{"id":1199,"date":"2017-09-27T17:42:53","date_gmt":"2017-09-27T17:42:53","guid":{"rendered":"https:\/\/courses.lumenlearning.com\/suny-fmcc-criminallaw\/?post_type=chapter&p=1199"},"modified":"2019-07-05T13:52:41","modified_gmt":"2019-07-05T13:52:41","slug":"3-2-the-due-process-and-equal-protection-clauses","status":"publish","type":"chapter","link":"https:\/\/courses.lumenlearning.com\/suny-criminallaw\/chapter\/3-2-the-due-process-and-equal-protection-clauses\/","title":{"raw":"3.2 The Due Process and Equal Protection Clauses","rendered":"3.2 The Due Process and Equal Protection Clauses"},"content":{"raw":"
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Learning Objectives<\/h3>\r\n
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  1. Define the Bill of Rights.<\/li>\r\n \t
  2. Define the principle of selective incorporation.<\/li>\r\n \t
  3. Distinguish between substantive and procedural due process.<\/li>\r\n \t
  4. Compare void for vagueness and overbreadth.<\/li>\r\n \t
  5. Ascertain the purpose of the equal protection clause as it applies to criminal laws.<\/li>\r\n<\/ol>\r\n<\/div>\r\n

    Although the legislative branch\u2019s prohibited powers are in Article I of the Constitution, the Bill of Rights contains most of the constitutional protections afforded to criminal defendants. The Bill of Rights<\/a><\/span> is the first ten amendments to the Constitution. In addition, the Fourteenth Amendment, which was added to the Constitution after the Civil War, has a plethora of protections for criminal defendants in the due process and equal protection clauses.<\/p>\r\n

    The Bill of Rights was originally written to apply to the federal government. However, US Supreme Court precedent has held that any<\/em> constitutional amendment that is implicit to due process\u2019s concept of ordered liberty must be incorporated into the Fourteenth Amendment\u2019s protections and applied to the states (Duncan v. Louisiana, 2010). This doctrine is called selective incorporation<\/a><\/span>, and it includes virtually all the constitutional protections in the Bill of Rights. Thus although the original focus of the Bill of Rights may have been limiting the federal government, modern interpretations of the Constitution ensure that its protections also extend to all levels of state and local government.<\/p>\r\n\r\n

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    The Meaning of Due Process of Law<\/h3>\r\n

    The due process clause<\/a><\/span> states, \u201cNo person shall\u2026be deprived of life, liberty, or property, without due process of law.\u201d The due process clause in the Fifth Amendment applies to federal<\/em> crimes and federal criminal prosecutions. The federal due process clause is mirrored in the Fourteenth Amendment, which guarantees due process of law in state<\/em> criminal prosecutions. Most states have a similar provision in their constitutions (Missouri Constitution, 2010).<\/p>\r\n

    Substantive due process<\/a><\/span> protects individuals from an unreasonable loss of substantive rights, such as the right to speak freely and the right to privacy. Procedural due process<\/a><\/span> protects individuals from being criminally punished without notice and an opportunity to be heard. Both substantive and procedural due processes ensure that individuals are not denied their life (capital punishment), liberty (incarceration), or property (forfeiture) arbitrarily<\/em>.<\/p>\r\n\r\n

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    Void for Vagueness<\/h3>\r\n

    Void for vagueness<\/a><\/span> challenges the wording of a statute under the due process clause. A statute is void for vagueness if it uses words that are indefinite or ambiguous. Statutes that are not precisely drafted do not provide notice to the public of exactly what kind of behavior is criminal. In addition, and more important<\/em>, they give too much discretion to law enforcement and are unevenly enforced (U.S. v. White, 2010). With a void for vagueness challenge, the statute must be so unclear that \u201cmen of common intelligence must guess at its meaning,\u201d (Connally v. General Construction Co., 2010) which is an objective standard.<\/p>\r\n\r\n

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    Example of a Statute That Is Void for Vagueness<\/h3>\r\n

    A state legislature enacts a statute that criminalizes \u201cinappropriate attire on public beaches.\u201d Larry, a law enforcement officer, arrests Kathy for wearing a two-piece bathing suit at the beach because in his belief, women should wear one-piece bathing suits. Two days later, Burt, another law enforcement officer, arrests Sarah for wearing a one-piece bathing suit at the beach because in his belief, women should not be seen in public in bathing suits. Kathy and Sarah can attack the statute on its face and as applied as void for vagueness. The term \u201cinappropriate\u201d is unclear and can mean different things to different people. Thus it gives too much discretion to law enforcement, is subject to uneven application, and does not give Kathy, Sarah, or the public adequate notice of what behavior is criminal.<\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n

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    Overbreadth<\/h3>\r\n

    A statute is overbroad<\/a><\/span> if it criminalizes both constitutionally protected and constitutionally unprotected conduct. This challenge is different from void for vagueness<\/strong>, although certain statutes can be attacked on both grounds. An overbroad statute criminalizes too much<\/em> and needs to be revised to target only conduct that is outside the Constitution\u2019s parameters.<\/p>\r\n\r\n

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    Example of an Overbroad Statute<\/h3>\r\n

    A state legislature enacts a statute that makes it criminal to photograph \u201cnude individuals who are under the age of eighteen.\u201d This statute is probably overbroad and violates due process. While it prohibits constitutionally unprotected<\/em> conduct, such as taking obscene photographs of minors, it also criminalizes First Amendment protected<\/em> conduct, such as photographing a nude baby.<\/p>\r\n\r\n

    \r\n\r\n[caption id=\"\" align=\"aligncenter\" width=\"500\"]\"The Figure 3.3<\/strong> The Due Process Clause[\/caption]\r\n\r\n<\/div>\r\n<\/div>\r\n<\/div>\r\n<\/div>\r\n
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    The Equal Protection Clause<\/h3>\r\n

    The Fourteenth Amendment states in relevant part, \u201cnor shall any State\u2026deny to any person within its jurisdiction the equal protection of the laws.\u201d The equal protection clause<\/a><\/span> applies to the state<\/em> government. State constitutions generally have a similar provision (California Constitution, 2010). The equal protection clause prevents the state government from enacting criminal laws that discriminate<\/em> in an unreasonable and unjustified manner. The Fifth Amendment due process clause prohibits the federal government from discrimination if the discrimination is so unjustifiable that it violates due process of law (Bolling v. Sharpe, 2010).<\/p>\r\n

    The prohibition on governmental discrimination is not absolute; it depends on the class of persons targeted for special treatment. In general, court scrutiny is heightened according to a sliding scale when the subject of discrimination is an arbitrary classification. Arbitrary means random and often includes characteristics an individual is born with, such as race or national origin. The most arbitrary classifications demand strict scrutiny<\/strong>, which means the criminal statute must be supported by a compelling<\/em> government interest. Statutes containing classifications that are not arbitrary must have a rational basis<\/strong> and be supported by a legitimate<\/em> government interest.<\/p>\r\n

    Criminal statutes that classify individuals based on their race must be given strict scrutiny because race is an arbitrary classification that cannot be justified. Modern courts do not uphold criminal statutes that classify based on race because there is no government interest in treating citizens of a different race more or less harshly (Loving v. Virginia, 2010).<\/p>\r\n

    Criminal statutes that have a rational basis for discrimination and are supported by a legitimate government interest can<\/em> discriminate, and frequently do. Criminal statutes that punish felons more severely when they have a history of criminal behavior, for example, three-strikes statutes, are supported by the legitimate government interests of specific and general deterrence and incapacitation. Note that the basis of the discrimination, a criminal defendant\u2019s status as a convicted felon<\/em>, is rational, not arbitrary like race. Thus although these statutes discriminate, they are constitutional pursuant to the equal protection clause.<\/p>\r\n\r\n

    \r\n\r\n[caption id=\"\" align=\"aligncenter\" width=\"500\"]\"The Figure 3.4<\/strong> The Equal Protection Clause[\/caption]\r\n\r\n<\/div>\r\n
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    Key Takeaways<\/h3>\r\n