Introduction & Incorporation

Question 1

When is a case criminal?

Answer 1

When legislation calls it criminal

Question 2

What is the goal of criminalizing things?

Answer 2

Retribution and deterrence

Question 3

What are major problems with justice system?

Answer 3

Racial disparity and mass incarceration

Question 4

What is northern and southern view of incarceration?

Answer 4

Northern: emphasizes process and procedure instead of principles

Southern: white supremacy and continuing of slave plantations

Question 5

Theories on why mass incarceration decreased with heavy crime rates?

Answer 5

criminologist (correlation does not equal causation): Demographics (young men), Economy, Rate of unemployment, Access to abortion, Environmental theory (lead poisoning), cell phones

Gopnik: hot spot policing

Question 6

Zimring theory on why people commit crime?

Answer 6

Criminals are the consequences of a set number of opportunities to commit crimes, and if you reduce those opportunities, you reduce crime

Question 7

What is incorporation?

Answer 7

Incorporation: constitutional doctrine where the Bill of rights are made applicable to the states through the Due Process clause of the 14th Amendment

Question 8

What are the 3 types of incorporation?

Answer 8

1. Total Incorporation: all of the BoR applies to states. Never endorsed by SCOTUS
2. Selective Incorporation: Parts of the BoR applies to the states, Courts use the test to pick which ones (has resulted in total incorporation besides indictment by grant jury)
3. No Incorporation: None of the BoR applies to the states

Question 9

What is case for total incorporation?

Answer 9

Duncan (J. Black’s Concurrence): argues that the 14th amend incorporates the entirety of the BoR

Question 10

What is case for selective incorporation?

Answer 10

1. Twinning v. New Jersey (1908): Privilege against self-incrimination in 5th amendment was not binding on states
2. Palko v. Connecticut (1937): double jeopardy clause in 5th amendment is not implicit in the concept of ordered liberty and therefore cannot be incorporated against the states.
3. Duncan v. Louisiana (1968): 6th amendment right to jury trial applies to state court proceedings. Establishes selective incorporation approach (overrules Palko)

Question 11

What is the case for no incorporation?

Answer 11

1. Barron v. Baltimore (1833): Marshall concluded that BoR applied only against the federal government not against the states (no incorporation)

Question 12

What is the old test for incorporation?

Answer 12

OLD TEST (fundamental fairness test): Due process prohibits states from denying rights that are fundamental to the concept of ordered liberty and system of justice (Palko and Twinning)
* Could you have a fair trial w/out this right?
* Could you have a fair criminal legal system?
* Exceptions: right to be indicted by a grand jury
* Restrictive/hard test

Question 13

What is new test for incorporation?

Answer 13

CURRENT TEST: Whether the right is asserted is fundamental to fairness of the Anglo/American justice (Duncan)
* Example: juries. Plenty of civilized nations perform judicial functions without them, but we believe them necessary to the American scheme of justice

Question 14

What is retroactivity?

Answer 14

Retroactivity: determines the extent to which a court’s decision will have an effect on official activity that occurred before the decision was made

Question 15

Why do we give the benefit of the new rule to the litigant who establishes it (retroactive application)?

Answer 15

o Few litigants would ask court to establish a new rule they could not use (incentives)
o Assure concrete case of controversy before the court

Question 16

What are policy concerns with retroactivity?

Answer 16

o Reliance problem: law enforcement correctly relied on the previous law
o Overburden problem: overwhelm the trial courts with reviewing decisions

Question 17

What is direct review?

Answer 17

Direct Review: New constitutional rules are applied to cases pending direct review aka decisions that are not final review of habeaus corpus get benefit of retroactivity (Teague v. Lane)

Question 18

What is Habeas Corpus/Collateral Attack? (what case?)

Answer 18

Do not get benefit of retroactivity because habeas proceedings are to ensure that the state properly applied constitutional law as the law existed at the time (Desist v. U.S.)

Question 19

What are the exceptions where the new constitutional rule is applied on collateral attack?

Answer 19

(1) New rules is so fundamental and implicit in the concept of ordered liberty
- Montgomery v. Alabama (2016): substantive (rather than procedural) changes are retroactive because they are implicit in concept of liberty versus procedural rules which are designed to enhance accuracy of conviction

(2) Watershed: relying on new rule to say initial conduct should never have been tried in the first place because conduct was constitutionally protected (eliminated by Edward v. Vannoy)
- Court in Teague said that it did not think there were many more watershed moments