3.7: End-of-Chapter Material

Summary

The US Constitution places limits on the acts that the government can criminalize. The Alaska Constitution usually mirrors the federal constitution, but has been interpreted to provide more protection to criminal defendants than the federal constitution. Statutes can be unconstitutional as written or as enforced. All criminal laws must be supported by a sufficient government interest, which is closely examined when it implicates a fundamental right. Statutes that punish without a trial (bills of attainder) or criminal statutes that are applied retroactively (ex post facto) are unconstitutional. Other constitutional protections are in the Bill of Rights, which is the first ten amendments, and the Fourteenth Amendment, which contains the due process clause and the equal protection clause.

The concept of due process guarantees a fair process before the government deprives a person of a liberty interest. Similarly, it prohibits arbitrary and capacious laws. Statutes that are vague or criminalize constitutionally protected conduct violate due process. The Fifth Amendment due process clause applies to the federal government; the Fourteenth Amendment due process clause applies to the states. The Fourteenth Amendment due process clause also selectively incorporates fundamental rights from the Bill of Rights and applies them to the states. Most, but not all, of the rights guaranteed by the Bills of Rights have been incorporated under the doctrine of selective incorporation. The Fourteenth Amendment also contains the equal protection clause, which prevents the government from enacting statutes that discriminate without a sufficient government interest.

The First Amendment protects speech, expression, and expressive conduct from being criminalized without a compelling government interest and a narrowly tailored statute using the least restrictive means possible. Some exceptions to the First Amendment are precise statutes targeting fighting words, incitement to riot, hate crimes, obscenity, and nude dancing.

The First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments also create a federal right to privacy that prevents the government from criminalizing the use of birth control, abortion, or consensual sexual relations. The Alaska Constitution contains an explicit right to privacy.

The Second Amendment protects an individual’s right to possess firearms, particularly in the home for self-defense. This right does not extend to convicted felons, the mentally ill, commercial sale of firearms, and firearm possession near schools and government buildings.

The Eighth Amendment protects criminal defendants from inhumane and excessive punishments. The Sixth Amendment ensures that all facts used to extend a criminal defendant’s sentencing beyond the statutory maximum must be determined by a jury beyond a reasonable doubt.

Key Takeaways

• The Constitution protects individuals from certain statutes and certain governmental procedures.
• A statute is unconstitutional on its face when its wording is unconstitutional. A statute is unconstitutional as applied when its enforcement is unconstitutional.
• A court reviews a statute for constitutionality using strict scrutiny if the statute inhibits a fundamental constitutional right. Strict scrutiny means that the government must show that it is supported by a compelling government interest and uses the least restrictive means. A statute reviewed under the rational basis test requires the statute to be rationally related to a legitimate government interest.
• A bill of attainder is when the legislative branch punishes a defendant without a trial. Ex post facto laws punish criminal defendants retroactively.
• Ex post facto laws punish defendants for acts that were not criminal when committed, increase the punishment for a crime retroactively, or increase the chance of criminal conviction retroactively.
• The Bill of Rights is the first ten amendments to the Constitution and contains many protections for criminal defendants.
• Selective incorporation applies most of the constitutional protections in the Bill of Rights to the states.
• Substantive due process protects criminal defendants from unreasonable government intrusion on their substantive constitutional rights. Procedural due process provides criminal defendants with notice and an opportunity to be heard before the imposition of a criminal punishment.
• A statute that is void for vagueness is so imprecisely worded that it gives too much discretion to law enforcement, is unevenly applied, and does not provide notice of what is criminal. An overbroad statute includes constitutionally protected conduct and therefore unreasonably encroaches upon individual rights.
• The equal protection clause prevents the state government from enacting criminal laws that arbitrarily discriminate. The Fifth Amendment due process clause extends this prohibition to the federal government if the discrimination violates due process of law.
• Speech under the First Amendment is any form of expression, such as verbal or written words, pictures, videos, and songs. Expressive conduct, such as dressing a certain way, flag burning, and cross burning, is also considered First Amendment speech.
• Five types of speech that can be governmentally regulated are fighting words, incitement to riot, hate speech, obscenity, and nude dancing.
• Statutes that prohibit fighting words and incitement to riot must be narrowly drafted to include only speech that incites imminent unlawful action, not future harm or general advocacy. Statutes that prohibit hate speech must be narrowly drafted to include only speech that is supported by the intent to intimidate. Statutes that prohibit obscenity must target speech that appeals to a prurient interest in sex, depicts sexual conduct in a patently offensive way, and has little or no literary, artistic, political, or scientific value. Nude dancing can be regulated as long as the regulation is reasonable, such as requiring dancers to wear pasties and a g-string.
• The constitutional amendments supporting a federal right to privacy are the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments.
• The federal right to privacy protects an individual’s right to use contraceptives, to receive an abortion through the first trimester, and to engage in consensual sexual relations.
• The Alaska Constitution contains an explicit right to privacy.
• Pursuant to recent US Supreme Court precedent, the Second Amendment protects an individual’s right to possess a firearm in the home for self-defense. This protection does not cover felons, the mentally ill, firearm possession near schools and government buildings, or the commercial sale of firearms.
• An inhumane procedure punishes a defendant too severely for any crime. A disproportionate punishment punishes a defendant too severely for the crime he or she committed.
• Criminal homicide is the only crime against an individual that merits capital punishment.
• Criminal defendants who were juveniles when the crime was committed, are mentally incompetent, or have an intellectual disability cannot be subjected to capital punishment.
• Juveniles must be treated differently when imposing severe sentences. Youth matters in sentencing.
• Three-strikes laws punish criminal defendants more severely for committing a felony after they have committed one or two serious felonies. Three-strikes laws have been held constitutional under the Eighth Amendment, even when they levy long prison sentences for relatively minor felonies.
• Sentencing enhancements beyond the statutory maximum are unconstitutional unless they are based on facts determined by a jury beyond a reasonable doubt under the Sixth Amendment right to a jury trial.

Answers to Exercises

From “Right to Privacy”:

1. The Court noted that convicted sex offenders have a protected right of privacy under the Alaska Constitution, which must be balanced against the government’s interest in protecting the public from convicted sex offenders.
2. The Court found that the ASORA was unconstitutional and violated the Alaska Constitution unless the government provides the convicted sex offenders a fair procedure in which they can demonstrate that they are not dangerous. Without this safety valve, the ASORA statutory scheme violated substantive due process.

From “Right to Bear Arms”:

1. A reviewing court would likely uphold the constitutionality of the statute. As with all constitutional challenges, a reviewing court must balance a person’s individual right against the government’s interest in the health and safety of its citizens. Here, the state’s interest in public safety outweighs the defendant’s right to bear arms. The felon-in-possession law bears a “close and substantial relationship to the state’s legitimate interest in protecting the health and safety of its citizens.” The distinction between violent and non-violent is irrelevant. This hypothetical is based on the case of Wilson v. State, 207 P.3d 565 (Alaska App. 2009), which provides a fascinating discussion about how an appellate court interprets Alaska’s constitutional “right to bear arms.” The opinion is available through the Consortium Library at the University of Alaska Anchorage using your student credentials.
2. The court will uphold the order under the Second Amendment if the defendant was convicted of a felony and ordered to felony probation. Recent US Supreme Court precedent (Heller and McDonald) both expressly exclude convicted felons from their holdings. However, if the defendant was only convicted of a misdemeanor, then the court would have to determine whether Heller and McDonald extend the Second Amendment’s right to possess a firearm for self-defense to a convicted police officer who wants to resume their career.