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I. A BRIEF INTRODUCTION TO CRIMINAL LAW

    (A dissent argues that “humiliation is not one of the three proper goals under the Sentencing Reform Act,” and that the goal of a punishment like the one here is “to degrade the object of shame, … to dehumanize him.” This type of punishment “recalls a time in our history when pillories and stocks were the order of the day.”) U.S. v. Gementera, 379 F.3d 596 (9th Cir. 2004).

    II. CONSTITUTIONAL LIMITS ON PUNISHMENT

    A. The U.S. Constitution generally: The U.S. Constitution imposes important limits on punishments that may be imposed by federal and state legislatures.

    1. Bill of Rights: The Bill of Rights (the first 10 amendments to the Constitution) imposes several limits on the criminal process. By its terms, the Bill of Rights applies only to the federal government, not the states (but see below for how the Bill of Rights affects the states). Some of the more important Bill of Rights guarantees that limit what conduct may be criminalized, or limit how that conduct can be prosecuted, are these:

    • The First Amendment orders Congress to “make no law … abridging the freedom of speech.” This provision limits, for instance, Congress’ right to criminalize expressive conduct (e.g., flag burning).
    • The Fourth Amendment bars the government from making “unreasonable searches and seizures.” Evidence gathered by the police in violation of this amendment must generally be excluded from the defendant’s criminal trial.
    • The Fifth Amendment bars the government from trying a person twice for the same charge (the “Double Jeopardy” clause).
    • The Fifth Amendment also bars the government from depriving a person of “life, liberty, or property, without due process of law.” This Due Process clause guarantees criminal defendants a certain amount of procedural fairness. For instance, if Congress were to pass a criminal statute that was unreasonably vague, so that reasonable people could not tell what conduct was forbidden and what was not, a prosecution under that statute would likely violate the Due Process clause.
    • The Eighth Amendment prohibits Congress from imposing “cruel and unusual punishments.” For instance, the death penalty for any crime other than murder has effectively been found to be cruel and unusual under the Eighth Amendment.

    Cf. Dressler Hnbk, § 4.02[A].

    2. Extension of Bill of Rights to the states: As I just mentioned, the Bill of Rights applies by its terms only to the federal government. But the Fourteenth Amendment, enacted after the Civil War, imposes limits on what state governments can do. One clause of the Fourteenth Amendment prohibits states from depriving any person of “life, liberty, or property, without due process of law[.]” In the criminal law context, the effect of this Fourteenth Amendment Due Process clause is to make nearly all of the Bill of Rights guarantees applicable to the states.

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