Due Process: concerns retroactive judicial lawmaking “safeguard common interests-in particular, the interests in fundamental fairness and prevention of the arbitrary and vindictive use of the laws”
(1) Ex post facto – prohibits retroactive application of legislation and expansion of legislation by both legislative and judicial bodies
(2) Fair notice means the information is reasonably available
(3) Void for Vagueness
(a) A constitutional principle that says you can’t punish under a statute where the description is so vague and so broad that the individual cannot tell what is prohibited and what is not.
(b) You can say a statute is Void for Vagueness which means it has 2 problems:
(i) Fair Notice: people can’t conform if they are unaware of legal conduct. It prohibits judicial enlargement of statutes. One can receive fair notice either through prior cases or definition of terms in statute.
(ii) Overbreath: it makes a once innocent act criminal
(iii) Arbitrary Enforcement
HYPO: Your client is arrested and tried under a statute for wearing a hood on his head. How would you say this violates Void for Vagueness? The gov’t would argue there’s no Void for Vagueness because you must look at the intent of the statute.
(c) When a statute is vague, courts attempt to narrow it through interpretation.
(d) Vague terms in legislation should have definitions
(4) Rule of Lenity
(i) If a statute can reasonably be interpreted favorably either to the Government or to the individual, the statute should be read in the light favorable to the individual.
(ii) This rule comes up when there is a clear line of two possible interpretations
(5) Keeler v. Superior Court (Due Process)
(a) Unborn fetus is killed; Does the law classify a fetus as a human being? In the future – yes, but can’t apply to current case due to due process doctrine. Ct. ruled that legislature had intended to exclude an unborn from statute defining murder as being of a “human being”. Also, due process claim that violates fair warning because D did not have notice that his conduct was illegal.
(6) City of Chicago v. Morales (Vague)
(a) People not allowed to congregate due to gang behavior and harm to public; statute is too vague and lends itself to arbitrary enforcement and fails to provide notice
(7) In Re Banks
(a) Peeping Tom statute; if unsure whether constitutional or unconstitutional – court should view in constitutional light; if vague, court should view under judicial will, legislative intent, previous law, etc.
ii) Theories of Punishment
(a) Justifies punishment for bringing about good for society. Punishment is justified on the basis of the supposed benefits that will accrue from its imposition.
(b) Forward looking: asks what society can accomplish for the future
(c) Wrongdoers should be punished only if a greater good may be accomplished from the punishment (cost benefit analysis)
(d) Jeremy Bentham: the purpose of laws is to maximize the net happiness of society.
(e) 3 Theories of using Punishment:
(i) Deterrence: pass laws so that people are afraid to commit bad acts
1. General Deterrence theory: knowledge that punishment will follow crimes deters people from comm
d obligations; people knowingly make the wrong choice and should be punished for their choice. “you made a wrong choice and now you must live with the consequences”
2. Goal is to strike moral balance
(3) Critique of Theories
(i) It does not recognize reality; positivists do not recognize that innocent people may be punished
(ii) Retribution does not recognize individual characteristics or circumstances
(iii) Offenses should be viewed separately: differentiate between a first time and repeat offender
(iv) Are all crimes an exercise of free will? Think about a mentally handicapped person
(i) Utilitarianism favors greater good over individual considerations – kill one to save many. The individual is not as important as society as a whole.
(ii) Utilitarianism assumes there is a level playing field and does not consider past criminal history
(iii) Assumes people are human calculators and will perform a cost/benefit analysis before acting.
(iv) Queen v. Dudley
(c) A combination of utilitarianism and retributivism
(d) Utilitarian because it does not condemn for moral reasons
(e) Retributivism because it punishes the guilty for their behavior
** in essence, punishment should be proportionate to the harm caused **