1. Criminal Law for the Criminal Justice Professional Norman M. Garland Third Edition Copyright © 2012 The McGraw-Hill Companies, Inc. All Rights Reserved. C H A P T E R 2 McGraw-Hill/Irwin

2. Slide 2-2 2.1Criminal Law and the U.S. Constitution 2.2Procedural Criminal Law 2.3Substantive Criminal Law and Individual Due Process Rights C H A P T E R 2 Constitutional Limitations on the Criminal Law

3. Slide 2-3 CHAPTER OBJECTIVES 1. Identify who determines whether a legislative enactment violates a constitutional prohibition. 2. List those areas of the Constitution that limit criminal law enactments. 3. Identify the one crime defined in the U.S. Constitution. 4. List those provisions of the Bill of Rights that limit the government’s ability to prohibit and punish crimes. 5. State three categories of unprotected speech. 6. Name three areas of personal privacy protected by the U.S. Constitution as it affects crimes.

4. Slide 2-4 2.1 Criminal Law and the U.S. Constitution Drafting, enacting, and enforcing criminal law involves action by government officials – Content and implementation of criminal laws must be consistent with federal Constitution and constitution of the state in which the law is enacted

5. Slide 2-5 2.1 Criminal Law and the U.S. Constitution The Question of Constitutionality – Laws may be declared unconstitutional if: Any dictate of the main body of the federal Constitution Any federal constitutional amendments Any provision of the constitution of individual states – Criminal statutes may be unconstitutional Violation “on its face.” Violation “by application” or “as applied”

6. Slide 2-6 2.1 Criminal Law and the U.S. Constitution Constitutionality (continued) – State courts determine constitutionality of state laws and can enforce federal constitutional principles – Federal courts decide validity of state and federal laws that appear to violate U.S. Constitution U.S. Supreme Court has final authority to interpret federal Constitution

7. Slide 2-7 The Bill of Rights First 8 amendments contain guarantees of individual rights – 14 th Amendment and subsequent decisions by Supreme Court, the provisions of Bill of Rights came to apply to states The first 10 amendments to the U.S. Constitution, especially those portions that guarantee fundamental individual rights vis-à-vis the government. Bill of Rights

8. Slide 2-8 2.2 Procedural Criminal Law – 4 th Amendment – 5 th Amendment – 6 th Amendment – 14 th Amendment procedural criminal law The rules governing how the criminal law is administered.

9. Slide 2-9 2.2 Procedural Criminal Law Due Process and Equal Protection The multiple criminal justice procedures and processes that must be followed before a person can be legally deprived of his or her life, liberty, or property. due processequal protection The constitutional provision that all people should be treated equally with respect to the practice dealt with by the law.

10. Slide 2-10 2.2 Procedural Criminal Law Due Process (continued) – 14 th Amendment to the U.S. Constitution also provides that no state shall “deny to any person... the equal protection of the laws Plessy v. Ferguson Loving v. Virginia Craig v. Boren – All laws that make a distinction between persons based on race, ethnicity, gender, religion, sexual orientation, or national origin are subject to constitutional scrutiny

11. Slide 2-11 Search and Seizure 4 th Amendment to U.S. Constitution prohibits “unreasonable searches and seizures” of “persons, houses, papers, and effects” – States “no warrants shall issue, but upon probable cause” Often said to guarantee the right of privacy Major source of much of the procedural criminal law dealing with law enforcement activities in crime investigation

12. Slide 2-12 Bills of Attainder and Ex Post Facto Laws bill of attainder A special legislative enactment that declares a person or group of persons guilty of a crime and subject to punishment without trial. ex post facto law A law that (1) makes criminal an act done before passage of the law against it and punishes such action; (2) aggravates a crime or makes it greater than it was when committed; or (3) inflicts a greater punishment than the law imposed or allows evidence of guilt that is less than what the law required at the time the offense was committed.

13. Slide 2-13 Fair Notice and Vagueness Due process clauses of 5 th and 14 th Amendments require that the law provide fair notice – criminal statutes cannot be vague, ambiguous, or overly broad Kolender v. Lawson The due process requirement that people are entitled to know what they are forbidden to do so that they may shape their conduct accordingly. fair notice

14. Slide 2-14 Application Case – 2.1Carmell v. Texas – 2.2People v. Maness – 2.3City of Chicago v. Morales

15. Slide 2-15 2.3 Substantive Criminal Law and Individual Due Process Rights No state or federal agency can legally enact or enforce criminal statutes that unnecessarily inhibit substantive rights identified in the amendments substantive criminal law The law defining acts that are criminal.

16. Slide 2-16 First Amendment Rights Free Speech clear and present danger test A test to determine whether a defendant’s words pose an immediate danger of bringing about substantive evils that Congress has the right (and duty) to prevent. – Other areas of potentially unprotected speech include hate speech, profanity, libelous utterances, and obscenity

17. Slide 2-17 First Amendment Rights Free Exercise of Religion – American courts invalidate statutes viewed as attempts to restrict freedom of religion – Religious freedom claims rejected for: Polygamy Christian Scientist parent’s withholding medical treatment for a child Handling of poisonous snakes in religious ceremonies. Use of peyote as part of a religious practice

18. Slide 2-18 First Amendment Rights Freedom of Assembly – Right to assemble not absolute – State statutes prohibiting loitering also affect right to assemble

19. Slide 2-19 Second Amendment Rights Right to keep and bear arms in the Second Amendment not absolute – Source of much litigation in recent years – Typical federal and state gun control statutes impose licensing requirements

20. Slide 2-20 Eighth Amendment Rights Eighth Amendment prohibits infliction of “cruel and unusual punishments” – Proportionality requirement affects: Grading of offenses Imposition of the death penalty Assessment of validity of terms of imprisonment proportionality The constitutional principle that the punishment should fit the crime, expressed in the Eighth Amendment’s cruel and unusual punishment clause.

21. Slide 2-21 Noncapital Cases In disproportionate sentences in noncapital cases, Supreme Court not a model of clarity

22. Slide 2-22 Capital Cases Disagreement over whether death penalty constitutes cruel and unusual punishment – U.S. Supreme Court has placed limits on circumstances death penalty may be imposed Furman v. Georgia – Continuing concerns about inequity in death penalty and execution of innocent persons fuels national debate about death penalty

23. Slide 2-23 The Right of Privacy U.S. Supreme Court held constitutional provisions imply a right to privacy: – 1 st Amendment right of free association. – 3 rd Amendment dealing with quartering of soldiers in private homes – 4 th Amendment ban on unreasonable searches and seizures – Includes right to be let alone, right to be free from unwanted publicity, and right to live without unwarranted interference

24. Slide 2-24 The Right of Privacy Abortion Rights – Roe v. Wade – Right of privacy extended to woman’s right to abortion Consensual Sodomy – Lawrence v. Texas – No showing that governmental interest more legitimate than individual’s privacy interest

25. Slide 2-25 Figure 2.1: Liberties Granted by the Bill of Rights

26. Slide 2-26 Application Case – 2.4Hatch v. Superior Court