C H A P T E R 2

Constitutional
Limitations on
the Criminal Law
FPO
CHAPTER OUTLINE
2.1 Criminal Law and the U.S. Constitution
The Question of Constitutionality
The Bill of Rights
2.2 Procedural Criminal Law
Due Process and Equal Protection
Search and Seizure
Bills of Attainder and Ex Post Facto Laws
CHAPTER OBJECTIVES Fair Notice and Vagueness
After reading and studying this chapter, you should 2.3 Substantive Criminal Law and Individual
be able to: Due Process Rights
First Amendment Rights
1. Identify who determines whether a legislative
enactment violates a constitutional prohibition. Second Amendment Rights
2. List those areas of the Constitution that limit Eighth Amendment Rights
criminal law enactments. The Right of Privacy
3. Identify the one crime defined in the U.S.
Constitution.
4. List those provisions of the Bill of Rights that
limit the governments 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.

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 Chapter 2 Constitutional Limitations on the Criminal Law 35

2.1 Criminal Law and the U.S. Constitution

American criminal law is mostly statutory, with courts interpreting the meaning of
the penal codes when necessary. However, both the codes and the court decisions are
limited by the U.S. Constitution. In this chapter, we examine the limitations imposed
on the criminal law by the Constitution.
Drafting, enacting, and enforcing criminal law involves action by government
ocials such as legislators, judges, police, and prosecutors. The content and the im-
plementation of all criminal laws must be consistent with the federal Constitution
and the constitution of the state in which the law is enacted and applied. Theoreti-
cally, neither the U.S. Congress nor state legislatures can enact laws that violate the
Constitution; in reality, many laws are enacted that are later found to raise constitu-
tional problems.

The Question of Constitutionality

Laws may be declared unconstitutional if they violate any of the following:
Any dictate of the main body of the federal Constitution.
Any federal constitutional amendments.
Any provision of the constitution of the individual states.
Criminal statutes may be unconstitutional in either of two ways:
1. Because of their content, known as a violation on its face.
2. Because of the way in which they are enforced by government officials, known
as a violation by application or as applied.
Any state or federal law that violates the Constitution is legally unenforceable and
will be declared invalid. Any criminal conviction based on such a law will be reversed.
A state may provide protection for individuals within its borders that is greater
than the protection provided by the U.S. Constitution. Situations involving greater
state protection often arise with respect to criminal procedure law. For example:
In the case of United States v. Place (1983), the U.S. Supreme Court ruled
that dog sniffs are not searches and therefore need not be preceded by
probable cause.1 In 2005, the Supreme Court reaffirmed Place and held that
[a] dog sniff conducted during a concededly lawful traffic stop that reveals
no information other than the location of a substance that no individual has
any right to possess does not violate the Fourth Amendment.2
In contrast, in the case of Commonwealth v. Johnston,3 a Pennsylvania court
declared that for the purpose of state prosecutions, dog sniffs are searches and
can be conducted only if state or local police have probable cause to believe
the person, place, or thing to be sniffed is connected to criminal action. Thus,
in this case, the concept of a lawful search was defined more narrowly than in
federal law.
Article III of the U.S. Constitution gives the power to determine the consti-
tutionality and validity of a law. State courts determine the constitutionality of state
laws and can also enforce federal constitutional principles in state cases. Federal courts

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 36 Part I Criminal Law and the Criminal Justice System

decide the validity of state and federal laws that appear to violate the U.S. Constitu-
tion. In other words, the judiciary has the power to interpret, apply, or invalidate a law
as it pertains to rights expressly created under the state or national constitution.
The U.S. Supreme Court has the nal authority to interpret the federal Con-
stitution. Cases reach the U.S. Supreme Court when at least four of the nine justices
have elected to consider a certain case. In such instances, the Court grants a writ of
certiorari, which is an order to the lower court to send the case forward for review.

The Bill of Rights

When the U.S. Constitution was rst proposed, critics objected that it did not con-
tain explicit protection of the rights of the people. On the basis of their experiences
in England, critics of the Constitution were aware of ways that the government can
abuse its authority. As a result, with issues of state sovereignty and individual liberty
in mind, the rst U.S. Congress adopted a set of 12 amendments to the Constitution
dening the powers of the government and the rights of the people.
By 1791, the states had ratied 10 of these amendments, which became known
Bill of Rights as the Bill of Rights. The rst 8 amendments contain several guarantees of indi-
The first 10 amendments vidual rights, including both procedural safeguards and a listing of specic individual
to the U.S. Constitution, liberties with which the government may not interfere without just cause. When
especially those portions
that guarantee funda- originally adopted, the guarantees of the Bill of Rights protected the individual only
mental individual rights against the federal government, not state government. The Supreme Court conrmed
vis--vis the government. this in 1833,4 and it remained that way until the 1960s.
With the enactment of the Fourteenth Amendment and subsequent deci-
sions by the Supreme Court, the provisions of the Bill of Rights came to apply to
the states as well. The only two exceptions are the Fifth Amendments provision for
prosecution of serious crimes only by indictment and the Eighth Amendments ban
on excessive bail.

C R I T I C A L T H I N K I N G 2 . 1

1. How does the U.S. Constitution influence federal and state law?

2.2 Procedural Criminal Law

procedural criminal Procedural criminal law outlines the ocial mechanisms through which sub-
law stantive criminal law is enforced. It sets forth the rules and laws to be followed
The rules governing from the investigative stage of a crime to the arrest, trial, and sentencing of the
how the criminal law is
administered. defendant.
The sources of procedural criminal law include Article I of the Constitution
and the Fourth, Fifth, Sixth, and Fourteenth Amendments.
The Fourth Amendment prohibits unreasonable searches and seizures.
The Fifth Amendment provides due process protection, protects against
double jeopardy and self-incrimination, and requires grand jury indictment in
federal cases.

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 Chapter 2 Constitutional Limitations on the Criminal Law 37

The Sixth Amendment establishes the right to counsel, the right to trial by
an impartial jury, the right to a speedy and public trial, the right to confront
opposing witnesses, the right to compel the attendance of witnesses favorable
to the defendant, and the right to notice of the nature and cause of the
accusation.
The Fourteenth Amendment provides for due process and equal protection
under the law.

Due Process and Equal Protection

As you can see, due process clauses appear in both the Fifth and Fourteenth
Amendments to the U.S. Constitution. The Fifth Amendment states that no per-
son shall be deprived of life, liberty, or property, without due process of law.
The Fourteenth Amendment provides that no state shall deprive any person of
life, liberty, or property, without due process or law. Over time, the courts have
interpreted due process to encompass the multiple procedures and processes that due process
must be followed before a person can be legally deprived of his or her life, liberty, The multiple criminal
or property. justice procedures and
processes that must be
The Fourteenth Amendment to the U.S. Constitution also provides that no followed before a person
state shall deny to any person . . . the equal protection of the laws. A law that can be legally deprived of
distinguishes between two classes of persons (e.g., men and women, wealthy and his or her life, liberty, or
property.
poor, minorities and nonminorities) is subject to attack if it does not provide equal
protection to persons who should be treated equally with respect to the practice dealt equal protection
with by the law. The constitutional pro-
vision that all people
For example, until the civil rights movement of the 1950s and 1960s, sev- should be treated equally
eral states maintained laws that provided di erent rights for black and white with respect to the
residents under the separate but equal doctrine announced by the U.S. Supreme practice dealt with by
the law.
Court in the 1896 case Plessy v. Ferguson. Then, in Loving v. Virginia (1967), the
Supreme Court struck down a Virginia statute that criminalized interracial mar-
riage, relying on the equal protection clause. Similarly, in Craig v. Boren (1976),
the Court declared invalid on equal protection grounds an Oklahoma law that
prohibited the sale of beer to females under the age of 18 and males under the
age of 21.5
Today, all laws that make a distinction between persons based on race, ethnic-
ity, gender, religion, sexual orientation, or national origin are subject to constitutional
scrutiny, even when they are designed to rectify past discrimination.

Search and Seizure

The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches
and seizures of persons, houses, papers, and eects and states that no warrants
shall issue, but upon probable cause. This amendment is often said to guarantee
the right of privacy and is the major source of much of the procedural criminal
law dealing with law enforcement activities in crime investigation. Constitutional
restrictions on searches, seizures, and detention of persons suspected of and charged
with violations of the criminal law are governed by principles stemming from this
amendment.

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 38 Part I Criminal Law and the Criminal Justice System

Bills of Attainder and Ex Post Facto Laws

As we have seen in the discussion of the principle of legality in Chapter 1, con-
duct cannot be punished retroactively. Consistent with this principle, the U.S.
Constitution prohibits legislatures from enacting bills of attainder and ex post
facto laws.
bill of attainder A bill of attainder is a legislative enactment that declares individuals or mem-
A special legislative bers of a group guilty of a crime and subject to punishment without trial. If an act
enactment that declares imposes capital punishment on those supposed to be guilty of important crimes such
a person or group of as treason or felony, it is a bill of attainder. If it inicts a lesser punishment, it is called
persons guilty of a crime
and subject to punish- a bill of pains and penalties. Such laws are prohibited by Article I, Section 9 of the
ment without trial. Constitution.
ex post facto law An ex post facto law is one that:
A law that (1) makes
criminal an act done
Makes criminal an act done before passage of the law and punishes such
before passage of the law action.
against it and punishes Aggravates a crime, making it more serious than it had been when it was
such action; (2) aggra-
vates a crime or makes it
committed.
greater than it was when Inflicts a greater punishment than the law imposed when the crime was
committed; or (3) inflicts committed or alters the legal rules of evidence, allowing evidence of guilt that
a greater punishment
than the law imposed or
is lesser or different from what the law required at the time the offense was
allows evidence of guilt committed (see Application Case 2.1).6
that is less than what
the law required at the
time the offense was
committed.

Application Case 2.1

Carmell v. Texas

I n Carmell v. Texas (1996), the court held that altering the rules of evidence in a
trial for oenses that were committed before the eective date of the amendment
was a violation of the prohibition against ex post facto laws. In 1996, the defendant
was convicted of 15 counts of committing sexual oenses against his stepdaughter
during a period from 1991 to 1995, when the victim was 1216 years old. Under the
Texas Criminal Code, a victims testimony about a sexual oense could not support
a conviction unless there was corroborating evidence or the victim informed another
person of the oense within six months of the act. However, under a 1993 amend-
ment to this law, the victims testimony alone could support a conviction if the victim
was under 14 at the time of the oense.
The defendant argued that the convictions for those oenses committed be-
fore the victim reached the age of 14 in July 1992 should be reversed, on the
grounds that they were based solely on her testimony and there was no corrobo-
rating evidence. In agreement, the court was forced to hold that retroactive ap-
plication of the 1993 amendment violated the federal constitutional prohibition
against ex post facto laws.
SOURCE: Carmell v. Texas, 529 U.S. 513 (2000).

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 Chapter 2 Constitutional Limitations on the Criminal Law 39

2.1 Web Exploration

American Bar Association

V isit the American Bar Associations (ABA) website at http://www.abanet.org, and

explore Legal Education and Public Resources. What services does the ABA
provide for those who are not attorneys? What did you learn from visiting this site?

For example, although the courts have generally denied their claims, many pre-
viously convicted sex oenders argue that new state laws requiring them to register
with the local police, who can then notify the community of their presence, amount
to ex post facto punishment, because such requirements did not exist at the time that
they pled or were found guilty. They also claim that such requirements continue to
punish them even though they have already served their sentences. With few excep-
tions, the courts have rejected these claims, holding that the requirements of registra-
tion and community notication are not punishments but regulatory measures aimed
at protecting the public.

Fair Notice and Vagueness

The due process clauses of the Fifth and Fourteenth Amendments require that the
law provide fair notice. The right to fair notice means that the law must clearly fair notice
dene the precise conduct that is prohibited. Thus, statutes that are written ambigu- The due process require-
ment that people are
ously or in which the words are vague (subject to dierent interpretations by dierent entitled to know what
people) also violate the constitutional requirement of due process (see Application they are forbidden to
Case 2.2). do so that they may
shape their conduct
accordingly.

Application Case 2.2

People v. Maness

I n People v. Maness (2000), the Illinois Supreme Court armed a trial courts in-
validation of a state statute. The defendant was charged with permitting the sexual
abuse of a child, an oense created by the Wrongs to Children Act of 1992. The act
provided that a parent or stepparent who knowingly allows an act of criminal sexual
abuse or criminal sexual assault on his or her minor child and fails to take reasonable
steps to prevent its commission or future occurrences of such acts commits the of-
fense of permitting the sexual abuse of a child.
The defendants 13-year-old daughter was dating and having intercourse with a
17-year-old male. During the relationship, the defendant learned of the sexual con-
duct between her daughter and Owens; although she disapproved of it, she obtained
birth control for her daughter and allowed Owens to spend the night at their home.
In a report from the Department of Children and Family Services, the de-
fendant stated that she did not know what steps to take to prevent the sexual

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 40 Part I Criminal Law and the Criminal Justice System

relationship her daughter was having with Owens. The defendant argued that the
statute was unconstitutionally vague because it failed to dene reasonable steps to
prevent future acts of sexual abuse. The court agreed with the defendant, in that the
statute is unconstitutionally vague if its terms are so indenite that people of com-
mon intelligence must guess at its meaning. In addition, the court held that a statute
must adequately dene the oense in order to prevent its arbitrary and discrimina-
tory enforcement, and it must provide explicit standards to regulate the discretion of
governmental authorities.
SOURCE: People v. Maness, 732 N.E.2d 545 (Ill. 2000).

Under the due process clause of the Fourteenth Amendment, criminal statutes
cannot be vague, ambiguous, or overly broad. Criminal statutes lacking clarity violate
the fair notice requirement that people are entitled to know what they are forbidden
to do so that they may shape their conduct accordingly. In addition, criminal statutes
lacking in clarity are susceptible to enforcement in an arbitrary or discriminatory
manner by the police, prosecutors, judges, and juries.7
An example of a statute found to be unconstitutionally vague and therefore
invalid is a Jacksonville, Florida, city ordinance that prohibited various forms of va-
grancy.8 Other statutes that have been found unconstitutionally vague include:
One that punished a person who publicly treats contemptuously the flag of
the United States.
An ordinance stating that no person shall loiter... in or upon any street,
park or public place, or in any public building, with no definition of the term
loiter.
A harassment statute prohibiting conduct that alarms or seriously annoys
another person.
All of the preceding statutes were also invalidated because they were overly
broad, meaning that they could result in the punishment of individuals for engaging
in conduct that is constitutionally protected. In short, as the Supreme Court held in
the case of Kolender v. Lawson, the void-for-vagueness doctrine requires that a penal
statute dene the criminal oense with sucient deniteness that ordinary people
can understand what conduct is prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement.9 In Kolender, Edward Lawson was detained
or arrested on 15 occasions between March 1975 and January 1977 for violations of
California Penal Code Section 647(e), which provided that Every person who commits
any of the following acts is guilty of disorderly conduct, a misdemeanor:... (e) Who
loiters or wanders upon the streets or from place to place without apparent reason or busi-
ness and who refuses to identify himself and to account for his presence when requested
by any peace ocer to do so, if the surrounding circumstances are such as to indicate to
a reasonable man that the public safety demands such identication. This section of the
California Penal Code was subsequently deleted because of this lawsuit.
One police ocer had apparently stopped Lawson while walking on an other-
wise vacant street because it was late at night, the area was isolated, and the area was
located close to a high crime area. Another ocer had detained Lawson, who was

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 Chapter 2 Constitutional Limitations on the Criminal Law 41

Vagueness and Overbreadth in the Law Certain laws, such as those outlawing vagrancy, are
overly vague and do not offer any specific guidelines for their enforcement. Therefore, they
can be overly used or discriminatorily used.

walking at a late hour in a business area where some businesses were still open, and
asked for identication because burglaries had been committed by unknown persons
in the general area. Lawson was prosecuted twice and convicted once.
The U.S. Supreme Court held that the statute was unconstitutionally vague by
failing to clarify what was contemplated by the requirement that a suspect provide
a credible and reliable identication. The statute gave the police sole discretion to
determine whether the suspect has satised the statute and must be permitted to
go on his way in the absence of probable cause to arrest. This violated the Fourth
Amendment because while police may ask their questions in a way calculated to
obtain an answer, they may not force an answer from anyone, and the person must
be allowed to leave after a reasonably brief period of time unless the information
they have acquired during the encounter has given them probable cause sucient to
justify an arrest. (See Application Case 2.3.)

Application Case 2.3

City of Chicago v. Morales

I n City of Chicago v. Morales (1999), in response to an increase in gang-related

murders that also intimidated law-abiding citizens, Chicago enacted an ordi-
nance that criminalized loitering. In sum, the Anti-Gang Loitering Ordinance

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 42 Part I Criminal Law and the Criminal Justice System

stated that if apolice ocer observes a person whom he reasonably believes to be

a criminal street gang member loitering in any public place with one or more other
persons, he shall order all such persons to disperse and remove themselves from
the area. Any person who does not promptly obey such an order is in violation of
this section.
Over a three-year period following enactment of the statute, 89,000 dispersal
orders were given and 42,000 people were arrested. In Morales, each defendant was
alleged to have been in the presence of a gang member, and each was arrested when
he failed to disperse as directed by the police. The Court of Appeals held that the
ordinance was unconstitutional because it violated freedom of association, congrega-
tion, and expression protected by the First Amendment.
In addition, the court held that the ordinance was unconstitutionally vague under
the Illinois Constitution, which ensures the right to assemble in a peaceful manner.
The court also stated that since the statute was intended to address the behavior of
gang members but an innocent bystander could also be convicted, the statute failed
to specify a standard of conduct and failed to provide minimal guidance to limit the
discretion given to police ocers to enforce the law.
SOURCE: City of Chicago v. Morales, 527 U.S. 41 (1999).

C R I T I C A L T H I N K I N G 2 . 2

1. Why are ex post facto laws considered unconstitutional? Do you agree? Why or why not?
2. How do due process and equal protection protect peoples rights?

2.3 Substantive Criminal Law and Individual

Due Process Rights
substantive criminal Substantive criminal law denes criminal conduct and prescribes the punishment to
law be imposed for such conduct. For example, the homicide section of a states criminal
The law defining acts code denes the elements of the oense of murder and states the punishment that
that are criminal.
can be imposed for the oense. Government power to dene criminal conduct is
limited by certain individual liberties guaranteed in the Bill of Rights.
The individual liberties, or substantive rights, specically enumerated and ex-
pressly guaranteed within the Bill of Rights (see Figure 2.1) include:
Freedom of religion, speech, and assembly.
The right to bring grievances against the government.
The right to keep and bear arms.
Protection against cruel and unusual punishment.
In addition, the right to personal privacy is derived from the right to be protected
from unreasonable searches and seizures.
These rights aect the ability of both federal and state authorities to prohibit
and punish individual conduct that falls within the protection of the Bill of Rights.

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 Chapter 2 Constitutional Limitations on the Criminal Law 43

F I G U R E 2 . 1

Liberties Granted by the Bill of Rights

First Amendment Sixth Amendment
Free speech Speedy and public trial
Free exercise of religion Impartial jury of the state and district where
Freedom of assembly crime occurred
Notice of nature and cause of accusation
Second Amendment
Confront opposing witnesses
Right to bear arms
Compulsory process for obtaining favorable
Fourth Amendment witnesses
Freedom from unreasonable searches and Right to counsel
seizures
Eighth Amendment
Fifth Amendment No excessive bail and fines
Grand jury indictment in felony cases Prohibition of cruel and unusual punishment
No double jeopardy
No compelled self-incrimination

This means that no state or federal agency can legally enact or enforce criminal
statutes that unnecessarily inhibit the substantive rights identied in the amend-
ments. Criminal statutes may run afoul of the specic dictates of the First or Second
Amendment or the somewhat broader prohibitions in the Eighth Amendment, or
they may interfere with the general exercise of liberty mentioned in both the Fifth
and Fourteenth Amendments.

First Amendment Rights

The First Amendment provides that Congress shall make no law prohibiting the
free exercise of religion or abridging the rights of free speech and peaceable assem-
bly. Those guarantees of free exercise of religion, freedom of speech, and freedom of
assembly are among the most protected rights. Freedom of religion and freedom of
speech are sometimes grouped together as freedom of expression.

Free Speech
In general, Americans can say what they like and are free to criticize the government
without fear of punishment. However, the guarantee of free speech is not absolute. In
order to protect the public, government can regulate certain kinds of speech. Such re-
strictions must be evaluated by the courts in light of the governments responsibility
to meet the publics interest, as well as the individuals First Amendment guarantee clear and present
of free speech. danger test
One of those limiting principles is the clear and present danger test. Justice A test to determine
whether a defendants
Oliver Wendell Holmes expressed the test in memorable terms, in the 1919 case of words pose an immediate
Schenck v. United States: danger of bringing about
substantive evils that
The most stringent protection of free speech would not protect a man in falsely Congress has the right
shouting re in a theater and causing a panic. It does not even protect a man from (and duty) to prevent.

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 44 Part I Criminal Law and the Criminal Justice System

an injunction against uttering words that may have all the eect of force. The ques-
tion in every case is whether the words used are used in such circumstances and are
of such a nature as to create a clear and present danger that they will bring about
the substantive evils that Congress has the right (and duty) to prevent. It is a ques-
tion of proximity and degree. When a nation is at war many things that might be
said in time of peace are such a hindrance to the war eort that their utterance will
not be endured so long as men ght and... no Court could regard them as pro-
tected by any constitutional right.10

In the case from which the quote is taken, the defendant was convicted of
interfering with the draft during wartime and of urging insubordination in the mili-
tary. Justice Holmess language suggests that the advocacy of unlawful conduct can
be limited in order to protect public welfare. However, not every urging to violate the
law satises the clear and present danger test, which was redened by the Supreme
Court to require advocacy of imminent lawless action.11 Given this redenition,
it is unlikely that the conduct and speech in the very case in which Justice Holmes
announced the clear and present danger test would be considered criminal by the
Supreme Court today.
Fighting words are another subcategory of unprotected speech that poses a
clear and present danger. The Supreme Court has dened ghting words as those
which by their very utterance inict injury or tend to incite an immediate breach of
the peace.12 Such speech threatens public peace or order by being so provocative that
it is likely to induce a violent reaction.
Other areas of potentially unprotected speech include hate speech, profanity,
libelous utterances, and obscenity. (Obscenity is discussed more fully in Chapter 13.)
Questions relating to these types of speech present complex questions of balancing
that yield no clear rule for determining how far the government may go to regulate
such speech, if at all. For example, in R.A.V. v. St. Paul, the U.S. Supreme Court held
unconstitutional a city ordinance banning the burning of a cross and the display of
symbols such as swastikas.13 Finally, with the advent of the Internet and other mod-
ern technologies, courts have been faced with new challenges to the First Amend-
ment, and they have been evaluating statutes seeking to regulate the information
transmitted in cyberspace. (See Application Case 2.4.)

Application Case 2.4

Hatch v. Superior Court

I n Hatch v. Superior Court (2000), the defendant was convicted pursuant to the
California Penal Code for using the Internet to send harmful matter to a minor in
an attempt to seduce her. In Hatch, Fox Television hired 20-year-old Jennifer Hersey
to pose as a 13-year-old girl involved in Internet chats with persons interested in
having sexual encounters with underaged girls.
The defendant made contact with Hersey, then engaged in a series of commu-
nications wherein she posed as girls named Stacie and Lisa. He also sent Hersey
pictures of nude girls and of young girls having sex with men. The defendant then

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 Chapter 2 Constitutional Limitations on the Criminal Law 45

attempted to arrange meetings for sexual encounters, and discussed via e-mail his
plans to have sex with Stacie and Lisa. Hersey agreed to meet the defendant at
a hotel, and also forwarded her communication with the defendant to the police.
The defendant was then convicted of attempting to seduce a minor by means of the
Internet.
The defendant argued that the statute violated his First Amendment rights, but
the Court of Appeals held that such communication did not enjoy First Amendment
privileges. In addition, the statute was not seeking to prohibit forum communication
(such as in chat rooms), but only adults seeking to seduce a child. Finally, the court
stated that the statute is directed more toward an activity or conduct than toward
communication.
SOURCE: Hatch v. Superior Court, 94 Cal. Rptr. 2d 453 (Cal. Ct. App. 2000).

The notion that the government has the power and obligation to provide for
the common defense and promote the welfare of the general public by enacting laws
is expressly written into the federal Constitution. Still, this concern for society as a
whole must be addressed while also recognizing the rights of individuals. Under what
has come to be known as the police powers, federal, state, and local governments
may enact laws and authorize enforcement activities that regulate the time, place,
and manner in which an individual can exercise constitutionally protected rights, but
these rights cannot be completely taken away or banned in the interest of the general
public. They are balanced against the potential harm that might be caused to others
in society.

Free Exercise of Religion

American courts will invalidate criminal statutes that are viewed as thinly veiled
attempts to restrict the freedom of religion. For example:
The U.S. Supreme Court struck down a state statute criminalizing door-
to-door solicitation for religious purposes without prior approval from state
officials, when the statute was used to prohibit Jehovahs Witnesses from
their religious conduct.
The Court also struck down an ordinance of the City of Hialeah, Florida,
banning ritualistic animal sacrifice, which was aimed at a particular religions
practice.14
On the other hand, religious freedom claims have been rejected in upholding
criminal convictions for:
Polygamy.
A Christian Scientist parents withholding medical treatment for a child.
The handling of poisonous snakes in religious ceremonies.
The use of peyote as part of a religious practice.15
Clearly, not all claims based on the free exercise of religion will exempt a defendant
from criminal liability. (See Chapter 14 for discussion of legislation on the use of
peyote.)

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 46 Part I Criminal Law and the Criminal Justice System

Freedom of Assembly The First Amendment protects all Americans rights to assemble
peaceably to protest social or governmental wrongs.

Freedom of Assembly
The right of the people to assemble publicly is not absolute. Because public assembly
may threaten public safety, peace, and order, the government has the right to impose
reasonable restrictions on the time, place, and manner of assembly. In addition, specic
statutes curtail the right to assemble under specic circumstances. For example, the
Freedom of Access to Clinic Entrances (FACE) Act criminalizes physical obstruction,
intentionally... interfer[ing] with or attempt[ing] to... interfere with any person who
is or has been obtaining or providing reproductive health services.16 In other words,
although individuals can demonstrate in front of an abortion clinic, they cannot physi-
cally prevent individuals from going into the clinic.
State statutes that prohibit loitering also aect the right to assemble. Anti-
loitering statutes have always been part of the U.S. criminal legal system. However,
these laws are subject to scrutiny by the courts and may be unconstitutional if they
are found to be vague. The statutes must also reasonably promote identiable public
interests in order to justify the interference with individual liberty.

Second Amendment Rights

The right to keep and bear arms provided in the Second Amendment is not absolute
and has been the source of much litigation in recent years. While various organiza-
tions such as the National Rie Association (NRA) contend that the right to bear
arms is an individual one, the U.S. Supreme Court has held that this provision must
be read in conjunction with the other, less-known clause of the Second Amendment,
which requires a well regulated militia. In 2008 the Supreme Court, for the rst

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 Chapter 2 Constitutional Limitations on the Criminal Law 47

time in U.S. history, in District of Columbia v. Heller,17 held that the Second Amend-
ment protects an individual right to keep and bear arms for self-defense. And, in
2010, in McDonald v. City of Chicago, 18 the Court held that the Second Amendment
right to bear arms is incorporated into the Fourteenth Amendments due process
clause and therefore is applicable to the states.
Typical federal and state gun control statutes impose licensing requirements
such as background checks and waiting periods; restrict carrying, concealing, and
purchasing rearms; and prohibit rearm ownership by convicted felons. Under the
Brady Bill, criminal oenses committed with a rearm carry more severe penalties
than those committed without one.19

Eighth Amendment Rights

The Eighth Amendment to the U.S. Constitution prohibits the iniction of cruel
and unusual punishments. The Supreme Court has interpreted the Eighth Amend-
ment requirement of proportionality to mean that the punishment inicted for a proportionality
criminal violation should not be grossly disproportionate to the crime committed. The constitutional princi-
This proportionality requirement aects: ple that the punishment
should fit the crime,
The grading of offenses. expressed in the Eighth
Amendments cruel and
The imposition of the death penalty. unusual punishment
The assessment of the validity of terms of imprisonment. clause.

Noncapital Cases
In the area of disproportionate sentences in noncapital cases, the Supreme Courts
jurisprudence has not been a model of clarity. For example:
In one case, a defendant with two previous convictions for theft was sentenced
to life imprisonment for obtaining a check for $120.75 under false pretenses
and cashing it. The Supreme Court upheld the defendants sentence.
In another case three years later, a defendant with seven prior felony convic-
tions was sentenced to life imprisonment for a check-cashing violation. The
Court held that this sentence was invalid.20
Why did this disparity occur? In the rst case, the state had a liberal parole
policy; in the second case, the defendant had been sentenced to life without the pos-
sibility of parole. The Court distinguished the two cases on those grounds.
Finally, in a third case, a defendant was sentenced to life imprisonment without the
possibility of parole for a rst-oense possession of 672 grams of cocaine. The Supreme
Court upheld the sentence, concluding that the sentence did not violate the Eighth
Amendment.21 The decision in all three cases was by a vote of 54. Because of this, pro-
portionality is still an unresolved issue that can lead to controversial decisions.

Capital Cases
Whether the death penalty itself constitutes cruel and unusual punishment is another
area of disagreement among Supreme Court justices, legislators, and citizens in general.
The death penalty has been used since the early years of the nationfor example, in

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 48 Part I Criminal Law and the Criminal Justice System

the Salem witch trials. The U.S. Supreme Court has placed limits on the circumstances
under which the death penalty may be imposed under the Eighth Amendment.
In Coker v. Georgia (1977),22 the Court held that death was an excessive
penalty for the rape of an adult woman.
In Edmund v. Florida (1982),23 the Court struck down the death penalty for
unintentional killings.
In Thompson v. Oklahoma,24 the Court ruled that the death penalty cannot be
imposed on a defendant who was less than 16 years old at the time of the offense.
In 2002, in Atkins v. Virginia,25 the Court held that execution of a mentally
handicapped person categorically violated the Eighth Amendment.
In 2005, in Roper v. Simmons,26 the Court found that the execution of minors
under the age of 18 constituted cruel and unusual punishment.

Furman v. Georgia
In the 1972 case of Furman v. Georgia,27 the U.S. Supreme Court examined the im-
position of the death penalty in three cases. Each of the three petitioners had been
convicted in a state court and sentenced to death after a jury trial in which the jury
had the discretion to determine whether to impose the death penalty. The Supreme
Court analyzed in detail the constitutional issues raised by capital punishment.
In this landmark 54 decision, each of the nine justices wrote a separate opin-
ion. The ve justices in the majority believed that the death penalty was cruel and un-
usual because it was being implemented in a manner that discriminated against the
poor and minorities. However, only three ( Justices Brennan, Marshall, and Douglas)
held that capital punishment was in itself cruel and unusual. The eect of this deci-
sion was an informal moratorium on the death penalty until the Courts ve deci-
sions in 1976,28 reviewing the death penalty statutes enacted by a number of states
in response to Furman. The Court approved three of the newly enacted statutes and
there followed, in 1977, the execution by ring squad in Utah of Gary Gilmore.
In subsequent years, the Court issued a number of decisions that established
the constitutionality of the death penalty under appropriate state and federal statu-
tory provisions, and executions in the United States have continued to the present.
Continuing concerns about the inequity in imposition of the death penalty and about
the execution of innocent persons have fueled the national debate about the wisdom
of the death penalty.29

2.2 Web Exploration

Constitutional Law at Findlaw.com

V isit Findlaw.coms section on constitutional law at http://supreme.lp.findlaw.com.

Read the current articles on the front page, then write a half-page report explaining
the breadth of issues you read about and how they are covered under constitutional law.
Dont forget to include the amendments to which these issues pertain.

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 Chapter 2 Constitutional Limitations on the Criminal Law 49

The Right of Privacy

Although the Constitution does not expressly mention a right of privacy, the U.S.
Supreme Court has held that it is implied by the following constitutional provisions:
The First Amendment right of free association.
The Third Amendment dealing with the quartering of soldiers in private homes.
The Fourth Amendment ban on unreasonable searches and seizures.
The right of privacy includes the right to be let alone, the right to be free from
unwanted publicity, and the right to live without unwarranted interference. For ex-
ample, the Court has recognized, within the concept of personal privacy, a persons
right to decide whether to bear or beget a child.30 In various cases, the Court has
held that government cannot interfere by statutory proscription with the availability
of contraceptives and contraceptive devices for single or married persons.31

Abortion Rights
Another area of privacy relating to childbirth is the right of a woman to choose to termi-
nate her pregnancy through abortion. In 1973, in Roe v. Wade,32 the Supreme Court held
that the right of privacy extended to protect a womans right to abortion, and it invali-
dated the antiabortion statute involved in that case. The Court rearmed this position
on abortion in 1992, in the case of Planned Parenthood v. Casey,33 but allowed the states
to regulate and place restrictions on abortions so long as those regulations do not impose
an undue burden on the womans ability to make the abortion decision.

Consensual Sodomy
Interpersonal sexual conduct has also been recognized as an area protected by the right
of privacy. For example, the Court has held that the right of privacy protects a right to
engage in private consensual homosexual activity. In Lawrence v. Texas,34 a state law
made it a crime for two persons of the same sex to engage in certain intimate sexual
conduct. The Court found that the law sought to control the lives of homosexual per-
sons, the parties were consenting adults, the conduct was private, and the parties were
entitled to privacy. The Court also noted that the reasoning and holding of its prior
decision in Bowers v. Hardwick,35 in which the Court refused to prevent a state from
punishing homosexual acts committed by adults in private, had been rejected in other
nations, and there was no showing that the governmental interest in the United States
was more legitimate than the individuals privacy interest.

2.3 Web Exploration

I n April 2010, the Arizona legislature enacted a bill on illegal immigration designed
to identify, prosecute, and deport illegal aliens. The controversial law is described at
http://www.nytimes.com/2010/04/24/us/politics/24immig.html. Check online to see
the latest developments with respect to this law.

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 50 Part I Criminal Law and the Criminal Justice System

C R I T I C A L T H I N K I N G 2 . 3

1. Which amendment of the Bill of Rights do you feel is most important to ones funda-
mental rights? Why?
2. Why is the right to privacy controversial in American society?

REVIEW AND APPLICATIONS

Summary by Chapter Objectives

1. Identify who determines whether a legislative enactment violates a
constitutional prohibition. Both state and federal courts determine whether
a legislative enactment violates a constitutional prohibition, but in different
capacities. State courts can enforce both federal constitutional principles
and state constitutional principles in state cases. Federal courts can enforce
federal constitutional principles, which are principles relating to the U.S.
Constitution.
2. List those areas of the Constitution that limit criminal law enactments.
Constitutional subjects relating to the substantive criminal law include:
The principle of legality (which includes the prohibition of bills of attainder
and ex post facto laws).
A number of rights specifically enumerated in the Bill of Rights, including
freedom of religion, speech, and assembly; the right to keep and bear arms; due
process; and the prohibition against cruel and unusual punishment.
The right of privacy, and equal protection of the law.
3. Identify the one crime defined in the U.S. Constitution. The only crime
defined in the U.S. Constitution is treason.
4. List those provisions of the Bill of Rights that limit the governments ability
to prohibit and punish crimes. The rights enumerated in the Bill of Rights that
specifically limit the governments ability to prohibit and punish crimes are:
Freedom of religion, speech, and assembly, as protected by the First
Amendment.
The right to keep and bear arms, as protected by the Second Amendment.
The Fifth Amendments due process clause, as it relates to the vagueness or
overreaching qualities of a criminal statute.
The Eighth Amendments ban on cruel and unusual punishment, especially as
it relates to the death penalty.
5. State three categories of unprotected speech. Three categories of unprotected
speech are:
Speech that violates the clear and present danger test.
Speech advocating unlawful conduct.
Fighting words.

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 Chapter 2 Constitutional Limitations on the Criminal Law 51

6. Name three areas of personal privacy protected by the U.S. Constitution as

it affects crimes. Three areas of personal privacy that may be protected by the
Constitution from statutory interference by the government are the availability
of contraceptives and contraceptive devices for single or married persons, the
right of a woman to chose to terminate her pregnancy through abortion, and
private consensual sexual activity.

Key Terms
Bill of Rights (p. 36) ex post facto law (p. 38)
procedural criminal law (p. 36) fair notice (p. 39)
due process (p. 37) substantive criminal law (p. 42)
equal protection (p. 37) clear and present danger test (p. 43)
bill of attainder (p. 38) proportionality (p. 47)

Review Questions
1. What is the difference between substantive and procedural criminal law?
2. Name at least five constitutional subjects relating to procedural criminal law.
3. Name the three possible definitions of an ex post facto law.
4. What are two possible problems that can arise from vague criminal statutes?
5. Define the due process clause of the Fourteenth Amendment and explain its
relevance to criminal law.
6. Name some examples of limitations on the First Amendment, as applied by the
courts.
7. What are fighting words? How do these legally differ from hate speech or
profanity?
8. What does the Eighth Amendment address, and how is this applied to criminal
justice?
9. How does proportionality affect the grading of offenses?
10. Explain what equal protection under the law means and how it applies in
criminal law.

Problem-Solving Exercises
1. Juvenile Rights You are a police officer working in the city. You see a group
of youths on the corner of a busy intersection in the downtown area. They are
standing around talking. You suspect they are involved in a drug transaction,
because you recognize one of them as a member of a drug ring. What
constitutional rights does the youth you recognize have that might prohibit you
from taking any police action against him at this time?
2. False Alarm At a college football game, someone makes a loud noise like a
banging gun and yells, He has a gun! In response, spectators in the immediate
area panic and begin running for the exit. Six people are trampled and two are
seriously injured. During the investigation, campus police learn that nobody

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 52 Part I Criminal Law and the Criminal Justice System

had a gun; the panic was the result of two young men playing a practical joke.
Answer the following questions:
a. Which test would you apply to determine if this speech was protected by the
First Amendment?
b. What if someone either made the gunshot sound or only shouted, He has a
gun! but it produced the same result? Would this be protected?
c. What other factors would you consider as you write your report for this case?
What, if anything, would you recommend to your prosecutor?
3. Anti-Loitering Ordinance Your city has passed an anti-loitering ordinance,
and you are a prosecutor who must deal with the arrests that result from
enforcement of this law. Recently, local police have started arresting teenagers
who seem rather scruffy and aggressive, but who have no apparent drug or gang
involvement. The defendants were loitering around a local strip mall that has
had numerous drug activities but is also a popular hangout. Their arrests were
legal under the current city ordinance. Answer the following questions:
a. Is this ordinance constitutional or not? Why?
b. How will you handle this case?

Workplace Applications
1. Incitement to Riot It is a hot night, and you are among a group of officers
called into an inner-city neighborhood in response to a disturbance. When you
arrive at the scene, you discover a group of angry citizens facing a line of officers
who are struggling to hold them back. One very angry citizen is yelling above
the crowd, urging the others to attack the police. Some of his comments are very
violent and very specific, and he appears to be making the crowd even angrier.
Answer the following questions:
a. Is this man violating any laws? If so, what are they?
b. Can you arrest this citizen without violating his constitutional rights? Why or
whynot?
c. If he succeeds in inciting others to riot, do you think that there are any
additional charges for which he may be liable? Why or why not?
2. The Bill of Rights Interview three or four friends (not in this class) and ask
them to name 7 of the 10 amendments in the Bill of Rights. Tally the results and
then answer the following questions:
a. Did they seem to have a fairly complete understanding of the Bill of Rights?
Why orwhy not?
b. Were you surprised by the results? Why or why not?
c. What do your survey results say about the average Americans understanding
of the Bill of Rights? How can this affect people when they are unexpectedly
caught up in the criminal justice system?
3. Illegal Assembly You are a judge hearing a case regarding an illegal assembly
on a state university campus. The defendants, who are mainly students, state that
they were denied a permit to protest for political reasons and thus were deprived
of their First Amendment rights to peaceful assembly; university officials, they
claim, held back from issuing the permit so that they would have an excuse to

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 Chapter 2 Constitutional Limitations on the Criminal Law 53

arrest them. You examine the relevant statutes and find that your state has a
1908 statute that requires student assemblies to have at least one monitor or
chaperone. In addition, the statute requires that the school approve all student
activities. Answer the following questions:
a. Will you strike down this law, or apply it? Why?
b. If you apply it, in whose favor will you decide?

Ethics Exercises
1. Ethnicity and the Law You are a police investigator working in an ethnically
diverse community. Over time, you confirm that young men from one ethnic
group are most often involved in the criminal conduct that you investigate. You
also notice that many of your colleagues make assumptions about the criminal
behavior of all young men in that ethnic group. Answer the following questions:
a. Is there anything improper in the way in which your colleagues take into
account the ethnicity of a suspect when observing or investigating criminal
activities? Why or why not?
b. What can you do to make sure that your behavior is within constitutional
limits?
c. What can you do to influence or change your colleagues behavior? What are
some possible problems that may occur if they do not change?
d. What other constitutional concerns might you have regarding this behavior?
2. Domestic Violence You are the mayor of a medium-sized city, which has an
ordinance that requires arrest in domestic violence cases that show evidence of
physical injury. Unfortunately, the ordinance does not define physical injury.
Most officers interpret this to mean any sign of physical injury, such as a black
eye or bruised arm, but some officers choose to interpret it to mean only serious
injuries such as fractures. As a result, some cases are ignored, and you have
heard rumors that some victims are considering a civil lawsuit against the police
department. Answer the following questions:
a. What can be done to remedy this problem?
b. What additional efforts should you make with the police and to the public?

Notes
1. United States v. Place, 462 U.S. 696 (1983).
2. Illinois v. Caballes, 543 U.S. 405, 410 (2005).
3. Commonwealth v. Johnston, 530 A.2d 74 (Pa. 1987).
4. Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).
5. Loving v. Virginia, 388 U.S. 1 (1967); Craig v. Boren, 429 U.S. 190 (1976);
Plessey v. Ferguson, 163 U.S. 537 (1896).
6. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798), as quoted in Joshua Dressler,
Understanding Criminal Law 50.1[C][1], at 41 n.21 (5th ed. 2009).
7. Herbert L. Packer, The Limits of the Criminal Sanction 80 n.5 (1968);
Joshua Dressler, Understanding Criminal Law 5.03, at 45 (5th ed. 2009).

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 54 Part I Criminal Law and the Criminal Justice System

8. Papachristou v. Jacksonville, 405 U.S. 156 (1972).

9. Kolender v. Lawson, 461 U.S. 352, 357 (1983).
10. Schenck v. United States, 249 U.S. 47, 5152 (1919).
11. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
12. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
13. R.A.V. v. St. Paul, 505 U.S. 377 (1992).
14. Cantwell v. Connecticut, 310 U.S. 296 (1940); Church of the Lukumi Babula
Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).
15. Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878); Walker v. Superior
Court, 763 P.2d 852 (Cal. 1988); Harden v. State, 216 S.W.2d 708 (Tenn.
1949); Employment Division v. Smith, 494 U.S. 872 (1990).
16. 18 U.S.C. 248 (1994).
17. District of Columbia v. Heller, 554 U.S. ___ (2008).
18. McDonald v. City of Chicago, ___ S.Ct. ___ (2010).
19. 18 U.S.C. 924(c)(a)(A) (2000).
20. Joshua Dressler, Understanding Criminal Law 6.05[C], at 6364
(5thed. 2009) (citing Rummel v. Estelle, 445 U.S. 263 (1980); Solem v. Helm,
463 U.S. 277 (1983)).
21. Harmelin v. Michigan, 501 U.S. 957 (1991).
22. Coker v. Georgia, 433 U.S. 584 (1977).
23. Edmund v. Florida, 458 U.S. 782 (1982).
24. Thompson v. Oklahoma, 487 U.S. 815 (1988).
25. Atkins v. Virginia, 536 U.S. 304 (2002).
26. Roper v. Simmons, 543 U.S. 551 (2005).
27. Furman v. Georgia, 408 U.S. 238 (1972).
28. For a review of the post-Furman history of the death penalty, see Carol S.
Steiker, Capital Punishment: Legal Aspects, in Encyclopedia of Crime and
Justice 12122 ( Joshua Dressler ed., 2d ed. 2002).
29. For a review of the pros and cons of the debate, see Greta Proctor, Reevaluating
Capital Punishment: The Fallacy of a Foolproof System, the Focus on Reform, and
the International Factor, 42 Gonz. L. Rev. 211 (2007).
30. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
31. Id.; Griswold v. Connecticut, 381 U.S. 479 (1965).
32. Roe v. Wade, 410 U.S. 113 (1973).
33. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833
(1992).
34. Lawrence v. Texas, 539 U.S. 558 (2003).
35. Bowers v. Hardwick, 478 U.S. 186 (1986).

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