Statutory Construction
The creation of criminal statutes
Statutory Interpretation
The understanding of what a statute criminalizes
Statutory Application
The application of a statute to a criminal proceeding
The Doctrine of Legality
- No judge made criminal law (no common law crimes)
- No retroactive (ex post facto) application
> Penal laws must be established before the defendant is charged
> Exception: judicial expansion/review if the practice is outdated - No laws that are unconstitutionally vague
> This is because of the fair notice doctrine
Fair Notice Doctrine
People must have knowledge of what conduct is prohibited AND what the maximum penalty is
> Prevent unfettered discretion and provide the conduct that constitutes a crime
> Morales - plurality decision
(Providing minimum guidance to police officers)
Class notes:
- When laws are vague/over broad law enforcement enforces the law arbitrarily and capriciously
Facially Unconstitutional
Statute is unconstitutional in every situation
Ex: Chicago v. Morales - voided for vagueness
As applied unconstitutinality
Statue is unconstitutional as applied to specific groups or situations
Ex: Justice White’s concurring opinion in Powell
Originalism
Meaning as understood by those at the time of the founding
Textualism
Plain meaning, objective meaning, original intent of the framers
Living Constitution Theory
Constitution is one that evolves, changes over time, and adapts to new circumstances without being formally amended.
- Changed state practice or state in action
- There is usually state practice that argues for it (Bowers and Lawrence)
> Not enforcing those laws - International practices
City of Chicago v. Morales
Facts: City of Chicago enacted an ordinance criminalizing “loitering” in a public place with one or more other people. Under the ordinance, if a police officer observed someone the officer reasonably believed to be “loitering,” the officer could order the people to disperse. Anyone who did not follow the officer’s instructions was in violation of the ordinance.
Rule: A criminal law is unconstitutional under the Due Process clause on vagueness grounds if it either fails to give adequate notice of the prohibited conduct or permits arbitrary and discriminatory enforcement of the law.
- Plurality opinion- indicated that this is failing to provide the minimum guidelines
> All adopted the unfettered discretion opinion
Class notes:
- Vague v. Overbroad…..
Loitering without and apparent purpose -> this makes it especially problematic
- Similar to papachristou
Vague Statues
A statute is void for vagueness if
- The average person cannot
> Determine what persons are regulated
> What conduct is regulated
> Or what punishment may be imposed
Plain meaning
Determine the plain meaning, the dictionary meaning of the words
Purpose
What actually was the purpose of the statute
Ejusdem Generis (of the same kind)
Compare vague words to other vague words in the statute
Expressio unius exclusion alterius (expression of one is the exclusion of the other)
If the legislature meant it they would have said it.
In Pari Materia
Comparing the statute to other statutes and other places in the statute.
Legislative Intent
Available evidence on how the legislature would want the law applied
Ex: legislative history, time period, legislative acts
When something is void for vagueness
- Does the statute give fair warning as to prohibited conduct? No = unconstitutional; Yes= constitutional
- Does the statute prevent giving police unfettered discretion? No = unconstitutional; Yes= constitutional
- Are the elements clearly defined? No = unconstitutional; Yes= constitutional
- Is the application of the law consistent and equally applied?
No = unconstitutional; Yes= constitutional
> This is the goal
AFTER ALL STEPS ABOVE apply the rule of lenity
Rule of Lenity
To ensure a criminal statute provides fair warning to the public, a tie goes to the defendant
One other way of enforcing legality: knows what they can and can’t do; as well as knowledge of the punishment
A statute is overbroad when…
- The statute reaches beyond the scope of the subject matter that it was intended to cover
- Causing the statute to cover activity that it was not intended to cover
Ex: Alvarez (2012)
- The court struck down a federal law that criminalized the dissemination of materials depicting animal cruelty.
- The court reasons that this is overbroad because it could also be interpreted to cover things like hunting videos.
Papachristou v. City of Jacksonville
Facts: Papachristou and other defendants were arrested and charged with vagrancy. Florida’s vagrancy law prohibited several general activities: loitering, wandering, or strolling without any lawful purpose. Defendants were “wandering” around, and at one point, stopped by a used car lot.
Rules: Under the U.S. Constitution, a law must
(1) give a person of ordinary intelligence fair notice that the person’s conduct is forbidden by the law and
(2) must not give unfettered discretion of enforcement to the police.
Class notes:
- In Papachristou, the defendants could have been doing virtually anything and violated the statute.
> Example of over breadth
> Covers so much you really don’t know what you can do
- Also note how much discretion and power such a vague statute gives the police.
Keeler v. Superior Court of California
Facts: Man kicks pregnant ex-wife in the stomach, killing the fetus. California, Penal Code § 187 criminalizes the murder of a “human being.”
Rule:
- Pursuant to the Due Process clause, the terms of a penal statute must provide fair notice of what conduct is prohibited.
- Aside from fair warning the court notes that it is not the providence of the court to create new criminal statutes
> Separation of powers this is the legislatures
Class notes:
The offender cannot be charged retroactively
> someone who did not know it was a crime because it was not a law yet so it goes against fair notice.
