Constitutional Limitations on the Criminal Law

Transcription

1 C H A P T E R 2 CHAPTER OBJECTIVES FPO After reading and studying this chapter, you should be able to: 1. Identify who determines whether a legislative enactment violates a constitutional prohibition. 2. List those areas of the Constitution that limit criminal law enactments. 3. Identify the one crime defined in the U.S. Constitution. 4. List those provisions of the Bill of Rights that limit the government s ability to prohibit and punish crimes. 5. State three categories of unprotected speech. 6. Name three areas of personal privacy protected by the U.S. Constitution as it affects crimes. Constitutional Limitations on the Criminal Law CHAPTER OUTLINE 2.1 Criminal Law and the U.S. Constitution The Question of Constitutionality The Bill of Rights 2.2 Procedural Criminal Law Due Process and Equal Protection Search and Seizure Bills of Attainder and Ex Post Facto Laws Fair Notice and Vagueness 2.3 Substantive Criminal Law and Individual Due Process Rights First Amendment Rights Second Amendment Rights Eighth Amendment Rights The Right of Privacy

2 Chapter 2 Constitutional Limitations on the Criminal Law Criminal Law and the U.S. Constitution American criminal law is mostly statutory, with courts interpreting the meaning of the penal codes when necessary. However, both the codes and the court decisions are limited by the U.S. Constitution. In this chapter, we examine the limitations imposed on the criminal law by the Constitution. Drafting, enacting, and enforcing criminal law involves action by government officials such as legislators, judges, police, and prosecutors. The content and the implementation of all criminal laws must be consistent with the federal Constitution and the constitution of the state in which the law is enacted and applied. Theoretically, neither the U.S. Congress nor state legislatures can enact laws that violate the Constitution; in reality, many laws are enacted that are later found to raise constitutional problems. The Question of Constitutionality Laws may be declared unconstitutional if they violate any of the following: Any dictate of the main body of the federal Constitution. Any federal constitutional amendments. Any provision of the constitution of the individual states. Criminal statutes may be unconstitutional in either of two ways: 1. Because of their content, known as a violation on its face. 2. Because of the way in which they are enforced by government officials, known as a violation by application or as applied. Any state or federal law that violates the Constitution is legally unenforceable and will be declared invalid. Any criminal conviction based on such a law will be reversed. A state may provide protection for individuals within its borders that is greater than the protection provided by the U.S. Constitution. Situations involving greater state protection often arise with respect to criminal procedure law. For example: In the case of United States v. Place (1983), the U.S. Supreme Court ruled that dog sniffs are not searches and therefore need not be preceded by probable cause. 1 In 2005, the Supreme Court reaffirmed Place and held that [a] dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment. 2 In contrast, in the case of Commonwealth v. Johnston, 3 a Pennsylvania court declared that for the purpose of state prosecutions, dog sniffs are searches and can be conducted only if state or local police have probable cause to believe the person, place, or thing to be sniffed is connected to criminal action. Thus, in this case, the concept of a lawful search was defined more narrowly than in federal law. Article III of the U.S. Constitution gives the power to determine the constitutionality and validity of a law. State courts determine the constitutionality of state laws and can also enforce federal constitutional principles in state cases. Federal courts

3 36 Part I Criminal Law and the Criminal Justice System decide the validity of state and federal laws that appear to violate the U.S. Constitution. In other words, the judiciary has the power to interpret, apply, or invalidate a law as it pertains to rights expressly created under the state or national constitution. The U.S. Supreme Court has the final authority to interpret the federal Constitution. Cases reach the U.S. Supreme Court when at least four of the nine justices have elected to consider a certain case. In such instances, the Court grants a writ of certiorari, which is an order to the lower court to send the case forward for review. Bill of Rights The first 10 amendments to the U.S. Constitution, especially those portions that guarantee fundamental individual rights vis-à-vis the government. The Bill of Rights When the U.S. Constitution was first proposed, critics objected that it did not contain explicit protection of the rights of the people. On the basis of their experiences in England, critics of the Constitution were aware of ways that the government can abuse its authority. As a result, with issues of state sovereignty and individual liberty in mind, the first U.S. Congress adopted a set of 12 amendments to the Constitution defining the powers of the government and the rights of the people. By 1791, the states had ratified 10 of these amendments, which became known as the Bill of Rights. The first 8 amendments contain several guarantees of individual rights, including both procedural safeguards and a listing of specific individual liberties with which the government may not interfere without just cause. When originally adopted, the guarantees of the Bill of Rights protected the individual only against the federal government, not state government. The Supreme Court confirmed this in 1833, 4 and it remained that way until the 1960s. With the enactment of the Fourteenth Amendment and subsequent decisions by the Supreme Court, the provisions of the Bill of Rights came to apply to the states as well. The only two exceptions are the Fifth Amendment s provision for prosecution of serious crimes only by indictment and the Eighth Amendment s ban on excessive bail. CRITICAL THINKING How does the U.S. Constitution influence federal and state law? procedural criminal law The rules governing how the criminal law is administered. 2.2 Procedural Criminal Law Procedural criminal law outlines the official mechanisms through which substantive criminal law is enforced. It sets forth the rules and laws to be followed from the investigative stage of a crime to the arrest, trial, and sentencing of the defendant. The sources of procedural criminal law include Article I of the Constitution and the Fourth, Fifth, Sixth, and Fourteenth Amendments. The Fourth Amendment prohibits unreasonable searches and seizures. The Fifth Amendment provides due process protection, protects against double jeopardy and self-incrimination, and requires grand jury indictment in federal cases.

4 Chapter 2 Constitutional Limitations on the Criminal Law 37 The Sixth Amendment establishes the right to counsel, the right to trial by an impartial jury, the right to a speedy and public trial, the right to confront opposing witnesses, the right to compel the attendance of witnesses favorable to the defendant, and the right to notice of the nature and cause of the accusation. The Fourteenth Amendment provides for due process and equal protection under the law. Due Process and Equal Protection As you can see, due process clauses appear in both the Fifth and Fourteenth Amendments to the U.S. Constitution. The Fifth Amendment states that no person shall be deprived of life, liberty, or property, without due process of law. The Fourteenth Amendment provides that no state shall deprive any person of life, liberty, or property, without due process or law. Over time, the courts have interpreted due process to encompass the multiple procedures and processes that must be followed before a person can be legally deprived of his or her life, liberty, or property. The Fourteenth Amendment to the U.S. Constitution also provides that no state shall deny to any person... the equal protection of the laws. A law that distinguishes between two classes of persons (e.g., men and women, wealthy and poor, minorities and nonminorities) is subject to attack if it does not provide equal protection to persons who should be treated equally with respect to the practice dealt with by the law. For example, until the civil rights movement of the 1950s and 1960s, several states maintained laws that provided different rights for black and white residents under the separate but equal doctrine announced by the U.S. Supreme Court in the 1896 case Plessy v. Ferguson. Then, in Loving v. Virginia (1967), the Supreme Court struck down a Virginia statute that criminalized interracial marriage, relying on the equal protection clause. Similarly, in Craig v. Boren (1976), the Court declared invalid on equal protection grounds an Oklahoma law that prohibited the sale of beer to females under the age of 18 and males under the age of Today, all laws that make a distinction between persons based on race, ethnicity, gender, religion, sexual orientation, or national origin are subject to constitutional scrutiny, even when they are designed to rectify past discrimination. due process The multiple criminal justice procedures and processes that must be followed before a person can be legally deprived of his or her life, liberty, or property. equal protection The constitutional provision that all people should be treated equally with respect to the practice dealt with by the law. Search and Seizure The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures of persons, houses, papers, and effects and states that no warrants shall issue, but upon probable cause. This amendment is often said to guarantee the right of privacy and is the major source of much of the procedural criminal law dealing with law enforcement activities in crime investigation. Constitutional restrictions on searches, seizures, and detention of persons suspected of and charged with violations of the criminal law are governed by principles stemming from this amendment.

5 38 Part I Criminal Law and the Criminal Justice System bill of attainder A special legislative enactment that declares a person or group of persons guilty of a crime and subject to punishment without trial. ex post facto law A law that (1) makes criminal an act done before passage of the law against it and punishes such action; (2) aggravates a crime or makes it greater than it was when committed; or (3) inflicts a greater punishment than the law imposed or allows evidence of guilt that is less than what the law required at the time the offense was committed. Bills of Attainder and Ex Post Facto Laws As we have seen in the discussion of the principle of legality in Chapter 1, conduct cannot be punished retroactively. Consistent with this principle, the U.S. Constitution prohibits legislatures from enacting bills of attainder and ex post facto laws. A bill of attainder is a legislative enactment that declares individuals or members of a group guilty of a crime and subject to punishment without trial. If an act imposes capital punishment on those supposed to be guilty of important crimes such as treason or felony, it is a bill of attainder. If it inflicts a lesser punishment, it is called a bill of pains and penalties. Such laws are prohibited by Article I, Section 9 of the Constitution. An ex post facto law is one that: Makes criminal an act done before passage of the law and punishes such action. Aggravates a crime, making it more serious than it had been when it was committed. Inflicts a greater punishment than the law imposed when the crime was committed or alters the legal rules of evidence, allowing evidence of guilt that is lesser or different from what the law required at the time the offense was committed (see Application Case 2.1). 6 Application Case 2.1 Carmell v. Texas In Carmell v. Texas (1996), the court held that altering the rules of evidence in a trial for offenses that were committed before the effective date of the amendment was a violation of the prohibition against ex post facto laws. In 1996, the defendant was convicted of 15 counts of committing sexual offenses against his stepdaughter during a period from 1991 to 1995, when the victim was years old. Under the Texas Criminal Code, a victim s testimony about a sexual offense could not support a conviction unless there was corroborating evidence or the victim informed another person of the offense within six months of the act. However, under a 1993 amendment to this law, the victim s testimony alone could support a conviction if the victim was under 14 at the time of the offense. The defendant argued that the convictions for those offenses committed before the victim reached the age of 14 in July 1992 should be reversed, on the grounds that they were based solely on her testimony and there was no corroborating evidence. In agreement, the court was forced to hold that retroactive application of the 1993 amendment violated the federal constitutional prohibition against ex post facto laws. SOURCE: Carmell v. Texas, 529 U.S. 513 (2000).

6 Chapter 2 Constitutional Limitations on the Criminal Law Web Exploration American Bar Association V isit the American Bar Association s (ABA) website at and explore Legal Education and Public Resources. What services does the ABA provide for those who are not attorneys? What did you learn from visiting this site? For example, although the courts have generally denied their claims, many previously convicted sex offenders argue that new state laws requiring them to register with the local police, who can then notify the community of their presence, amount to ex post facto punishment, because such requirements did not exist at the time that they pled or were found guilty. They also claim that such requirements continue to punish them even though they have already served their sentences. With few exceptions, the courts have rejected these claims, holding that the requirements of registration and community notification are not punishments but regulatory measures aimed at protecting the public. Fair Notice and Vagueness The due process clauses of the Fifth and Fourteenth Amendments require that the law provide fair notice. The right to fair notice means that the law must clearly define the precise conduct that is prohibited. Thus, statutes that are written ambiguously or in which the words are vague (subject to different interpretations by different people) also violate the constitutional requirement of due process (see Application Case 2.2). fair notice The due process requirement that people are entitled to know what they are forbidden to do so that they may shape their conduct accordingly. Application Case 2.2 People v. Maness In People v. Maness (2000), the Illinois Supreme Court affirmed a trial court s invalidation of a state statute. The defendant was charged with permitting the sexual abuse of a child, an offense created by the Wrongs to Children Act of The act provided that a parent or stepparent who knowingly allows an act of criminal sexual abuse or criminal sexual assault on his or her minor child and fails to take reasonable steps to prevent its commission or future occurrences of such acts commits the offense of permitting the sexual abuse of a child. The defendant s 13-year-old daughter was dating and having intercourse with a 17-year-old male. During the relationship, the defendant learned of the sexual conduct between her daughter and Owens; although she disapproved of it, she obtained birth control for her daughter and allowed Owens to spend the night at their home. In a report from the Department of Children and Family Services, the defendant stated that she did not know what steps to take to prevent the sexual

7 40 Part I Criminal Law and the Criminal Justice System relationship her daughter was having with Owens. The defendant argued that the statute was unconstitutionally vague because it failed to define reasonable steps to prevent future acts of sexual abuse. The court agreed with the defendant, in that the statute is unconstitutionally vague if its terms are so indefinite that people of common intelligence must guess at its meaning. In addition, the court held that a statute must adequately define the offense in order to prevent its arbitrary and discriminatory enforcement, and it must provide explicit standards to regulate the discretion of governmental authorities. SOURCE: People v. Maness, 732 N.E.2d 545 (Ill. 2000). Under the due process clause of the Fourteenth Amendment, criminal statutes cannot be vague, ambiguous, or overly broad. Criminal statutes lacking clarity violate the fair notice requirement that people are entitled to know what they are forbidden to do so that they may shape their conduct accordingly. In addition, criminal statutes lacking in clarity are susceptible to enforcement in an arbitrary or discriminatory manner by the police, prosecutors, judges, and juries. 7 An example of a statute found to be unconstitutionally vague and therefore invalid is a Jacksonville, Florida, city ordinance that prohibited various forms of vagrancy. 8 Other statutes that have been found unconstitutionally vague include: One that punished a person who publicly treats contemptuously the flag of the United States. An ordinance stating that no person shall loiter... in or upon any street, park or public place, or in any public building, with no definition of the term loiter. A harassment statute prohibiting conduct that alarms or seriously annoys another person. All of the preceding statutes were also invalidated because they were overly broad, meaning that they could result in the punishment of individuals for engaging in conduct that is constitutionally protected. In short, as the Supreme Court held in the case of Kolender v. Lawson, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. 9 In Kolender, Edward Lawson was detained or arrested on 15 occasions between March 1975 and January 1977 for violations of California Penal Code Section 647(e), which provided that Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor:... (e) Who loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested by any peace officer to do so, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification. This section of the California Penal Code was subsequently deleted because of this lawsuit. One police officer had apparently stopped Lawson while walking on an otherwise vacant street because it was late at night, the area was isolated, and the area was located close to a high crime area. Another officer had detained Lawson, who was

8 Chapter 2 Constitutional Limitations on the Criminal Law 41 Vagueness and Overbreadth in the Law Certain laws, such as those outlawing vagrancy, are overly vague and do not offer any specific guidelines for their enforcement. Therefore, they can be overly used or discriminatorily used. walking at a late hour in a business area where some businesses were still open, and asked for identification because burglaries had been committed by unknown persons in the general area. Lawson was prosecuted twice and convicted once. The U.S. Supreme Court held that the statute was unconstitutionally vague by failing to clarify what was contemplated by the requirement that a suspect provide a credible and reliable identification. The statute gave the police sole discretion to determine whether the suspect has satisfied the statute and must be permitted to go on his way in the absence of probable cause to arrest. This violated the Fourth Amendment because while police may ask their questions in a way calculated to obtain an answer, they may not force an answer from anyone, and the person must be allowed to leave after a reasonably brief period of time unless the information they have acquired during the encounter has given them probable cause sufficient to justify an arrest. (See Application Case 2.3.) Application Case 2.3 City of Chicago v. Morales I n City of Chicago v. Morales (1999), in response to an increase in gang-related murders that also intimidated law-abiding citizens, Chicago enacted an ordinance that criminalized loitering. In sum, the Anti-Gang Loitering Ordinance gar26385_ch02_ indd 41 06/05/11 3:04 PM

9 42 Part I Criminal Law and the Criminal Justice System stated that if a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section. Over a three-year period following enactment of the statute, 89,000 dispersal orders were given and 42,000 people were arrested. In Morales, each defendant was alleged to have been in the presence of a gang member, and each was arrested when he failed to disperse as directed by the police. The Court of Appeals held that the ordinance was unconstitutional because it violated freedom of association, congregation, and expression protected by the First Amendment. In addition, the court held that the ordinance was unconstitutionally vague under the Illinois Constitution, which ensures the right to assemble in a peaceful manner. The court also stated that since the statute was intended to address the behavior of gang members but an innocent bystander could also be convicted, the statute failed to specify a standard of conduct and failed to provide minimal guidance to limit the discretion given to police officers to enforce the law. SOURCE: City of Chicago v. Morales, 527 U.S. 41 (1999). CRITICAL THINKING Why are ex post facto laws considered unconstitutional? Do you agree? Why or why not? 2. How do due process and equal protection protect people s rights? substantive criminal law The law defining acts that are criminal. 2.3 Substantive Criminal Law and Individual Due Process Rights Substantive criminal law defines criminal conduct and prescribes the punishment to be imposed for such conduct. For example, the homicide section of a state s criminal code defines the elements of the offense of murder and states the punishment that can be imposed for the offense. Government power to define criminal conduct is limited by certain individual liberties guaranteed in the Bill of Rights. The individual liberties, or substantive rights, specifically enumerated and expressly guaranteed within the Bill of Rights (see Figure 2.1 ) include: Freedom of religion, speech, and assembly. The right to bring grievances against the government. The right to keep and bear arms. Protection against cruel and unusual punishment. In addition, the right to personal privacy is derived from the right to be protected from unreasonable searches and seizures. These rights affect the ability of both federal and state authorities to prohibit and punish individual conduct that falls within the protection of the Bill of Rights.

10 Chapter 2 Constitutional Limitations on the Criminal Law 43 F I G U R E 2. 1 Liberties Granted by the Bill of Rights First Amendment Free speech Free exercise of religion Freedom of assembly Second Amendment Right to bear arms Fourth Amendment Freedom from unreasonable searches and seizures Fifth Amendment Grand jury indictment in felony cases No double jeopardy No compelled self-incrimination Sixth Amendment Speedy and public trial Impartial jury of the state and district where crime occurred Notice of nature and cause of accusation Confront opposing witnesses Compulsory process for obtaining favorable witnesses Right to counsel Eighth Amendment No excessive bail and fines Prohibition of cruel and unusual punishment This means that no state or federal agency can legally enact or enforce criminal statutes that unnecessarily inhibit the substantive rights identified in the amendments. Criminal statutes may run afoul of the specific dictates of the First or Second Amendment or the somewhat broader prohibitions in the Eighth Amendment, or they may interfere with the general exercise of liberty mentioned in both the Fifth and Fourteenth Amendments. First Amendment Rights The First Amendment provides that Congress shall make no law prohibiting the free exercise of religion or abridging the rights of free speech and peaceable assembly. Those guarantees of free exercise of religion, freedom of speech, and freedom of assembly are among the most protected rights. Freedom of religion and freedom of speech are sometimes grouped together as freedom of expression. Free Speech In general, Americans can say what they like and are free to criticize the government without fear of punishment. However, the guarantee of free speech is not absolute. In order to protect the public, government can regulate certain kinds of speech. Such restrictions must be evaluated by the courts in light of the government s responsibility to meet the public s interest, as well as the individual s First Amendment guarantee of free speech. One of those limiting principles is the clear and present danger test. Justice Oliver Wendell Holmes expressed the test in memorable terms, in the 1919 case of Schenck v. United States : The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. It does not even protect a man from clear and present danger test A test to determine whether a defendant s words pose an immediate danger of bringing about substantive evils that Congress has the right (and duty) to prevent.

11 44 Part I Criminal Law and the Criminal Justice System an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has the right (and duty) to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to the war effort that their utterance will not be endured so long as men fight and... no Court could regard them as protected by any constitutional right. 10 In the case from which the quote is taken, the defendant was convicted of interfering with the draft during wartime and of urging insubordination in the military. Justice Holmes s language suggests that the advocacy of unlawful conduct can be limited in order to protect public welfare. However, not every urging to violate the law satisfies the clear and present danger test, which was redefined by the Supreme Court to require advocacy of imminent lawless action. 11 Given this redefinition, it is unlikely that the conduct and speech in the very case in which Justice Holmes announced the clear and present danger test would be considered criminal by the Supreme Court today. Fighting words are another subcategory of unprotected speech that poses a clear and present danger. The Supreme Court has defined fighting words as those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. 12 Such speech threatens public peace or order by being so provocative that it is likely to induce a violent reaction. Other areas of potentially unprotected speech include hate speech, profanity, libelous utterances, and obscenity. (Obscenity is discussed more fully in Chapter 13.) Questions relating to these types of speech present complex questions of balancing that yield no clear rule for determining how far the government may go to regulate such speech, if at all. For example, in R.A.V. v. St. Paul, the U.S. Supreme Court held unconstitutional a city ordinance banning the burning of a cross and the display of symbols such as swastikas. 13 Finally, with the advent of the Internet and other modern technologies, courts have been faced with new challenges to the First Amendment, and they have been evaluating statutes seeking to regulate the information transmitted in cyberspace. (See Application Case 2.4.) Application Case 2.4 Hatch v. Superior Court I n Hatch v. Superior Court (2000), the defendant was convicted pursuant to the California Penal Code for using the Internet to send harmful matter to a minor in an attempt to seduce her. In Hatch, Fox Television hired 20-year-old Jennifer Hersey to pose as a 13-year-old girl involved in Internet chats with persons interested in having sexual encounters with underaged girls. The defendant made contact with Hersey, then engaged in a series of communications wherein she posed as girls named Stacie and Lisa. He also sent Hersey pictures of nude girls and of young girls having sex with men. The defendant then

12 Chapter 2 Constitutional Limitations on the Criminal Law 45 attempted to arrange meetings for sexual encounters, and discussed via his plans to have sex with Stacie and Lisa. Hersey agreed to meet the defendant at a hotel, and also forwarded her communication with the defendant to the police. The defendant was then convicted of attempting to seduce a minor by means of the I nternet. The defendant argued that the statute violated his First Amendment rights, but the Court of Appeals held that such communication did not enjoy First Amendment privileges. In addition, the statute was not seeking to prohibit forum communication (such as in chat rooms), but only adults seeking to seduce a child. Finally, the court stated that the statute is directed more toward an activity or conduct than toward communication. SOURCE: Hatch v. Superior Court, 94 Cal. Rptr. 2d 453 (Cal. Ct. App. 2000). The notion that the government has the power and obligation to provide for the common defense and promote the welfare of the general public by enacting laws is expressly written into the federal Constitution. Still, this concern for society as a whole must be addressed while also recognizing the rights of individuals. Under what has come to be known as the police powers, federal, state, and local governments may enact laws and authorize enforcement activities that regulate the time, place, and manner in which an individual can exercise constitutionally protected rights, but these rights cannot be completely taken away or banned in the interest of the general public. They are balanced against the potential harm that might be caused to others in society. Free Exercise of Religion American courts will invalidate criminal statutes that are viewed as thinly veiled attempts to restrict the freedom of religion. For example: The U.S. Supreme Court struck down a state statute criminalizing doorto-door solicitation for religious purposes without prior approval from state officials, when the statute was used to prohibit Jehovah s Witnesses from their religious conduct. The Court also struck down an ordinance of the City of Hialeah, Florida, banning ritualistic animal sacrifice, which was aimed at a particular religion s practice. 14 On the other hand, religious freedom claims have been rejected in upholding criminal convictions for: Polygamy. A Christian Scientist parent s withholding medical treatment for a child. The handling of poisonous snakes in religious ceremonies. The use of peyote as part of a religious practice. 15 Clearly, not all claims based on the free exercise of religion will exempt a defendant from criminal liability. (See Chapter 14 for discussion of legislation on the use of peyote.)

13 46 Part I Criminal Law and the Criminal Justice System Freedom of Assembly The First Amendment protects all Americans rights to assemble peaceably to protest social or governmental wrongs. Freedom of Assembly The right of the people to assemble publicly is not absolute. Because public assembly may threaten public safety, peace, and order, the government has the right to impose reasonable restrictions on the time, place, and manner of assembly. In addition, specific statutes curtail the right to assemble under specific circumstances. For example, the Freedom of Access to Clinic Entrances (FACE) Act criminalizes physical obstruction, intentionally... interfer[ing] with or attempt[ing] to... interfere with any person who is or has been obtaining or providing reproductive health services. 16 In other words, although individuals can demonstrate in front of an abortion clinic, they cannot physically prevent individuals from going into the clinic. State statutes that prohibit loitering also affect the right to assemble. Antiloitering statutes have always been part of the U.S. criminal legal system. However, these laws are subject to scrutiny by the courts and may be unconstitutional if they are found to be vague. The statutes must also reasonably promote identifiable public interests in order to justify the interference with individual liberty. Second Amendment Rights The right to keep and bear arms provided in the Second Amendment is not absolute and has been the source of much litigation in recent years. While various organizations such as the National Rifle Association (NRA) contend that the right to bear arms is an individual one, the U.S. Supreme Court has held that this provision must be read in conjunction with the other, less-known clause of the Second Amendment, which requires a well regulated militia. In 2008 the Supreme Court, for the first

14 Chapter 2 Constitutional Limitations on the Criminal Law 47 time in U.S. history, in District of Columbia v. Heller, 17 held that the Second Amendment protects an individual right to keep and bear arms for self-defense. And, in 2010, in McDonald v. City of Chicago, 18 the Court held that the Second Amendment right to bear arms is incorporated into the Fourteenth Amendment s due process clause and therefore is applicable to the states. Typical federal and state gun control statutes impose licensing requirements such as background checks and waiting periods; restrict carrying, concealing, and purchasing firearms; and prohibit firearm ownership by convicted felons. Under the Brady Bill, criminal offenses committed with a firearm carry more severe penalties than those committed without one. 19 Eighth Amendment Rights The Eighth Amendment to the U.S. Constitution prohibits the infliction of cruel and unusual punishments. The Supreme Court has interpreted the Eighth Amendment requirement of proportionality to mean that the punishment inflicted for a criminal violation should not be grossly disproportionate to the crime committed. This proportionality requirement affects: The grading of offenses. The imposition of the death penalty. The assessment of the validity of terms of imprisonment. proportionality The constitutional principle that the punishment should fit the crime, expressed in the Eighth Amendment s cruel and unusual punishment clause. Noncapital Cases In the area of disproportionate sentences in noncapital cases, the Supreme Court s jurisprudence has not been a model of clarity. For example: In one case, a defendant with two previous convictions for theft was sentenced to life imprisonment for obtaining a check for $ under false pretenses and cashing it. The Supreme Court upheld the defendant s sentence. In another case three years later, a defendant with seven prior felony convictions was sentenced to life imprisonment for a check-cashing violation. The Court held that this sentence was invalid. 20 Why did this disparity occur? In the first case, the state had a liberal parole policy; in the second case, the defendant had been sentenced to life without the possibility of parole. The Court distinguished the two cases on those grounds. Finally, in a third case, a defendant was sentenced to life imprisonment without the possibility of parole for a first-offense possession of 672 grams of cocaine. The Supreme Court upheld the sentence, concluding that the sentence did not violate the Eighth Amendment. 21 The decision in all three cases was by a vote of 5 4. Because of this, proportionality is still an unresolved issue that can lead to controversial decisions. Capital Cases Whether the death penalty itself constitutes cruel and unusual punishment is another area of disagreement among Supreme Court justices, legislators, and citizens in general. The death penalty has been used since the early years of the nation for example, in

15 48 Part I Criminal Law and the Criminal Justice System the Salem witch trials. The U.S. Supreme Court has placed limits on the circumstances under which the death penalty may be imposed under the Eighth Amendment. In Coker v. Georgia (1977), 22 the Court held that death was an excessive penalty for the rape of an adult woman. In Edmund v. Florida (1982), 23 the Court struck down the death penalty for unintentional killings. In Thompson v. Oklahoma, 24 the Court ruled that the death penalty cannot be imposed on a defendant who was less than 16 years old at the time of the offense. In 2002, in Atkins v. Virginia, 25 the Court held that execution of a mentally handicapped person categorically violated the Eighth Amendment. In 2005, in Roper v. Simmons, 26 the Court found that the execution of minors under the age of 18 constituted cruel and unusual punishment. Furman v. Georgia In the 1972 case of Furman v. Georgia, 27 the U.S. Supreme Court examined the imposition of the death penalty in three cases. Each of the three petitioners had been convicted in a state court and sentenced to death after a jury trial in which the jury had the discretion to determine whether to impose the death penalty. The Supreme Court analyzed in detail the constitutional issues raised by capital punishment. In this landmark 5 4 decision, each of the nine justices wrote a separate opinion. The five justices in the majority believed that the death penalty was cruel and unusual because it was being implemented in a manner that discriminated against the poor and minorities. However, only three ( Justices Brennan, Marshall, and Douglas) held that capital punishment was in itself cruel and unusual. The effect of this decision was an informal moratorium on the death penalty until the Court s five decisions in 1976, 28 reviewing the death penalty statutes enacted by a number of states in response to Furman. The Court approved three of the newly enacted statutes and there followed, in 1977, the execution by firing squad in Utah of Gary Gilmore. In subsequent years, the Court issued a number of decisions that established the constitutionality of the death penalty under appropriate state and federal statutory provisions, and executions in the United States have continued to the present. Continuing concerns about the inequity in imposition of the death penalty and about the execution of innocent persons have fueled the national debate about the wisdom of the death penalty Web Exploration Constitutional Law at Findlaw.com V isit Findlaw.com s section on constitutional law at Read the current articles on the front page, then write a half-page report explaining the breadth of issues you read about and how they are covered under constitutional law. Don t forget to include the amendments to which these issues pertain.

16 Chapter 2 Constitutional Limitations on the Criminal Law 49 The Right of Privacy Although the Constitution does not expressly mention a right of privacy, the U.S. Supreme Court has held that it is implied by the following constitutional provisions: The First Amendment right of free association. The Third Amendment dealing with the quartering of soldiers in private homes. The Fourth Amendment ban on unreasonable searches and seizures. The right of privacy includes the right to be let alone, the right to be free from unwanted publicity, and the right to live without unwarranted interference. For example, the Court has recognized, within the concept of personal privacy, a person s right to decide whether to bear or beget a child. 30 In various cases, the Court has held that government cannot interfere by statutory proscription with the availability of contraceptives and contraceptive devices for single or married persons. 31 Abortion Rights Another area of privacy relating to childbirth is the right of a woman to choose to terminate her pregnancy through abortion. In 1973, in Roe v. Wade, 32 the Supreme Court held that the right of privacy extended to protect a woman s right to abortion, and it invalidated the antiabortion statute involved in that case. The Court reaffirmed this position on abortion in 1992, in the case of Planned Parenthood v. Casey, 33 but allowed the states to regulate and place restrictions on abortions so long as those regulations do not impose an undue burden on the woman s ability to make the abortion decision. Consensual Sodomy Interpersonal sexual conduct has also been recognized as an area protected by the right of privacy. For example, the Court has held that the right of privacy protects a right to engage in private consensual homosexual activity. In Lawrence v. Texas, 34 a state law made it a crime for two persons of the same sex to engage in certain intimate sexual conduct. The Court found that the law sought to control the lives of homosexual persons, the parties were consenting adults, the conduct was private, and the parties were entitled to privacy. The Court also noted that the reasoning and holding of its prior decision in Bowers v. Hardwick, 35 in which the Court refused to prevent a state from punishing homosexual acts committed by adults in private, had been rejected in other nations, and there was no showing that the governmental interest in the United States was more legitimate than the individual s privacy interest. 2.3 Web Exploration I n April 2010, the Arizona legislature enacted a bill on illegal immigration designed to identify, prosecute, and deport illegal aliens. The controversial law is described at Check online to see the latest developments with respect to this law.

17 50 Part I Criminal Law and the Criminal Justice System CRITICAL THINKING Which amendment of the Bill of Rights do you feel is most important to one s fundamental rights? Why? 2. Why is the right to privacy controversial in American society? REVIEW AND APPLICATIONS Summary by Chapter Objectives 1. Identify who determines whether a legislative enactment violates a constitutional prohibition. Both state and federal courts determine whether a legislative enactment violates a constitutional prohibition, but in different capacities. State courts can enforce both federal constitutional principles and state constitutional principles in state cases. Federal courts can enforce federal constitutional principles, which are principles relating to the U.S. Constitution. 2. List those areas of the Constitution that limit criminal law enactments. Constitutional subjects relating to the substantive criminal law include: The principle of legality (which includes the prohibition of bills of attainder and ex post facto laws). A number of rights specifically enumerated in the Bill of Rights, including freedom of religion, speech, and assembly; the right to keep and bear arms; due process; and the prohibition against cruel and unusual punishment. The right of privacy, and equal protection of the law. 3. Identify the one crime defined in the U.S. Constitution. The only crime defined in the U.S. Constitution is treason. 4. List those provisions of the Bill of Rights that limit the government s ability to prohibit and punish crimes. The rights enumerated in the Bill of Rights that specifically limit the government s ability to prohibit and punish crimes are: Freedom of religion, speech, and assembly, as protected by the First Amendment. The right to keep and bear arms, as protected by the Second Amendment. The Fifth Amendment s due process clause, as it relates to the vagueness or overreaching qualities of a criminal statute. The Eighth Amendment s ban on cruel and unusual punishment, especially as it relates to the death penalty. 5. State three categories of unprotected speech. Three categories of unprotected speech are: Speech that violates the clear and present danger test. Speech advocating unlawful conduct. Fighting words.

18 Chapter 2 Constitutional Limitations on the Criminal Law Name three areas of personal privacy protected by the U.S. Constitution as it affects crimes. Three areas of personal privacy that may be protected by the Constitution from statutory interference by the government are the availability of contraceptives and contraceptive devices for single or married persons, the right of a woman to chose to terminate her pregnancy through abortion, and private consensual sexual activity. Key Terms Bill of Rights (p. 36) procedural criminal law (p. 36) due process (p. 37) equal protection (p. 37) bill of attainder (p. 38) ex post facto law (p. 38) fair notice (p. 39) substantive criminal law (p. 42) clear and present danger test (p. 43) proportionality (p. 47) Review Questions 1. What is the difference between substantive and procedural criminal law? 2. Name at least five constitutional subjects relating to procedural criminal law. 3. Name the three possible definitions of an ex post facto law. 4. What are two possible problems that can arise from vague criminal statutes? 5. Define the due process clause of the Fourteenth Amendment and explain its relevance to criminal law. 6. Name some examples of limitations on the First Amendment, as applied by the courts. 7. What are fighting words? How do these legally differ from hate speech or profanity? 8. What does the Eighth Amendment address, and how is this applied to criminal justice? 9. How does proportionality affect the grading of offenses? 10. Explain what equal protection under the law means and how it applies in criminal law. Problem-Solving Exercises 1. Juvenile Rights You are a police officer working in the city. You see a group of youths on the corner of a busy intersection in the downtown area. They are standing around talking. You suspect they are involved in a drug transaction, because you recognize one of them as a member of a drug ring. What constitutional rights does the youth you recognize have that might prohibit you from taking any police action against him at this time? 2. False Alarm At a college football game, someone makes a loud noise like a banging gun and yells, He has a gun! In response, spectators in the immediate area panic and begin running for the exit. Six people are trampled and two are seriously injured. During the investigation, campus police learn that nobody

19 52 Part I Criminal Law and the Criminal Justice System had a gun; the panic was the result of two young men playing a practical joke. Answer the following questions: a. Which test would you apply to determine if this speech was protected by the First Amendment? b. What if someone either made the gunshot sound or only shouted, He has a gun! but it produced the same result? Would this be protected? c. What other factors would you consider as you write your report for this case? What, if anything, would you recommend to your prosecutor? 3. Anti-Loitering Ordinance Your city has passed an anti-loitering ordinance, and you are a prosecutor who must deal with the arrests that result from enforcement of this law. Recently, local police have started arresting teenagers who seem rather scruffy and aggressive, but who have no apparent drug or gang involvement. The defendants were loitering around a local strip mall that has had numerous drug activities but is also a popular hangout. Their arrests were legal under the current city ordinance. Answer the following questions: a. Is this ordinance constitutional or not? Why? b. How will you handle this case? Workplace Applications 1. Incitement to Riot It is a hot night, and you are among a group of officers called into an inner-city neighborhood in response to a disturbance. When you arrive at the scene, you discover a group of angry citizens facing a line of officers who are struggling to hold them back. One very angry citizen is yelling above the crowd, urging the others to attack the police. Some of his comments are very violent and very specific, and he appears to be making the crowd even angrier. Answer the following questions: a. Is this man violating any laws? If so, what are they? b. Can you arrest this citizen without violating his constitutional rights? Why or why not? c. If he succeeds in inciting others to riot, do you think that there are any additional charges for which he may be liable? Why or why not? 2. The Bill of Rights Interview three or four friends (not in this class) and ask them to name 7 of the 10 amendments in the Bill of Rights. Tally the results and then answer the following questions: a. Did they seem to have a fairly complete understanding of the Bill of Rights? Why or why not? b. Were you surprised by the results? Why or why not? c. What do your survey results say about the average American s understanding of the Bill of Rights? How can this affect people when they are unexpectedly caught up in the criminal justice system? 3. Illegal Assembly You are a judge hearing a case regarding an illegal assembly on a state university campus. The defendants, who are mainly students, state that they were denied a permit to protest for political reasons and thus were deprived of their First Amendment rights to peaceful assembly; university officials, they claim, held back from issuing the permit so that they would have an excuse to

20 Chapter 2 Constitutional Limitations on the Criminal Law 53 arrest them. You examine the relevant statutes and find that your state has a 1908 statute that requires student assemblies to have at least one monitor or chaperone. In addition, the statute requires that the school approve all student activities. Answer the following questions: a. Will you strike down this law, or apply it? Why? b. If you apply it, in whose favor will you decide? Ethics Exercises 1. Ethnicity and the Law You are a police investigator working in an ethnically diverse community. Over time, you confirm that young men from one ethnic group are most often involved in the criminal conduct that you investigate. You also notice that many of your colleagues make assumptions about the criminal behavior of all young men in that ethnic group. Answer the following questions: a. Is there anything improper in the way in which your colleagues take into account the ethnicity of a suspect when observing or investigating criminal activities? Why or why not? b. What can you do to make sure that your behavior is within constitutional limits? c. What can you do to influence or change your colleagues behavior? What are some possible problems that may occur if they do not change? d. What other constitutional concerns might you have regarding this behavior? 2. Domestic Violence You are the mayor of a medium-sized city, which has an ordinance that requires arrest in domestic violence cases that show evidence of physical injury. Unfortunately, the ordinance does not define physical injury. Most officers interpret this to mean any sign of physical injury, such as a black eye or bruised arm, but some officers choose to interpret it to mean only serious injuries such as fractures. As a result, some cases are ignored, and you have heard rumors that some victims are considering a civil lawsuit against the police department. Answer the following questions: a. What can be done to remedy this problem? b. What additional efforts should you make with the police and to the public? Notes 1. United States v. Place, 462 U.S. 696 (1983). 2. Illinois v. Caballes, 543 U.S. 405, 410 (2005). 3. Commonwealth v. Johnston, 530 A.2d 74 (Pa. 1987). 4. Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833). 5. Loving v. Virginia, 388 U.S. 1 (1967); Craig v. Boren, 429 U.S. 190 (1976); Plessey v. Ferguson, 163 U.S. 537 (1896). 6. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798), as quoted in Joshua Dressler, Understanding Criminal Law 50.1[C][1], at 41 n.21 (5th ed. 2009). 7. Herbert L. Packer, The Limits of the Criminal Sanction 80 n.5 (1968); Joshua Dressler, Understanding Criminal Law 5.03, at 45 (5th ed. 2009).

21 54 Part I Criminal Law and the Criminal Justice System 8. Papachristou v. Jacksonville, 405 U.S. 156 (1972). 9. Kolender v. Lawson, 461 U.S. 352, 357 (1983). 10. Schenck v. United States, 249 U.S. 47, (1919). 11. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). 12. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). 13. R.A.V. v. St. Paul, 505 U.S. 377 (1992). 14. Cantwell v. Connecticut, 310 U.S. 296 (1940); Church of the Lukumi Babula Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). 15. Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878); Walker v. Superior Court, 763 P.2d 852 (Cal. 1988); Harden v. State, 216 S.W.2d 708 (Tenn. 1949); Employment Division v. Smith, 494 U.S. 872 (1990) U.S.C. 248 (1994). 17. District of Columbia v. Heller, 554 U.S. (2008). 18. McDonald v. City of Chicago, S.Ct. (2010) U.S.C. 924(c)(a)(A) (2000). 20. Joshua Dressler, Understanding Criminal Law 6.05[C], at (5th ed. 2009) (citing Rummel v. Estelle, 445 U.S. 263 (1980); Solem v. Helm, 463 U.S. 277 (1983)). 21. Harmelin v. Michigan, 501 U.S. 957 (1991). 22. Coker v. Georgia, 433 U.S. 584 (1977). 23. Edmund v. Florida, 458 U.S. 782 (1982). 24. Thompson v. Oklahoma, 487 U.S. 815 (1988). 25. Atkins v. Virginia, 536 U.S. 304 (2002). 26. Roper v. Simmons, 543 U.S. 551 (2005). 27. Furman v. Georgia, 408 U.S. 238 (1972). 28. For a review of the post-furman history of the death penalty, see Carol S. Steiker, Capital Punishment: Legal Aspects, in Encyclopedia of Crime and Justice ( Joshua Dressler ed., 2d ed. 2002). 29. For a review of the pros and cons of the debate, see Greta Proctor, Reevaluating Capital Punishment: The Fallacy of a Foolproof System, the Focus on Reform, and the International Factor, 42 Gonz. L. Rev. 211 (2007). 30. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). 31. Id.; Griswold v. Connecticut, 381 U.S. 479 (1965). 32. Roe v. Wade, 410 U.S. 113 (1973). 33. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). 34. Lawrence v. Texas, 539 U.S. 558 (2003). 35. Bowers v. Hardwick, 478 U.S. 186 (1986).