Constitutional Protections

A Statute can be Unconstitutional:

On its face: unconstitutional as written As applied: unconstitutional as enforced A statute can also be unconstitutional on its face and as applied

A Statute Cannot be:

A bill of attainder: punishes without a trial Ex post facto: a criminal law that punishes retroactively, by prohibiting conduct that was legal when committed, making it easier to convict a defendant retroactively, or enhancing punishment retroactively

The Due Process Clause

5th Amendment: applies to the federal government 14th Amendment: applies to the states The government cannot deprive an individual of life, liberty, or property without due process Substantive: cannot deprive an individual of substantive rights Procedural: cannot prosecute without notice and an opportunity to be heard (fair trial)

Bill of Rights
The first ten amendments to the Constitution Although written to apply to the federal government, most are also selectively incorporated and applied to the states through the 14th Amendment due process clause

2 Due Process Challenges:

A statute is void for vagueness: cannot be understood by men of common intelligence, arbitrarily and unevenly enforced A statute is overbroad: criminalizes constitutionally protected and unprotected conduct

The Equal Protection Clause

In the 14th Amendment-applies to the state government Has also been held to apply to the federal government via the 5th Amendment The government cannot discriminate arbitrarily

The 1st Amendment

Prohibits the government, both state and federal, from restricting speech Speech includes any form of expression: words, videos, photographs, recordings, expressive conduct like flag burning/cross burning Exceptions: fighting words, true threats,
obscenity

Crimes Involving the 1st Amendment:

Fighting words: must proscribe imminent (immediate) lawless action Incitement to riot: cannot prohibit simple advocacy Hate speech: must target speech supported by the intent to intimidate Obscenity: must target speech that appeals to a prurient interest in sex, depicts sex in a patently offensive way, lacks serious literary, artistic, scientific value Nude dancing: can be reasonably regulated

The Right to Privacy:

Embodied in these amendments: 1st, 3rd, 4th, 5th, 9th, 14th Guarantees: the right to consensual sexual relations, the right to use birth control, the right to an abortion through the first trimester

The 2nd Amendment

Guarantees the right of an individual to possess a usable handgun in the home for self-defense under the right to bear arms Excludes: convicted felons, commercial sale of firearms, firearms possession near schools/government buildings

The 8th Amendment

Prohibits cruel and unusual punishment Includes: punishment that is inhumane, and disproportionate (too severe for the crime) Disproportionate: death penalty for a defendant that was a juvenile when the crime was committed, or is intellectually disabled or insane. Also: death penalty for any crime against an individual other than criminal homicide

The 6th Amendment

Guarantees that all sentencing beyond the statutory maximum is based on facts found by a jury beyond a reasonable doubt This is because of the right to a jury trial