Summary
The US Constitution protects criminal defendants from certain statutes and procedures. State constitutions usually mirror the federal and occasionally provide more protection to criminal defendants than the federal Constitution, as long as the state constitutions do not violate federal supremacy. Statutes can be unconstitutional as written or as enforced and must be supported by a sufficient government interest. Statutes that punish without a trial (bills of attainder) or criminal statutes that are applied retroactively (ex post facto) are unconstitutional under Article 1 §§ 9 and 10. Other constitutional protections are in the Bill of Rights, which is the first ten amendments, and the Fourteenth Amendment, which contains the due process clause and the equal protection clause.
The due process clause prohibits the government from taking an individual’s life, liberty, or property arbitrarily, without notice and an opportunity to be heard. Statutes that are vague or criminalize constitutionally protected conduct (overbroad) violate due process. The Fifth Amendment due process clause applies to the federal government, and the Fourteenth Amendment due process clause applies to the states. The Fourteenth Amendment due process clause also selectively incorporates fundamental rights from the Bill of Rights and applies them to the states. Rights incorporated and applied to the states are the right to free speech, the right to privacy, the right to bear arms, the right to be free from cruel and unusual punishment, and the right to a jury trial. The Fourteenth Amendment also contains the equal protection clause, which prevents the government from enacting statutes that discriminate without a sufficient government interest.
The First Amendment protects speech, expression, and expressive conduct from being criminalized without a compelling government interest and a statute that uses the least restrictive means possible. Some exceptions to the First Amendment are precise statutes targeting fighting words, incitement to riot, hate crimes, obscenity, and nude dancing. The First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments also create a right to privacy that prevents the government from criminalizing the use of birth control, abortion, or consensual sexual relations.
The Second Amendment protects an individual’s right to possess a usable handgun in the home for self-defense. This right is not extended to convicted felons, the mentally ill, commercial sale of firearms, and firearm possession near schools and government buildings. The Eighth Amendment protects criminal defendants from inhumane and excessive punishments. The Sixth Amendment ensures that all facts used to extend a criminal defendant’s sentencing beyond the statutory maximum must be determined by a jury beyond a reasonable doubt.
You Be the Legislative Analyst
You are an expert on constitutional law. Your state’s legislature has hired you to analyze some proposed statutes to ensure that they are constitutional. Read each proposed statute and determine the following: (1) which part of the constitution is relevant, (2) whether the statute is constitutional, and (3) your reasoning. Check your answers using the answer key at the end of the chapter.
- The proposed statute increases penalties for overdue state income tax retroactively. Is the proposed statute constitutional?
- The proposed statute makes it a misdemeanor to display nude art in a public place. Is the proposed statute constitutional?
- The proposed statute enhances the sentence for rape by three years of imprisonment if the defendant is infected with AIDS. Is the proposed statute constitutional?
- The proposed statute prohibits a defendant with a conviction for any crime involving alcohol to possess a handgun in the home. Is the proposed statute constitutional?
- The proposed statute mandates fifteen years of solitary confinement in prison if the defendant is convicted of forcible rape. Is the proposed statute constitutional?
Cases of Interest
- South Dakota v. Asmussen, 668 N.W.2d 725 (2003), discusses void for vagueness and overbreadth: http://caselaw.findlaw.com/sd-supreme-court/1080212.html.
- Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010), discusses the First Amendment: http://scholar.google.com/scholar_case?case=10772194664096336702&q= Christian+Legal+Society+v.+Martinez&hl=en&as_sdt=2,5.
- U.S. v. Alvarez, 617 F.3d 1198 (2010), discusses freedom of speech: http://scholar.google.com/scholar_case?case=3332503989513069132&q= U.S.+v.+Alvarez&hl=en&as_sdt=2,5&as_ylo=2010.
- Snyder v. Phelps, No. 09-751 (2011), discusses the First Amendment: http://www.law.cornell.edu/supct/html/09-751.ZO.html.
- Robinson v. California, 370 U.S. 660 (1962), discusses cruel and unusual punishment: http://caselaw.findlaw.com/us-supreme-court/370/660.html.
Articles of Interest
- Selective incorporation: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/incorp.htm
- Violent video games and the First Amendment: http://www.huffingtonpost.com/2011/06/27/supreme-court-violent-video-games_n_884991.html
- Ohio abortion bill: http://abcnews.go.com/Politics/ohio-heartbeat-bill-abortion-paves-roe-wade -challenge/story?id=12876224
- Second Amendment and gun control: http://usgovinfo.about.com/od/guncontrol/
- Recent US Supreme Court case on three strikes and its application to juveniles: http://www.correctionsone.com/juvenile-offenders/articles/2050079-High-Court-Calif-can-apply-3-strikes-law-to-juveniles
Websites of Interest
- First Amendment information: http://www.firstamendmentcenter.org/
- Hate crimes: http://www.fbi.gov/about-us/investigate/civilrights/hate_crimes/hate_crimes
- Death penalty information: http://www.deathpenaltyinfo.org
Statistics of Interest
- Hate crimes in the United States: http://www2.fbi.gov/ucr/hc2009/index.html
- US executions pursuant to the death penalty: http://www.deathpenaltyinfo.org/number-executions -state-and-region-1976
References
Smith v. Goguen, 415 U.S. 566, 582 (1974), accessed October 3, 2010, http://scholar.google.com/scholar_case?case=14723025391522670978&hl=en&as_sdt=2&as_vis=1&oi=scholarr.
