Chapter 2 Constitutional Limits on Criminal Law LEARNING OBJECTIVES After studying this chapter, students will: 1. understand and appreciate the reaDon't forget about the age old question of What are the legal requirements of Human Resource Management?
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sons for the limits on criminal law and criminal punishment in the U.S. constitutional democracy 2. understand the principle of legality and the importance of its relationship to the limits of criminal law and punishment 3. appreciate the nature and importance of retroactive criminal law making 4. know the criteria for identifying vague laws, and to understand and appreciate their constitutional significance and the consequences 5. know and understand and appreciate the limits placed on criminal law and criminal punishment by the specific provisions in the Bill of Rights 6. understand and appreciate the constitutional significance and consequences of principle of proportionality in criminal punishment. 7. understand the importance of the right to trial by jury in the process of sentencing convicted offenders. KEY TERMS AND CONCEPTS ∙ constitutional democracy—a democracy in which the majority can’t make a crime out of what the Constitution protects as a fundamental right (p. 42) ∙ rule of law—the law is above everyone and it applies to everyone (p. 42) ∙ ex post facto law—a law passed after the occurrence of the conduct constituting the crime (p. 43) ∙ voidforvagueness doctrine—the principle that statutes violate due process if they don’t clearly define crime and punishment in advance (p. 43) ∙ fair notice (in voidforvagueness doctrine)—“Would an ordinary, reasonable person know that what he was doing was criminal?” (p. 44) ∙ equal protection of the laws—the 14th Amendment includes a clause which requires states to provide citizens with equal protection. This has been interpreted by the courts to mean that state agents (and laws) cannot make arbitrary, irrational distinctions between people. Differential of people are permitted, but this differential treatment must not be based on race, religion, or gender. (p. 47) ∙ expressive conduct (in First Amendment)—actions that communicate ideas and feelings (p. 48) ∙ voidforoverbreadth doctrine—the principle that a statute is unconstitutional if it includes in its definition of undesirable behavior conduct protected under the U.S. Constitution (p. 49) ∙ bench trial—trial without a jury (p. 50) ∙ fundamental right to privacy—a right that bans “all governmental invasions of the sanctity of a man’s home and the privacies of life” (p. 60) ∙ Second Amendment—A wellregulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. U.S. Constitution, Amendment II (p. 54) ∙ barbaric punishments—punishment considered no longer acceptable (p. 65) ∙ cruel and unusual punishment—“barbaric” punishments and punishments that are disproportionate to the crime committed (p. 64) ∙ principle of proportionality—a principle of law stating that the punishment must be proportional to the crime committed (p. 66) ∙ threestrikes laws—laws that are supposed to make sure that offenders who are convicted of a third felony get locked up for a very long time (p. 77) ∙ mandatory minimum sentences—laws requiring judges to impose a nondiscretionary minimum amount of prison time that all offenders have to serve (p. 81) ∙ fixed (determinate) sentencing—sentencing scheme which fixes or determines sentence length according to the seriousness of the crime (p. 81) ∙ sentencing guidelines—sentencing scheme in which a commission establishes a narrow range of penalties and judges are supposed to choose a specific sentence within that range (p. 81) ∙ Apprendi rule—other than the fact of prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt (p. 81)Chapter 2: Constitutional Limits on Criminal Law ∙ Abuseofdiscretion standard— “failure to exercise sound, reasonable, and legal decision making; and appellate court’s standard for reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the evidence.” (p. 87) CHAPTER SUMMARY The principle of legality states that no one can be convicted of, or punished for, a crime unless the law defined the crime and prescribed the punishment before she engaged in the behavior that was defined as a crime. It’s called “the first principle of criminal law” (Packer 1968, 79); all other principles in this book are subordinate to it. It applies even when following it allows morally blameworthy, dangerous people to go free without punishment (Dressler 2001, 39). The case of Treva Hughes (Hughes v. State 1994) is an excellent example. Hughes, while driving drunk, ran into Reesa Poole’s car and killed Poole’s fetus, which Poole was due to deliver in four days. The Appeals Court reversed her conviction because the law didn’t give Hughes fair warning that it included the unborn in its homicide statute (731).Why is a retroactive criminal law so abhorrent? Because retroactive criminal laws undermine the “central values” of free societies (Allen 1993, 15). First, knowing what the law commands provides individuals with the opportunity to obey the law and avoid punishment. Second, providing individuals with this opportunity promotes the value of human autonomy and dignity. Third, the ban on retroactive criminal law making also prevents officials from punishing conduct they think is wrong but which no existing criminal law prohibits. Constitutional Status. Article I, Section 9 bans the U.S. Congress from enacting such laws; Article 1, Section 10 bans state legislatures from passing them. And, most state constitutions include their own ban on retroactive statutes (LaFave 2003b, 1:153). Ex post facto law does one of three things: It criminalizes an act that was not a crime when it was committed; it increases a punishment for a crime after the crime was committed; or it takes away a defense that was available to a defendant when the crime was committed. Statutes that criminalize an act after it was committed are the clearest example of ex post facto law, but are also the rarest today because legislatures never try to make them crimes. The ex post facto ban has two major purposes. One is to protect private individuals by ensuring that legislatures give them fair warning about what’s criminal and that they can rely on that requirement. The second purpose is directed at preventing legislators from passing arbitrary and vindictive laws. A law is voidforvagueness if it forbids conduct and prescribes punishments in terms so uncertain that ordinary people can’t intelligently choose in advance the course it’s lawful for them to pursue (State v. Metzger 1982, 461). The U.S. Supreme Court has ruled that vague laws violate the guarantees of two provisions in the U.S. Constitution. The Fifth Amendment to the U.S. Constitution guarantees that the federal government shall not denyany individual life, liberty, or property without due process of law. The Fourteenth Amendment provides that no state government shall deny any person life, liberty, or property without due process of law. The reasoning behind the voidforvagueness doctrine goes like this: 1. The Fifth and Fourteenth Amendments to the U.S. Constitution ban both federal and state governments from taking any person’s “life, liberty, or property without due process of law.” 2. Criminal punishment deprives individuals of life (capital punishment), liberty (imprisonment), or property (fines). 3. Failure to warn private persons of what the law forbids and/or allowing officials the chance to define arbitrarily what the law forbids denies individuals their life, liberty, and/or property without due process of law. The Aims of the VoidforVagueness Doctrine The voidforvagueness doctrine takes aim at two evils similar to those of the ban on ex post facto. First, void laws fail to give fair warning to private individuals as to what the law prohibits. Second, they allow arbitrary and discriminatory law enforcement. See Lanzetta v. New Jersey (1939). Fair notice in ex post facto laws is not than an actual defendant knows there’s a law against the act, but that an ordinary, reasonable person would know that the act is a crime. Whether the emphasis is on notice to individuals or control of officials, the voidforvagueness doctrine can never cure the uncertainty in all laws. It’s not just the natural uncertainty of words that creates problems. It’s also because the variety of human behavior and the limits of human imagination make it impossible to predict all the variations that might arise under the statutes. So courts allow considerable leeway in the degree of certainty required to pass the two prongs of fair warning and avoidance of arbitrary law enforcement. Furthermore, challengers face a strong presumption that statutes constitutional. In State v. Metzger (1982), the Nebraska Supreme Court held that a Lincoln, Nebraska, city ordinance that made it a crime to “commit any indecent, immodest, or filthy act” was voidfor vagueness. In addition to the due process guarantee, the Fourteenth Amendment to the U.S. Constitution commands that “no state shall deny to any person within its jurisdiction the equal protection of the laws.” Equal protection is far more frequently an issue in criminal procedure than it is in criminal law. There is a constitutional command that criminal laws can treat groups of people and types of conduct differently only if the different treatment is reasonable. Equal protection of the law doesn’t require the government to treat everybody exactly alike. Rather, equal protection of the law is a constitutional command that criminal laws can treat groups of people and types of conduct differently only if the different treatment is reasonable. “Congress shall make no law abridging the freedom of speech,” the First Amendment commands. The U.S. Supreme Court has expanded the ban beyond this already sweeping scope. First, the Court has expanded the meaning of “speech” by holding that the protection of the amendment “does not end with the spoken or written word” (Texas v. Johnson 1989, 404). It also includes expressive conduct, meaning actions that communicate ideas and feelings. The CourtChapter 2: Constitutional Limits on Criminal Law has applied the prohibition to the states since 1925 (Gitlow v. New York) The Court has ruled that free speech is a fundamental right, one that enjoys preferred status. According to the U.S. Supreme Court, there are five categories of expression not protected by the First Amendment: 1. Obscenity; 2. Profanity; 3. Libel and slander; 4. Fighting words; 5. Clear and present danger. The First Amendment doesn’t protect these forms of expression because they’re not an “essential element of any exposition of ideas, and are of such slight value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality” (Gitlow v. New York 1925, 572). These exceptions create the opportunity for the government to make these kinds of expression a crime, depending on the manner, time, and place of expression. The voidforoverbreadth doctrine protects speech guaranteed by the first amendment by invalidating laws so broadly written that the fear of prosecution creates a “chilling effect” that discourages people from exercising that freedom. See R.A.V. v. City of St. Paul (1992) and People v. Rokicki (Ill.App. 1999). In District of Columbia v. Heller (2008) the Court stated that the core of the Second Amendment is “the right of lawabiding, responsible citizens to use arms in defense of hearth and home” (2821). The decision applied only to D.C. and the Court identified other situations which the decision would not apply to such as: carrying concealed weapons; felons possessing firearms; mentally ill possessing firearms; carrying weapons in sensitive places such as schools and government buildings; and imposing conditions on the commercial sale of arms. Heller is an important decision for at least three reasons. First, it renders the clause “a wellregulated militia” irrelevant. Second, it doesn’t rule out expanding the right beyond the narrow boundaries of Heller and McDonald. Third, it’s a litigation magnet because the Court didn’t provide an exhaustive analysis of the scope of the Second Amendment. So far, decisions regarding the right to bear arms have been left up to the lower federal courts and the state courts. See example case GeorgiaCarry.Org, Inc. v. Georgia. While the right to privacy is not specifically included in the U.S. Constitution, the U.S. Supreme Court has decided there is a constitutional right to privacy, a right that bans “all governmental invasions of the sanctity of a man’s home and the privacies of life” (Griswold v. Connecticut 1965, 484). Not only is privacy a constitutional right, it’s a fundamental right that requires the government to prove that a compelling interest justifies invading it. According to the Court (Griswold v. Connecticut 1965), the fundamental right to privacy originates in six amendments to the U.S. Constitution: the First Amendment; the Third Amendment; the Fourth Amendment; the Ninth Amendment and the Fifth and Fourteenth Amendments. This cluster of amendments sends the implied but strong message that we have the right to be left alone by the government. See case examples in Table “The U.S. Supreme Court and the Right to Privacy from Griswold to Lawrence.”The Eighth Amendment to the U.S. Constitution commands that “cruel and unusual punishments” shall not be “inflicted.” According to the Supreme Court there are two kinds of cruel and unusual punishments. “Barbaric Punishments” are punishments that are considered no longer acceptable to civilized society. Disproportionate punishments are punishments that are disproportionate to the crime committed. The principle of proportionality states that the punishment should fit the crime. A majority of the U.S. Supreme Court has consistently agreed that the proportionality principle applies to death penalty cases; as the Court puts it, “death is different.” There are numerous capital crimes where no one is killed: treason, espionage, kidnapping, aircraft hijacking, large scale drug trafficking, train wrecking, and perjury that leads to someone’s execution (Liptak 2003). In practice, no one’s actually sentenced to death for them, so it’s difficult to tell whether the Court would rule that death is disproportionate to a crime where no one gets killed. The one exception to the practice was rape. In 1977, the Court heard Coker v. Georgia; it decided that death was disproportionate punishment for raping an adult woman. In 2008 the Court ruled that death was disproportionate punishment for raping a child (Kennedy v. Louisiana 2008). In Atkins v. Virginia (2002), the U.S. Supreme Court ruled that executing anyone who proved the three elements in the AAMR definition applied to them violated the ban on cruel and unusual punishment. In 2005, the Court decided whether standards of decency had evolved enough since 1989 to be offended by executing Christopher Simmons for a carjacking murder he committed when he was 17 (Roper v. Simmons 2005). By a vote of 5–4, the U.S. Supreme Court held that the Eighth and Fourteenth Amendments forbid the execution of offenders who were under the age of 18 when they committed their crimes. Does the proportionality principle extend to sentencing juveniles to life without parole for juveniles who don’t kill? Over a strong dissent, the U.S. Supreme Court said yes in Graham v. Texas (2010) (63). The consensus that the ban on cruel and unusual punishment includes a proportionality requirement in capital punishment does not extend to prison sentences. The important case of Solem v. Helm (1983) revealed that the U.S. Supreme Court was deeply divided over whether the principle of proportionality applied to sentences of imprisonment. A bare majority of five in the U.S. Supreme Court held that “a criminal sentence must be proportionate to the crime for which the defendant has been convicted” (290). Threestrikeslaws are intended to make sure that offenders who are convicted of a third felony get locked up for a very long time. Despite controversy, threestrikes laws are popular and widespread. Twentyfour states have passed threestrikes laws (Shepherd 2002). Threestrikes laws are popular for three reasons. First, they address the public’s dissatisfaction with the criminal justice system. Second, they promised a simple solution to a complex problem—the “panacea phenomenon.” Third, the use of the catchy phrase “three strikes and you’re out” was appealing (Benekos and Merlo 1995, 3; Turner et al. 1995). We are not sure of their effectiveness but the U.S. Supreme Court has ruled they’re constitutional, even if the justices can’t agree on the reasons.Chapter 2: Constitutional Limits on Criminal Law Mandatory minimum sentencing laws require judges to impose a nondiscretionary minimum amount of prison time that all offenders have to serve. By 1991, 46 states and the federal government had enacted mandatory minimum sentences. The main targets are drug offenses, violent crimes, and crimes committed with weapons (Wallace 1993). Mandatory minimum sentences are the more rigid form of the broad scheme of fixed (determinate) sentences (Chapter 1). The less extreme form of fixed sentencing is sentencing guidelines. In sentencing guidelines, a commission establishes a narrow range of penalties, and judges are supposed to choose a specific sentence within that range. Until 2000, the guidelines and mandatory forms of fixed sentencing created only possible cruel and unusual punishment problems. Beyond that, the U.S. Supreme Court took a handsoff approach to sentencing procedures, leaving it up to state legislatures and judges to share sentencing authority and administration without interference from the Court. Then came Apprendi v. New Jersey (2000), called by two authorities (Dressler and Michaels 2006) “the first in a series of constitutional explosions that have rocked the world of criminal sentencing and caused fundamental alterations” in federal and state sentencing systems (366). (See Table 2.1 for some of the leading cases). Because the Guidelines are now advisory, appellate review of sentencing decisions is limited to determining whether they are “reasonable” (United States v. Booker, 543 U.S. 220 (2005)), and an abuseofdiscretion standard applies to appellate review of sentencing decisions. Abuseof discretion standard, “failure to exercise sound, reasonable, and legal decisionmaking; an appellate court’s standard for reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the evidence”