I'm looking for cases in which the Supreme Court has either refused
to draw constitutionally significant distinctions between crimes based on
their supposed harmfulness, or been willing to draw it.
Classic examples in which the Court has held that it can't
reasonably draw such distinctions are Branzburg v. Hayes (refusing to
provide First Amendment protection for newsgatherers' refusals to testify,
even when the protection would supposedly be limited to minor crimes),
Mincey v. Arizona (refusing to create a Fourth Amendment exception for
searches of murder crime scenes, reasoning that murder can't be effectively
distinguished from other crimes), and, to some extent, its recent Cruel and
Unusual Punishment Clause jurisprudence. An example in which the Court has
been willing to draw such a distinction is Welsh v. Wisconsin (considering
the gravity of the offense as a factor in the Fourth Amendment exigent
circumstances doctrine).
Can anyone please pass along (off-list would probably be best, to
[EMAIL PROTECTED]) some other such cases? I would distinguish, by the
way, the cases that focus chiefly on the prosecution's effect on the
*defendant*, such as the cases that decide when a jury is required, or when
a lawyer must be appointed. I'm interested in the harmfulness of the
offense as going to the government's interest in being able to act (e.g.,
subpoena someone, arrest them, search their property, lock them up for
life), rather than to the defendant's interest in having the best procedures
for defending himself against the charge.
Thanks very much,
Eugene Volokh
