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Criminal Law
Chapter 2
Constitutional Limits
on Criminal Law
Joel Samaha, 9th Ed.
Ex Post Facto Laws
 Article I, Section 9, of the U.S. Constitution commands:
“No state shall . . . pass any ex post facto law. . .” (a law
that defines crimes after the behavior it defines takes
place).
 The ex post facto prohibition has two major goals:
 To give fair warning to private individuals, by ensuring that
legislatures give them fair warning about what is criminal and that
they can rely on that requirement.
 To prevent arbitrary action by government officials and vindictive
legislation.
Major Issues
 Ex Post Facto Laws
 Due Process
 Equal Protection of the Laws
 Bill of Rights & Criminal Law
 Cruel & Unusual Punishments
Ex Post Facto Laws
An ex post facto law is a statute that does one of three things:

It criminalizes an act that was innocent when it was
committed.

It increases the punishment for a crime after the crime was
committed.

It takes away a defense that was available to a defendant
when the crime was committed.
Example: Garner v. Jones (2000).
Question
What are the “two evils”
that the void-for-vagueness doctrine addresses?
“No one may be required at peril of life, liberty or property to speculate
as to the meaning of penal statutes. All are entitled to be informed as
to what the State commands or forbids” (Lanzetta v. New Jersey, 1939).
Void-for-vagueness Doctrine
Explain: “What’s fair notice?”
“minimal guidelines to govern law enforcement” trumps
notice to private individuals as the primary aim of the
void-for-vagueness doctrine.”
(Kolender v. Lawson, 1983, 357)
Explain the facts and opinion of
State v. Metzger
319 N.W. 2d 459 (NE 1982)
Equal Protection of the Laws

In addition to the due process guarantee, the Fourteenth Amendment
to the U.S. Constitution states that, “no state shall deny to any person
within its jurisdiction the equal protection of the laws.”

Equal protection is more of an issues with criminal procedure than it is
with criminal law making.

Equal protection does not require the government to treat everybody
exactly the same, i.e., ranking criminals as habitual offenders vs. first
time-offenders.
Equal Protection
How has the Court ruled
on classifications based on race
and
classifications based on gender?
The Bill of Rights and Criminal Law

The Bill of Rights bans defining certain kinds of behavior
criminal, e.g., the first amendment right to freedom of
speech, religion, and associations; and, the right to privacy
created by the U.S. Supreme Court.

There are five categories of expression not protected by the
First Amendment. They are:
1) Obscenity
2) Libel and slander
3) Profanity
4) Fighting words
5) Clear and present danger
The Bill of Rights and Criminal Law
Why are these “five” categories of expression
not protected by the First Amendment?
What are the facts and opinion of People v. Rokicki?
Is flag burning expressive conduct? Explain.
Is ‘nude dancing’ expressive speech? Explain.
The Bill of Rights and Criminal Law
The U.S. Supreme Court, not the Constitution,
has decided that there is a ‘right to privacy,’
a right that bans “all governmental invasions
of the sanctity of a man’s home
and the privacies of life.”
Explain the facts and opinion of Griswold v. Connecticut
(381 U.S. 479 (1965).
Does the right to privacy protect pornography? Explain.
Is there a constitutional right to engage in sodomy? Explain.
Cruel and Unusual Punishments

The Eighth Amendment states that, “cruel and unusual
punishments” shall not be “inflicted.”

The U.S. Supreme Court notes two kinds of cruel and
unusual punishment, barbaric punishments and
punishment disproportionate to the crime.

Explain the principle of proportionality.

Explain the importance of Weems v. U.S. (1910); and
Robinson v. California (1962).
Cruel and Unusual Punishments
Are there capital crimes where no one is killed? Explain.
In your opinion, is this proportional punishment?
Or, is ‘death different?”
How has the Court viewed the crime of rape?
What are the facts and opinion of State v. Wilson (1996 La)?
How has the Court treated the death penalty for mentally
retarded and for juveniles?
Cruel and Unusual Punishments
What are the facts and opinion of
Ewing v. California?
538 U.S. 11 (2003)
In your opinion, was Ewing’s punishment
proportional to the crime? Explain.
Do you agree or disagree with Justice Thomas? Explain?