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Chapter Two
Constitutional Limits on
Criminal Law
Power Point Slides
Professor Lore Rutz-Burri, J.D.
Southern Oregon University
Chapter 2: Learning Objectives
• To understand and appreciate the reasons for
the limits on criminal law and criminal
punishment in the U.S. constitutional
democracy.
• To understand the principle of legality and the
importance of its relationship to the limits of
criminal law and punishment.
Learning Objectives (cont.)
• To appreciate the nature and importance of
retroactive criminal law making.
• To know the criteria for identifying vague laws,
and understand and appreciate their
constitutional significance and the consequences.
• To know, understand, and appreciate the limits
placed on the criminal law and criminal
punishment by the specific provisions in the Bill
of Rights.
Learning Objectives (cont.)
• To understand and appreciate the
constitutional significance and consequences
of the principle of proportionality in criminal
punishment.
• To understand the importance of the right to a
jury determination in the process of
sentencing convicted offenders.
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
– Examples
• Free 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 is manifested 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
The Principle of Legality
• First principle of criminal law
• No crime without law
• No punishment without law
• No one can be punished for a crime that did
not exist at the time they engaged in the
behavior
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
– Criminalize an act that was innocent when committed
– Increases the punishment for a crime after the crime
was committed.
– Takes away a defense that was available to a
defendant when the crime was committed
Ex Post Facto (cont.)
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
Ex Post Facto (cont.)
• Purposes of ex post facto ban
– Protect private individuals by ensuring that
legislatures give fair warning about what is
criminal
– Prevent legislatures from passing arbitrary and
vindictive laws
Void for Vagueness Doctrine
• Purpose similar to ex post facto ban
– Strike down laws that fail to give fair warning as to
what is prohibited
– Strike down laws that allow arbitrary and
discriminatory administration of criminal justice
• Derives from 5th Amendment (applicable to
Feds) and 14th Amendment (applicable to
States) due process requirement
Case: Lanzetta v. New Jersey
• Facts:
• Issue:
• Holding/Rationale:
Void for Vagueness (cont.)
• Fair notice requirement of Lanzetta
– 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)
Void for Vagueness (cont.)
• Regardless of what test is used to determine if
statute violates void for vagueness/due
process requirement, there is the issue of
defining what a vague statute is
– Words do not provide mathematical certainty
Void for Vagueness (cont.)
• Presumption of constitutionality
– If there is a doubt whether the statute is vague or
not, then assume that it is NOT vague (presume
that it does not violate the constitution)
• In effect, this requires the criminal defendant to prove
the law is vague… (It is presumed to be not vague)
Case: State v. Metzger
• Facts:
• Issue:
• Holding/Rationale:
Related case
• Papachristou v. City of Jacksonville—
challenged vagrancy statute as being void for
vagueness
Equal Protections Clause
• 14th Amendment (applies to States)
• Doesn’t require government to treat
everybody the same
• What 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
Equal Protections Clause (cont.)
• When classification is “non-suspect” class then
the courts will give the statute “normal scrutiny”
• As long as the state has a rational basis for
treating the groups differently then the law won’t
be said to violate the Equal Protection Clause
– Example: treating habitual criminals more harshly
than first time offenders
– Example: treating minors differently than adults for
the purpose of possession/consumption of alcohol
Equal Protections Clause (cont.)
• Rational basis is often tied to the state’s
interest in maintaining the public health and
welfare of the citizens of the state
– State’s “police power”
– 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)
Equal Protections Clause (cont.)
• Racial Classifications = strict scrutiny
• In practice, never justified
• Any statute that invidiously classifies similarly
situated people on the basis of immutable
characteristics with which they were born. . .
always violates the Constitution
• State would have to show a compelling state
interest for treating group differently (and it
can’t)
Equal Protections Clause (cont.)
• Gender classifications—heightened scrutiny
• State must show a fair and substantial
relationship between classification based on
gender and a legitimate state end
• Case: Michael M.
– Facts:
– Issues
– Holding/Rationale
Bill of Rights and Criminal Law: First
Amendment
• First Amendment includes
• Free speech
• Religion
• Association
• There is a ban on making crime out of conduct
which is an exercise of the individual’s First
Amendment rights
Free Speech
• Congress can’t make a law limiting freedom of
speech
– Applied to States in Gitlow v. New York
•
•
•
•
•
Expansive definition of speech
Not just spoken or written words
Includes expressive conduct
Includes symbolic speech
Includes, to some extent, commercial speech
Free Speech
• Categories of speech not protected by 1st
– Obscenity
– Profanity
– Libel and slander
– Fighting words
– Clear and present danger
• Why?
– Slight value, any benefit is outweighed by social
interest in order and morality
Free Speech
• Void for Overbreadth doctrine gives teeth to
the protection
– Any laws which are written so broadly that fear of
prosecution creates a chilling effect that
discourages people from exercising their freedom
of speech violate the constitution
Case: R.A.V. v. City of St. Paul
• Facts
• Issue
• Holding
Case: People v. Rokicki
• Facts
• Issue
• Holding
Related Cases
• Wisconsin v. Mitchell
• Facts
• Issue
• Holding
Case: Barnes v. Glen Theatre, Inc.
et. Al.
• Facts
• Issue
• Holding
Case: Texas v. Johnson
• Facts
• Issue
• Holding
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
– 1st, 3rd, 4th, 9th, 5th, and 14th
• Right to be left alone
Case: Griswold v. Connecticut
• Facts
• Issue
• Holding
Case: Stanley v. Georgia
• Facts
• Issue
• Holding
Case: Lawrence v. Texas
• Facts
• Issue
• Holding
Second Amendment:
Right to Bear Arms
• Few cases
• Lots of regulations
• Hot debates between gun rights and gun
control activists
• U.S. v. Emerson decision from 5th Circuit
– Individuals not in militia can privately possess and
bear own firearms (ones suitable as personal,
individual weapons)
Case: District of Columbia v. Heller
• Facts
• Issue
• Holding
Right to Bear arms (cont.)
• Importance of Heller case
– Renders irrelevant the wording in 2nd concerning
militia
– Pending cases in Chicago, Alameda County (CA)
• Limits of Heller case
– D.C. law was very broad
– Qualified right to possession of handgun by lawabiding citizen in home, for purpose of protection
8th Amendment: Cruel and Unusual Punishment Clause
Constitutional Limits on Sentencing
• Cruel and unusual punishments should not be
inflicted
• Cruel and unusual
– Barbaric punishment
– Disproportionate punishment
Barbaric Punishment
• No longer acceptable to a civilized society
– burning at stake
– crucifixion
– breaking on the wheel
– torturing
– lingering death
– drawing and quartering
– rack and screw
– extreme forms of solitary confinement
Case: In re Kemmler
• Facts
• Issue
• Holding
Principle of Proportionality
• Punishment should fit the crime
• Cases:
– Weems– 15 years prison with hard labor was
disproportionate for falsifying public document
– Robinson v. California– 90 day sentence for drug
addiction was disproportionate because addiction
is an illness, and its cruel and unusual to punish
someone for being sick
Case: Kennedy v. Louisiana
• Facts
• Issue
• Holding
Case: Atkins v. Virginia
• Facts
• Issue
• Holding
Case: Trop v. Dulles
• Facts
• Issue
• Holding
Case: Roper v. Simmons
• Facts
• Issue
• Holding
Summary of Cruel and Unusual Punishment
claims re: death penalty
• Death penalty is barbaric if is something more than
instantaneous and painless; it cannot involve
unnecessary mutilation of the body
• Lethal injection scrutiny by courts in 2008-2009
• Death penalty is disproportionate for rape of child
victim (Kennedy v. Louisiana)
• Death penalty for mentally retarded offenders is
cruel and unusual punishment
• Death penalty for offenders who were under 18 at
the time they committed the murder is cruel and
unusual punishment
Disproportionate Sentences of
Imprisonment
• Solem v. Helm—criminal sentence must be
proportionate to the crime for which
defendant has been convicted
• Three-strikes-your-out legislation ruled
constitutional (not cruel and unusual)
Case: Ewing v. California
• Facts
• Issue
• Holding
Mandatory Minimum Sentences
• Judges impose non-discretionary minimum of prison
time that all offenders have to serve
• Fixed (determinate) sentences—length of sentences
determined by the seriousness of the offense
(determined by legislators in advance of the crime)
• Sentencing guidelines—ranges of penalties from
which judges choose a specific (presumptive)
sentence within the range
– Sentence outside that range is a “departure”
Case: Apprendi v. New Jersey
• Facts
• Issue
• Holding
Case: Blakely v. Washington
• Facts
• Issue
• Holding
Case: U.S. v. Booker
• Facts
• Issue
• Holding
Case: Gall v. U.S.
• Facts
• Issue
• Holding
Summary of Role of Jury in Sentencing
• Before judge can give an upward departure sentence based on
aggravating factors, a jury must determine the existence of
those factors beyond a reasonable doubt (Apprendi rule)
• Sentencing guidelines, to the extent that they allow for judges to
impose departure sentences without jury findings are
unconstitutional (Blakely)
• Federal Sentencing Guideline structure was unconstitutional if
mandatory, but may be used as a guide for judges (Booker)
• Since federal sentencing guidelines are advisory, the appellate
court needs to determine if the imposed sentence was
reasonable. The appellate courts need to give deference to the
sentencing judge and only overturn sentences when the
sentencing judge abused his or her discretion (Gall)