Samaha Chapter 2 Smith

Samaha Chapter 2 Smith - Criminal Law Criminal The...

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Unformatted text preview: Criminal Law Criminal The Principle of Legality The and and Chapter 2 Chapter Constitutional Limits on Criminal Law Constitutional CRJU E314 Criminal Law Spring 2011, Mr. Smith Spring What are the Constitutional Limits? Principle of Legality, or the rule of law Prohibition against ex post facto laws Right to “due process of law” Right to “equal protection of the law” Right to free speech, association, press and religion Right to privacy Right against “cruel & unusual punishment” The Principle of Legality The Also known as “the rule of law.” This principle stands for the proposition that the law This controls the power of government. controls It consists of four central values: Fairness Liberty Democracy Equality Legality and the Constitution Legality The US constitution protects against a legislative The body’s after-the fact modification of legislation, where the modification may impose previously impermissible punishment. impermissible Article I forbids bills of attainder- laws that Article bills declare the guilt and punishment of a specific person without a trial and conviction. person Article I also prohibits ex post facto laws- laws Article ex that retroactively change the rules of evidence in a criminal case, retroactively alter the definition of a crime, retroactively increase the punishment for a criminal act, or punish conduct that was legal when committed. Blackstone’s Classic Definition Blackstone’s An ex post facto law has been created when, “after an An ex action (indifferent in itself) is committed, the legislature then for the first time declares it to have been a crime, and inflicts punishment upon the person who has committed it.” committed Courts and Due Process Concerns Courts Courts and judges are not subject to the ex post facto Courts ex and bill of attainder prohibitions that apply to legislatures, and but they are governed by the due process clauses of the Fifth and Fourteenth Amendments. Note, however, that a court’s decision may be given Note, retroactive application without running afoul of the due process clause if the application of the ruling does not result in an “unexpected and indefensible” interpretation of the law, based upon other interpretations that were in existence at the time of the commission of the criminal act. The Principle of Legality in Practice The A person may not be punished unless the person’s person conduct was defined as criminal at the time of the commission of the offense. tthe principle prevents the “arbitrary and vindictive use of the laws” by he government. government. iit enhances individual freedom by minimizing the risk that someone t can break a law without being aware of it can it also assures “fair warning” to individuals of what conduct is considered criminal and what the possible punishments may be. considered State v. Horne (SC Supreme Court- 1984) (SC In August 1982, Terrance Horne attacked his In pregnant wife with a knife, wounding her in the neck, arms, and abdomen. After the attack, she was rushed to the emergency room where, after determining the unborn child was still alive, doctors performed a caesarian section to try to save the child's life. The child was dead when removed from the The mother's womb and an autopsy revealed the child died in the womb as a result of suffocation caused by the mother's loss of blood, although the mother survived. Horne was indicted for murder based on the death of the Horne child and for assault and battery with intent to kill based on his wife’s injuries. on SC Code section 16-1-10 defined murder as the killing of defined any person with malice aforethought, either express or implied. At his trial, Horne was convicted of assault and battery At with intent to kill in connection with his wife’s injuries and convicted of voluntary manslaughter, a lesser included offense of murder, in connection with the death of the unborn child. unborn Horne appealed to the SC Supreme Court arguing that Horne an unborn child is a not a “person” within the South Carolina statutory definition of murder. The Supreme Court noted its right, as well as its duty, to The develop the common law of South Carolina and held that an action for homicide could be maintained in the future in when the state is able to prove beyond a reasonable doubt that the fetus involved was viable, i.e., able to live separate and apart from its mother without the aid of artificial support. However, at the time that Horne stabbed his wife, no However, South Carolina decision had held that killing of a viable human being in utero could constitute a criminal in homicide. homicide The Supreme Court held that the criminal law whether The declared by the courts or enacted by the legislature, cannot be applied retroactively and that, as such, Horne’s conviction for the voluntary manslaughter was required to be reversed. required Legality: The Three Corollaries Legality: Criminal statutes should be understandable Criminal statutes should not delegate basic policy Criminal matters to police officers, judges, and juries matters Judicial interpretation of ambiguous statutes should “be Judicial biased in favor of the accused” (the lenity doctrine) biased Criminal Statutes Should be Understandable Understandable People have a right to know what conduct may be People criminally punished. criminally A criminal statute must give “sufficient warning to people criminal of common intelligence as to what conduct is unlawful.” A person is denied due process of law if convicted and person punished for violation of a statute that lacks such clarity. punished City of Chicago v. Morales City (US Supreme Court- 1999) Chicago’s Gang Congregation Ordinance prohibited Chicago’s “criminal street gang members” from loitering in public places. Under the ordinance, if a police officer observed a Under person, reasonably believed to be a gang member, loitering in a public place with one or more other persons, the officer was required to order them to disperse. Anyone who did not promptly obey such an order was considered to be in violation of the ordinance. The US Supreme Court held that The the ordinance violated the due process clause in that it was impermissibly vague on its face and could result in an arbitrary restriction on personal liberties. The court held that the ordinance The failed to give the ordinary citizen adequate notice of what is forbidden and what is permitted and, as such, it was “impermissibly vague.” The court noted that the term The “loiter” may have a common and accepted meaning, but the ordinance’s definition of that term–“to remain in any one place with no apparent purpose”–does not. Criminal Statutes Should Not Delegate Basic Policy Matters Basic Police officers must not be afforded unfettered discretion Police to enforce the law in an arbitrary or discriminatory fashion. fashion. Statutes must provide minimal guidelines to govern Statutes police activity. Kolender v. Lawson Kolender (US Supreme Court- 1983) A California statute required persons who loiter or California wander on the streets to provide "credible and reliable" identification and to account for their presence when requested by a law enforcement officer. Edward Lawson was detained or arrested on Edward approximately 15 occasions between March 1975 and January 1977 pursuant to the statute, but was prosecuted only twice, and convicted once. The US Supreme Court held The that that the full discretion accorded to the police to determine whether a suspect has provided “credible and reliable” identification effectively entrusted lawmaking to the judgment of the police officer. The court found that the statute The furnished a convenient tool for “harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.” Edward Lawson Judicial Rules of Statutory Interpretation Interpretation Rule 1: If a statute’s language is clear and Rule unambiguous, the court must give the language its plain and definite meaning. its Rule 2: If a statute’s language is unclear or Rule ambiguous, the court must determine the intent of the legislature from a number of sources. the The statute taken as a whole Other statutes in pari materia (i.e. on the same subject matter) even Other iff enacted at different times i Any legislative debate and history on the statute The Lenity Doctrine The If neither of the first two rules clarify the statute in If question and the statute remains subject to two or more conflicting, reasonable, interpretations, only then should the court apply the interpretation most favorable to the criminal defendant. criminal Many states and the Model Penal Code have abolished Many the Lenity Doctrine, however South Carolina has not done so (see, for example, Berry v. State; 675 S.E.2d Berry 675 425, S.C. Supreme Court, 2009). Chapter 2 Chapter Constitutional Limits on Criminal Law (Continued) Equal Protection Equal In addition to guaranteeing due process, the equal protection clause of the Fourteenth Amendment states that “…no state shall deny to any person within its jurisdiction… equal protection of the laws…” Legislatures often make classifications, especially in the criminal field that “single out” specific groups or types of subject matter for special treatment. Such statutes are sometimes challenged on the ground that they violate the equal protection clause of the U.S. Constitution. This singling out in penal statutes is accomplished in one of three ways: (1) a statute may define as criminal certain conduct when it is engaged in under certain limited circumstances; (2) a statute may define certain conduct as criminal and then exempt from the statute certain persons or special situations; or (3) a statute may make distinctions, for purposes of setting the punishment which may be imposed, depending upon the persons engaging in or the circumstances surrounding certain conduct. (1) Illustrative of the first category are “joyriding” statutes. The ordinary larceny statute requires an intent to deprive the owner permanently of the property, so that taking for temporary use is not larceny, yet the “joyriding” statute covers taking for temporary use when the property taken is an automobile. Apparently, the legislature has concluded that a special evil exists requiring special treatment because a more serious problem is involved in the unauthorized use of automobiles than in similar use of other types of property. (2) Illustrative of the second category are the common Sunday closing, or “blue” laws. The legislature may exempt businesses which employ only one or two employees on the ground that these establishments do not pose the same risk to tranquility as larger retail operations, or permit the sale of recreational items only by stores in designated recreation areas because it is thought that the public need is adequately served thereby. (3) The third category, which involves distinctions for purposes of punishment rather than distinctions between what is criminal and what is not, may be illustrated by a burglary statute divided into degrees: first-degree burglary is that burglary which occurs during the nighttime; and second-degree burglary, carrying a lesser penalty, is that which occurs in the daytime. Rationale Criminal statutes containing such classifications (particularly those in the first category) are sometimes challenged on the ground that they are over-inclusive, that is, that they cover more conduct than the legislature under its police power may reach. The challenge may also be that there is a substantive due process violation because the statute prohibits conduct bearing no substantial relationship to injury to the public, or that the statute is too broad because it infringes upon rights specifically enumerated in the constitution. The First Amendment “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Five fundamental protections Freedom of Religion Freedom of Peaceable Assembly Freedom of Petition Freedom of Speech Freedom of the Press Fighting Words First Amendment cases have long extended a right to speak on certain government property that qualifies as a public forum. This right is not absolute, however, and offensive speech has been frequently prohibited. In Chaplinsky v. New Hampshire, the Supreme Court rejected constitutional protection for what it referred to as “fighting words.” Fighting words are words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Fighting words must be inherently likely to induce the ordinary person to react violently. The fact that words are vulgar or offensive is not alone sufficient to classify them as fighting words, thereby removing them from the protection provided by the First Amendment. Cohen v. California (US Supreme Court- 1971) (US Cohen was convicted of violating a provision of the California Penal Code which prohibited "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct," for wearing a jacket bearing the words "Fuck the Draft" in a corridor of the Los Angeles Courthouse. The California Court of Appeal held that "offensive conduct" means "behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace," and affirmed Cohen’s conviction. The Supreme Court held that “[A]bsent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense.” City of Landrum v. Sarratt (SC Supreme Court- 2002) Sarratt was arrested for yelling profanities at Franklin Keith Hembree and his mother, June Hembree, as they left the Landrum Municipal Court and walked across the parking lot. Franklin testified Sarratt called him a crack head, loudly yelled profanities, and called his mother a “bitch” and that he used the “f” word. The fact that words are vulgar or offensive is not alone sufficient to classify them as fighting words and the context in which they are uttered must be considered. Some of the factors to consider in determining if profanity constitutes fighting words are the presence of bystanders, the accompaniment of other aggressive behavior, and whether the words are repeatedly uttered. Sarratt’s language, especially once he directed vulgarities at Franklin’s mother, would incite an ordinary person to violence and constituted fighting words. Hate Speech In R.A.V. v. St. Paul, several teenagers were convicted under an ordinance that prohibited placing symbols on public or private property so as to arouse anger based on race, religion, or gender. They had assembled a crudely made cross by taping together broken chair legs and then erected and burned it in the front yard of an African American family. The Supreme Court found the ordinance invalid on its face because it prohibited speech solely on the basis of content. Although the Minnesota Supreme Court construed the ordinance at issue to prohibit only fighting words, the ordinance only applied to fighting words that insulted or provoked violence based on race, religion, or gender. The St. Paul Ordinance Whoever places on public or private property, a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor. A South Carolina Statute SECTION 16-7-120. Placing burning or flaming cross in public place. It shall be unlawful for any person to place or to cause to be placed in a public place in the State a burning or flaming cross or any manner of exhibit in which a burning or flaming cross, real or simulated, is the whole or a part or to place or cause to be placed on the property of another in the State a burning or flaming cross or any manner of exhibit in which a burning or flaming cross, real or simulated, is the whole or a part, without first obtaining written permission of the owner or occupier of the premises so to do. Hate Crimes Kenneth Rokicki was arrested for disorderly conduct at a restaurant and subsequently charged for a hate crime. The victim was a server who took Rokicki’s order. Rokicki became upset because the victim, a homosexual, was working at the restaurant and demanded that only “someone normal” touch his food. He then began yelling at the victim and pounding his fist on the counter. Rokicki’s conduct was held not to be protected speech under the First Amendment and his conviction was upheld The hate crime statute was held not to be facially unconstitutional because the predicate offense was disorderly conduct and ( 1) the statute reached only conduct and did not punish speech itself; ( 2) the statute did not impermissibly discriminate based on content; and ( 3) the statute did not chill the exercise of first amendment rights. Sexually Offensive Speech Sexually obscene speech is not protected by the First Amendment. But, what about speech that does not meet the Court’s definition of obscenity but is arguably still offensive? In Young v. American Mini Theaters, the Supreme Court upheld a Detroit zoning ordinance that forbade adult motion picture theaters from locating within 1,000 feet of any two other regulated uses or within 500 feet of residential areas. Regulated uses referred to 10 different kinds of establishments in addition to adult theaters. Symbolic Expression "Symbolic expression" is a phrase often used to describe expression that is mixed with elements of conduct. The Supreme Court has made clear in a series of cases that symbolic expression (or expressive conduct) may be protected by the First Amendment. Several of these cases have been highly controversial--perhaps none more so than Texas v. Johnson, reversing the conviction of a man who expressed his strong displeasure with U. S. policy by burning an American flag. Texas v. Johnson (US Supreme Court- 1989) (US During the 1984 Republican National Convention in Dallas, Gregory Lee Johnson participated in a political demonstration that ended in front of Dallas City Hall, where Johnson unfurled the American flag, doused it with kerosene, and set it on fire. While the flag burned, the protestors chanted, “America, the red, white, and blue, we spit on you.” Johnson was charged and convicted under Texas desecration of a venerated object statute, sentenced to one year in prison, and fined $ 2,000. The court reversed Johnson’s conviction, holding that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Is This Enforceable? SC Code section 16-17-220. Desecration or mutilation of United States, Confederate or State flags. Any person who in any manner…shall (a) knowingly place or cause to be placed any word, inscription, figure, mark, picture, design, device, symbol, name, characters, drawing, notice or advertisement of any nature upon any flag, standard, color or ensign of the United States, the Confederate States of America or this State… or publicly mutilate, deface, defile, defy, jeer at, trample upon or cast contempt, either by word or act, upon any such flag…shall be guilty of a misdemeanor…” In summary, five categories of expression are not protected by the First Amendment: 1. Obscenity- Material whose predominant appeal is to nudity, sexual activity, or excretion. 2. Profanity- Irreverence toward sacred things, particularly the name of God. 3. Libel and slander- Libels are damages to reputation expressed in print, writing, pictures, or signs; slander damages reputation by spoken words. 4. Fighting words- Words that are likely to provoke the average person to retaliation and cause a breach of the peace. 5. Clear and present danger- Expression that creates a clear and present danger of an evil, which legislatures have the power to prohibit. Why Aren’t the Categories Protected? They are not essential to the expression of ideas, and are of such slight value as a step to truth that any benefit that may be derived from them is greatly outweighed by society’s interest in order and morality. The exceptions create the opportunity for the expressive conduct to be declared criminal conduct, depending on the manner, time, and place of expression. For example, under the clear and present danger doctrine, the government can punish words that may tend to create havoc or cause panic in public. “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic “ - U. S. Supreme Court Justice Oliver Wendell Holmes (Schenck v. U. S.) The Right To Privacy “Privacy” is not mentioned in the Constitution itself U.S. Supreme Court has a long history of sorting out what rights are so private that they deserve protection from government infringement. U. S. Supreme Court has decided there is a constitutional right to privacy and that it is a fundamental right that requires the government to prove a compelling interest justifies invading it. Griswold v. Connecticut (US Supreme Court- 1965) (US The U.S. Supreme Court decided there is a constitutional right to privacy, a right that bans “all governmental invasions of the sanctity of a man’s home and the privacies of life”. Griswold was the first case that specifically recognized the fundamental constitutional right to privacy when it struck down a Connecticut statute that made it a crime for married couples to use contraceptives. Consensual Sodomy In Lawrence v. Texas, a 2003 case, the Supreme Court invalidated a Texas law that made it a crime for two persons of the same sex to engage in intimate sexual conduct. The Texas statute in Lawrence only applied to same-sex sexuality. The Court struck down the statute as it did not further a “legitimate state interest which can justify its intrusion into the personal and private life of the individual.” Cruel & Unusual Punishment The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” Punishment by death is not cruel as long as it isn’t something more than the mere extinguishment of life. According to the Supreme Court, in order for execution to not be cruel, it must be both instantaneous and painless and it cannot involve unnecessary mutilation of the body. The U.S. Supreme Court has ruled there are two kinds of cruel and unusual punishments: “Barbaric” punishments- punishments that are considered no longer acceptable to civilized society. Historically, these have included burning at the stake, crucifixion, breaking on the wheel, torturing or lingering death, drawing and quartering, the rack and screw and extreme forms of solitary confinement Disproportionate punishments- punishments that are disproportionate to the crime committed . Proportional Punishment The principle of proportionality states that punishments should fit the crime. In Weems v. U. S., a 1910 case, Weems was convicted of falsifying a public document. The trial court first sentenced him to 15 years in prison at hard labor in chains and then took away his civil rights for the rest of his life. The Supreme Court ruled that the punishment was cruel and unusual, because it was disproportionate to the crime. Atkins v. Virginia (US Supreme Court- 2002) (US The U.S. Supreme Court held that it is a violation of the Eighth Amendment ban on cruel unusual punishment to execute death row inmates with mental retardation, thus overturning its 1989 decision in Penry v. Lynaugh. Roper v. Simmons (US Supreme Court- 2005) (US The U.S. Supreme Court held that the death penalty for those who had committed their crimes at under 18 years of age was cruel and unusual punishment and thus barred by the Constitution. Kennedy v. Louisiana (US Supreme Court- 2008) (US The Supreme Court held that the Eighth Amendment's Cruel and Unusual Punishment Clause does not permit a state to punish the crime of rape of a child with the death penalty. After Kennedy, the power to impose the death penalty against an individual for committing a crime that does not result in the death of the victim is limited to certain crimes against the state, such as espionage and treason. Proportionality in Non-Capital Cases Rummel v. Estelle (1980) After being convicted of three felonies over a period of fifteen years, William James Rummel was given a life prison sentence as mandated by a Texas recidivist statute. Rummel's offenses involved approximately $230, and all of the offenses were nonviolent. Although a sentence may appear disproportional based on the underlying seriousness of offense, the Supreme Court will generally defer to state legislatures’ efforts to deter recidivism. In this case, the US Supreme Court noted that, although sentenced to life, Rummel could be eligible for parole and thus his sentence did not violate the Eighth Amendment’s ban on cruel and unusual punishment. Solem v. Helm (1983) Helm was convicted of writing a check from a fictitious account, a crime carrying with it a five-year jail sentence. However, since this was his seventh felony conviction in South Dakota since 1964, he was sentenced to life imprisonment without parole under a state recidivist statute. The court noted that three factors are relevant to a determination of whether a sentence is so disproportionate that it violates the Eighth Amendment: (a) the gravity of the offense and the harshness of the penalty; (b) the sentences imposed on other criminals in the same jurisdiction; and (c) the sentences imposed for commission of the same crime in other jurisdictions. Helm was sentenced to life without parole on a minor non-violent offense after six prior convictions for the same offense. The US Supreme Court invalidated his sentence as excessively disproportional under the Eighth Amendment. And that Helm had been treated more harshly than the state's most violent criminals. Three Strikes Laws Ewing v. California (2003) On parole from a nine year prison term, Ewing walked into a golf pro shop and walked out with three golf clubs, priced at $399 apiece, concealed in his pants leg. Ewing was sentenced under the California “three strikes law” to 25 years to life. The US Supreme Court, in upholding Ewing’s conviction, noted that the California legislature had made a deliberate policy choice that persons who repeatedly engage in serious or violent criminal behavior, must be isolated from society to protect public safety, that recidivism has long been recognized as a legitimate basis for increased punishment and that Ewing’s sentence “reflected a rational legislative judgment, entitled to judicial deference.” ...
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