AuthorHessick, Carissa Byrne


There is a broad consensus in the criminal justice community that our criminal statutes are a mess: They are imprecise, overly broad, and overly punitive. Legislatures write these laws because there are significant political incentives for them to be "tough on crime" and few incentives for them to write carefully crafted laws. The problems of over-criminalization thus seem to be both a predictable yet intractable consequence of the incentives that legislatures face. But this Article offers a novel solution: Judges should develop new clear statement rules to interpret criminal statutes. The Supreme Court has created clear statement rules to protect important values, such as federalism and the separation of powers. Legislatures can overcome those values, but only if they do so affirmatively and unambiguously. Just as existing clear statement rules protect important structural values, new criminal clear statement rules would protect important criminal justice values. Unless statutes clearly state that they reject those values, clear statement rules will result in statutory interpretations that better protect the interests of criminal defendants. The result will be clearer and more thoughtful criminal laws--both because legislatures will write better statutes and because judges will construe poorly drafted statutes in a more narrow and predictable manner. In addition to making the case for criminal clear statement rides as a general interpretive tool, this Article proposes two specific clear statement rules. One rule would create a default presumption of a knowing mental state requirement for material elements. The other would impose a substantial harm requirement. Both would markedly improve the state of modern criminal law.

TABLE OF CONTENTS INTRODUCTION I. DYSFUNCTION IN DEVELOPMENT OF THE CRIMINAL LAW A. Legislative Dysfunction B. The Courts' Failure to Address Dysfunction and Its Effects 1. The Rule of Lenity 2. The Vagueness Doctrine 3. The Overbreadth Doctrine 4. Prohibitions on Excessive Punishment II. CLEAR STATEMENT RULES AS A SOLUTION FOR DYSFUNCTION A. Clear Statement Rules Generally B. Criminal Clear Statement Rules 1. Identifying Criminal Justice Values 2. Justifying Criminal Clear Statement Rules 3. Criminal Clear Statement Rules in Practice III. EXAMPLES OF CRIMINAL CLEAR STATEMENT RULES A. Mens Rea Clear Statement Rule B. Substantial Harm Clear Statement Rule CONCLUSION. INTRODUCTION

There is near-universal consensus in the legal community that our criminal laws are a mess. (1) Our laws are imprecise: they fail to define key terms, and they regularly omit key information, such as what mental state is required to trigger the law. Our laws are overly broad: they include conduct that seems only marginally related to the problem the legislature claimed to have been addressing, and they include seemingly trivial or harmless behavior in their sweeping terms. Our laws are also overly punitive: they routinely contain harsh sentences that are designed to pressure defendants into pleading guilty rather than to delineate appropriate levels of punishment. As a result, the United States has the highest incarceration rate in the Western world. (2)

These criminal laws are the product of legislative dysfunction. Crime is exploited for political gain. As others have noted, criminal legislation essentially serves as campaign literature for legislators. (3) Legislatures package unrelated crimes with a similar feature as a "new crime problem" and refer to those committing the crimes in sensationalized terms, like "superpredators." (4) Legislators rarely mention the fact that the behavior they are purporting to address is already criminal and subject to significant punishment. What is more, there is no organized lobby against criminal legislation. (5) As a result, there is little debate or pushback on imprecise, overly broad, or overly punitive criminal laws. Instead, legislators line up to pass new criminal laws without any shared understanding of what they mean, how far they sweep, and how they fit into the existing criminal laws.

Because of this legislative dysfunction, the meaning of criminal statutes often must be resolved in the context of specific cases. In the case of imprecise laws, judges are left to determine what that language actually means. And in the case of overly broad laws, no one expects the laws to be enforced as written. Instead, we rely on prosecutors to use their discretion to weed out cases involving only trivial behavior. (6) But if a prosecutor exercises her sweeping discretion under these laws in a way that is not politically popular, legislators can claim that the result was not what they intended. (7) And when courts step in to make the hard choices the legislators failed to make, the same legislators often complain that judges are overstepping their bounds. (8) This is a win-win for legislators. They get to criticize others for doing the job that they themselves refused to do in the first place. Nice work if you can get it.

Prosecutors and judges bear some of the blame in this dysfunctional relationship. In some instances, prosecutors are the reason for poorly drafted and overlapping statutes. Prosecutors routinely lobby for new, sweeping legislation, even when existing laws would address perceived wrongdoing. (9) And when efforts have been made to reform criminal codes, prosecutors have often stood in the way of that reform. (10)

Judges also enable this state of affairs. Courts fail to set clear and consistent rules about how legislatures should speak to them. Many judges say that they will interpret statutes based only on their text, while others say they will interpret laws in conformity with the legislature's purpose for enacting them. Under the textualist approach, courts base their interpretive decisions on what they believe an ordinary speaker of English would understand the text to say. But it is extremely difficult to predict what judges will conclude is the ordinary meaning of a statute. Purposivist approaches do not fare much better. While legislatures clearly intend to extend the scope of existing criminal codes when they enact new criminal legislation, it is difficult to determine precisely how far they intended to extend it. And so judges routinely invent intent by imagining that legislators considered grammar, punctuation, and statutory scheme as they carefully chose each word(11)--a vision so at odds with the fast-paced sausage-making of criminal legislating that it would be funny if it were not the source of such serious problems.

Legislative dysfunction is, of course, not limited to criminal law. (12) But it has a number of particularly harmful effects in this area. It creates too much prosecutorial discretion. Prosecutors effectively decide the scope of imprecise or overbroad laws when charging and plea bargaining. (13) Because the laws are often also overly punitive, prosecutors have significant leverage to secure pleas. Given the drastic potential consequences they face, defendants cannot risk the possibility of losing at trial, so they forgo the opportunity to have a judge pass on the meaning of the statute in return for a favorable plea bargain. (14) The result is a system that routinely and systematically deprives people of liberty without the safeguards that the Constitution supposedly guarantees.

Imprecise and overly broad criminal laws also place the individual members of the public in an impossible position. People must either risk criminal liability when engaging in conduct that they reasonably believe might be legal, or they must refrain from innocuous or even beneficial behavior. (15) And for laws that everyone breaks sometimes--such as traffic laws--these overly broad laws are rarely enforced in an evenhanded manner. (16) Law enforcement is more likely to enforce these laws against people of color and in poor communities. (17) Indeed, racial profiling is made easier by the significant discretion that these laws give to police. (18)

The legislative dynamics that produce these criminal statutes also diminish political accountability. Past accounts of statutory interpretation have stressed dialogue between the legislature and the courts. (19) But we should also conceive of legislation as a dialogue between the legislature and the public. Voters will evaluate their representatives based on the laws that they pass (or fail to pass). But voters cannot hold legislators politically accountable for statutes that voters cannot understand or whose meaning is supposed to be determined by other actors--namely prosecutors (and perhaps judges). In this sense, the failure to clearly define crimes denies criminal defendants--and all voters--their day in the legislature.

This Article suggests a novel approach that may fundamentally change these dynamics: criminal clear statement rules. (20) A clear statement rule is a particularly strong presumption that a judge uses when interpreting a statute to protect certain values or interests. Specifically, clear statement rules presume that the legislature did not intend the statute to undermine a value or interest unless the legislature has affirmatively and clearly stated its intent to do so. Clear statement rules protect the value or interest at issue by requiring a particular outcome unless the statute contains explicit and unambiguous language to the contrary.

Although courts have, on occasion, used clear statement rules in criminal cases, existing clear statement rules are rarely relevant to the interpretation of criminal laws. Existing clear statement rules vindicate non-criminal values, such as federalism or separation of powers, and most criminal statutes do not implicate those values. Our proposal expands the universe of clear statement rules to vindicate values that are necessary to a fair and just criminal justice system. (21)

Criminal clear statement rules have a number of benefits. They would...

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