Ex post facto laws : retroactive criminal prohibitions
Bills of attainder : legislative acts inflicting punishment on an individual or on a group of easily identifiable individuals
Laws of this character violate the basic principle that a person accused of wrongdoing is entitled to a fair trial in a court of law.
The Fifth Amendment to the U.S. Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.”
The courts have held that this clause also limits the degree to which legislatures can write statutes that require parties to report information to the government that can place them in jeopardy of criminal prosecution.
Leary v. United States (1969)
Timothy Leary was arrested for the possession of marijuana in violation of the Marijuana Tax Act of 1937.
Leary challenged the act on the ground that the act required self-incrimination, which violated the Fifth Amendment.
The Supreme Court agreed and declared the statute unconstitutional.
Congress responded by passing the Controlled Substances Act.
The 14 th Amendment (1868)
Sec. 1 “… No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ”
Substantive Due Process
Under the concept of substantive due process , government is barred from enforcing policies that are irrational, unfair, unreasonable, or unjust, even if such policies do not run counter to other specific constitutional prohibitions.
It may be broadly defined as the constitutional guarantee that no person shall be arbitrarily deprived of his life, liberty, or property.
The essence of substantive due process is protection from arbitrary and unreasonable action.
Meyer v. Nebraska (1923)
The Court struck down a state law outlawing the teaching of German on the grounds that “liberty” under the 14 th Amendment includes not just economic rights , but also the right “to acquire useful knowledge, to marry, to establish a home and bring up children ... and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
Incorporation of the Bill of Rights
Substantive provisions of the Bill of Rights (e.g., freedom of speech) are held to be incorporated within the broad term “liberty” contained in the 14 th Amendment.
Procedural provisions of the Bill of Rights are held to be aspects of “due process” required by the 14 th Amendment.
The Theory of Incorporation Bill of Rights 14 th Amendment National Government State and Local Governments
Unconstitutional Per Se and Unconstitutional as Applied
A statute may be declared unconstitutional per se in that it inherently trenches on some constitutionally protected liberty or exceeds the constitutional powers of government.
e.g., Lawrence v. Texas (2003)
Alternatively, a law that is facially valid may be declared unconstitutional as applied if it is enforced in a way that impermissibly restricts or punishes the exercise of constitutional rights.
e.g., Cohen v. California (1971)
Standards of Judicial Review
At a minimum, a criminal law that touches on a constitutionally protected interest must be “rationally related to furthering a legitimate government interest.”
Prohibitions that impinge on fundamental rights are subjected to “strict scrutiny” by the courts.
To survive strict scrutiny, government must show that the challenged law furthers a compelling government interest and is narrowly tailored to that purpose.
The Importance of State Constitutions
Under state constitutions, state courts are free to recognize greater (but not lesser) protections of individual rights than are provided by the U.S. Constitution as interpreted by the federal courts.
e.g., Campbell v. Sundquist (TN Ct. App, 1996); Powell v. State (GA Sup. Ct, 1998)
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.
Reynolds v. United States (1879)
The Court upheld application of the federal antipolygamy statute to a Mormon who claimed it was his religious duty to have several wives.
Although the law applied to everyone, it was really aimed at the Mormons.
According to Chief Justice Morrison R. Waite, “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”
Wisconsin v. Yoder (1972)
In this case, members of the Old Order Amish religion were convicted of violating a state law requiring school attendance through age sixteen.
The Amish argued that sending their children to school beyond the eighth grade would be psychologically and spiritually damaging to them and would ultimately have a destructive effect on their tight-knit community.
The Supreme Court held that the compulsory school attendance law as applied to the Amish was a violation of the Free Exercise Clause of the First Amendment.
Employment Division v. Smith (1990)
The Court rejected a claim by members of the Native American Church that their ritualistic use of peyote constituted free exercise of religion.
Justice Scalia held for the majority that “if prohibiting the exercise of religion is merely the incidental effect of a generally applicable and otherwise valid law, the First Amendment has not been offended.”
American Indian Religious Freedom Act Amendment of 1994
“ Notwithstanding any other provision of law, the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any State. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation, including, but not limited to, denial of otherwise applicable benefits under public assistance programs.”
Public Law 103-344, 108 Stat. 3124, 42 U.S.C. §1996
The Sedition Act (1798)
Prohibited “any false, scandalous and malicious” writing against the national government.
A few of Thomas Jefferson’s partisans were prosecuted under this statute.
The provision expired on March 3, 1801, just before Jefferson and his newly victorious party took power.
Jefferson pardoned those convicted under the statute, and no occasion arose for the Supreme Court to determine its constitutionality.
Freedom of Speech not an Absolute Right
It is well established that the First Amendment does not provide absolute protection for freedom of expression.
In Schenck v. United States (1919), Justice Oliver Wendell Holmes, Jr., observed that “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic.”
Unprotected Categories of Speech
“ There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. …”
Chaplinsky v. New Hampshire (1942)
Clear and Present Danger Doctrine
“ The question 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 a right to prevent.… ”
Justice Oliver Wendell Holmes, Jr., writing for the Supreme Court in Schenck v. U.S. (1919)
Whitney v. California (1927)
The Supreme Court upheld the conviction of Charlotte Anita Whitney for violating California’s Criminal Syndicalism Act by organizing a convention of the Communist Labor party of California.
The statute defined “criminal syndicalism” as “any doctrine or precept advocating, teaching or aiding and abetting the commission of crime, sabotage . . . or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change.”
Internal Security Act of 1940
More commonly known as the Smith Act, this federal law made it a crime “to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence. . . .”
Dennis v. United States (1951)
The Supreme Court affirmed the convictions of eleven leaders of the American Communist party.
Eugene Dennis and his ten codefendants had been convicted after a highly publicized nine-month federal trial for violation of the Smith Act.
In essence, the defendants’ convictions resulted from their activities in organizing and furthering the purposes of the Communist party in the United States.
Dennis v. United States (cont.)
In a plurality opinion, Chief Justice Frederick M. Vinson announced the Court’s judgment affirming the convictions.
Vinson articulated the new clear and probable danger test.
The new standard required courts in each case to “ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”
Brandenburg v. Ohio (1969)
A leader of the Ku Klux Klan was convicted under the Ohio Criminal Syndicalism statute essentially for advocating violence. He was fined $1,000 and sentenced to one to 10 years in prison.
The Supreme Court reversed his conviction and struck down the statute, saying that “the constitutional guarantees of free speech and free press do not permit a State to forbid advocacy … [unless it] is directed to inciting or producing imminent lawless action and is likely to incite or produce such action…. A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments.”
“ Fighting Words”
In Chaplinsky v. New Hampshire (1942), the Court observed: “The English language has a number of words and expressions which by general consent are 'fighting words' when said without a disarming smile. ... Such words, as ordinary men know, are likely to cause a fight.”
Chaplinsky defined fighting words as “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”
“ Fighting Words” (cont.)
In Cohen v. California (1971), the Court redefined fighting words as “personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reactions.”
Texas v. Johnson (1989)
After burning an American flag as part of a public protest, Gregory Lee Johnson was convicted of desecrating a flag in violation of Texas law.
The Texas Court of Criminal Appeals reversed the conviction, holding that the statute under which Johnson was convicted was unconstitutional as applied to his particular conduct.
The State of Texas petitioned the United States Supreme Court for certiorari. The Supreme Court, in a very controversial 5-4 decision, upheld the Texas Court of Criminal Appeals.
Writing for the Court, Justice Brennan observed that punishing desecration of the flag would dilute the freedom that it represents.
Opposing Views in TX v. Johnson
Chief Justice Rehnquist, dissenting: “For more than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning…”
Justice Brennan for the majority: “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents...”
Obscenity and Pornography
Prior to 1957, American courts were guided by the 1868 English case of Regina v. Hicklin.
The Hicklin test was “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.”
By the mid-twentieth century, this standard was widely regarded as unduly restrictive of artistic and literary expression.
Roth v. United States (1957)
The Supreme Court handed down new legal guidelines for obscenity.
Writing for the majority, Justice Brennan expressed the view that obscenity is “utterly without redeeming social importance” and thus entitled to no First Amendment protection. Rejecting the essence of the Hicklin standard, he stated the new test as “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to a prurient interest.”
Miller v. California (1973)
In this case, the Supreme Court sets forth the definition of “obscenity” in light of First Amendment considerations:
“ The basic guidelines for the trier of fact must be:
(a) whether the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, …
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.… ”
New York v. Ferber (1982)
The Supreme Court upheld a child pornography law that impinged on the First Amendment freedom of expression.
In the view of the Court, the law served a compelling governmental interest in protecting children from the abuses typically associated with the pornography industry.
Osborne v. Ohio (1990)
Police found photographs in Osborne’s home depicting nude adolescent males posed in sexually explicit positions.
Osborne was convicted under a state law prohibiting possession of “any material or performance showing a minor who is not his child or ward in a state of nudity.”
The Supreme Court upheld the conviction and the law upon which it was based.
The Court went beyond the Ferber decision in upholding a state law prohibiting the possession of child pornography.
Justices Brennan, Marshall, and Stevens, all of whom had concurred in the Ferber case, dissented.
Reno v. ACLU (1997)
In 1996, Congress adopted the Communications Decency Act, which made it a crime to display “indecent” material on the Internet in a manner that might make it available to minors.
The Supreme Court declared this statute unconstitutional as an abridgment of freedom of speech.
Speaking for the Court, Justice Stevens concluded that the interest in freedom of expression in a democratic society outweighs any benefits achieved by trying to censor the Internet.
Ashcroft v. Free Speech Coalition (2002)
The Child Pornography Prevention Act of 1996 prohibited not only pornographic images made using actual children, but also “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture” that “is, or appears to be, of a minor engaging in sexually explicit conduct.”
Speaking for the Court, Justice Kennedy concluded that the prohibition applied to materials beyond the categories recognized in Ferber and Miller , and the reasons the Government offered in support of the law have no justification in this Court's precedents.
Nudity and Sexual Performances
There is certainly no 1st Amendment protection for public nudity generally, but as a part of a performance that is not legally obscene, nudity may be protected under the First Amendment.
In Doran v. Salem Inn (1975), the Court said that “although the customary ‘barroom’ type of nude dancing may involve only the barest minimum of constitutional protection, . . . this form of entertainment might be entitled to … protection under some circumstances.”
In Erie v. Pap’s A.M . (2000), the Court upheld an ordinance that prohibited all-nude dancing. Justice O’Connor observed: “The requirement that dancers wear pasties and G-strings is a minimal restriction … [that] … leaves ample capacity to convey the dancer's erotic message.”
In Chaplinsky v. New Hampshire the Court listed profanity among those types of speech so lacking in value as not to merit 1st Amendment protection.
In Cohen v. California the Court overturned the conviction of a man who entered a courthouse wearing a jacket emblazoned with the slogan “Fuck the Draft.”
Speaking for the Court, Justice Harlan opined that “while the particular four-letter-word being litigated here is perhaps more distasteful than others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because government officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.”
The Case of the Cussing Canoeist
When Timothy Boomer fell from his canoe into Michigan’s Rifle River in 1998 he unleashed a tirade of profanities in a very loud voice.
He was convicted of violating a 19th century state law that prohibited the utterance of profanity in the presence of children.
Boomer was fined $75 and ordered to perform four days of community service. With the assistance of the ACLU, Boomer appealed his conviction to the Michigan Court of Appeals, which overturned his conviction and struck down the law on which it was based.
A number of states and communities have adopted laws aimed at protecting minority groups from crimes motivated by racial or other group-related hatred.
In Wisconsin v. Mitchell (1993), the Supreme Court upheld a Wisconsin statute that increases the severity of punishment if a crime victim is chosen on the basis of race or other designated characteristics.
The Virginia Cross Burning Case
In Virginia v. Black (2001), the Supreme Court reviewed a state law that prohibits the burning of a cross with the intent of intimidating any person or group of persons.”
Justice O’Connor, speaking for a plurality of justices:
“ We conclude that while a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate, the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form.”
“… [P]eaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score.”
Chief Justice Charles Evans Hughes, writing for the Supreme Court in DeJonge v. Oregon (1937)
Freedom of Assembly
Edwards v. South Carolina (1963)
The Supreme Court reversed breach-of-the-peace convictions of 187 students who participated in a peaceful civil rights demonstration on the grounds of the state capitol.
The Court held that in “arresting, convicting and punishing” these students, South Carolina had infringed their “constitutionally protected rights of free speech, free assembly, and freedom to petition for redress of their grievances.”
In his opinion for the majority, Justice Potter Stewart observed that “the Fourteenth Amendment does not permit a state to make criminal the peaceful expression of unpopular views.”
Adderley v. Florida (1966)
In a civil rights demonstration at the county jail in Tallahassee, FL, students from FAMU blocked a jail driveway not normally used by the public.
When they ignored requests to leave this area, the students were arrested and charged with violating a state law that prohibited trespass “committed with a malicious and mischievous intent.”
The Court, splitting 5-4, upheld the convictions.
Writing for the Court, Justice Black opined: “The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.”
Coates v. Cincinnati (1971)
An ordinance prohibited “three or more persons to assemble ... on any of the sidewalks ... and there conduct themselves in a manner annoying to persons passing by .…”
The Supreme Court held that this law violated the vagueness rule and freedom of assembly.
Speaking for the Court, Justice Potter Stewart observed: “The First and Fourteenth Amendments do not permit a State to make criminal the exercise of the right of assembly simply because its exercise may be ‘annoying’ to some people. If this were not the rule, the right of the people to gather in public places for social or political purposes would be continually subject to summary suspension….”
The Vagueness Doctrine
The Due Process Clauses of the Fifth and Fourteenth Amendments also provide important constraints on the substantive criminal law.
Due process requires, among other things, that criminal statutes be written in such a way that a person of ordinary intelligence has a reasonable opportunity to know what is prohibited.
As the Supreme Court observed in 1948, “Legislation may run afoul of the Due Process Clause because it fails to give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused.”
When legislatures fail to meet this obligation, they have succumbed to the vice of vagueness.
Chicago v. Morales (1999)
In 1992, the Chicago City Council enacted an ordinance prohibiting criminal street gang members from loitering in any public place.
In 1999, the United States Supreme Court declared the ordinance unconstitutional.
Writing for the Court, Justice Stevens concluded that the ordinance did not provide “sufficiently specific limits on the enforcement discretion of the police” and failed to meet “constitutional standards for definiteness and clarity.”
The Court found that the ordinance succumbed to the vice of vagueness--that the city council had failed to meet its obligation to specify the criminal law with reasonable precision.
The Second Amendment
“ A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
United States v. Miller (1939)
The Supreme Court upheld a federal law criminalizing the interstate shipment of sawed-off shotguns, saying that “the right to keep and bear arms” had to be interpreted in relation to the “well regulated militia.”
The Court concluded that possession of sawed-off shotguns had no reasonable relationship to serving in the militia.
The Federal Gun Control Act of 1968 18 U.S.C.A. § 921 et seq.
Established a comprehensive regime governing the distribution of firearms.
Prohibits dealers from transferring handguns to persons under 21, nonresidents of the dealer’s state, and those prohibited by state or local laws from purchasing or possessing firearms.
Forbids possession of a firearm by, and transfer of a firearm to convicted felons, users of controlled substances, persons adjudicated as incompetent or committed to mental institutions, illegal aliens, persons dishonorably discharged from the military, persons who have renounced their citizenship, and fugitives from justice.
State Gun Control Laws
Typically prohibit manufacture/sale/possession of machine guns, assault rifles, silencers, sawed-off shotguns, exploding bullets, armor piercing bullets.
Most states also have statutes making it unlawful to carry concealed firearms.
Some states allow citizens to carry handguns if they obtain permits.
Many states also require registration of handguns and waiting periods/background checks to purchase handguns.
Some cities have attempted to ban handguns altogether.
District of Columbia v. Heller (2008)
The Supreme Court struck down a DC ordinance that effectively created a complete ban on handguns within the District.
The Court declared the right to keep and bear arms to be a personal right irrespective of actual or potential service in any militia.
It did indicate, though, that the right is subject to reasonable government regulations.
Constitutional Right of Privacy
Although there is no mention of “privacy” in the text of the Constitution, the Supreme Court has held that a sphere of intimate personal conduct is immune from legislative interference.
In Griswold v. Connecticut (1965) the Court relied in part on the Ninth Amendment, which provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Griswold v. Connecticut (1965)
In this case, the U.S. Supreme Court strikes down a state law making it a crime, even for married couples, to use birth control devices .
Writing for the Court, Justice William O. Douglas:
“ The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which … seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle … that a ‘governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.’”
Eisenstadt v. Baird (1972)
The case involved a challenge to a Massachusetts law that prohibited unmarried persons from obtaining and using contraceptives.
Baird was arrested after he delivered a lecture on birth control at Boston University during which he provided some contraceptive foam to a female student.
In reversing Baird’s conviction and striking down the Massachusetts law, the Court established the right of privacy as an individual right, not a right enjoyed solely by married couples.
Roe v. Wade (1973)
The Supreme Court handed down a 7-to-2 decision striking down the Texas law making it a crime to procure or attempt an abortion except for the purpose of saving the life of the mother.
The Court concluded that the right of privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
Roe v. Wade remains the single most controversial Supreme Court decision of the modern era.
Lawrence v. Texas (2003)
Dividing 6-3, the Supreme Court struck down a Texas law that criminalized “deviate sexual intercourse with another individual of the same sex.”
Writing for the Court, Justice Kennedy asserted the law intruded upon personal liberty and autonomy without a sufficient justification.
Dissenting, Justice Scalia argued that the Court had undercut the foundations of other long-standing criminal prohibitions such as those against incest, bestiality, and bigamy.
Equal Protection of the Law
Equal protection prohibits legislatures from criminalizing conduct only for certain groups of people, at least not without a very strong justification.
Loving v. Virginia (1967)
The Supreme Court relied on the Equal Protection Clause of the Fourteenth Amendment in striking down a state statute that criminalized interracial marriage.
The effect of Loving was that any law that criminalized conduct solely on the basis of the race of the parties was rendered null and void.
Craig v. Boren (1976)
The Supreme Court declared unconstitutional as a violation of equal protection an Oklahoma law that prohibited 18-20 year-old men from consuming 3.2% beer but did not apply the same prohibition to women of the same age.
The Court concluded that the state lacked a sufficient justification for discriminating between the sexes in the availability of the contested beverage.
State v. Vogt (N.J. App. 2001)
Arlene Vogt was arrested for going topless on a public beach.
Vogt argued that application of the law to topless women but not men “creates an invidious discrimination on the basis of gender in violation of both the federal and state constitutional guarantees of equal protection.”
The appellate court rejected her challenge, observing: “Restrictions on exposure of the female breast are supported by the important governmental interest in safeguarding the public’s moral sensibilities, and this ordinance is substantially related to that interest.”