Constitutional Limits on Criminal Law Chapter Two Constitutional Limits on Criminal Law

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.

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.

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.

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

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

Constitutional Democracy Constitutional Democracy limits the power of government to create certain crimes In a Constitutional Democracy– 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

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

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

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 Facto clause 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

Ex Post Facto (continued) 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

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) Fair notice requirement of Lanzetta Objective test: Would an ordinary, reasonable person 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.

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

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)

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”

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

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

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

Equal Protection Clause (continued) Racial Classifications = “strict scrutiny” In practice, strict scrutiny means that racial classifications are never justified 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)

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”

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

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

Free Speech 5 Categories of speech not protected by 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

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

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”

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.

People v. Rokicki (1999) The hate crime statute is not unconstitutional when the predicate offense is disorderly conduct because: The statute reaches only conduct 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

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 not related to the erotic message the dancers wanted to send

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

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

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.

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

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

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)

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 and the requirement that firearms in the home be kept nonfunctional.

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

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

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

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 lawful execution: Instantaneous and painless Can not involve unnecessary mutilation of the body

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

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.

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

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”

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

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

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

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.

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”

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

Blakely v. Washington (2004) The US Supreme Court struck down a Washington State statute that authorized a judge to increase prison time based on facts not proven beyond a reasonable doubt. This decision held that Sentencing guidelines, to the extent that they allow for judges to impose departure sentences without jury findings are unconstitutional

U.S. v. Booker (2005) The US Supreme Court struck down provisions of the US Sentencing Guidelines allowing judges to increase individual sentences based on facts not proven beyond a reasonable doubt. The court held that the Federal Sentencing Guideline structure was unconstitutional if mandatory, but it may be used as a guide for judges

Gall v. U.S. (2007) 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

Summary of Role of Jury in 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)