Goldman’s Crim Pro – spring 2013 , Saltzburg Casebook
Criminal/Civil Distinction
Legal Distinction: Legislative Designation + Punitive Effect (Ward)
Possible Distinctions & Why they don’t Quite Work
(1) Criminal cases require proof beyond R doubt (circular)
(2) Certain rights arise after the identification is made
(3) Fines, restitution, etc., (“civil” sanctions) can also be employed for crim cases and vice versa (Iranian students example- civil charge à jail time or deportation)
(4) Party seeking penalty is state (not always)
(a) THE BIG RULE
US v. Ward – Crim/Civil distinction is matter of statutory construction of (1) Whether Congress explicitly/impliedly expressed preference, and (2) Whether purpose or effect is so punitive as to negate Congressional intention (only the clearest proof)
à A penalty imposed for discharging hazardous substances is civil, so reporting duty doesn’t violate 5th A self-incrimination
(b) EXAMPLES OF APPLYING THE BIG RULE
Kansas v. Hendricks – Where state has “disavowed any punitive intent”; limited commitment to a small segment of particularly dangerous individuals; provided strict procedural safeguards; directed that confined persons be segregated from general prison population and afforded the same status as those who have been civilly committed; recommended treatment if possible; and permitted release upon showing that individual is no longer dangerous, the Ward test means the Act is civil, not punitive, for involuntary civil commitment of sex predators- so the double jeopardy/ex post facto issues do not apply (clearest proof required).
à The Act doesn’t implicate retribution or deterrence, two crim law objectives
à No finding of scienter is required (based on mental abnormality, not criminal intent)
à No deterrence bc based on “mental abnormality” which means no control over behavior
à Conditions do not suggest punitive purpose
à No one is also arguing that people institutionalized under other conditions is punitive
à Fact that D never received any treatment is irrelevant bc no treatment works
Smith v. Doe – Registration of sex offenders (Megan’s) is civil, not punitive, so EPF (Ex Post Facto) doesn’t apply, all must register (legitimate, non-punitive governmental objective)
à Nothing on the face of the statute suggests that leg sought to create anything other than civil scheme
à No physical restraint
à Different from probation; free to move around
à C: Some indications of punishment (commission of past crime, resemblance to shaming, but presumption of constitutionality tips scale)
à D: Imposed only on those who commit crime, no provision for rehabilitation
UMWA v.Bagwell – Fines over $64 million were criminal sanctions, indicating jury right where (1) Court effectively policed petitioners’ compliance w/code of conduct that court itself had imposed (fines were for violating an injunction) and (2) fines were seriou
Incorporation Doctrine
A constitutionally-based decision ordinarily will bind both the states and the Federal Government. When an amendment is “incorporated” via 14th A, the federal case precedent is incorporated as well.
Bill of Rights (BOR)
The first ten amendments; most provisions are now binding on the states
Barron v. Baltimore – 1833 case that said the BOR applied only to federal gov’t and not states
14th A (Civil War Era)
States may not deprive any person of life, liberty, or property w/o DPL. Issue: does this amendment incorporate the BOR against the states?
Three Tests from Class
(1) Shocks the Conscience: Rare, what it sounds like; state behavior must shock the conscience
(2) Fundamental Fairness: Is the state behavior offensive to Anglo-American fundamental justice?
(3) Selective Incorporation: Is the state behavior prohibited by a specific BOR that ct considers fundamental to Anglo-American scheme of justice
First Test: Fundamental Fairness Approach and Focus on Hypothetical Justice System
Hurtardo v. California – States don’t need grand jury indictment to institute criminal proceedings
Twining v. NJ – Privilege against self-incrimination is not binding on the states (overruled)
Powell v. Alabama – Denial of counsel in capital case denied D their 14th A right to DPL
Palko v. CN – Double jeopardy clause of 5th A doesn’t apply to states, must be “implicit in concept of liberty”
Black’s Argument and Frankfurter’s Argument (The Two Extremes)
Frankfurter = fundamental fairness/conscience shock is only way to determine what rights are incorporated
Black = all BOR, only BOR is incorporated in 14th A (Winship case- beyond RD is not a right, not in BOR)
Rutledge & Murphy = fundamental fairness + absolute incorporation (cover all bases)
Historically = the historical intent is in dispute as to whether they meant incorporation
Second Test: Selective Incorporation Approach and Focus on Anglo-American Ideals
W/o abandoning the “fundamental fairness” standard, BOR incorporated more and more in the 60s. Court never accepted Black’s idea that the whole BOR should be incorporated; bail clause and grand jury do not apply to states.
Duncan v. LA – The Modern Approach to 14th A DP: Incorporation: Right to jury trial from 6th A is binding on states as fundamental to American* scheme of justice (Selective Incorporation)
à Earlier we asked if a civilized system could be imagined that wouldn’t have that right, but the proper question is whether it is fundamental to an Anglo-American regime of ordered liberty
à C: Better to focus on what the amendment says than on what it doesn’t say. It doesn’t say “apply the BOR via 14th A” but it does say “No state shall make or enforce any law which shall abridge the P&I of citizens” – to exclude BOR would render these words meaningless, DPL is not an “evolving concept” that depends on what judges think, which both the “fundamental fairness” and “shocks conscience” test do. He is willing to support the selective incorporation doctrine as alternative to total BOR.
à D: Because the court doesn’t say that those who framed the 14th A wanted the 6th A to apply through it and doesn’t say that there is anything unfair about the procedure, it should not apply to states. For 135 yrs, ct has relied on federalism, not BOR, to assure liberty (Barron). BOR was only mentioned in the debates. The only way to do this is to start with the words “liberty” and “due process” and define them
BOR Rights Already Applied to States BOR Rights Not Applicable to States
(1) 6th A – counsel (1) Grand Jury (ruling: no)
(2) 6th A – jury trial (2) 7th A Jury Trial (not addressed)
(3) 8th A – C&E punishment (3) 2nd A Right to Bear Arms
(4) 4th A – unR S&S (search & seizure) (4) 8th A Right to Bail
(5) 5th A – self incrimination
(6) Compensation for property
(7) Free speech, press, religion
(8) Speedy & Public trial
(9) Confrontation
(10) Compulsory process for witnesses
If there is a Specific Clause, then DPL clause is Not Used for the Analysis (exception: non-criminal law)
Graham v. Connor – Constitutional claims against police officers for excessive force cannot be analyzed under substantive DPL bc 4th A provides explicit textual source
Gernstein v. Pugh – Judicial determination of probable clause is 4th A bc it was “tailored explicitly for crim justice system”
US v. Good Real Property – Compliance w/4th A not sufficient when seizure of property; prior notice to D required under DP clause. Difference is that the above case was a subject always considered governed by the 4th A w/o reference to other Constitutional guarantees, and a crim case that has other safeguards to ensure due process
Albright v. Oliver – D arrested w/o probable cause argued that it violated substantive DPL right to be free from arbitrary deprivation of liberty, bc the 4th A claim wouldn’t cover damages sought and would be untimely. Ct held that there is no substantive DP right to probable cause for prosecution. Where an explicit amendment provides explicit textual source, that amendment must be the guide
à D: Bc the right to grand jury determination of probable cause has not been incorporated under 14th A, DP clause could be construed to provide an independent right to be free from prosecution
Recap on the Residual Protection Provided by the DP Clause
(1) A citizen cannot rely on right to “due process” if a specific BOR guarantee provides the same protection
(2) Where specific BOR protection has traditionally regulated an area of criminal investigation or prosecution, and yet provides no protection in a particular case, it is very unlikely that a citizen can rely on the more general guarantee
(3) Independent protection under the DP clause remains viable where governmental activity has some purpose other than enforcement of criminal law
(4) Independent protection under DP clause remains viable even in criminal cases where no specific BOR guarantee has traditionally applied
Definition of “New Rule”: Whether R Minds could have Disagreed on the Outcome Before the Case
Teague court says that it’s a rule “not dictated by existing precedent.” Johnson v. Texas used reasoning of “new rule” designation as stare decisis & rejected the claim- indication that it is close to decision on merits
Butler v. McKellar – Expounding on Teague, a rule is new if R minds could have differed about the result of the decision before it was rendered. Fact that lower court characterized decision as indistinguishable from a case they relied on is not dispositive bc courts frequently view decisions as being “controlled” or “governed” by prior opinions even when R minds could disagree
AEDPA: Statutory Limitations on Habeas Corpus Relief
A writ of HC will not be granted where the state court has ruled on the issue unless
(1) decision was contrary to or involved an unR application of clearly established federal law as determined by the SC (an “old rule” under Teague, but restricted to SC jurisprudence), or
(2) decision was based on unR determination of facts
* there are no exceptions bc the exceptions were so narrow they couldn’t be invoked anyway
Weeks v. Angelone – claim not barred by AEDPA if lower court never considered it on merits, but claim barred by Teague bc law at time provided only that a psychiatrist testify for defense
Lockhart v Fretwell – *Detrimental* changes in law must be applied retroactively against petitioners on habeas review; federal habeas prisoner has no interest in finality of state court judgment nor any claim of reliance on past law as basis for actions
Banks – New Rule saying it’s unC to require unanimity in mitigating circs was neither substantive nor a bedrock rule, so it didn’t apply retroactively
à Banks was sentenced to death by jury where jurors could not agree on mitigating factors (6 felt too young, 6 others thought no education). Later it was found unC to require unanimity in mitigating circumstances.
à This is a new rule, procedural not substantive
à This is not a bedrock rule; doesn’t fit into either Teague exception, his death sentence is fine
Sommerland – New Rule saying the existence of an aggravating factor for DP must be found by jury not judge did not fit into Teague exceptions so it didn’t apply retroactively
à This is a new rule, procedural not substantive
à Absence of jury deciding is not serious diminishment of accuracy of fact-finding, is not bedrock
Searches and Seizures of Persons and Things
S&S is presumed unR w/o warrant but they may be R even w/o one. “Probable Cause” is minimum to get warrant but is not the standard for Reasonableness when you don’t have one. S&S implicates 4th A but you can still satisfy it
(a) 4th A GENERALLY
4th Amendment
The right of people to be secure in their persons, houses, papers, and effects, against unR S&S shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
4th Amendment Generally
à Language ascribes right to people, not to one person, but SC has narrowed the class to individual rights
à It doesn’t apply to private persons searching, only to gov’t or gov’t “agents”
à Remedy for violating not specified; we use exclusionary rule (controversial- devastating to gun control, but even w/o exclusionary rule, you still couldn’t search them bc it would still violate the C)
à On the face of the amendment, privacy is not protected, but starting in 60s we added it
