Chapter Two

Constitutional
Limits on
Criminal Law

Restraint on Government
Power

3 Types of Restraint
1.
2.
3.

The Principle of Legality

Rule of Lenity
Stare Decisis/Precedent

1. The Principle of
Legality
a.k.a.:
Rule of law - general proposition
that the law controls the power of
the government.

Applies to all forms of lawmaking

When applied to criminal

law:

The Principal
of
=
Legality

Ban on
Retroactive
Criminal
Lawmaking

Ban on Retroactive
Lawmaking

Often referred to as the first principle

of criminal law
No crime without law; no punishment
without law
Definition: a person cannot be
convicted of a crime unless the law
defined the crime and prescribed the
punishment before he/she acted.

Hughes v. State
(p. 41)

Comprised of 4 Values
The ban on retroactive lawmaking is
comprised
Fairness
Liberty
Democracy
Equality

2. Rule of Lenity

ie., Strict construction of criminal

statutes
When a judge applies a statute in a
criminal case, the judge must stick
clearly to the letter of the law and
resolve any ambiguities in favor of
the defendant and against
application of the statute.

Example:

A theft of $3000.00 or more shall be

considered a felony of the 1st degree

3. Stare
Decisis/Precedent

Stare Decisis:
Latin To stand by things decided.
The principle that binds courts to stand
by prior decisions (precedents) and to
leave undisturbed settled points of law

Constitutional Limits
on
Criminal Laws

Pure Democracy
vs.
Constitutional Democracy

Constitutional Limits
1.
2.
3.
4.
5.

6.
7.

Ban on ex post facto laws

Right to privacy
Right to due process of law
Right to equal protection of the law
Right to free speech, association,
press and religion
Right to bear arms
Ban on cruel and unusual punishment

1. Ex Post Fact
Laws

(Ban on Retroactive Lawmaking)

Article I, Section 9 = U.S.

Congress
Section 10 = State
Legislatures

An ex post facto law is a

statute that does one of
three things:
1.

2.

3.

Criminalizes an act that was

innocent when it was committed
Increases punishment for a crime
after the crime was committed; or
Takes away a defense that was
available to a defendant when the
crime was committed.

2. The Right to
Privacy

Right to Privacy Defined

Bans all government invasion into

the sanctity of a persons home and
the privacies of life.

Griswold v. Connecticut (1965)

Zone of privacy

Based on the following

Amendments

1st freedom of
speech, religion and
association

3rd - ban on quartering

soldiers in private
homes
4th right to be secure
in ones person,
house, papers and
effects from
unreasonable
searches and seizures

5th & 14th cant be

denied life, liberty or
property without due
process of law

9th catchall,
enumeration of
certain rights by the
Constitution shall not
be construed to deny
or disparage other
[rights] retained by
the people.

Privacy Standard:
The government must have a
compelling interest in order to
criminalize private conduct.

3. Due Process

(and the Void for Vagueness

Doctrine)

5th and 14th Amendments ban both

federal and state governments from
taking any persons life liberty or
property without due process of law.

Criminal punishments deprive

individuals of life (death penalty)
liberty (imprisonment) and property
(fines); therefore individuals are
entitled to due process.

Vague statutes fail to adequately warn

individuals of what the law forbids
and/or allow govt officials to
arbitrarily define what the law forbids,
putting indiv unfairly at risk of
unwittingly violating the law, thus
putting at risk that indiv life, liberty
and/or property.

Rational behind Void for Vagueness:

Criminal punishments deprive individuals of

life (death penalty) liberty (imprisonment) and
property (fines); therefore individuals are
entitled to due process.
Vague statutes fail to adequately warn
individuals of what the law forbids and/or
allow govt officials to arbitrarily define what
the law forbids, putting indiv unfairly at risk
of unwittingly violating the law, thus putting
at risk that indiv life, liberty and/or property.

Our due process rights are

protected by a ban on vague
statutes

A.k.a.
Void for Vagueness Doctrine

Two Aims
1.

To prevent laws that fail to give

fair warning to individual as to
what the law prohibits.

2.

To prevent arbitrary and

discriminatory application of the
law by the courts.

State v. Metzger

Metzger: Void for

Vagueness Test:
1.

Whether the language may apply to acts

about which there is little or no
difference of opinion, but equally to acts
about which there are radical differences,
thereby forcing the court to exercise the
arbitrary power of discriminating
between several classes of acts.

2.

The dividing line between what is lawful

and what is unlawful cannot be left to
conjecture.

4. Equal
Protection

14 Amendment
th

No state shall deny any person within

its jurisdiction the equal protection of
the law

Not requiring govt to treat everyone the

same. Plenty of instances of legislature
classifying groups for special treatment

Different groups may require closer

scrutiny (examination) by the courts

Classifications

General = Rational Basis (lowest level

scrutiny)
-ex. Habitual offenders vs. first offenders; adults vs.
juveniles

Gender = Heightened Scrutiny (intermediate)

-a fair and substantial relationship between the
classification based on gender and legitimate state
ends

Race = Strict Scrutiny (highest)

-classifications based on immutable characteristics with
which they were born always violates the constitution

Defined
Guarantees that similarly situated
people will receive the same
constitutional rights.

5. 1 Amendment
st

Freedom of Speech, Religion

and Association

Congress shall make no law abridging the

freedom of speech

not just speech and words, but any form of

expressive conduct (gestures, black arm
bands, picketing, giving money to political
candidates)

b/c free speech is such a fundamental

right, government must meet a much
higher standard:
a compelling government interest

Exceptions

obscenity
profanity
libel and slander
fighting words
clear and present danger

6. The 2nd Amendment

The Right to Bear Arms

US Constitution
Amendment II

A well regulated Militia, being

necessary to the security of a free
State, the right of the people to keep
and bear arms, shall not be
infringed.

D.C. v Heller (2008)

The D.C. Statute key provisions:
1.

Banned private citizens from possessing

handguns (with few narrow exceptions)

2.

Except for law enforcement personnel

each registrant shall keep any firearm in
his possession unloaded and disassembled
or bound by a trigger lockunless such
firearm is kept at his place of business or
for lawful recreational purposes

The Supreme Ct said:

The core of the 2nd Amend. is the right of

law-abiding, responsible citizens to use arms
in defense of hearth and home
1.

Whatever the reason, handguns are the most popular

weapon chosen by Americans for self-defense in the
home, and a complete prohibition of their use is invalid.

1.

The requirement to keep firearms in the home, rendered

inoperable: makes it impossible for citizens to use them
for their core lawful purpose of self-defense and is
hence unconstitutional.

Impact of Heller

Narrow victory for gun rights

Ct acknowledges the 2nd Amend. is
not unlimited:

Examples of prohibitions that are still

permissible (see p. 58)

Militia provision of the amendment

made irrelevant

7. The 8th Amendment

Ban on Cruel and Unusual
Punishment

Two types of 8th Amend.

Challenges

1.
2.

Barbaric Punishments
Proportional Punishments

Barbaric Punishments

In re Kemmler defined cruel and

unusual

Punishment by death is not cruel

and unusual as long as it isnt
something more than the
extinguishment of life.
1.

2.

Death has to be instantaneous and

painless;
It cant involve unnecessary mutilation of
the body.

Proportional
Punishments

The Principle of Proportionality

the punishment must fit the crime.

Challenges based on this rule have

arisen in the following areas:
The

Death Penalty
The Death Penalty for the Mentally Retarded
The Death Penalty for Juveniles
Imprisonment

Death Penalty for the

Mentally Retarded?

1989 does not violate ban on cruel

and unusual punishment. Penry v.
Lynaugh

2002 executing anyone who meets

the criteria for mental retardation
violates 8th Amendment. Atkins v.
Virginia

Death Penalty for the

Mentally Retarded??
Evolving Standards Test
-does the punishment offend the
evolving standards of decency that
mark the progress of a maturing
society. Trop v. Dulles (1958)

How young is too young?

1988 ban execution of juveniles 16

an under. Thompson v. Oklahoma
1989 execution of 16-18 = no
violation. Stanford v. Kentucky
2005 8th and 14th Amendment
forbid execution of offenders under
age 18.
Roper v. Simmons

Evolving Standards?

Majority of states rejected death penalty

for juveniles
Infrequent use in states that did retain
the penalty
Trend toward abolition

Conclusion:
Our society views juveniles as less
culpable than the average criminal.
(Roper v. Simmons)

Imprisonment

Principal of proportionality does not

extend to imprisonment

Three Strikes Law

Ewing v. California

Ewings Resume

1984 theft = 3yrs probation

1988 - grand theft auto =1yr/3yr
1990 petty theft = 60dys/3yrs
1992 battery = 30dys/yrs
1992 theft =10dys/1yr
1993 burglary= 60dys/1/yr
1993 posses. drug paraph. = 6mos/3yrs
1993 - approp. lost property =10 dys/2yrs
1993 unlawful pos. firearm = 30dys/1yr
1993 robbery 1st, 3 cts res. burglary = 9yrs*
2000 grand theft >$400 = 25 yrs life*