5.4 Current Developments in Constitutional/Criminal Law
As is the case with all bodies of law, Constitutional Law and Criminal Law are constantly evolving as the dynamics of the culture, politics, morals, and standards change. §5.4 offers an overview of some of the more important recent developments in these two bodies of law within the U.S. Criminal Justice System. These developments can be grouped into four broad categories: 1) Domestic Violence/Family Law; 2) Technology-Related Law; 3) Constitutional/Criminal Procedure Law; and 4) Evolving Social Standards. And, as can be seen, sometimes the most significant changes involve repealing criminal laws rather than creating new criminal offenses.
For an overview of the various changes to the U.S. Constitution over the years, see How the U.S. Constitution Has Changed and Expanded Since 1787.
Domestic Violence/Family Law
Abortion: After the decision by the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization (2022), removing the federal constitutional protections afforded in Roe v. Wade (1973), several states were quick to enact abortion-specific criminal offenses that criminalized many actions related to abortions—performing (or assisting), counseling, concealing, etc. (Kimport, 2022).
Cyber Harassment (Cyber Bullying): As harassment and bullying over social media (often by and between teenagers) gained nationwide attention, many jurisdictions enacted specific criminal offenses directed at these events. The Wash. Rev. Code § 9A.90.120 (2004) is one example of the criminalization of such actions. Most cyber harassment/bullying offenses are felonies.
Elder Abuse: As the “Baby Boomers” aged, incidents of “Elder Abuse” became to appear more in the media. In fact, upon closer evaluation, experts identified a variety of distinct categories of Elder Abuse (Nursing Home Abuse Center, 2024). As a result of the increased interest and number of incidents, many jurisdictions enacted specific criminal offenses relating to the abuse, neglect, or mistreatment of an elderly victim. The Kentucky statute Ky. Rev. Stat. § 209.030 (2005) is one example of a state statute relating to elder abuse.
Hate Crimes: With the increase in attacks/assaults on a number of minority populations, many states enacted specific criminal offenses that addressed these actions.
Hate crimes reported to the FBI by law enforcement agencies rose from more than 8,000 in 2020 to nearly 11,000 the following year, according to updated statistics released last week. Crimes against Asian Americans and Pacific Islanders, Sikhs and bisexual people all more than doubled. Meanwhile, hate crimes against Black, White and LGBTQ people made up nearly half of all incidents. (Li & Larten, 2023)
For 2021, the state with the highest number of Hate Crimes was Washington (Statista, 2023). The Washington criminal statute Wash. Rev. Code § 9A.36.080 (1981) is one example of a criminal offense classified as a Hate Crime. Further, in March 2024 Washington enacted legislation that amended this offense to designate the defacing or destroying of public property a hate crime, previously the crime only applied to private property (Seattle Times Editorial Board, 2024).
Human Trafficking: With the dramatic increase in Human Trafficking, jurisdictions found it necessary to enact specific criminal offenses relating to the problem. Kentucky’s Human Trafficking offenses (Ky. Rev. Stat. § 529.100 (2020), engaging in, and Ky. Rev. Stat. § 529.110 (2007), promoting) are typical of the statutes designed to address these issues. Human Trafficking offenses are most always high-level felonies.
Buying/Selling a Child: As bizarre as it may seem, the buying/selling of children has become a huge part of the problem of Human Trafficking. Accordingly, some states like Washington (Wash. Rev. Code § 9A.64.030, 1980) adopted severe felony criminal offenses to address these offenses. Further, in March 2024 Washington enacted legislation that designated the defacing or destroying public property a hate crime, previously the designation had only applied to private property (Editorial Board, 2024).
Strangulation: In an effort to close some of the prosecutorial “gaps” that exist in Domestic Violence (DV) law (many assault offenses are misdemeanors), some states have adopted method-specific criminal assault statutes that are felonies to ensure that prosecutors will have felony charges to pursue in DV cases. For example, Kentucky enacted Strangulation assault statutes (Ky. Rev. Stat. § 508.170, 2019), and both degrees of this criminal offense are a felony.
Video Voyeurism: The criminal offense of Voyeurism (“Peeping Tom”) crimes has existed for several years. However, with the advent of more sophisticated cameras and other electronic devices that can be secretly installed, it became necessary to enact specific criminal offenses relating to electronic devices. One such statutory offense is the Kentucky statute (Ky. Rev. Stat. § 531.100, 2002), which makes it a felony to use an electronic device to secretly observe/view/record protected sexual activity or nudity.
Technology Issues
Cell Phones: As states began to experience a dramatic increase in vehicle accidents due largely to driver inattention while operating a cell phone, criminal offenses relating to using (or even holding, in some cases) a cell phone were enacted to reduce such accidents, e.g., Washington state’s (Wash. Rev. Code § 46.61.672 (2017).
Computer Trespass: Facing an alarming increase in incidents of computer “hacking,” states quickly enacted criminal offenses relating specifically to this serious problem. Washington state’s (Wash. Rev. Code § 9A.90.040, 2016) are examples of such crimes.
What will be criminalized next?
Distracted Driving (e.g., talking on a cell phone or even holding a cell phone in your hand while driving) is now a serious criminal offense in almost all states and U.S. Territories (Governor’s Highway Safety Association, 2023).
Exercise: As states and territories continue to make it a criminal offense to engage in “distracting” activities while driving, identify what other actions/activities committed while driving would be appropriate to criminalize in the future? Eating? Smoking? Putting on, or taking off, make-up? Holding hands? Kissing? Talking to another person in the vehicle? Listening to music? Something else?
Is honking a car horn for no legitimate traffic or emergency reason protected by the First Amendment? See Supreme Court to Rule Whether Honking is Protected Under the First Amendment.
Constitutional/Procedural law
Bail: Some states (California, New York) have initiated significant statutory bail reform to provide fairer and more equitable treatment of low-income defendants (Judelson, 2023). Some jurisdictions (Illinois) have gone so far as to eliminate the “cash bond” requirement altogether (Franklin, 2023).
Un-housed/un-sheltered populations and the Fourth Amendment: In some jurisdictions (e.g., Washington), courts have held that the Fourth Amendment’s “expectation of privacy” (U.S. Const. amend IV) applies to tents and other “outside” areas because these places are, for all intents and purposes, the home/dwelling of the people who are staying there. Accordingly, the courts hold that because the Fourth Amendment’s prohibition against “unreasonable searches” applies, absent exigent circumstances, consent, or a search warrant, entry by law enforcement personnel would violate the Fourth Amendment (Fines & Fees Justice Center, 2021).
No-Knock Warrants: Due largely to several tragic incidents involving the execution of “No-Knock” search warrants, some jurisdictions (e.g., Washington) have completely prohibited the law enforcement community from engaging in such practices. See Wash. Rev. Code § 10.31.040(s) (2010).
Evolving Social Standards
Concealed Deadly Weapons Laws: Many states have completely eliminated the legal requirement that a person possess a state-issued Concealed Weapon Permit to carry a concealed weapon hidden/concealed on their person or in their vehicle. Dropping this requirement has virtually eliminated any criminal offenses relating to illegally carrying a concealed weapon (U.S. Concealed Carry Association, n.d.). Even California, with some of the most restrictive gun laws in the United States, has recently seen a “relaxation” of open and concealed carry laws through both legislative and judicial actions, (U.S. Concealed Carry Association, n.d.). Journalist Julian Glover discusses the historic origins of California’s restrictive gun laws and the arguably racist nature of these laws that date back to the open carry actions by members of the Black Panther Party in the mid-1960s (2023).
Legalization/Decriminalization of drugs: Several states have legalized (or decriminalized) the possession for personal use of smaller amounts of marijuana (DISA Global Solutions, 2024). Further, while Oregon previously decriminalized the possession for personal use of virtually all small amounts of drugs (Vital Strategies, 2023), in March 2024, the state “reversed course” and enacted legislation that reinstated the criminal penalties for drug use and possession (Santucci, 2024). In jurisdictions where the criminal offense of simple drug possession has been eliminated (or significantly modified), these changes have significantly impacted the investigation, enforcement, and prosecution of drug-related offenses (Dills et al., 2021).
Repeal of California’s Loitering for Prostitution Law: In July 2022, California Governor Gavin Newsom signed Senate Bill 357 to stop police from arresting people loitering for prostitution. “To be clear, this bill does not legalize prostitution,” Newsom said in a signing message in 2022, “It simply revokes provisions of the law that have led to disproportionate harassment of women” (para. 4).
For additional information on this California legislation, see the following article: California Repeals Provision Criminalizing Loitering Related to Possible Prostitution.
