Constitutionality And Procedure Outline

SECTION SIX: CONSTITUTIONALITY & PROCEDURE

Part One: Constitutionality

1. @Criminal Statutes

   1. Rule

      1. Criminal statutes

         1. are the primary source of criminal law, and the only source when the penal code says so (Keeler).

         2. require

            1. advance specification (Keeler)

               1. i.e. no ex post facto laws.

            2. legislative enactment (Keeler), and

            3. adequate clarity, i.e. are not vague by failing to provide notice, foreseeability and fair warning (Bouie).

   2. Analysis

      1. Vague?

         1. A law may be void for vagueness if it

            1. fails to establish minimum guidelines to prevent arbitrary law enforcement (Chicago);

               1. i.e. gives police absolute discretion or casts a net so wide that only courts are able to decide who should be set free (Chicago plurality).

               2. e.g. the police may arrest “loiterers” as opposed to “intimidating loiterers” (Chicago, O’Connor concurring).

            2. fails to provide ordinary people with notice of the crime (Chicago plurality)(Papachristou), or

            3. criminalizes innocent behavior (Papachristou).

      2. “Notice, foreseeability, and fair warning”?

         1. Citizens should avoid having to speculate whether they are committing a crime (Chicago plurality)

         2. BUT even though an ordinary person might disagree with a jury about the degree at which an activity becomes a crime, there is not necessarily a constitutional difficulty (Nash).

         3. Fair warning requires an interpretation consistent with the statutory guidelines, purposes, or history (Keeler),

            1. Two canons of interpretation:

               1. ejusdum generis: when a statute lists a series of items, it doesn’t necessarily limit itself to the list but implied items should be similar.

                  1. e.g. if statute lists land-based vehicles as “motor vehicles,” an airplane is not “fair warning” (McBoyle).

               2. rule of lenity: ties go to the Δ (McBoyle).

   3. Cases

      1. City of Chicago v. Morales (U.S. 1999, 154)

         1. (Plurality): Chicago law created a criminal offense if (1) police believes at least one member of a group is a gang member, (2) people in the group are loitering with no apparent purpose, (3) the police orders all people in the group to disperse, and (4) someone disobeys the order. Since ordinary people had no notice of whether they were breaking the law, the law was impermissibly vague.

         2. (O’Connor, concurring): the law is only vague because the guidelines are too minimal.

      2. Papachristou v. City of Jacksonville (U.S. 1972, 162)

         1. A city ordinance made vagrancy-type activities, including “wandering or strolling,” illegal. This ordinance was unconstitutional vague because it did not give ordinary citizens notice, and criminalized amenities that give Americans feelings of liberty.

      3. Keeler v. Superior Court (Cal. 1970, 146)

         1. Δ kicked ex-wife’s pregnant body. Convicted of murder, but sought writ of prohibition because a fetus is not a “human being.” Since to interpret the statute to include fetuses would be an “unforeseeable” retroactive construction of a criminal statute, Δ is not guilty of murder.

         2. (Dissent): the statute allowed courts to interpret words with “fair import” and is not “frozen in time,” so the court should be able to include a fetus among “human beings” in regard to murder statutes.

      4. McBoyle v. U.S. (U.S. 1931, 138)

         1. Δ convicted of transporting “vehicle” in violation of Nat’l Motor Vehicle Theft Act when he stole an airplane. This is not fair warning, because examples of vehicles were land-based.

      5. Squibs

         1. Bouie v. City of Columbia (U.S. 1964): black Δs were convicted of “trespass” for sitting in at a segregated lunch counter; this was an “unforeseeable” enlargement of a criminal statute.

         2. Nash v. U.S. (U.S. 1912): Δ disagreed with jury about whether Sherman Antitrust Act applied to his activity. Act still has sufficient notice.

         3. U.S. v. Ragen (U.S. 1941): Δ convicted of deducting “unreasonable” allowance on tax return; not vague.

2. @Common Law Crimes

   1. Rule

      1. Common law crimes

         1. must not be “unexpected and indefensible” by reference to the law which had previously been expressed (Rogers).

   2. Analysis

      1. “Unexpected and indefensible”?

         1. Courts create common law crimes, so are not bound by the ex post facto clause even though they are still bound by due process standards (Rogers).

         2. When other states abolish a rule, future Δs have fair warning of its its abolition (Rogers).

   3. Case

      1. Rogers v. Tenn. (U.S. 2001, 150)

         1. Δ stabbed man who died 15 mos. after wounds. Tenn. common law defined the statute of limitations for murder as a “year-and-a-day.” The Tenn. SC abolished the common law rule for Δ. Since this abolition was not “unexpected and indefensible,” it was OK.

         2. (Scalia, dissenting): “fair warning” is not that a rule might be changed, but of what the law is. Moreover, no reason why the ex post facto rule shouldn’t apply to courts.

3. @Capital Punishment

   1. Rule

      1. The death penalty itself does not violate the 8th Amendment (Gregg).

      2. The death penalty may not be administered in an “arbitrary and capricious” manner (Furman v. Ga. (U.S. 1972, 479)), but must have the following two characteristics:

         1. unconstrained opportunities to find mitigating factors (Lockett v. Ohio (U.S. 1978)),

         2. “guided discretion” (Furman).

      3. To be proportional, the death penalty is typically reserved for murder, committed by sane Δs.

      4. The death penalty may only be granted after a jury trial (U.S. v. Jackson (U.S. 1968)).

   2. Analysis

      1. “Arbitrary and capricious”?

         1. In order to satisfy the 8th Amendment, a form of capital punishment must have “guided discretion”:

            1. standards in place of discretion, including

               1. a separate sentencing hearing (Gregg),

               2. giving the judge the final say (Proffitt v. Fla. (U.S. 1976)), and

            2. a penological justification (e.g. retribution and deterrence)(Gregg).

         2. A discriminatory effect (e.g. with more blacks getting death penalty) is inherent in discretion, but is not unconstitutional unless discriminatory intent is proven (McClesky).

      2. Unconstrained opportunities?

         1. A jury or judge, whoever determines whether capital punishment is appropriate, must be allowed to mitigate for whatever...

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