3.1: Applicability of the Constitution

In addition to statutory and common law defenses (to be discussed in subsequent chapters), a criminal defendant has extensive protections under the US and Alaska constitutions. As stated in the previous chapter, the federal constitution is applicable in all criminal cases since the government is prosecuting the offender. Several state constitutions mirror the federal constitution because it sets the minimum standard of protection guaranteed to all citizens. However, remember that states can – and often do – provide more constitutional protections to criminal defendants than their federal counterpart, so long as those state protections do not violate notions of federal supremacy. In this chapter, both the federal constitution and the Alaska Constitution are analyzed. As you will see shortly, although the federal constitution establishes the floor of constitutional protection, the Alaska Constitution includes greater protection for its citizens.

Constitutional Protections

Generally, two types of constitutional protections exist. First, a defendant can challenge the constitutionality of a criminal statute or ordinance (from this point forward, the term statute includes ordinances unless otherwise noted). Recall these codified laws cannot conflict with, or attempt to supersede, the Constitution. An attack on the constitutionality of a statute can be a claim that the statute is unconstitutional on its face, is unconstitutional as applied, or both. A statute is unconstitutional on its face when its wording is unconstitutional. The statute is invalid (and unenforceable) under any circumstance. A statute is unconstitutional as applied when its enforcement is unconstitutional. This is sometimes referred to as a facial challenge to the statute. The difference between the two is significant. If a statute is unconstitutional on its face, it is invalid under any circumstances. If the statute is unconstitutional as applied, it is only unconstitutional under certain circumstances. As you will see, when faced with finding a statute unconstitutional, courts prefer to decide cases on an as-applied challenge to avoid issuing premature decisions.

Another type of constitutional protection is procedural. The defendant can protest an unconstitutional procedure that occurs during prosecution. Criminal procedure includes, but is not limited to, arrest, interrogation, search, filing of charges, trial, and appeal. The defendant can make a motion to dismiss the charges, suppress evidence, or declare a mistrial. The defendant can also appeal and seek to reverse a conviction, among other remedies.

This book concentrates on criminal law rather than criminal procedure, so the bulk of this chapter is devoted to unconstitutional criminal statutes, rather than unconstitutional procedures. The exception is the right to a jury trial, which is discussed shortly.

Example of Constitutional Protections

Bill is on trial for obstructing a public sidewalk. Bill was arrested for standing in front of a restaurant’s entrance with a sign stating “will eat any and all leftovers.” The city ordinance Bill violated makes it a misdemeanor to “stand or sit on a public sidewalk with a sign.” The ordinance mandates jail time for its violation. To save money, the judge presiding over Bill’s trial declares that Bill will have a bench trial, rather than a jury trial. In this example, Bill can constitutionally attack the city ordinance for violating his freedom of speech because it prohibits holding a sign. The city ordinance appears unconstitutional on its face and as applied to Bill. Bill can also constitutionally attack his bench trial because he has the right to a jury trial under the Sixth Amendment. He could do this by making a motion to declare a mistrial, by petitioning an appellate court to halt the trial, or by appeal after a judgment of conviction.

Judicial Standards of Review

As stated previously in this book, courts review statutes to ensure that they conform to the Constitution pursuant to their power of judicial review. Courts generally use different standards of review when constitutional protections are at stake. Typically, a court balances the government’s interest in regulating conduct against an individual’s interest in a constitutionally protected right. This balancing of interests varies depending on the right at stake. If the government is infringing upon a fundamental right, the court uses strict scrutiny to analyze the statute at issue. A statute that violates or inhibits fundamental constitutional protections is presumptively invalid and can be upheld only if the government can demonstrate that the statute is supported by a compelling government interest and it is narrowly tailored, using the least restrictive means possible to achieve its result.

If a statute is challenged based on discrimination under the equal protection clause and the right being infringed is important, but not fundamental, the court may use a lower standard, called intermediate scrutiny. When the law burdens a non-fundamental, but important right (like gender), the government must demonstrate a close and substantial relationship to the government’s conduct. To date, only gender has been found to be an important, but not fundamental, right. There must be a meaningful and persuasive justification for the government’s decision to treat a person differently based on their gender.

Finally, if a statute implicates neither a fundamental right nor a suspect class, then the government need only to show a reasonable rationale basis for the governmental action. This test, the rational basis test, is the lowest standard of review available. The rational basis test allows a statute to discriminate if the statute is rationally related to a legitimate government interest. Most statutes are reviewed under the rational basis test.

Example of Strict Scrutiny

Review the example regarding Bill, who was arrested for standing and holding a sign. The US Supreme Court has held that freedom of speech is a fundamental right. Thus a court reviewing the ordinance in Bill’s case will hold the ordinance presumptively invalid, unless the government can demonstrate a compelling interest in enacting it, and that it used the least restrictive means possible. In this example, the ordinance is likely unconstitutional. The ordinance is broadly written to include all signs, and preventing individuals from holding signs does not serve a compelling government interest, so this heightened standard will probably result in the court holding the ordinance invalid and unenforceable.

The Legislative Branch’s Prohibited Powers

The legislative branch cannot punish defendants without a trial or enact retroactive criminal statutes pursuant to the Constitution’s prohibition against bill of attainder and ex post facto laws. Article 1, § 9, clause 3 of the US Constitution states, “No Bill of Attainder or ex post facto Law shall be passed.” The prohibition on bill of attainder and ex post facto laws are extended to the states in Article 1, § 10, clause 1: “No State shall…pass any Bill of Attainder, ex post facto Law.” The Alaska Constitution also prohibits bill of attainder and ex post facto legislative action, mirroring the federal Constitution. See Alaska Constitution, Art. 1, §15.

Bill of Attainder

A bill of attainder is a legislative act that punishes an individual without the benefit of a trial. The drafters of the Constitution wanted to ensure that criminal defendants have a full and fair adjudication of their rights before the government imposes punishment. Bill of attainder is usually accomplished by a statute that targets an individual or group of individuals for some type of government sanction. Bill of attainder protection crystalizes the idea of a fair adjudicative process and enforces the separation of powers doctrine by eliminating the ability of the legislature to impose criminal punishment without a trial conducted by the judicial branch. See U.S. v. Brown, 381 U.S. 437 (1965).

Example of Bill of Attainder

Brianne is an outspoken member of the Communist party. Brianne applies for a job as a teacher at her local elementary school and is refused, based on this statute: “Members of any subversive group, including the Communist party, cannot hold public office nor teach for a public institution.” Brianne could attack this statute as a bill of attainder. Its provisions, targeting members of the Communist Party or any other subversive group, punish group members by eliminating career opportunities. The members targeted are punished without a trial or any adjudication of their rights. Thus, this statute allows the legislature to impose a sanction without a trial in violation of the Constitution’s prohibited powers.

Ex Post Facto

An ex post facto law punishes an individual retroactively, and such laws severely encroach upon the notion of fairness. There are three types of ex post facto laws. First, a law is ex post facto if it punishes behavior that occurred before the law was in effect. Second, ex post facto laws increase the punishment for an offense after the crime occurred. Third, a law can be ex post facto if it increases the possibility of conviction after the crime occurred.

Ex post facto laws are not fair since a reasonable person has no way of avoiding criminal conduct since their conduct was not illegal at the time the behavior occurred. Also, there is no way to achieve deterrence – one of the stated goals of sentencing – if individuals did not know what conduct was considered criminal at the time of the conduct. Prohibiting ex post facto laws also protects against arbitrary and vindictive legislation. Legislators are not allowed to punish behavior that was legal, even if abhorrent, after the fact. All citizens are entitled to a fair warning of the criminal acts.

Example of an Ex Post Facto Law Punishing Behavior Retroactively

A state murder statute defines murder as the killing of a human being, born alive. The state legislature amends this statute to include the killing of a fetus, including abortion. The amendment extends the application of the statute to all criminal fetus killings that occurred before the statute was changed. This language punishes defendants for behavior that was legal when committed. If the state attempts to enforce this language, a court would invalidate the statute for violating the prohibition against ex post facto laws.

Example of an Ex Post Facto Law Increasing Punishment Retroactively

In the preceding example about amending the murder statute, the state also amends the statute to increase the penalty for murder to the death penalty. Before the amendment, the penalty for murder was life in prison without the possibility of parole. The state cannot give the death penalty to defendants who committed murder before the statute was amended. This is considered ex post facto because it increases the punishment for the offense after the crime is committed.

Example of an Ex Post Facto Law Increasing the Possibility of Conviction Retroactively

In the preceding example, the state amends the murder statute to remove the statute of limitations, which is the time limit on prosecution. Before the amendment, the statute of limitations was fifty years. Pursuant to this amendment, if the government sought to prosecute an individual for murder who committed murder more than fifty years ago, such a prosecution would be considered ex post facto because it increases the chance of conviction after the crime is committed.

Changes That Benefit a Defendant Retroactively

Changes that benefit a criminal defendant are not considered ex post facto and may be applied retroactively, provided that the legislature explicitly provides for retroactive application. In the preceding example, if the state amended the murder statute to shorten the statute of limitations, this change actually benefits defendants by making it more difficult to convict them. Thus this amendment would be constitutional.

Ex Post Facto Applies Only to Criminal Laws

Ex post facto protection applies only to criminal laws. Laws that raise fees or taxes after payment are civil rather than criminal in nature. Thus these retroactive increases do not exceed governmental authority and are constitutional.

Example of Ex Post Facto Under Alaska Constitution

A good example of the heightened protections one has under the Alaska Constitution is Alaska’s Sex Offender Registration Act (ASORA) (sometimes referred to as Alaska’s “Megan’s Law”). In 1994, the Alaska Legislature passed the ASORA, which requires all sex offenders and child kidnappers to register with the Department of Public Safety (DPS). AS 18.65.087. DPS is authorized to maintain a publicly searchable, central registry of all offenders. When the Alaska Legislature enacted this statute, it required all sex offenders, regardless of when they were convicted, to register with DPS. Shortly after it was enacted, a group of convicted sex offenders challenged the enforceability of ASORA, arguing that the statute violated their protection against ex post facto laws under the federal constitution. The US Supreme Court found that the ASORA did not violate the federal constitution’s prohibition against ex post facto laws since the registration requirement was nonpunitive (non-criminal); the statute could be enforced retroactively. Smith v. Doe, 538 U.S 84 (2003).

Shortly thereafter, the same statute was challenged under the Alaska Constitution, where the convicted sex offenders argued that ASORA violated the ex post facto clause of the state constitution. Unlike the US Supreme Court, the Alaska Supreme Court found the ASORA so punitive that it was the equivalent of increasing a person’s sentence retroactively. Thus, the ASORA was unconstitutional as applied to convicted sex offenders who were convicted prior to the enactment of ASORA. Doe v. State, 189 P.3d 999, 1018 (Alaska 2004).

This example demonstrates the application of several rules just covered. First, the federal constitution establishes minimum constitutional protections. The Alaska Constitution provides greater protection to criminal defendants than the federal constitution. Second, a statute can be found unconstitutional only to a subgroup of individuals. In Doe, the Alaska Supreme Court found that ASORA was only unconstitutional when applied to convicted sex offenders before the enactment of the statute. It remained constitutional for the remaining convicted sex offenders; they must continue to register with DPS. Finally, the statute violated the protection against ex post facto because it increased the punishment retroactively. The convicted sex offenders had no notice that they would be required to register with DPS following their conviction. Such a result was fundamentally unfair.