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.
2
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.
4
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
6
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
7
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
8
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
9
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
10
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
11
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
12
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.
13
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
14
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)
15
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”
16
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
17
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
18
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
19
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)
20
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”
21
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
22
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
23
Free Speech
• 5 Categories of speech not protected by the
1st Amendment:
1.
2.
3.
4.
5.
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
24
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
25
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”
26
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.
27
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
28
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
29
Texas v. Johnson (1989)
A divided US Supreme court recognized Flag
burning as expressive conduct
30
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
31
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.
32
Stanley v. Georgia (1969)
A government intrusion into the privacy of a
home for an individual’s mere possession of
pornography is unwarranted.
33
Lawrence v. Texas (2003)
Consenting adults have a fundamental right to
engage in private sexual activity, including
consensual sodomy.
34
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)
35
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.
36
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
37
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
39
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
40
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
41
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.
42
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 impairment
2. The impairment impacts the everyday life of the
retarded individual
3. Retardation is present at birth or during
childhood
43
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”
44
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
45
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
46
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
47
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.
48
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”
49
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
50
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
51
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
52
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
53
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)
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