§ 5.01 PRINCIPLE OF LEGALITY

• Jurisdiction: North Carolina

§ 5.01. Principle of Legality¹

[A] "Legality": Definition

Some conduct is immoral, harmful, or both. Some conduct is criminal and punishable. The fact that conduct is immoral or harmful does not necessarily mean that it is criminal and punishable. The American legal system espouses the principle, nullum crimen sine lege, nulla poena sine lege, or "no crime without law, no punishment without law." That is, a person may not be punished unless her conduct was defined as criminal—today, in the United States, generally by legislation, rather than the result of judicial crime-creation² — before she acted.³ This prohibition on retroactive criminal lawmaking constitutes the core of the principle of legality.

The doctrine of legality, which has been characterized as reflective of the "central values of liberal societies,"⁴ is considered the first principle of American criminal law jurisprudence.⁵ That is, the legality principle should override all other criminal law doctrines; it should apply even though its exercise might result in dangerous and/or morally culpable people escaping punishment.⁶ As one court stated when it reversed the conviction of a defendant on the basis of the principle of legality:

That [the defendant] will go largely unpunished . . . is frustrating. There are, however, basic principles upon which this country is founded which compel the result we reach. . . . [Legality] is one of them. The retroactive application of criminal law . . . is so abhorrent that we must occasionally endure some frustration in order to preserve and protect the foundation of our system of law.⁷

There are three interrelated corollaries to the legality principle: (1) criminal statutes should be understandable to ordinary, law-abiding persons; (2) criminal statutes should be crafted so as not to "delegate[] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis";⁸ and (3) judicial interpretation of ambiguous statutes should "be biased in favor of the accused" (the lenity doctrine).⁹

The legality principle is explained in this chapter section. Its corollaries are considered in subsequent sections of this chapter. As will be seen, the corollaries (especially, the first and third ones) have been enforced less than rigorously in recent years, despite the eloquent language quoted above.

[B] Rationale

The legality doctrine is defended on various grounds. First, the principle that a person may not be punished unless her conduct was defined as criminal before she acted is designed to serve fundamental justice by preventing the "arbitrary and vindictive use of the laws."¹⁰ In countries that reject this principle, it is possible for powerful agents of the government to use the criminal law to punish their political enemies. Second, the legality principle enhances individual autonomy by "maximizing] the opportunity of individuals to pursue their own . . . ends,"¹¹ by negating the risk that one's lawful conduct will be punished retroactively.

Third, the legality principle is justified on fair notice grounds. Specifically, the pre-existence of "legislative enactments 'give[s] fair warning of their effect and permit[s] individuals to rely on their meaning until explicitly changed.' "¹² If a person can be punished for conduct that was lawful at the time that she acted, she lacks a fair opportunity to conform her conduct to the law. In the absence of such an opportunity, the retributive basis for punishment of the actor is lacking—the person has not chosen to violate the law. Also, the requirement of fair notice arguably enhances general deterrence principles: A person cannot be deterred from committing what is subsequently determined to be a socially unacceptable act unless she has notice at the time of her conduct of the line separating proper from improper behavior.

As some commentators have demonstrated,¹³ however, the fair notice argument is not entirely persuasive. It assumes that individuals always, or even commonly, consult criminal codes before acting and, thus, can legitimately claim surprise if the legislature acts retroactively to criminalize their conduct. Moreover, in some cases, those who investigate the law in advance do so for the purpose of looking for loopholes in the law, rather than to enhance obedience to the law. In short, "rule-of-law benefits . . . always come at a price."¹⁴ But this reality is consistent with the point made earlier...