Chapter 2

Limits on
Criminal Law
Joel Samaha
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.
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.
To understand and appreciate the
constitutional significance and
consequences of the principle of
proportionality in criminal
To understand the importance of
the right to a jury determination
in the process of sentencing
convicted offenders.
 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
 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
Go to the link below and click on your home state
Click the link for your State’s constitution.
What information do you find in your states
What information do you find in your states Bill of
Did you find anything interesting or surprising in
your review of your State’s constitution or Bill or
 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 them
 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 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
Ex Post Facto Laws
• Criminalize an act that
was innocent when
• 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
• Protect private
individuals by ensuring
that legislatures give fair
warning about what is
• Prevent legislatures from
passing arbitrary and
vindictive laws
Purpose similar to ex post facto ban
• Strike down laws that fail to give fair warning as to what is
• 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
 Lanzetta v. New Jersey (1939)
 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
• Words do not provide mathematical certainty
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.
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)
 Facts: Metzger, the defendant, was seen by another resident,
standing naked with his arms at his sides in his apartment window for
a period of five seconds. The court ruled it is unlawful for any persons
within the city limits to commit any indecent act that a person passing
by might see.
 Issue: Is the ordinance too vague that is unconstitutional?
 Holding: Yes. Since the ordinance is criminal in nature, it is a
fundamental requirement of due process of law that such criminal
ordinances must be reasonably clear and definite
14th Amendment (applies to
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
When classification is “nonsuspect” 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
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)
Gender classifications—
heightened scrutiny
State must show a fair
and substantial
relationship between
classification based on
gender and a legitimate
state end
 First
Amendment includes
 Free speech
 Religion
 Association
 There
is a ban on making crime out of
conduct that is an exercise of the
individual’s First Amendment rights
 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
Categories of speech
not protected by 1st
Libel and slander
Fighting words
Clear and present
• Slight value, any benefit
is outweighed by social
interest in order and
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
 Facts: Rokicki, the
defendant, was charged
under the hate crime statute for calling a Pizza Hut
employee a “faggot” and other derogatory names.
The underlying offense was disorderly conduct.
 Issue: Does the hate crime statute violate free
 Holding: No. Not when underlying offense is
disorderly conduct because the statute reaches
only conduct, not speech
 Facts:
Indiana state prohibits nude dancing in
 Issue:
Does this violate right to free speech?
 Holding: NO. Nude dancing is expressive
conduct and statute interest is in protecting public
order and morality.
 Facts:
Johnson, the defendant, burned an
American flag during a political demonstration.
He was charged with violating the “desecration of
a venerated object” statute
 Issue: Did the flag burning statute violate
Johnson’s right to free speech?
 Holding: Yes, the government may not prohibit
the expression of an idea simply because society
finds the idea offensive or disagreeable
Few cases
Lots of regulations
Hot debates between gun rights and
gun control activists
District of Columbia v. Heller
May ban
Carrying concealed weapons
Felons possessing firearms
Mentally ill persons possessing firearms
Carrying firearms in sensitive places such
as school and government buildings
Laws imposing conditions and
qualifications on the commercial sale of
Importance of Heller case
The first successful Second
Amendment Challenge
US Supreme Court ruled it is the
right of law-abiding, responsible
citizens to use arms in defense of
hearth and home
Renders irrelevant the wording in
2nd Amendment concerning militia
Limits of Heller case
D.C. law was very broad
Qualified right to possession of
handgun by law-abiding citizen in
home, for purpose of protection
 Facts: Georgia
law prohibits the carrying of
firearms in a place of worship
 Issue: Does this law violate the right to bear
 Holding:
No. The law plays a substantial
role in the goal of protecting the attendees
for the fear or threat of intimidation or an
armed attach
Found in the penumbra of
the Constitution (not in any
specific clause or
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
Griswold v. Connecticut
Intermediate scrutinylaw is constitutional as long
as it is substantially related
to an important
government interest
Constitutional right to
privacy-bans “all
governmental invasions of
the sanctity of a man’s
home and privacies of life”
Fundamental right to
privacy-requires the
government to prove that a
compelling interest justifies
invading it.
 Facts:
Lawrence, the defendant, and another
man were engaging in a sexual act. The act was in
private and consensual. The act was deemed to
be deviate sexual intercourse which Texas statute
 Issue: Do consenting adults have the right to
privacy in their private sexual conduct?
 Holding: Yes. People of the right to engage in
private conduct without government intervention
 Facts:
During a search warrant for alleged
bookmaking activities, officers found 2
pornographic films. Stanley, the defendant, was
charged with possession of obscene matter.
 Issue: Does the right to privacy protect
 Holding: Yes. People of the right to be left
 Cruel
and unusual punishments
should not be inflicted
 Cruel and unusual punishments
• Barbaric punishment- no longer allowed:
burning at stake, torturing, extreme forms of
solitary confinement, etc.)
• Disproportionate punishment: punishment
should fit the crime
William Kemmler sentenced to death by the
electric chair argued electrocution was cruel and
unusual punishment
US Supreme Court stated punishment by death is
not cruel as long as it isn’t “something more than
the mere extinguishment of life”.
Death has to be both instantaneous and painless
and can’t involve unnecessary mutilation of the
 Facts:
Pursuant, to Louisiana statute, Kennedy,
the defendant, was sentenced to death for the
aggravated rape of his 8 year-old stepdaughter.
 Issue: Is execution cruel and unusual
punishment because it is disproportionate to the
 Holding: Yes, it is an excessive penalty for rape
as it did not result in the loss of human life
 The
Death Penalty for Mentally Retarded
• Atkins v. Virginia
 The
Death Penalty for Juvenile Murderers
• Roper v. Simmons
 Life
without Parole for Juveniles
• Graham v. Texas
Review the website below regarding the death penalty
How many states/jurisdictions have the death penalty? How many
do not?
What state has the most inmates on death row? What state has the
Does your state have the death penalty?
According to the information provided in this link, the death penalty
does not deter the crime of murder. If this is true, discuss whether
you believe the death penalty should or shouldn’t continue to be a
punishment option for criminal offenses.
 Facts:
Ninham, the defendant, was convicted of
the intentional murder of Zong Vang (age 13) and
was sentenced to life in prison. Ninham was 14
years old when he committed the murder.
 Issue: Is it cruel and unusual to sentence the
defendant to “death in prison”
 Holding: No. The sentence is not unduly harsh
or excessive
Review the website below regarding the “Three Strikes &
You’re Out” Law in California
What crimes must an offender commit to be subject to
qualify for sentencing under the “Three Strikes and You’re
Out” law?
What impact has the “Three Strikes and You’re Out” law
had on the prison population?
What is your opinion of the “Three Strikes and You’re Out”
law? Do you think it’s a good law to have.
 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”
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)
Review the link below regarding Sentencing
Guideline’s sentences
What does the shaded area of the grid represent?
What does the white area represent?
What is the recommended sentence for a person with a criminal
history score of 4 who commits a severity level 2 offense?
What happens if the same person commits a severity level 3
Discuss whether or not your believes the use of sentencing
guidelines is an appropriate method of sentencing.
 Facts: Gall, the defendant, participated in a conspiracy
of selling ecstasy for 7 months while in college. 3 yrs. later
he pled guilty to his involvement in the offense. The
Defendant had no other known criminal involvement. The
sentencing guidelines sentence was 30-37 months in
prison. The judge sentenced Gall to 36 month probation
 Issue: Do extraordinary circumstance exist to sentence
outside the guidelines sentence
 Holding: Yes. Decision upheld

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