Criminal Law

VII. The Constitution and Criminal Law

When a law is said to be unconstitutional, it is usually because the law is in conflict with the provisions of the U.S. Constitution or one of the amendments to the Constitution. In addition, the law can be declared unconstitutional when it violates a provision of a state constitution (Demleitner, Berman, Miller, &Wright, 2007). Not all laws are constitutional. A statute can be deemed unconstitutional for one of two reasons (Chevigny, 2002):

  1. The content of the statute seems unconstitutional at face value. For example, if a statute made it illegal to practice one’s religion or a statute made it a crime for men to operate a sewing machine.
  2. The law was enforced by the government in a manner that violated the Constitution. For example, if the chief of police targeted members of an unpopular church for arrest for disturbing the peace with their singing but left other acceptable churches free to be loud without fear of arrest, this is an unconstitutional application of the public disturbance statute. The chief of police is applying a lawful statute in an unlawful way that violates the constitutional right of freedom of religion.

A. Due Process

The due process clauses of the Fifth and Fourteenth Amendments provide that a person must be afforded due process (the principle that laws must be fair) if the federal, state, or local government intends to take away his or her life, liberty, or property. In other words, a person has the right to be treated fairly under the law. Due process has elements that are both procedural and substantive (Tiffany, McIntyre, & Rotenberg, 2003, p. 210).

Under procedural due process, flexibility is applied to the amount of due process that must be afforded. If you are going to lose your liberty for the rest of your life, the level of due process must be more intense. If a person is going to be fined only $100 for a traffic ticket, the degree of procedural safeguards need not be as great. As a general rule, due process requires fundamental fairness.

Substantive due process means that the state is without power to deprive a person of life, liberty, or property by an act having no reasonable relation to any proper governmental purpose. For example, the government has no authority to deny a person the right to a jury trial because it costs money to heat the courthouse in the winter.

B. Equal Protection

The equal protection clause of the Fourteenth Amendment, which states that no state shall deny any person the equal protection of the laws, provides that all persons must be treated equally when a law is applied. Distinctions or applications of laws that treat people differently because of gender, religion, race, or socioeconomic status are unconstitutional. For example, if there is a law that punishes men who have improper sexual relations with children and does not punish women for the same offense, that statute would be in violation of the equal protection clause of the Fourteenth Amendment.

C. Illegal Laws: Bill of Attainder and Ex Post Facto Law

The U.S. Constitution specifically prohibits bills of attainder and ex post facto laws (Dressler, 2001). The following is an example of what is referred to as a bill of attainder: The Bedrock Water Buffalo Lodge invites political extremists from another country to participate in a symposium discussing all that is wrong with America. The state legislature then passes a law stating that the members of the Water Buffalo Lodge have engaged in treason, shall all be put to death, and all their property shall be forfeited to the government.

Although some government officials might not be happy with the members of the lodge because of their activities, the law passed by the legislature is an illegal bill of attainder. Such laws are prohibited by the U.S. Constitution. The legislative branch has invaded the province of the courts (in other words, the legislative branch has violated the separation of powers clause—it has overstepped its bounds) and singled out the lodge members, declaring them guilty of a crime without a trial or any of the other due process safeguards.

An ex post facto law is a law passed after the criminal act has been committed that retroactively creates a new crime, aggravates the punishment for the existing crime, or inflicts a greater punishment than the law allowed when the crime was committed (Dressler, 2001). The following is an example of an ex post facto law: Fred commits his third drunk-driving offense, but his two prior convictions are 8 years old and priors can be used only to increase the offense to a felony if the convictions were during the past 5 years. The Bedrock legislature then passes a law that makes drunk-driving priors viable for 10 years. The prosecutor amends the charges against Fred and charges him with a felony. Because Fred can receive greater punishment for a crime he committed prior to the new law being enacted, the new drunk-driving law is an ex post facto law.

D. Void for Vagueness Doctrine and Fair Notice

For a statute to be constitutional, it must give fair notice of the conduct that violates the statute. The law must give a clear definition to allow a person to conform his or her conduct to the law (Frankel, 1983). The following is an example of what is referred to as a fair notice doctrine: Wilma is charged with violating a state statute that prohibits conduct that “causes others to be concerned with their safety or is generally annoying to the public at large.” In this case, it is unclear what might cause others to be concerned for their safety or what other members of the public might find annoying. Acts that are made criminal must be clearly and appropriately defined. A person of common intelligence must be able to ascertain the standard of guilt. Moreover, statutes that lack the requisite definiteness or specificity as to which persons come within the scope of the act are usually struck down by the courts because it is said that they are “void for vagueness” or that they violate the doctrine of overbreadth (Frankel, 1983, p. 140).

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