Constitutional law 14th edition jacqueline kanovitz pdf

Fourteenth Edition I Jacqueline R. Kanovitz

CoNSTITUTION AL LAw FOR CRIMINAL JusncE § 1.15

nance of the Fourteenth Amendment goes far beyond this. Before delving into its ments, there are two things you need to keep in mind. Both stem from the first three

·ords. The Fourteenth Amendment begins "[n]o State shall ... " First, the Fourteenth Am endment is addressed to the states . It regulates the conduct of states; it does not regulate the conduct of the federal government or private citizens. Second, the Four- teenth Amendment is phrased in the negative. It forbids the states to take arbitrary action; it does not require them to take helpful action. This point was made tragically clear in DeS haney v. Winnebago County Department of Social Services. 70 The plaintiff, Joshua DeShaney, was a four-year-old boy who suffered permanent brain damage due to his father's beatings. The defendants were social workers, employed by the state, who allegedly knew that Joshua was being abused, but took no steps to remove him from his father 's home. Joshua claimed that their failure to protect him from his father 's violence deprived him of liberty without due process in violation of the Fourteenth Amendment. The Supreme Court disagreed, ruling that:

. .. (N)othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citize ns against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property w ithout "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure th at those interests do not come to harm through other means.

DeShaney's message, though disturbing, is a correct interpretation of the Four- teenth Amendment. The Fourteenth Amendment forbids the states from engaging in oppressive action; it does not require them to take helpful action.

§ 1.15 -Due Process of Law

The Fourteenth Amendment due process clause reads "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law .... " 71 This clause provides two kinds of protection-one procedural and the other substantive. Proce- dura l due process requires states to use fair procedures in reaching decisions that deprive a person of life, liberty, or property. Substantive due process requires them to have an adequate justification or, in other words, a good enough reason for the depri-

ation. Procedural and substantive due process work together to prevent arbitrary deprivations of life, liberty, and property. Suppose that a state child welfare agency wants to remove a child from a parent's home. Since the right to the care and custody of one's children is part of the liberty protected by the due process clause,72 the state annot take this right away without establishing an adequate justification (substantive

due process) and providing notice and a hearing (procedural due process). The strength of the justification required to satisfy the demands of substantive due process varies " i th the importance of the rights at stake. The state cannot interfere with rights that

A.·

~ :.15 HisTORY, STRUCTURE, AND CoNTENT OF THE UNITED STATES CoNSTITUTION 25

:ru.alify as "fundamental rights", such as the right of parents to raise their children, i thout establishing a "compelling reason."

Procedural due process requires states to use fair procedures in reaching decisions hat deprive a person of life, liberty, or property. Substantive due process requires

th em to have an adequate justification or, in other words, a good enough reason for he deprivation. Procedural and substantive due process work together to prevent

arbitrary deprivations of life, liberty, and property.

A . Procedural Due Process

Suppose when you go home tonight, you discover that your furniture and posses- sions are gone and you are informed that a judge awarded them to your landlord for nonpayment of rent. How would you feel? You would probably feel that this was unfair. You should have been notified that legal proceedings affecting your property were taking place and allowed to appear and present your side of the story. Your sense of injustice is due to a lack of procedural due process.

Procedural due process requires the government to give notice and a hearing before depriving a person of life, liberty, or property. This requirement is not limited to crim- inal proceedings. It applies whenever the government takes any action that deprives a person of life, liberty, or property. Procedural due process, for example, is required before the government can expel students from public school, revoke an offender's probation,73 or fire a tenured government employee74 because each of these actions deprive the person affected of liberty or property.

The procedures necessary to satisfy due process vary with (1) the importance of the right at stake, (2) the extent to which the additional safeguards would reduce the risk of an erroneous decision, and (3) the increased fiscal or administrative burden on the government of providing them. 75 Maximum procedural protection is required at criminal trials because the stakes are at their highest. When the government accuses a person of a crime and threatens to take away his life or liberty, the Con- stitution insists on a broad array of procedural safeguards. These safeguards include the right to notice of the charges; 76 to be tried before an impartial tribunal; 77 to cross-examine prosecution witnesses; 78 to testify and compel attendance of defense witnesses; 79 to be represented by counsel of his choice80 or an attorney furnished by the government if he cannot afford representation; 81 to be assisted by experts, such as psychiatrists; 82 and to be set free unless the government proves guilt beyond a reasonable doubt. 83

B. Substantive Due Process

The due process clause does more than guarantee fair procedures. It also has a substantive component. 84 The concept of substantive due process is rooted in the term "liberty" found in the due process clause. Although the Fourteenth Amendment confers

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broad protection on individual liberty, the Constitution nowhere defined this term. This is the role of substantive due process. The two main areas where courts use the concept of substantive due process are (1) to protect "fundamental rights"85 and (2) to hold government officials accountable for egregious misconduct that is not otherwise pro- hibited by the Constitution. 86

1. Protection of Fundamental Rights

Some rights are so fundamental to the liberty of free citizens that they cannot be denied without a compelling reason. These rights are called fundamental rights. Once a right is labeled as fundamental, it is placed largely beyond the government's control. The label of a fundamental right has been reserved for important choices that are central to an individual's self-concept, dignity, and autonomy. Rights that have been recog- nized as fundamental include the right to marry,87 to have children,88 to direct their upbringing and education, 89 to enjoy privacy,90 to practice birth control,91 to terminate unwanted pregnancies,92 to make health-care decisions,93 and to forego life-sustaining treatment. 94 The Supreme Court has explained that "[a]t the heart ofliberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mys- tery of human life. Beliefs about these matters could not define the attributes of person- hood were they formed under compulsion of the State."95

Having said this, the Supreme Court, nevertheless, declined for many years to recognize the right to be a practicing homosexual as a fundamental right. In Bowers v. Hardwick, 96 the Court upheld a state statute making sodomy a crime. Four Justices dissented, arguing:

Only the most w illful blindness could obscure the foct that sexual intimacy is "a sensitive, key relationship of human existence, central to family life, community wel- fare, and the development of human personality". The fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many "right" ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds.97

Bowers v. Hardwick was later overruled in Lawrence v. Texas. 98 Police, respond- ing to a hoax call that a weapons disturbance was taking place in John Lawrence's apartment, burst into the apartment and found Lawrence having consensual sex with another adult male. They arrested him for engaging in "deviant sexual intercourse," a crime defined under Texas law as having "anal or oral sex with a member of the same sex."99

The Supreme Court set the conviction aside, holding that there are certain spheres of life "where the government should not be a dominant presence." Private sexual con- duct behind closed doors is one of them. This case did not involve sex with a minor, public conduct, prostitution, or "whether the government must give formal recognition

§ 1.16 HISTORY, STRUCTURE, AND CONTENT OF THE UNITED STATES CONSTITUTION 27

to any relationship that homosexual persons seek to enter." Rather, it involved private sexual conduct between two consenting adult homosexuals. "The State," the Court declared, "cannot demean their existence or control their destiny by making their pri- vate sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. " 100

Lawrence v. Texas is constitutionally important, not only because it invalidates sodomy laws, but also because it undercuts the most powerful argument justifying discrimination against gays and lesbians, namely that their behavior is immoral and illegal. 101 Although the Court could have overturned the Texas statute on equal protec- tion grounds because it made sodomy a crime only when both partners were of the same sex, the Court went further than expected and seized the occasion to deliver a strong statement that moral disapproval of homosexual conduct does not justify legal intoler- ance.102 Lawrence v. Texas has been hailed as the Brown v. Board of Education of the gay community. It has already had far-reaching effects and is likely to have ever greater effect in the future.

2. Egregious Misconduct by Public Officials

Substantive due process also provides a theory for holding government officials accountable for egregious misconduct that is not addressed elsewhere in the Constitu- tion. 103 Courts, for example, have held that police have a substantive due process duty to obtain necessary medical treatment for prisoners taken into custody.104 However, substantive due process only reaches conduct at the extreme end of the fault spectrum. In the language of the Supreme Court, the conduct must be so egregious that it "shocks the conscience." 105 In the case of fai lure to obtain necessary medical treatment, this standard is satisfied only if the failure of the police reflects deliberate indifference to a prisoner 's known, serious medical needs. 106 Thus , while substantive due process expands the constitutional accountability of police officers, it does so only in situations when they are guilty of extreme misconduct. 107

§ 1.16 -Equal Protection of the Laws

The Fourteenth Amendment contains another equally important safeguard- the equal protection clause. This clause forbids a state to "deny any person within its juris- diction the equal protection of the laws." 108 The equal protection clause was included to protect former slaves against unfair treatment at the hands of state governments , a purpose that was not fully realized unti l almost a century later. In 1896, the Supreme Court handed down Plessy v. Ferguson , 109 in which it held that state-mandated racial segregation satisfied the equal protection clause, provided that equal facilities were available to members of both races. Plessy established the doctrine of "separate but

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equal." After this, segregation codes flourished, infesting every avenue of American life, from restrooms, drinking fountains, telephone booths, hospitals, and prisons, to the books used by children in segregated public schools. 110 Justice Harlan alone dissented in Plessy, sounding what would become the Supreme Court's position in 1954. Justice Harlan wrote:

. . . (I) n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man and takes no account of his surroundings or his color when his civil rights as guaranteed by the supreme law of the land are involved.

The national conscience was reawakened in 1954, when the Supreme Court handed down the landmark decision of Brown v. Board of Education, 111 in which it announced that the "separate but equal" doctrine no longer satisfied the Constitution in the field of public education. It soon became apparent that Brown v. Board of Education was not limited to public education. Brown v. Board of Education ended the era of government- imposed barriers to racial equality.

Protection against unequal treatment at the hands of the government is a right that all Americans enjoy, not just racial minorities. The meaning of the equal pro- tection clause can be summarized in one sentence. The government must treat all persons who are similarly situated alike. This does not mean that the government is barred from making distinctions. Drawing lines and making distinctions is an inescapable part of legislating. Welfare programs, for example, cannot operate without income eligibility requirements. Income eligibility requirements result in persons with different incomes being treated differently. Differences in legal treat- ment offend the equal protection clause only when the distinctions made are arbitrary.

A law restricting welfare benefits to persons who have brown eyes is an example of an arbitrary distinction. The distinction is arbitrary because it serves no purpose . Fortunately, regulations like this are rare because legislatures generally have some reason for drawing the line where they draw it. Whether the distinction can survive an equal protection challenge depends on the standard used to test its constitutionality. Courts use three different review standards, called levels of scrutiny: low, intermediate, and strict scrutiny.

Statutory distinctions that do not involve race, color, nationality, religion, or gen- der are tested by the lowest standard, called rational relationship review. Deference is given to the legislature's judgment that the distinction is necessary. The distinction is presumed constitutional and the court is required to uphold it unless the challenger proves that the distinction has no rational relationship to any legitimate government purpose. 112 This is usually hard to do. As a result, statutory classifications reviewed under the lowest standard are generally upheld.

§ 1.16 HISTORY, STRUCTURE, AND CoNTENT oF THE UNITED STATES CoNSTITUTION 29

Classifications based on gender are subject to intermediate-level scrutiny. Courts examine the legislature's reason for making the distinction more closely. For a gen- der-based distinction to survive intermediate-level scrutiny, the government must establish an exceedingly persuasive justification for treating men and women differ- ently. Virginia Military Institute's (VMI) all-male admissions policy, for example, was struck down years ago because VMI was unable to do this. 113 The policy could have withstood rational relationship review because VMI advanced many legitimate reasons for why the school should remain all-male. However, gender-based distinctions require a stronger justification. The all-male admissions policy was declared unconstitutional because VMI was unable to come up with any exceedingly persuasive reason for refus- ing to admit qualified women into its program.

Race, color, religion, and nationality are known as suspect classes. Differences in treatment that tum on these factors are subject to the most rigorous review standard, called strict scrutiny. Under this standard, the statute is presumed unconstitutional and will be struck down unless the government establishes a compelling reason for treating members of one race, religion, or nationality different from members of another.114

Because a compelling reason is more difficult to establish than a legitimate reason (low-level scrutiny) or an exceedingly persuasive justification (intermediate scrutiny), distinctions based on race, color, religion, and nationality are generally found to be unconstitutional.

While strict scrutiny has traditionally served to invalidate laws that discriminate against members of suspect classes, laws that treat them more favorably are subject to the same analysis. 115 Affirmative action programs were once thought to represent "benign discrimination" because the government 's intention was to raise the eco- nomic status of disadvantaged minorities and not to discriminate. However, benign intentions are no excuse. Whenever the government deliberately treats members of either race different from members of the other, the equal protection clause is vio- lated unless there is a compelling reason, no matter on which side the advantage and disadvantage fall. 116

The Supreme Court has not yet decided where distinctions based on sexual ori- entation fit within this scheme . Courts for years used the lowest review standard, 117

making sexual orientation discrimination claims hard to win. 11 8 However, this became history in 2013 when the Supreme Court struck down the federal Defense of Mar- riage Act (DOMA) , which defined "marriage" as a "union between a man and a woman." 119 The purpose of Congress was to prevent same-sex couples whose mar- riages were valid under state law from enjoying the income tax, social security, pen- sion, medical, and other benefits available to married couples under federal law. The Supreme Court found the federal law unconstitutional because it stigmatized and injured same-sex couples whose marriages were valid under state law solely for no legitimate reason. 120 The decision had an unexpected ripple effect, prompting lower courts to overturn state bans on similar grounds. Marriage equality now exists by legislation or judicial decree in more than half the states 12 1 and the trend appears poised to continue .122

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O ffi c ers should not use race, re lig ion, ethn icity, or national orig in as a fact o r in select- ing w hic h ind iv idua ls t o stop, q uesti on, arrest, use force on, or subject ot her e nforce- ment acti ons, except when seeking to apprehend a specific suspect whose race, relig io n, et hnic ity, o r national origin is part of t he description of the suspect .

The equal protection clause applies to the enforcement of laws as well as their enactment. Selective enforcement of the law based on race violates the equal protection clause. 123 The perception that police inappropriately consider race in making enforce- ment decisions, a practice known as racial profiling, has emerged as one of the most critical issues facing law enforcement today. Few things poison race relations more thoroughly than selective enforcement. Racially biased policing fosters deep resent- ment, fear, and distrust of police, but the poison goes deeper:

People w ho see the c rimina l justice system as funda m enta ll y unfair w ill be less likely t o cooperate w ith po li ce, t o test ify as w itnesses, to serve on juries, a nd t o co nvict gu il ty d efe nda nts w he n t hey do se rve . In add itio n, p eople w ho have lost respec t fo r th e law's leg iti macy are more li ke ly to bre ak t he law th em- selves . ... Fi nally, t he perception and rea lity of a fundamen t a lly unfair crimina l justi ce syste m co ntri bute to b roade r rac ial d iv isions in society. If w e cannot believe th at our nati on ' s law enforcement offi ce rs wi ll en force t he law in a racia ll y neut ra l manner, then we w ill be left w ith a soc iety w here members of the mino rity community a lw a ys v iew th e action s of a ny police offi ce r w ith great susp ic ion .... 124

Law enforcement agencies need to promulgate written policies condemning racial profiling and establishing formal guidelines spelling out when officers may legitimately consider race in discretionary enforcement decisions (i.e . , decisions on whom to stop, question, take into custody, arrest, search, use force on, etc .) and when they may not. The United States Department of Justice, Civil Rights Divi- sion, has issued the following guidelines regarding the use of race by federal law enforcement agents:

Two standards in combination should guide use by Federa l law enforcement aut horities of race or ethnicity in law enforcement activities:

In making routi ne or spontaneous law enforcement decisions, such as ordinary traffic stops, Federa l law e nforcement offi c ers may not use ra ce or ethnicity to a ny degree, except that officers may rely on race and et hnicity in a specifi c suspect desc ri ption . This prohibit ion applies even w here the use of race o r et h- nicity might otherwise be lawful. In cond ucting activities in connection with a specific investigati on, Federal law enforceme nt offi cers may consider race a nd ethn ic ity only to th e extent th at th e re is tru stworthy info rm ati o n relevant to the loca lity or ti me fra me that li nks persons of a partic ular race or ethnicity to an ident ified criminal incident, scheme, or organization. This standard applies even where the use of race or ethnic ity mig ht otherwise be lawfu l. 125