mutilation of the body • Lethal injection scrutiny by courts in 2008-2009 • Death penalty is disproportionate for rape of child victim (Kennedy v. Louisiana) • Death penalty for mentally retarded offenders is cruel and unusual punishment • Death penalty for offenders who were under 18 at the time they committed the murder is cruel and unusual punishment

47. Disproportionate Sentences of Imprisonment Solem v. Helm (1983) A Deeply divided US Supreme Court held that a criminal sentence must be proportionate to the crime for which defendant has been convicted

48. Ewing v. California (2003) In the case of a recidivist felon, convicted of stealing three golf clubs, The US Supreme Court Upheld California’s Three-strikes legislation, and ruled that a sentence of 25 – life was constitutional (not “grossly” disproportionate). The court cited a “rational legislative judgment” that offenders who have committed serious or violent felonies, and continue to do so must be incapacitated for public safety.

49. 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”

50. Appendi v. New Jersey (2000) In the case of a gunman who fired several .22 caliber bullets into the home of a black family, the US Supreme Court struck down a statute which authorized judges to increase the maximum sentence based on facts proved by a “preponderance” of evidence (Not meeting the Proof Beyond a Reasonable Doubt Requirement for Criminal Proceedings) The Appendi Rule--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