1. Constitutional Limits on Criminal Enforcement Our attempt to answer the ancient question of how to balance order and liberty

2. Historical Context The Constitution tried to balance the need for order with a deep suspicion of governmental power Many said it didn’t do enough to protect our individual liberty from the majority The Bill of Rights were proposed and passed to address this

3. Legality A nation of laws No punishment unless a clearly enunciated law was violated Also, the applicable punishment must be established before the violation Three major focuses: ban on ex post facto laws voiding vague laws the rule of lenity

4. No ex post facto laws you can’t be punished tomorrow for doing something which is legal today In addition, the state can’t increase punishments after the fact Also, defendants can’t lose a previously valid defense We need notice and protection from vindictive legislatures

5. Void for Vagueness Laws need to be clear enough that we can understand what exactly is prohibited and what will happen if we violate them Arises from the Fifth and Fourteenth Amendments demand for due process Again this is based on the need for proper notice and protection from arbitrary laws

6. Assessing the adequacy of fair notice is objective Would a reasonable person understand that the conduct is prohibited? But efforts to control law enforcement are paramount. And isn’t a certain level of uncertainty unavoidable? Tough defense to win on.

7. Lenity Any ambiguity in a criminal statute flows to the benefit of the defendant. In other words, if a law can be read in two differing ways, the reading which favors the defendant will be followed. Only applies to core felonies and others that require fault.

8. The 3 Elements of Proving Guilt Burden of Proof – the prosecution must do the work – present enough evidence – to get a conviction Presumption of Innocence – we assume the defendant is innocent til conviction “Beyond a Reasonable Doubt” – the prosecution must satisfy the most stringent standard for every element of the offense

9. On the other hand … When the defendant claims that his conduct was justified or excused for some reason, he/she must advance some evidence (the burden of production)

10. The Bill of Rights While the previous constitutional protections spring from the document itself, others arise from amendments (additions) to the original document Freedom of Speech – the First Amendment The Right to Bear Arms – The Second The Right to Privacy – created by the Supreme Court from the spirit of the Bill of Rights

11. Freedom of Speech Extends beyond mere words to cover expressive conduct – actions that communicate ideas or feelings Extended to apply to the States Since it is a preferred right the government has to provide a compelling reason to restrict

12. Limits on Free Speech Despite its preferred status some expressions aren’t protected: 1) Obscenity 2) Profanity 3) Libel and Slander 4) Fighting Words 5) Clear and Present Danger

13. The Right to Bear Arms For much of our history, rarely discussed by the Supreme Court But of great interest to others Finally, in 2008, District of Columbia vs. Heller the Supreme Court weighed in Now the 2cnd Amendment sets in stone “the right of law abiding, responsible citizens to use arms in defense of hearth and home” Applied to the states by McDonald vs. Chicago

14. Limits of Heller & Mc Donald As of right now, certain limitations are permissible such as prohibiting felons from having guns Much litigation is percolating in the lower courts – 600 cases in two years?! Many have expanded gun rights

15. The Two Big Questions Does the limitation impair expectations typical in the 1780’s? If it doesn’t, it’s a valid limitation. If it does, is the limitation “reasonably adapted to a substantial governmental interest”?

16. Right to Privacy Forbids “all governmental invasions of the sanctity of a man’s home and the [privacies of life” Arises from a comprehensive reading of the spirit and intent of the Bill of Rights, their penumbra Arose in the context of two Connecticut laws prohibiting contraception: Griswold &

17. Extensions of Privacy rights Stanley – you can keep porn Roe vs. Wade – you can get an abortion Carey – minors under 16 can get contraception Planned Parenthood vs. Casey – wives don’t need to notify husbands of abortions Lawrence vs. Texas – gay sex isn’t unlawful also, law criminalized a class, not just conduct

18. Limits on Punishment The Eighth Amendment prohibits “cruel and unusual punishments” Applies to barbaric punishments – those that society no longer considers acceptable In 1885, was death by hanging acceptable? No, let’s electrocute them! Today, can we shame?

19. Another limit on punishment Can’t be disproportionate – the punishment should fit the crime Prohibits excessive sentences, and Punishing because of status – 90 days for drug addiction Applies to the death penalty Is a death sentence proportionate for rape, even of a child?

20. Death for the Mentally Retarded? Atkins vs. Virginia Atkins robs and then savagely murders a helpless soldier Evidence reveals many cruel acts & an IQ of 59 Supremes rejected a 1989 case and held that a death sentence was unacceptable in 2002 Several states had outlawed and few performed executions even if lawful

21. Death to Juveniles? Hain, 17, kills two in a robbery/carjacking History of drugs, homelessness, and bad parenting – but no previous violence Supremes refuse to review in 2002 – death In 2005 they accept a similar case – Simmons, Now “evolving standards of decency that mark the progress of a maturing society” mandate a different result

22. Life without Parole? Graham – 17,repeatedly gets in big trouble Trial judge sends him away for good Supremes reverse – cruel and unusual to give life /out parole to 17 yr old if no one died Ninham – Should a 14 yr old be sent away for good? Even for an intentional murder? The Wisconsin Supremes say yes

23. How about prison sentences? Despite tepid support for proportionality in Solem v Helm (1983), a review of three-strike laws shows that’s not the case today In Ewing v California the Supremes ruled that nothing in the Eighth Amendment prohibits such laws Legislatures can decide if they deter crime, are cost-effective, etc.