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Chapter 05 - Criminal Law and Procedure
CHAPTER 05
CRIMINAL LAW AND PROCEDURE
I. OBJECTIVES:
This chapter is designed to impress upon students the importance of being familiar with basic
criminal law principles and to expose students to the fundamental difficulties inherent in the
application of the criminal law in the corporate context. After reading the chapter and attending
class, a student should:
A. Understand the unique nature of the criminal law and the essential elements of criminal
liability in our legal system.
B. Understand the basic procedural and constitutional safeguards that protect the rights of
persons charged with criminal offenses.
C. Be familiar with the basic steps in a criminal prosecution.
D. Understand the problems inherent in using the criminal law to control corporate behavior.
In addition, note the Learning Objectives that appear near the beginning of the chapter.
II. ANSWERS TO INTRODUCTORY PROBLEM:
A. Caymen was relying on the Fourth Amendment and its protection against unreasonable
searches and seizures. See pp. 145-55 of the text.
B. Although the Fourth Amendment establishes a general requirement of a warrant and
presumptively indicates that a warrantless search is unreasonable, the Supreme Court has
recognized a number of situations in which warrantless searches are reasonable and therefore
not in violation of the Fourth Amendment. See pp. 151-53 of the text.
C. Application of the exclusionary rule—meaning that the unconstitutionally acquired evidence
cannot be used against the defendant at the trial. See p. 154 of the text.
D. Caymen did not succeed with his challenges to the validity of the searches conducted by the
police. Having acquired possession of the laptop through fraud, Caymen did not possess a
reasonable expectation of privacy with regard to it. The case is United States v. Caymen, 404
F.3d 1196 (9th Cir. 2005).
E. Whether utilitarians would see a problem would depend upon how the “greatest good for the
great number” analysis plays out. Rights theorists would presumably have less difficulty
with this outcome if they regard freedom from unreasonable searches as a right to which all
are entitled.
III. SUGGESTIONS FOR LECTURE PREPARATION:
A. Introduction.
1. Stress the importance to persons in business of a basic understanding of criminal law
principles.
a. Note the modern tendency to use the criminal law as a corporate control device.
Briefly discuss the arguments in favor of doing so. Note the list of high-profile
examples of individual and corporate liability in recent years. (See pp. 133-34 of the
text.)
B. The Criminal Law.
1. Note that crimes are public wrongs--offenses against society. Hence, criminal
prosecutions are brought by an agent of the government (the prosecutor).
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Chapter 05 - Criminal Law and Procedure
a. Distinguish between crimes and torts (private wrongs). Only conviction of a crime
will expose a defendant to the uniquely coercive force of criminal sanctions.
2. Discuss the distinction between felonies and misdemeanors. Also mention infractions.
3. Note that the criminalization of behavior is a social question. The nature of the acts
classified as crimes changes in response to changes in our social values. You may wish to
discuss some of the arguments in favor of "decriminalizing" so-called "victimless" crimes
(e.g., certain drug offenses, prostitution, gambling, and consensual sexual offenses).
Critics argue that attempts to treat such offenses as crimes are ineffective, lead to
corruption, overburden the courts and police, and cause a lack of respect for the law.
4. Discuss the fundamental debate about the purpose of the criminal sanction.
a. Utilitarians see the prevention of socially undesirable behavior as the sole goal of the
criminal law. Discuss the components of prevention.
1) Deterrence. Distinguish between general and special (specific) deterrence. Note
that general deterrence may be achieved even if the wrong person is convicted
(as long as potential offenders don't know that the person convicted was not the
real offender).
a) Discuss the factors that contribute to deterrence. Some observers argue that
the certainty of punishment is more important than the severity of
punishment.
b) Discuss the basic problems inherent in proving whether deterrence "works."
c) Note also the implicit problems in applying deterrence theories to nonrational
actors. Some theorists argue, however, that even nonrational actors may be
deterred if they are sufficiently socialized.
2) Rehabilitation.
3) Incapacitation.
b. Retributionists see the punishment of morally culpable behavior as the only proper
goal of the criminal law. Thus, a retributionist would favor punishing such behavior
even if punishment would not lead to prevention, but would not favor criminalizing
morally neutral behavior.
1) Some commentators have argued that there are utilitarian reasons for not
criminalizing morally neutral behavior. They argue that criminalizing such
behavior dilutes the impact of the criminal sanction by trivializing it (diminishing
the stigma of conviction), and that the criminal justice system gains efficiency if
behavior already regarded as immoral is criminalized.
5. Provide an overview of the state and federal approaches to sentencing.
a. Note the ways (if any) in which your state takes an approach that is different from the
general state approach outlined on p. 135 of the text.
b. Figure 1 (pp. 136-37 of the text) discusses the Federal Sentencing Guidelines and the
Supreme Court’s 2005 Booker decision, in which the Court resolved constitutional
problems in the Sentencing Guidelines by making the Guidelines advisory rather than
mandatory. Briefly explain the Sixth Amendment concern that gave rise to the
Court’s decision. Figure 1 also discusses later decisions in which the Supreme Court
examined follow-up questions not addressed in Booker. Briefly note those decisions.
6. Discuss the essentials of crime.
a. Prior statutory prohibition. Stress the fact that criminal offenses are statutory
offenses (i.e., there are no longer any common law crimes). Courts also narrowly
construe criminal statutes. A text case, Sekhar v. United States, furnishes an example.
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Chapter 05 - Criminal Law and Procedure
1) Sekhar v. United States (p. 137): The Supreme Court holds that the Hobbs Act’s
criminal provision dealing with extortion does not apply to a supposed attempt to
extort, from the general counsel of the office of New York’s Comptroller, a
favorable recommendation regarding an investment fund. The favorable
recommendation allegedly being extorted was not “property” for purposes of the
Hobbs Act provision and therefore did not constitute the crime of extortion under
that statute.
Points for Discussion: Ask why, in a general sense, the Court ruled as it did.
(Because criminal statutes normally are to be construed narrowly. If a statute
criminalizes behavior, the statute needs to be sufficiently specific and should not
be interpreted more broadly than its language fairly indicates.) Then ask why, in
regard to the specific statute at issue here, the Court ruled as it did. (Because
usual meanings of the word “property” don’t include something such as the
recommendation allegedly being extorted here.) Note the related problem
mentioned by the Court: the very strained reasoning that would be necessary in
order to conclude that the defendant himself would somehow have obtained
something amounting to property as a result of the supposed extortion. The facts,
as the Court suggested, more closely resembled attempted coercion rather than
the crime of extortion.
2) Note that there are constitutional limits on the government’s power to criminalize
behavior. Some constitutional limits are discussed immediately below; others are
discussed in a separate subsection that appears later. See subsection f.
b. Proof beyond a reasonable doubt. Discuss the presumption of innocence as a basic
due process safeguard enjoyed by criminal defendants. Stress the policy reasons for
requiring such a high burden of proof by the government in criminal cases.
1) Contrast the "beyond a reasonable doubt" standard with the "preponderance of
the evidence" standard applicable to civil cases. Note the deliberate ambiguity
present in these standards (particularly the former).
2) You may also want to digress a bit regarding the realities of the presumption of
innocence and the proof beyond a reasonable doubt standard. Many criminal
defense attorneys believe that jurors in fact presume guilt and that the defense
attorney's job therefore involves not only raising a reasonable doubt in jurors'
minds but also educating the jury (in voir dire, opening statement, and closing
argument) about the existence and importance of the presumption. As for the
proof beyond a reasonable doubt standard, defense attorneys sometimes assert
that the standard is not nearly so difficult for government to meet in actual
practice as it would seem to be in legal theory, because jurors may tend to assume
that the government would not have charged the defendant with a crime if it did
not have very good reasons for believing that he committed the crime.
3) While digressing about realities associated with guilt, innocence, and standards
of proof, you might want to note that even by the admission of many defense
attorneys (let alone the assessment of prosecutors), most criminal defendants
probably are guilty as a factual matter--either of the crime with which they are
charged or of a similar offense. The completely innocent (as a factual matter)
defendant of TV fare is a rarity. Nonetheless, our constitution and criminal justice
system place the burden on the government to prove guilt as a factual and legal
matter by permissible and appropriate means. If the government fails to do so,
the "guilty" defendant is supposed to go free.
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Chapter 05 - Criminal Law and Procedure
4) At this point, it may be helpful to list the elements of a basic criminal statute
(e.g., burglary) and to take students through a number of hypotheticals aimed at
illustrating the "proof of every element of the offense charged" requirements.
Note that a "not guilty" verdict may not mean that the jury has concluded that the
defendant did not commit the offense charged. It may simply mean that the state
has not met its burden of proof.
c. The defendant's criminal intent and capacity to form that intent. Discuss the mens
rea component of most serious criminal offenses (including, in general, the different
forms that the requisite criminal intent may take, depending on the offense in
question). Arthur Andersen LLP v. United States, a former text case now discussed at
p. 144, illustrates the important of the element of criminal intent. Further
examination of that decision is included here, for professors who may still wish to
use the case as a basis of class discussion.
d. Arthur Andersen LLP v. United States: The Supreme Court overturns Arthur
Andersen’s conviction for a supposed violation of a crime involving document
destruction, because the trial judge’s jury instructions effectively (and erroneously)
allowed the jury to find Andersen guilty without a need to find the existence of the
criminal intent contemplated by the statute.
Points for Discussion: Work through the Court’s comparison of the “knowingly .
. . corruptly” phrasing of the statute with the language of the trial judge’s jury
instructions. Note the discrepancy, which, as the Court noted, could have allowed the
jury to convict Andersen without any need to find that the requisite criminal intent
existed. Also note that the Court wasn’t making a finding that there was an absence
of criminal intent on the part of Andersen. Rather, the Court was saying that even if
the jury thought there wasn’t criminal intent, the jury might still have convicted
Andersen because of the erroneous statements in the jury instructions.
e. Examine the basic policy reason for requiring the capacity to form a criminal intent
as an element of criminal liability. Discuss the three basic types of incapacity.
1) Intoxication. Many states equate acting under the influence of narcotics with
intoxication and treat such cases in a similar fashion
2) Infancy.
3) Insanity. Note that there are various legal tests for insanity. The traditional test in
the M’Naghten rule, under which a criminal defendant is not responsible if, at the
time of the offense, he did not know the nature and quality of his act, or if he did
know this, he did not know his act was wrong. Some states have replaced or
supplemented this test with the irresistible impulse rule, which absolves a
defendant of responsibility if mental disease rendered her incapable of
controlling her behavior and resisting the impulse to commit a crime. Various
jurisdictions apply the American Law Institute’s insanity test. Under this test, a
defendant is not responsible if, when the act was committed, mental disease or
defect caused him to lack the substantial capacity to appreciate the wrongfulness
of his act or to conform his conduct to the law’s requirements. Discuss the trend
toward making the insanity defense more difficult to raise successfully by
treating insanity as an affirmative defense (states adopting this approach vary on
the burden of proof required of defendants), using the narrower M'Naghten
standard, or allowing "guilty, but mentally ill" verdicts. Some states (very few,
however) have gone so far as to eliminate the insanity defense per se and to allow
evidence of abnormal mental condition to be admitted only to prove lack of mens
rea. You may wish to venture again into the realm of reality by noting that
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Chapter 05 - Criminal Law and Procedure
despite public perceptions to the contrary, the insanity defense is rarely raised
and difficult to use successfully. The news media tend to focus on the exceptional
cases in which it is raised successfully. Furthermore, jury hostility and the reality
that insanity is not necessarily a freedom-producing defense (even "successful"
defendants may be institutionalized for lengthy periods of time) have always
meant that this defense is raised only as a last resort.
f. Discuss the constitutional limits on the power of the states and the federal
government to criminalize behavior.
1) Ex post facto criminal statutes are expressly forbidden. Emphasize that this
prohibition applies not only to laws defining an act as criminal but also to laws
establishing the punishment for a criminal act.
2) Constitutionally protected behavior cannot be criminalized. Mention the role
played by the constitutional right of privacy in cases such as Griswold v.
Connecticut (contraceptive use) and Roe v. Wade (abortion). Note that as a
general rule, however, the government has a fairly free hand in deciding which
behavior should be deemed criminal. Most conduct does not carry constitutional
protection.
3) Constitutionally protected expression cannot be criminalized. This is established
by long-standing interpretations of the First Amendment's guarantees of freedom
of speech and freedom of the press.
a) Note that government-imposed content restrictions (as opposed to time,
place, and manner restrictions) are the concern here.
b) Note the levels of First Amendment protection extended, respectively, to
noncommercial speech and commercial speech. (The different levels of
protection are explored in more depth in Chapter 3 of the text and Chapter 3
of this manual.)
c) Note the cases discussed at p. 139. Stevens illustrates the operation of the
First Amendment as a defense to a criminal prosecution. Humanitarian Law
Project reveals, however, that the First Amendment does not always furnish a
defense even when the speech is at issue in the criminal case.
4) Expressive conduct--as opposed to generally proscribable conduct--may fall
within protected expression for First Amendment purposes. Expressive conduct is
an action that by its very nature expresses a point of view or message regardless
of whether written or spoken words accompany it. An earlier edition of the text
contained summaries of some of the Supreme Court’s major expressive conduct
cases. For professors who wish to assign the expressive conduct cases to their
students, we provide the following discussion suggestions regarding certain ones
of those cases.
Texas v. Johnson, 491 U.S. 397 (1989): On First Amendment grounds, the
Supreme Court affirms a lower court's reversal of a protester's conviction for flag
burning.
Points for Discussion: Note how the political connections necessarily present in
flag-burning worked in Johnson's favor. Although the First Amendment protects a
broad range of expression that extends beyond the purely political in nature,
political expression is sometimes referred to as being of "core" First Amendment
significance.
The majority emphasized that expression does not lose its protected character
simply because it is offensive to others, and that "a principal function of free
speech is to invite dispute." Although the majority recognized that the
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Chapter 05 - Criminal Law and Procedure
government possesses a legitimate interest in attempting to preserve the flag as a
symbol of nationhood and national unity, "[f]orbidding criminal prosecution for
conduct such as Johnson's will not endanger the special role played by our flag or
the feelings it inspires. Nobody can suppose that this one gesture of an unknown
man will change our National's attitude towards its flag." In a seemingly reluctant
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Chapter 05 - Criminal Law and Procedure
concurrence, Justice Kennedy observed that it "is poignant but fundamental that
the flag protects those who hold it in contempt." You may also wish to note that
Johnson produced a somewhat surprising alignment of Justices, with "liberal"
Justice Brennan and "conservative" Justice Scalia helping to comprise the
majority.
The dissenters in Johnson (Rehnquist, O'Connor, Stevens, and White) saw the
defendant's flag-burning as, to use Chief Justice Rehnquist's words, "the
equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely
to be indulged in not to express any particular idea, but to antagonize others."
According to the dissenters, the Texas statute merely "deprived Johnson of only
one rather inarticulate symbolic form of protest--a form of protest that was
profoundly offensive to many--and left him with a full panoply of other symbols
and every conceivable form of verbal expression to express his deep disapproval
of national policy." The Chief Justice noted that Johnson had marched through
the city streets, conducted a rally in front of City Hall, engaged in a "die-in"
protest of nuclear weapons, and chanted various slogans during the march (e.g.,
"Reagan, Mondale, which will it be? Either one means World War III;" and "red,
white and blue, we spit on you, you stand for plunder, you will go under").
What do your students think? Would our society be significantly less free if the
Johnsons of the world were denied this form of expression? Or would such a
decision be the first step down a "slippery slope" that would end in more serious
erosion of liberty?
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992): The Supreme Court holds that the
First Amendment is violated by an ordinance that bans cross-burning and other
displays of symbols on property when the cross-burner (or symbol-displayer)
"knows or has reasonable grounds to know arouses anger, alarm or resentment in
others on the basis of race, color, creed, religion or gender."
Points for Discussion: In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the
Supreme Court held that "fighting words"--words that by their very utterance
inflict injury or tend to incite immediate violence--fall outside the First
Amendment's protective umbrella. The scope of the fighting words classification
has never been very clear. In R.A.V., the Court accepted the lower court's limiting
construction of the St. Paul ordinance at issue. Under this limiting construction,
the ordinance was deemed to be limited to reaching expressive conduct that
effectively amounted to fighting words. The lower court had concluded that the
ordinance thus restricted only unprotected expressive conduct and that the First
Amendment therefore was not violated. The Supreme Court, however, held that
even if the ordinance reached only the equivalent of fighting words, the First
Amendment was still violated. The violation stemmed, according to the majority,
from the city's having chosen to single out and criminalize--on the basis of
content--certain expressive conduct amounting to fighting words while leaving
other fighting words (or equivalent expressive conduct) uncriminalized. In other
words, the majority concluded that the category of fighting words, though often
said to be unprotected by the First Amendment, is not wholly outside the First
Amendment, because the government cannot selectively impose adverse
consequences on certain expression within that category on the basis of content.
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Chapter 05 - Criminal Law and Procedure
According to the majority, content-neutral alternatives would exist to further the
city's interest in protecting the victims of hate crimes. R.A.V. caused a number of
cities to attempt to develop hate crimes ordinances that would be sufficiently
content-neutral. Even without a separate hate crimes ordinance, however,
wouldn't the act of cross-burning potentially be punishable under generally
applicable criminal statutes dealing with such matters as terroristic threats, arson,
or intentionally causing harm to property? Does a separate hate crimes law add
anything to the law enforcement arsenal? If so, what?
Wisconsin v. Mitchell, 508 U.S. 476 (1993): The Supreme Court holds that the
First Amendment is not violated by a Wisconsin statute permitting an enhanced
criminal penalty when a convicted offender selected his victim on the basis of the
victim's race.
Points for Discussion: Todd Mitchell, an African-American, was convicted of
aggravated battery in connection with the beating of a young boy, a Caucasian.
The trial court, concluding that Mitchell selected his victim because of the
victim's race, imposed an enhanced penalty on Mitchell pursuant to the
Wisconsin statute. The Wisconsin Supreme Court decided that the U.S. Supreme
Court's decision in R.A.V. controlled, and that the Wisconsin statute and the
enhanced penalty imposed on Mitchell violated the First Amendment. The U.S.
Supreme Court disagreed, however. It unanimously rejected Mitchell's First
Amendment argument and upheld the enhanced penalty.
How is Mitchell different from R.A.V.? Were the laws in each case designed to
punish the defendants for holding (and acting on) bigoted viewpoints? If so, why
did the U.S. Supreme Court resolve the cases in opposite fashion? Was the
expressive component of the defendants' action in R.A.V. more substantial than
any expressive component arguably present in Mitchell? The Court emphasized
that Mitchell was really being punished for impermissible behavior (the beating
of the boy) rather than for bigoted thought: "[A] physical assault is not by any
stretch of the imagination expressive conduct protected by the First Amendment."
The Court also observed that "'violence or other types of potentially expressive
activities that produce special harms distinct from their communicative
impact . . . are entitled to no constitutional protection '" (quoting Roberts v. U.S.
Jaycees, 468 U.S. 609 (1984)). The Court also stated that it is sometimes proper
for sentencing judges to take into account certain relevant biases and beliefs of
the defendant. Among those times is when it is reasonable (as it was in this case)
for the legislature to have concluded that bias-motivated wrongful conduct
produces individual and societal harms over and above those produced by
wrongful conduct that was not bias-motivated. For instance, the Court noted,
though any severe beating will likely cause the victim to experience physical
harm and emotional distress, a bias-motivated beating may be likely to cause
even greater emotional distress. Moreover, a bias-motivated beating may be more
likely to stir community unrest and/or provoke retaliatory crimes than a beating
that was not bias-motivated.
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Chapter 05 - Criminal Law and Procedure
Perhaps a useful way of explaining Mitchell is to emphasize the Court's
understandable unwillingness to issue a decision opening the door to arguments
that beatings and other acts of violence toward persons might somehow be
excusable on First Amendment grounds. The Court seems to regard that
Pandora's box as one to be left closed. Another way to explain the different
analyses and outcomes in R.A.V. and Mitchell is (as suggested by a question
raised earlier) to note that the defendants' actions in R.A.V. were primarily
expression and secondarily conduct (the reason for cross-burning presumably
being the message sent by that action), whereas the defendant's action in Mitchell
was overwhelmingly unacceptable conduct and only incidentally (if at all)
expressive.
5) Some speech falls outside the protective scope of the First Amendment. The
most notable category of speech excluded from the First Amendment is obscene
expression. (See the discussion at pp. 139-40 of the text.) When the expression at
issue--e.g., a book, magazine, or movie--is held by a court to be obscene under
the Miller test outlined in the text, the First Amendment furnishes no bar to the
imposition of criminal liability or other adverse legal consequences on the
relevant speakers, writers, and other persons involved in the dissemination of the
obscene material. Walk the students through each of the three elements of the
Miller test. Make special note of the focus, in the first and third elements, of the
requirement that the work “as a whole” be considered. Mention that the sexual
content referred to in the second element must be highly explicit and graphic, not
merely a depiction involving nudity. Finally, stress that the test’s third element
usually furnishes the government the biggest obstacle to overcome when it
attempts to show that a defendant’s expression was obscene.
a) Indecent speech stops short of being obscene even though it may have
some of the characteristics of obscene expression. Because it is not
obscene, indecent expression is normally entitled to First Amendment
protection. Nevertheless, as the text points out, the Supreme Court has
held that the government is entitled to some latitude to regulate indecent
speech in order to protect minors against exposure to such material. The
measures adopted by the government must be narrowly tailored to the
furtherance of the protection-of-minors purpose. Measures that sweep
too broadly will be held to violate the First Amendment. Such was the
fate of the Communications Decency Act (CDA), as noted in the
discussion at p. 140 of the text. After the Supreme Court struck down
the CDA, Congress took another shot at regulating indecent speech in
order to protect minors. The resulting statute was the Child Online
Protection Act (COPA), which, as explained in the text, met essentially
the same First Amendment fate as the CDA.
b) Even if it would not otherwise be classified as obscene, sexually explicit
material that amounts to child pornography--because it depicts actual
minors--is unprotected by the First Amendment. The obvious protection-
of-minors interests support this treatment of child pornography.
6) Due process requires that criminal statutes clearly define the behavior
prohibited so that an ordinary person would understand what behavior is
proscribed. Statutes failing to meet this requirement are "void for
vagueness." For an example of an unsuccessful void-for-vagueness
challenge, see Problem #9.
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Chapter 05 - Criminal Law and Procedure
a) Skilling v. United States (p. 141): The U.S. Supreme Court interprets the
“honest services” fraud statute in order to avoid a vagueness problem and
concludes that under the adopted interpretation, Skilling could not be
regarded as having conspired to commit honest services fraud.
Points for Discussion: What does “scheme or artifice to deprive another
of the intangible right of honest services” mean? Does the statute provide
reasonable notice of what behavior will or won’t violate it? Skilling took the
position that the statute was too vague to provide adequate notice in that regard
and was therefore unconstitutional. So what does the Court do? (It looks at
whether it can adopt a narrowing construction that would avoid the vagueness
problem.) What is useful to the Court in this regard? (Prior versions of the
relevant statutes, as well as the sorts of behaviors that violated them.) What does
the Court conclude about the meaning of ”honest services” and what will violate
the statute? (Behaviors involving kickbacks and bribery, neither of which
Skilling engaged in regardless of whether the other behaviors alleged in the
criminal case were wrongful.)
7) The Equal Protection Clause of the Fourteenth Amendment proscribes criminal
statutes that impermissibly discriminate among different classes of persons. The
Fifth Amendment does not specifically contain an equal protection provision, but
the courts have held that the Fifth Amendment's Due Process Clause incorporates
the equal protection guarantee insofar as the federal government action is
concerned. Emphasize, however, that unless a suspect class is adversely affected
(see Chapter 3’s discussion of equal protection issues), a criminal statute that
treats certain persons differently from others is unlikely to be held to violate the
equal protection guarantee.
8) The proof-beyond-a-reasonable-doubt standard and the criminal intent
requirement were discussed earlier.
9) The Eighth Amendment prohibits the imposition of "cruel and unusual
punishments" for otherwise properly defined criminal offenses.
a) Emphasize the Supreme Court's current disinclination to conclude that a
punishment violates the cruel and unusual punishments guarantee by virtue
of arguably being disproportionately severe in regard to the seriousness of
the offense. It is likely to take a very extreme set of facts to convince the
current Court that arguable disproportionality translates into cruel and
unusual punishment.
b) In a provision that probably receives less judicial attention than does the
cruel and unusual punishments provision, the Eighth Amendment also
prohibits the imposition of "excessive fines." Although the Supreme Court's
recent decisions have not clearly settled the point, the Court may be more
receptive to disproportionality arguments under the excessive fines clause
than under the cruel and unusual punishments clause. The term "excessive,"
after all, seems to contemplate inquiries regarding proportionality.
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