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Constitutionality And Procedure Outline

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Criminal Statutes a. Rule i. Criminal statutes

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

2. require a. advance specification (Keeler) i. i.e. no ex post facto laws. b. legislative enactment (Keeler), and c. adequate clarity, i.e. are not vague by failing to provide notice, foreseeability and fair warning (Bouie). b. Analysis i. Vague?

1. A law may be void for vagueness if it a. fails to establish minimum guidelines to prevent arbitrary law enforcement (Chicago); i. 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). ii. e.g. the police may arrest "loiterers" as opposed to "intimidating loiterers" (Chicago, O'Connor concurring). b. fails to provide ordinary people with notice of the crime (Chicago plurality) (Papachristou), or c. criminalizes innocent behavior (Papachristou). ii. "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), a. Two canons of interpretation: i. 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). ii. rule of lenity: ties go to the D (McBoyle). c. Cases i. 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. ii. 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. iii. Keeler v. Superior Court (Cal. 1970, 146)

1. D 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, D 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. iv. McBoyle v. U.S. (U.S. 1931, 138)

1. D 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 landbased. v. Squibs


2. 3. II.

III. Bouie v. City of Columbia (U.S. 1964): black Ds were convicted of "trespass" for sitting in at a segregated lunch counter; this was an "unforeseeable" enlargement of a criminal statute. Nash v. U.S. (U.S. 1912): D disagreed with jury about whether Sherman Antitrust Act applied to his activity. Act still has sufficient notice. U.S. v. Ragen (U.S. 1941): D convicted of deducting "unreasonable" allowance on tax return; not vague.

Common Law Crimes a. Rule i. Common law crimes

1. must not be "unexpected and indefensible" by reference to the law which had previously been expressed (Rogers). b. Analysis i. "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 Ds have fair warning of its its abolition (Rogers). c. Case i. Rogers v. Tenn. (U.S. 2001, 150)

1. D 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 D. 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.

Capital Punishment a. Rule i. The death penalty itself does not violate the 8th Amendment (Gregg). ii. 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). iii. To be proportional, the death penalty is typically reserved for murder, committed by sane Ds. iv. The death penalty may only be granted after a jury trial (U.S. v. Jackson (U.S. 1968)). b. Analysis i. "Arbitrary and capricious"?

1. In order to satisfy the 8th Amendment, a form of capital punishment must have "guided discretion": a. standards in place of discretion, including i. a separate sentencing hearing (Gregg), ii. giving the judge the final say (Proffitt v. Fla. (U.S. 1976)), and b. 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). ii. Unconstrained opportunities?

1. A jury or judge, whoever determines whether capital punishment is appropriate, must be allowed to mitigate for whatever reason (Lockett). a. The following is not OK: i. enumerated reasons for granting mercy (Hitchcock v. Dugger (U.S. 1987)); ii. yes-or-no questions (Penry); iii. exclusion of evidence of D's good behavior during jail (Skipper v. S.C. (U.S. 1986)); iv. ignoring D's family history (Eddings v. Okla. (U.S. 1982)); v. any scheme that limits what jury can find as mitigating (Lockett), and vi. mandatory death penalty (Woodson v. N.C. (U.S. 1976)),

1. even for D already serving life sentence (Sumner v. Shuman (U.S. 1987)). b. The following used to be OK but IS NOT anymore: i. statute specifying mitigating factors (Proffitt v. Fla. (U.S. 1976)), ii. yes-or-no questions (Jurek v. Tex. (U.S. 1976)). iii. Proportional?



Cases i.

ii. iii.

IV. V.

The death penalty is typically reserved for first-degree / purposeful / knowing murder. a. NOT OK: i. the rape of an adult woman (Locker v. Ga. (U.S. 1977)), ii. D who in FM did not kill or attempt to kill (Enmund v. Fla. (U.S. 1982), iii. non-fatal rape of child under 12 (Kennedy v. La. (U.S. 2008)), iv. execution of juveniles (Roper v. Simmons (U.S. 2005)), v. execution of insane (Ford v. Wainwright (U.S. 1986), vi. execution of mentally handicapped (Atkins v. Va. (U.S. 2002)). b. OK: i. D was major participant in FM with reckless indifference to human life (Tison v. Ariz. (U.S. 1987).

Gregg v. Ga. (U.S. 1976, 481)

1. D murdered two people. Ga. law requires jury to find statutory aggravating factor in order to award the death penalty, or any mitigating factor to avoid it. Since a separate hearing with mitigating factors is not "arbitrary and capricious," capital regime is OK.

2. (Dissent, Marshall): an informed citizenry would never accept the death penalty, so it is not OK. McClesky v. Kemp (U.S. 1987, 499)

1. D FM-murdered police officer. Even though study shows that black Ds who kill white victims are more likely to receive death penalty, this is not unconstitutionally discriminatory.

2. (Dissent, Brennan): Ga. has a history of discrimination, and this system does discriminate.

3. (Dissent, Blackmun): Batson v. Ky. suggests that Ga., not D, should have burden of proving no discrimination. Squibs

1. Walton v. Ariz. (U.S. 1990)(Scalia, concurring) a. Woodson and Lockett are incompatible with Furman's call for guided discretion.

2. Calims v. Collins (U.S. 1994)(Blackmun, dissenting) a. Enforcing any death penalty scheme rationally is impossible.

Civil Commitment a. Rule i. D may be committed only with clear and convincing evidence of insanity (Addington v. Tex. (U.S. 1979)). ii. If a state detains D because of incompetence, must either release him after a certain point or put him on trial (Jackson v. Ind. (U.S. 1972)). iii. Mandatory civil commitment for insanity acquittal OK, as is indefinite confinement (Jones v. U.S. (U.S. 1983)), but

1. after the maximum offense time of a guilty sane person, D must be given a hearing regarding clear and convincing evidence of his insanity (In re Commitment of W.K. (N.J. 1999)). b. Analysis i. Clear and convincing?

1. This is higher than "preponderance" but lower than "beyond a reasonable doubt." ii. Insanity acquittal?

1. Some states (e.g. Mich.) have the option of "guilty but mentally ill" to ensure a minimum sentence.

2. States are divided whether the jury should otherwise know what happens after an insane verdict: a. (Mich. / U.S.) i. jury should not know anything, since it has nothing to do with the determination of guilt (Shannon v. U.S. (U.S. 1994)). b. (Mass) i. jury should know when commitment is mandatory (C. v. Mutina (Mass. 1975)).

Proportionality a. Rule i. There are two methods of assessing whether a sentence violates the Eighth Amendment's ban on "cruel and unusual" punishment:

1. The Ewing "Grossly Disproportionate" Test: a. step 1: ask whether the sentence is grossly disproportionate.

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