978-0077733711 Chapter 5 Lecture Note Part 1

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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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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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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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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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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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