1. Criminal Law Chapter 2 Constitutional Limits on Criminal Law
Joel Samaha, 9th Ed.

2. 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.

3. Major Issues Ex Post Facto Laws Due Process
Equal Protection of the Laws
Bill of Rights & Criminal Law
Cruel & Unusual Punishments

4. 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).

5. 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).

6. 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)

7. 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.

8. Equal Protection
How has the Court ruled on classifications based on race and classifications based on gender?

9. 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

10. 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.

11. 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.

12. 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).

13. 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?

14. 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?