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| Constitution is a ________ of government power and individual liberty |
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| what constrains the majority so that the majority cannot criminalize what the Constitution has identified as a fundamental right. |
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| the majority wins, (or the representatives of the majority, i.e., the legislatures/Congress), could make virtually anything a crime. |
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| The Principle of Legality |
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Definition
No one can be punished for a crime that did not exist at the time they engaged in the behavior
No crime without law
No punishment without law |
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Term
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Definition
The principle of legality is articulated in the ___________clause of the U.S. Constitution: Article I, Section 9 of the U.S. Constitution:
“No Bill of Attainder or ________Law shall be passed.”
(Article I, §16 of the Idaho Constitution) |
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Term
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Definition
Criminalize an act that was innocent when committed
Increase the punishment for a crime after the crime was committed
Take away a defense that was available to a defendant when the crime was committed |
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| Purposes of ex post facto ban |
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Definition
protect private citizens by making sure they have fair warning about what is criminal.
prevent legislatures from passing arbitrary & vindictive laws |
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Term
| Example of Void for Vagueness |
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Definition
City code in Metzger:
“It shall be unlawful for any person iwthin the City of Lincoln…to commit any indecent, immodest or filthy act in the presence of any person or in such situation that persons passing might ordinarily see the same.” |
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| Equal Protection Clause (14th Amendment-applies to states) |
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Definition
Doesn’t require government to treat everybody the same
When criminal laws distinguish between groups of people, the court will examine the characteristics of the selected group and decide how closely to examine the law |
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Definition
| Must be compelling government interest and narrowly tailored to meet that purpose |
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| Govt. must show a fair and substantial basis between classification and legitimate state end |
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-Race, national origin, religion, alienage, skin color, any fundamental right
-Gender, legitimacy of birth
-Everyone else |
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Definition
Free speech
Religion
Association |
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Term
| what is on the 1st Amendment for making crime out of free speech exercises? |
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Definition
| There is a ban on making crime out of conduct that is an exercise of the individual’s First Amendment rights |
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Term
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Definition
Expansive definition of speech
Not just spoken or written words
Includes expressive conduct
Includes symbolic speech
Includes, to some extent, commercial speech |
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Term
| Categories of speech not protected by 1st |
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Definition
Obscenity
Profanity
Libel and slander
Fighting words
Clear and present danger |
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Term
| Why are some categories of speech not protected? |
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Definition
| Slight value, any benefit is outweighed by social interest in order and morality |
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Term
| Void for Overbreadth doctrine |
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Definition
gives teeth to the protection=
Any laws which are written so broadly that fear of prosecution creates a chilling effect that discourages people from exercising their freedom of speech violate the constitution |
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Term
| People v. Rokicki (The Facts) |
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Definition
| Rokicki, the defendant, was charged under the hate crime statute for calling a Pizza Hut employee a “faggot” and other derogatory names. The underlying offense was disorderly conduct. |
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Term
| People v. Rokicki (The Issue) |
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Definition
| Does the hate crime statute violate free speech? (the issue is a question) |
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Term
| People v. Rokicki (The Holding/Ruling) |
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Definition
| No. Not when underlying offense is disorderly conduct because the statute reaches only conduct, not speech |
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Term
| Barnes v. Glen Theatre, Inc. et. Al (The Facts, Issue and holding/ruling |
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Definition
Facts: Indiana state prohibits nude dancing in public
Issue: Does this violate right to free speech?
Holding: NO. Nude dancing is expressive conduct and statute interest is in protecting public order and morality. |
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Term
| Texas v. Johnson (The Facts) |
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Definition
| Facts: Johnson, the defendant, burned an American flag during a political demonstration. He was charged with violating the “desecration of a venerated object” statute |
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Term
| Texas v. Johnson (The Issue & Holding/ruling) |
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Definition
Issue: Did the flag burning statute violate Johnson’s right to free speech?
Holding: Yes, the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable |
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Term
| Second Amendment: Right to Bear Arms-Its "bans" and limits |
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Definition
May ban
Carrying concealed weapons
Felons possessing firearms
Mentally ill persons possessing firearms
Carrying firearms in sensitive places such as school and government buildings
Laws imposing conditions and qualifications on the commercial sale of arms |
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Term
| Second Amendment: right to bear arms case & relevance |
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Definition
District of Columbia v. Heller (2008)
The first successful Second Amendment Challenge
US Supreme Court ruled it is the right of law-abiding, responsible citizens to use arms in defense of hearth and home
Importance of Heller case
Renders irrelevant the wording in 2nd Amendment concerning militia |
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Term
| GeorgiaCarry. Org v. Georgia-Facts: Georgia law prohibits the carrying of firearms in a place of worship, issue & holding? |
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Definition
Issue: Does this law violate the right to bear arms?
Holding: No. The law plays a substantial role in the goal of protecting the attendees for the fear or threat of intimidation or an armed attack |
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Term
Right to Privacy? (Right to be left alone
Griswold v. Connecticut) |
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Definition
Found in the penumbra of the Constitution (not in any specific clause or amendment)
Fundamental right, so government needs a compelling interest to invade it
Originates from six separate amendments
1st, 3rd, 4th, 9th, 5th, and 14th |
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Term
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Definition
| scrutiny-law is constitutional as long as it is substantially related to an important government interest |
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| Constitutional right to privacy |
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Definition
| privacy-bans “all governmental invasions of the sanctity of a man’s home and privacies of life” |
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Term
| Fundamental right to privacy |
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Definition
| privacy-requires the government to prove that a compelling interest justifies invading it. |
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| Case where Issue was: Do consenting adults have the right to privacy in their private sexual conduct? (holding/facts too.) |
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Lawrence v. Texas
-Facts: Lawrence, the defendant, and another man were engaging in a sexual act. The act was in private and consensual. The act was deemed to be deviate sexual intercourse which Texas statute prohibits
-Holding: Yes. People of the right to engage in private conduct without government intervention |
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| Issue: Does the right to privacy protect pornography? (Case) |
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Definition
Stanley v. Georgia,
Holding: Yes. People of the right to be left alone
Facts: During a search warrant for alleged bookmaking activities, officers found 2 pornographic films. Stanley, the defendant, was charged with possession of obscene matter. |
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Term
| 8th Amendment: Cruel and Unusual Punishment Clause The Constitution and Criminal Sentencing |
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Definition
Cruel and unusual punishments should not be inflicted
Cruel and unusual punishments include
Barbaric punishment- no longer allowed: burning at stake, torturing, extreme forms of solitary confinement, etc.)
Disproportionate punishment: punishment should fit the crime |
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Term
| US Supreme Court stated punishment by death is not cruel as long as it isn’t |
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Definition
| “something more than the mere extinguishment of life”. |
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Term
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Definition
| William Kemmler sentenced to death by the electric chair argued electrocution was cruel and unusual punishment; needs to be swift and painless USSC ruling |
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| Kennedy v. Louisiana (USSC ruled: Yes, it is an excessive penalty for rape as it did not result in the loss of human life) |
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Definition
Facts: Pursuant, to Louisiana statute, Kennedy, the defendant, was sentenced to death for the aggravated rape of his 8 year-old stepdaughter.
Issue: Is execution cruel and unusual punishment because it is disproportionate to the offense. |
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Term
| Disproportionate Punishments (3 cases that stopped extreme punishment for these classes.) |
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Definition
The Death Penalty for Mentally Retarded Murderers
Atkins v. Virginia
The Death Penalty for Juvenile Murderers
Roper v. Simmons
Life without Parole for Juveniles
Graham v. Texas |
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Term
| State v. Ninham...Issue: Is it cruel and unusual to sentence the defendant to “death in prison”? |
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Definition
Facts: Ninham, the defendant, was convicted of the intentional murder of Zong Vang (age 13) and was sentenced to life in prison. Ninham was 14 years old when he committed the murder.
Holding: No. The sentence is not unduly harsh or excessive |
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| Mandatory minimum sentences-Judges |
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Definition
| impose non-discretionary minimum of prison time that all offenders have to serve |
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| Fixed (determinate) sentences |
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Definition
| sentences—length of sentences determined by the seriousness of the offense (determined by legislators in advance of the crime) |
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Definition
—ranges of penalties from which judges choose a specific (presumptive) sentence within the range
Sentence outside that range is a “departure” |
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Term
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Definition
| Before judge can give an upward departure sentence based on aggravating factors, a jury must determine the existence of those factors beyond a reasonable doubt |
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Term
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Definition
| Sentencing guidelines, to the extent that they allow for judges to impose departure sentences without jury findings are unconstitutional |
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Term
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Definition
| Federal Sentencing Guideline structure was unconstitutional if mandatory, but may be used as a guide for judges |
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| Since federal sentencing guidelines are advisory, the appellate court needs to determine if the imposed sentence was reasonable. The appellate courts need to give deference to the sentencing judge and only overturn sentences when the sentencing judge abused his or her discretion |
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Term
| Gall v. U.S. issue & holding |
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Definition
Issue: Do extraordinary circumstance exist to sentence outside the guidelines sentence
Holding: Yes. Decision upheld |
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Term
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Definition
| type of speech does the First Amendment to the U.S. Constitution protect? |
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Term
| In a constitutional democracy |
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Definition
| the majority can make anything criminal as long as the Constitution isn't violated. |
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Term
| The principle of legality means that |
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Definition
| individuals cannot be punished for a crime unless a criminal law exists prohibiting the crime. |
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