The founding of criminal law on the principle of rule of law means that the power of government is limited. Unlike royalty in the Middle Ages, which had limitless absolute power, governments are limited in the behavior that can be declared criminal and in the punishments that can be applied for violations of criminal laws. Seven benchmarks are used to assess the legality of criminal laws: * Principle of legality
* Ex post facto laws * Due process * Right to privacy * Void for over breadth * Cruel and unusual punishment Principle of legality refers to a principle that a person may not be prosecuted under a criminal law that has not been previously published. Before a man can be punished as a criminal under the law, his case must be 'plainly and unmistakably’ within the provisions of some statute. Ex post facto is a Latin term meaning "from a thing done afterward." Ex post facto often refers to a law that applies retroactively, thereby criminalizing conduct that was legal when originally performed. The U.S.
Constitution prohibits ex post facto laws. However, the Supreme Court has held that that the prohibition of retroactive laws applies only to criminal, not civil, laws. A sentencing law violates the ex post facto prohibition if it operates both retrospectively and to the potential disadvantage of the defendant. This is not limited to substantive changes in the content and criteria of legal rules. Restrictions on the extent of favorable discretion that a court can exercise are within the ex post facto prohibition, too.
The ex post facto clause generally prohibits states from enacting any law that “changes The punishment, and inflicts a greater punishment than the law annexed to the crime, when it was committed.” For example, sex offender registration laws have been held not to violate the ex post facto clause on the basis that they are not intended as punishment, but as a deterrent against future offenses.
A due process model is type of justice system which is based on the principle that a citizen has some absolute rights and cannot be deprived of life, liberty, or property without appropriate legal procedures and safeguards. Due process involves both procedural and substantive aspects. Procedural due process requires fairness in the methods used to deprive a person of life, liberty or property, while substantive due process requires valid governmental justification for taking a person's life' liberty or property. Due process requirements apply to both criminal and civil law.
Due process generally requires fairness in government proceedings. A person is entitled to notice and opportunity to be heard at a hearing when they have life, liberty. or property at stake. Laws should be applied to persons equally, without discrimination on prohibited grounds, such as gender, nationality, handicap, or age. In criminal cases, fair procedures help to ensure that an accused person will not be subjected to cruel and unusual punishment, which occurs when an innocent person is wrongly convicted. Due process requirements apply to such government proceedings as trials, parole hearings, and administrative hearings involving benefits, among others.
Void for Overbreadth are laws that go too far, that is, in an attempt to prevent a specific conduct, the law not only makes that conduct illegal but it also prohibits other behaviors that are legally protected. Void- for- overbradth laws frequently are connected with free speech and expressive conduct. Cases challenged for overbreadth that have made their way to the U.S. Supreme Court involve laws prohibiting activities such as public protest, nude dancing, panhandling, erotic art, and flag burning.
Cruel and unusual punishment is prohibited by the U.S. Constitution as well as some state constitutions. The U.S. Constitution's Eighth Amendment states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. “ The defendant has the burden of proving that his punishment is greater than that imposed for more serious offenses in the state and that similar offenses in other states do not carry punishments as severe. Critics of the death penalty argue that it constitutes cruel and unusual punishment. The issue of cruel and unusual punishment often arises in claims of prisoner mistreatment by officials.