chapter 2 notes
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This 6 page Class Notes was uploaded by Allison Voss on Tuesday October 4, 2016. The Class Notes belongs to 212 at Western Illinois University taught by Lisa Schaefer in Fall 2016. Since its upload, it has received 2 views. For similar materials see Criminal Law in Leja at Western Illinois University.
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Date Created: 10/04/16
Chapter 2 Criminal Law: 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 Constitutional Democracy: In a constitutional democracy– not true majority rule—criminal laws may not be made when the Constitution protects the behavior as a fundamental right o Examples Freedom of speech Constitutional democracy limits the power of government to create certain crimes Rule of Law: Rule of law is the idea that no individual is above the law; Rule of law imanifested in the practice that government officials cannot pass laws that conflict with the Constitution; 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: Firstprinciple 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 Ex Post Facto clause bans Congress from retroactive criminal law making States have similar constitutional provisions Ex Post Facto Laws Criminalize an act that was innocent when committed Increase the punishment for a crime after the crime was committed Take away a defense that was available to a defendant when the crime was committed Purposes of ex post facto ban o Protect private individuals by ensuring that legislatures give fair warning about what is criminal o Prevent legislatures from passing arbitrary and vindictive laws Void for Vagueness Doctrine: Purpose similar to ex post facto ban o Strike down laws that fail to give fair warning as to what is prohibited o 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 Regardless of what test is used to determine if a statute violates void for vagueness/due process requirement, there is the issue of defining what a vague statute is o Words do not provide mathematical certainty Fair notice requirement of Lanzetta v. New Jersey (1939) o Objective test: would an ordinary, reasonable person know that what he was doing was criminal? 1983, Court held that providing minimal guidance to limit arbitrary and discriminatory discretion was more important than the fair notice aim (Kolender v. Lawson) Presumption of constitutionality o 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) Rule of Lenity: The requirement that the courts must resolve ambiguities in criminal statutes in favor of the defendant. 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 o Rational Basis o Heightened Scrutiny o Strict Scrutiny EP (Rational Basis): Rational basis is often tied to the state’s interest in maintaining the public health and welfare of the citizens of the state o State’s “police power” o Note, Federal government has no “police power” and Congress must tie its legislation to some power given to it in the constitution (example, interstate commerce clause, contracts clause) When classification is “nonsuspect” class then the courts will give the statute “normal scrutiny” i.e. “rational basis test” As long as the state has a rational basis for treating the groups differently than the law won’t be said to violate the Equal Protection Clause o Example: treating habitual criminals more harshly than first time offenders o Example: treating minors differently than adults for the purpose of possession/consumption of alcohol EP (Heightened Scrutiny): Gender classifications (quasi suspect class) —heightened or intermediate scrutiny State must show a fair and substantial relationship between classification based on gender and a legitimate state end EP (Strict Scrutiny): Applies to racial and ethnic (suspect) classifications and to fundamental rights State must establish that is has a “compelling interest” and that the classification must be “narrowly tailored” i.e. necessary, to achieve that interest o Ex. Brown v. Bd. Of Ed. (1954); Loving v. Virginia (1967); Obergefell v. Hodges (2015) Bill of Rights and Criminal Law: First Amendment: First Amendment includes o Free speech/press o Religion o Association There is a ban on making crime out of conduct that is an exercise of the individual’s First Amendment rights o Note however, that the government CAN regulate the time/place/manner if it does so in a contentneutral way Free Speech: Congress can’t make a law limiting freedom of speech o Applied to States in Gitlow v. New York (1925) Expansive definition of speech o Not just spoken or written words o Includes expressive conduct o Includes symbolic speech o Includes, to some extent, commercial speech Void for Overbreadth doctrine gives teeth to the protection o 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 Categories of speech not protected by 1st o Obscenity o Profanity o Libel and slander o Fighting words o Clear and present danger Why? o Slight value, any benefit is outweighed by social interest in order and morality Second Amendment: Right to Bear Arms: Few cases Lots of regulations Hot debates between gun rights and gun control activists District of Columbia v. Heller (2008) o The first successful Second Amendment Challenge o US Supreme Court ruled it is the right of lawabiding, responsible citizens to use arms in defense of hearth and home Importance of Heller case o Recognized an individual right to bear arms o Renders irrelevant the wording in 2nd Amendment concerning militia Limits of Heller case o D.C. law was very broad o Qualified right to possession of handgun by lawabiding citizen in home, for purpose of protection o Did not recognize individual right as fundamental McDonald v. Chicago (2010) o Held that right to bear arms for purposes of selfdefense within the home is a fundamental right o Incorporated 2nd Amendment into 14th Amendment meaning the States (or local governments) cannot unduly restrict it without a compelling reason i.e. strict scrutiny May still regulate o Carrying concealed weapons o Felons possessing firearms o Mentally ill persons possessing firearms o Carrying firearms in sensitive places such as school and government buildings o Laws imposing conditions and qualifications on the commercial sale of arms Commonly Used Test for Validity for Regulation of 2nd Amendment Rights OUTSIDE the home o Does the law impose a burden on conduct falling within the scope of the right at the time it was ratified? If it doesn’t, then the restriction/regulation is valid. If it does, is the restriction “reasonably adapted to a substantial government interest?” See Woollard v. Gallagher, 712 F.3d 865 (4th Cir. Md 2013) Not yet addressed by the Supremes Right to Privacy: Found in the penumbra of the Constitution (not in any specific clause or amendment) Fundamental right, so government needs a compelling interest to invade it Originates from six separate amendments o 1st, 3rd, 4th, 9th, 5th, and 14th Right to be left alone o Griswold v. Connecticut (1965); Roe v. Wade (1973); Obergfell (2015) Constitutional right to privacybans “all governmental invasions of the sanctity of a [person]’s home and privacies of life” Fundamental right to privacyrequires the government to prove that a compelling interest justifies invading it, i.e. strict scrutiny. 8th Amendment: Cruel and Unusual Punishment Clause The Constitution and Criminal Sentencing: Cruel and unusual punishments should not be inflicted Cruel and unusual punishments include o Barbaric punishment no longer allowed: burning at stake, torturing, extreme forms of solitary confinement, etc.) o Disproportionate punishment: punishment should fit the crime – THE PRINCIPLE OF PROPORTIONALITY “Death is Different”: “Death is different” – death penalty only applies to cases involving murder with aggravating circumstances o Coker v. Georgia (1977) – death is disproportionate to rape of an adult woman o Kennedy v. Louisiana (2008) – death is disproportionate to rape/torture of a child Disproportionate Punishments (cont.): The Death Penalty for Mentally Retarded Murderers o Atkins v. Virginia (2002) substantial intellectual impairment impairment impacts everyday life of MR individual MR is present at birth or during childhood The Death Penalty for Juvenile Murderers o Roper v. Simmons (2005) – “State cannot extinguish [the] life and [the] potential to attain a mature understanding of … humanity.” Life without Parole for Juveniles o Graham v. Texas (2010) – life w/o parole equivalent to death penalty; cannot be imposed for nonhomicide offense Sentences of Imprisonment: Mandatory minimum SentencesJudges impose nondiscretionary 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) Indeterminate sentences – where wide range is given by the legislature and judges have discretion to sentence anywhere in that range Sentencing guidelines—ranges of penalties from which judges choose a specific (presumptive) sentence within the range o Sentence outside that range is a “departure” and judge must explain why there is a deviation Apprendi rule Before judge can impose a sentence more severe than the statury maximum, based on aggravating factors, a jury must determine the existence of those factors beyond a reasonable doubt The Right to Trial By Jury and Criminal Sentencing: Sentencing guidelines, to the extent that they allow for judges to impose stricter departure sentences without jury findings are unconstitutional (Blakely v. Washington) (2004) Federal Sentencing Guideline structure was unconstitutional if mandatory, but may be used as a guide for judges (U.S. v. Booker), (2005) 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 (See Gall v. U.S. (2007)
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