Imagine if Congress returned from summer camp, everybody hugged and kissed, apologized for all the mean things they’ve said about the other team, and agreed to rid our nation of the scourge of tens of thousands of criminal laws and replace them all with one:
It shall be a crime to engage in wrongful conduct, as determined by the facts and circumstances.
Crazy, obviously. But in a very real way, it’s what they’ve been doing for decades now, and are continuing to do on the federal and state level by the crafting of vague and overly broad laws, laws that lack the degree of clarity to meet the requirements of the Constitution. And yet, courts uphold them.
Over the past thirty years, thousands of new federal criminal laws have been enacted, many of which are unclear and leave prosecutors and courts to now define the boundaries of the criminal code. Tolerating unclear laws in the criminal arena has always been problematic, but it is especially so in this era of overcriminalization and excessive punishment, where a lack of clarity can result in arbitrary application of criminal statutes and the sentencing consequences of a conviction are so severe.
Although several justices have noted the lack of clarity in the criminal law, the Court as a whole has not fully reacted. This Article suggests what that reaction should be. It argues for a more robust review of unclear federal criminal laws, using amplified versions of two tools already at the Court’s disposal: the rule of lenity and void for vagueness doctrine. Employing those doctrines vigorously would, in effect, create a clear statement rule in criminal law.
The problem arises for many reasons. Writing clear constitutional laws is hard. It’s often difficult to find the right words to express with precision the harm to be ameliorated without encompassing conduct that the law wasn’t meant to criminalize. Some want to stop a harm so badly that they don’t care how many innocents could also be swept into the net or what rights get trampled in the process.
Even when legislatures do take care to write good law, subsequent changes in the cultural use of language can give rise to ambiguity that didn’t exist at the time of the writing. Laws are written, or regulations are promulgated, with elements like mens rea, which were never meant to be crimes, but are routinely enforced by criminal penalties that make them indistinguishable. Even historic terms of art in law have been untethered from definition, and are now applied randomly.
And then, there are the laws where everybody knew what was intended, even though the text of the law fails miserably to provide the requisite notice and limits of application, because, well, you know.
My difference with the majority turns on a fundamental question: may the state, consistent with due process, sweepingly criminalize a broad range of conduct embracing both innocent and culpable behavior and assign to defendants the burden of proving their innocence?
Facially unconstitutional? Not really a problem, the majority says.
We cannot and will not assume that the state will improperly prosecute persons who, though perhaps technically violating the terms of broad statutes , clearly engaged in reasonable, acceptable, and commonly permitted activities involving children.
This isn’t a stretch, an argument trying to anticipate what unanticipated twists of human conduct will eventually fall within the strictures of the law. The is clearly what the law “technically” says, and there is no question but that it “technically” criminalizes “reasonable, acceptable, and commonly permitted activities involving children.” But what prosecutor would ever indict a teacher for sexually abusing a child, right Virginia McMartin?
The fear, on the one hand, is that a law too narrowly drawn will let the bad guys go free, whether because conduct that proponents want to criminalize is left uncovered or they can too easily find safe harbor in an exception. Proponents of criminalization want no one to get away, and so demand that there be no “loophole” to exclude the innocent lest someone guilty not be punished.
Blackstone’s ratio, though directed to the burden of proof, still provides the foundational concept that we don’t criminalize innocent conduct just to make sure we get the guilty as well. But that’s old news, a legal relic that no one cares about anymore. Instead, people focus on the harm, the pain, the damage of the worst case scenario, and demand that something be done, even if there is no way to craft a law that prohibits the harm while not criminalizing the innocent. Innocent people are just collateral damage, their inclusion can’t be helped. Why won’t they take one for the team, believe the victims, whatever trite phrase is in vogue at the moment?
Courts find themselves caught between two doctrines, that they are to uphold laws duly enacted if there is any constitutional interpretation available, and they are to reject laws that fail to satisfy constitutional mandates, such as adequate notice under due process or vagueness and overbreadth. And in applying these laws, ambiguities are to be construed in favor of the defendant under the Rule of Lenity.
But as Congress and state legislatures continue to craft laws that are increasingly poorly written, unclear and imprecise, or address matters that clearly implicate constitutional rights as they’ve long ago covered illegal conduct and are now in the process of criminalizing thought and speech, being left with little else to do with their time or proving how much they want to protect the women and children, it’s fallen to the courts to do their job. As Shon notes, courts have been reluctant to be the bad guys, to tell Congress that it’s enacting some damn ugly babies.
And of all the relief valves for poorly written, unconstitutional laws, the worst is to trust that no prosecutor would ever use the law to prosecute someone its proponents never meant to be covered. Just “trust the prosecutor” will never be an acceptable solution to bad, vague, overbroad law. If it was, we would only need one law and let prosecutors take it from there.