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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.
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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)
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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”
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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
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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
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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
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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)
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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”
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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
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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
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Free Speech
• 5 Categories of speech not protected by the 1st Amendment:1. Obscenity2. Profanity3. Libel and slander4. Fighting words5. Clear and present danger
• Why?– Slight value, any benefit is outweighed by social
interest in order and morality
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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
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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”
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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.
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People v. Rokicki (1999)
The hate crime statute is not unconstitutional when the predicate offense is disorderly conduct because:
1.The statute reaches only conduct and does not punish speech itself
2.The statute does not impermissibly discriminate based on content, and
3.The statute does not chill the exercise of first amendment rights
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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
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Texas v. Johnson (1989)
A divided US Supreme court recognized Flag burning as expressive conduct
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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
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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.
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Stanley v. Georgia (1969)
A government intrusion into the privacy of a home for an individual’s mere possession of pornography is unwarranted.
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Lawrence v. Texas (2003)
Consenting adults have a fundamental right to engage in private sexual activity, including consensual sodomy.
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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)
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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.
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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
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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
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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
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In re Kemmler (1890)
Electrocution “unusual” “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 “mere extinguishment of life”extinguishment of life”Requirements of a lawful execution:• Instantaneous and painless•Can not involve unnecessary mutilation of the body
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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
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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.
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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:
1. Substantial intellectual impairment2. The impairment impacts the everyday life of the
retarded individual3. Retardation is present at birth or during childhood
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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 “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 the evolving standards of decency that mark the progress of a maturing society”mark the progress of a maturing society”
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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 When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic State can exact forfeiture of some of the most basic liberties, but the state cannot extinguish his life and his liberties, but the state cannot extinguish his life and his potential to attain a mature understanding of his own potential to attain a mature understanding of his own humanity.”humanity.”
--US Supreme Court Justice Kennedy--US Supreme Court Justice Kennedy
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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
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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
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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” disproportionatenot “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.
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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”
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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
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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
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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
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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
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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) 54
