Overcoming overcriminalization.

• Author: Smith, Stephen F.
• Position: III. A Qualitative Critique of Overcriminalization in Federal Criminal Law through Conclusion, with footnotes, p. 565-591 - Symposium on Overcriminalization

3. A QUALITATIVE CRITIQUE OF OVERCRIMINALIZATION IN FEDERAL CRIMINAL LAW

   The main problem with overcriminalization is that it results in crimes that are often (if not usually) poorly defined--and poorly defined in ways that exacerbate their already considerable breadth and punitiveness, maximize prosecutorial power, and undermine the goal of providing fair warning of the acts that can lead to criminal liability. Even if the number of crimes remains constant or continues to grow (which appears probable, if not inevitable), overcriminalization need not be the complete disaster that its many critics believe it to be. A body of federal criminal law that contains too many prohibitions and is too broad in scope can be improved immeasurably by remedying its many qualitative deficiencies.

   One such deficiency--which some might understandably regard as the most significant--is the enormous overlap across federal criminal statutes, which typically results in inconsistent crime definition and offense grading. Having already discussed this issue in Part II, (104) the discussion here addresses other qualitative deficiencies in federal criminal law. These include: the poor organization of federal criminal statutes, sloppy legislative crime definition (which results in judicial crime creation), the inadequacy of federal mens rea requirements, and the paucity of defenses. Together, these features of federal criminal law make overcriminalization more than just troublesome in theory, but unacceptable in practice as well.

   1. A "CODE" IN NAME ONLY

      A major problem with federal criminal law, quite simply, is that we do not have a "federal criminal code" in any recognizable sense of the phrase. A "code" is a systematic body of laws that is organized into a coherent and cohesive whole. (105) That characterization does not even remotely fit the hodgepodge we refer to as "federal criminal law."

      Although Title 18 of the United States Code is entitled "Crimes and Criminal Procedure," the roster of federal crimes is not contained in that or any other single title of the Code. Instead, they are scattered throughout the dozens of titles of the Code. That might not be a serious defect if the crimes were carefully organized and comprehensively indexed, but that is not the case.

      As one participant in prior federal criminal law reform efforts has explained:

      [T]he accumulated ad hoc enactments appear in a uniquely unhelpful arrangement. They are clumped together in a series of chapters bearing titles apparently chosen by lexicographers rather than lawyers versed in the penal law, and are laid out in alphabetical order of their titles (Aircraft and Motor Vehicles; Animals, Birds, Fish, and Plants; Arson; Assault; etc.) rather than by concept. Individual provisions have proven to be so difficult to find that, until a change in type fonts several years ago, the paperback edition of Title 18 consisted of approximately 500 pages of statutory text, and, in a vain attempt to provide the reader with some rough idea of the contents, 300 pages of an index. This state of affairs is unacceptable for several reasons. First, it makes it difficult for even specialists in criminal law to find the law, much less ordinary citizens trying to determine their legal obligations. This frustrates both the rule-of-law imperative that the criminal law should be accessible to the public so they can conform their behavior to it and potentially the notion that it is unfair to punish absent fair warning. Second, it complicates the task of effective crime definition. With such poor organization, it is no surprise that federal criminal law contains scores of overlapping crimes that address the same criminal act but, for no apparent reason, are defined or punished quite differently. (107)

   2. JUDICIAL CRIME CREATION

      Another major problem with federal criminal law is that it allows courts essentially to create new crimes. The root of the problem here is that the courts are notoriously inconsistent in their adherence to the venerable rule of lenity. The rule of lenity--one of the few Marshall Court doctrines that has not achieved canonical status (108)--requires courts to construe ambiguous criminal laws narrowly, in favor of the defendant. (109) It does so not to show lenience to lawbreakers, but to protect important societal interests against the many adverse consequences that judicial expansion of crimes can produce--consequences such as the usurpation of the legislative crime-definition function, not to mention potential frustration of legislative purpose and unfair surprise to persons convicted under unclear statutes. (110) The rule of lenity therefore reflects, as Judge Henry Friendly once put it, a democratic society's "instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should." (111)

      More to the point here, faithful adherence to the rule of lenity would require courts to counteract overcriminalization. The rule of lenity requires courts to narrow, rather than broaden, the scope of ambiguous criminal laws. This would prevent prosecutors from exploiting the ambiguities of poorly defined federal crimes to criminalize conduct Congress has not specifically declared a crime. The rule of lenity would thus make poor crime definition an obstacle to--not an occasion or excuse for--more expansive applications of federal criminal law.

      Unfortunately, the federal courts treat the rule of lenity with suspicion and, at times, outright hostility. Although it sometimes faithfully applies the rule of lenity, the Court has on many other occasions either ignored lenity or dismissed it as a principle that applies only when legislative history and other interpretive principles cannot give meaning to an ambiguous statute. (112) Indeed, the federal courts so frequently disregard the rule of lenity that it is questionable whether it is even accurate today to describe it as a "rule":

      [T]he courts' aversion to letting blameworthy conduct slip through the federal cracks has dramatically reversed the lenity presumption. The operative presumption in criminal cases today is that whenever the conduct in question is morally blameworthy, statutes should be broadly construed, in favor of the prosecution, unless the defendant's interpretation is compelled by the statute.... The rule of lenity, in short, has been converted from a rule about the proper locus of lawmaking power in the area of crime into what can only be described as a "rule of severity." (113) The result of the judiciary's haphazard adherence to the rule of lenity is as predictable as its results have been misguided. As previously explained, federal judges have repeatedly used ambiguous statutes as a basis for creating new federal crimes and have expanded the reach of overlapping federal crimes to drive up the punishment Congress prescribed for less serious federal crimes. (114) The end result of such assaults on the rule of lenity is necessarily a broader and more punitive federal criminal law.

   3. INADEQUATE MENS REA REQUIREMENTS

      Another area of serious concern in federal criminal law is that statutory crimes often have inadequate mens rea requirements. In writing new crimes, Congress takes pains to identify the actus reus elements that describe the act to be prohibited, but all too often specifies no mens rea requirements or inadequate mens rea requirements. This is troubling because mens rea requirements are an essential safeguard against unjust convictions and disproportionate punishment.

      As the Supreme Court explained in Morissette v. United States, the concept of punishment based on acts alone, without a culpable state of mind, is "inconsistent with our philosophy of criminal law." (115) In our system, crime is understood as a "compound concept," requiring both an "evil-doing hand" and an "evil-meaning mind." (116) The historic role of the mens rea requirement is to exempt from punishment those who are not "blameworthy in mind" and thereby to limit punishment to persons who disregarded notice that their conduct was wrong. (117) Mens rea also serves to achieve proportionality of punishment for blameworthy acts--to make sure the law imposes a punishment that "fits" the defendant's crime. It is mens rea, for example, that guarantees that the harsher penalties for intentional homicides will not be applied to accidental homicides. (118)

      Importantly, the linkage between punishment and blameworthiness is no artifact from a bygone retributivist age. Although utilitarians reject the retributivist view that moral blameworthiness is the justification for punishment, most utilitarians agree that moral blameworthiness is an "important limiting principle" for criminal punishment. (119) The fundamental insight here is that there is considerable "utility" in moral "desert"--that a criminal law which distributes punishment according to blameworthiness will more effectively achieve its crime-prevention goals than one that punishes regardless of the moral sentiments of the community. (120)

      Despite the critical importance of mens rea to the effectiveness and legitimacy of federal criminal law, federal crimes often lack sufficient mens rea elements. Many federal crimes--including very serious crimes--contain no express mens rea requirements. (121) Perhaps more commonly, federal crimes include express mens rea requirements for part of the crime but are silent as to the mens rea (if any) required for others. (122) Here, it is evident that Congress intended to require mens rea, but it is unclear whether Congress intended the express mens rea requirement to exclude additional mens rea requirements.

      In many cases, even when Congress includes mens rea terms in the definition of crimes, it uses terms such as "willfully" and "maliciously," which have no intrinsic meaning and whose meanings may vary widely in different statutory contexts. Take, for example, "willfulness." "Willfulness" has a chameleon-like...