Fair notice and fair adjudication: two kinds of legality.

• Author: Robinson, Paul H.

1. THE LEGALITY DOCTRINES AND THEIR RATIONALES A. Abolition of Common Law Doctrines B. Prohibition of Judicial Creation C. Special Rules for the Construction of Penal Statutes D. Ex Post Facto Prohibition E. Bar to Retroactive Application of Judicial Interpretations Altering Penal Rules F. Due Process Vagueness Prohibition 1. Fair Notice and Gaining Compliance 2. Deterrence 3. Reserving the Criminalization Authority to the Legislature 4. Avoiding Discretion Increases the Potential for Abuse and Reduces the Likely Uniformity of Application G. The Rationales 1. Providing Fair Notice 2. Gaining Compliance 3. Reserving the Criminalization Authority to the Legislature 4. Increasing Uniformity in Application 5. Reducing the Potential for Abuse of Discretion H. Overlap Among Rationales in Support of Each Doctrine II. TWO FUNCTIONS OF CRIMINAL LAW: EX ANTE ANNOUNCING RULES OF CONDUCT AND EX POST ADJUDICATING VIOLATIONS OF THOSE RULES A. Doctrines Announcing the Rules of Conduct Ex Ante B. Doctrines Adjudicating Violations of the Rules of Conduct Ex Post C. Summary D. Current Law's Failure to Distinguish Criminal Law Rules According to Function III. LEGALITY AND THE TWO FUNCTIONS OF CRIMINAL LAW IV. APPLYING LEGALITY DOCTRINES TO SERVE THEIR FUNCTION: RULES LEGALITY VERSUS ADJUDICATION LEGALITY A. Rules Legality: Conduct and Circumstance Elements of Offense Definitions B. Adjudication Legality: Culpability Requirements and Excuse Defenses C. Rules Legality: Justification Defenses D. Summary of Legality Implications E. Current Law's Application of Legality Doctrines 1. Adjudication Legality: Culpability Requirements and Excuse Defenses 2. Rules Legality: Justification Defenses CONCLUSION Our form of government and our legal system are distinguished from others by their commitment to the "rule of law." In the criminal law, in particular, this commitment is aggressively enforced through a series of doctrines that, taken together, demand a prior legislative enactment expressed with precision and clarity, traditionally bannered as the "legality principle." However, it is argued here that the traditional legality principle analysis actually conflates two distinct issues: one relating to the ex ante need for fair notice, the other to the ex post concern for fair adjudication. There are in fact two different kinds of legality--rules legality and adjudication legality--that suggest different, and sometimes conflicting, conclusions about the proper formulation and application of the legality doctrines. The criminal law would be better served, it is argued, by giving these two principles independent recognition and application.

1. THE LEGALITY DOCTRINES AND THEIR RATIONALES

   In its original Latin dress, the legality principle was expressed as "nullum crimen sine lege, nulla poena sine lege," meaning roughly "no crime without law, nor punishment without law." In its modern form it means that criminal liability and punishment can be based only upon a prior legislative enactment of a prohibition that is expressed with adequate precision and clarity. The principle is not a legal rule, but rather a legal concept embodied in a series of legal doctrines. It is "the first principle of American criminal law jurisprudence. [It] overrides all other criminal law doctrines[,] ... even though its exercise may result in dangerous and morally culpable persons escaping punishment." (1)

   The doctrines that make up the "legality principle" include the modern abolition of common law penal doctrines, the modern prohibition of the judicial creation of penal rules, special rules for the construction of penal statutes, the constitutional prohibition of ex post facto penal laws, the due process bar of retroactive application of criminal rules, and the due process invalidation of vague criminal statutes.

   1. Abolition of Common Law Doctrines

      Even with the advent of criminal codes, it is not uncommon for courts to refer back to common law doctrines. (2) Common law crimes allow courts to punish conduct that injures the public, even in the absence of an explicit statutory prohibition. (3) As Joseph Story phrased it:

      [T]he common law is not in its nature and character an absolutely fixed, inflexible system, like the statute law.... It is rather a system of elementary principles and of general juridical truths, which are continually expanding with the progress of society, and adapting themselves to the gradual changes of trade and commerce, and the mechanic arts, and the exigencies and usages of the country. (4) This elasticity of the common law is regarded as its great advantage, (5) but is also its fatal flaw in undermining the virtues of legality. Under current law, most states abolish common law crimes, (6) or provide that no act or omission is a crime unless made so by the code or applicable statute. (7) A few abolish common law offenses but retain common law defenses. (8) And some keep the common law to the extent that it is not inconsistent with the code. (9) As for federal law, "[i]t has long been settled that there are no federal common law crimes; if Congress has not by statute made certain conduct criminal, it is not a federal crime." (10)

      A variety of reasons are given to support the abolition of common law penal rules. First, such rules commonly fail to give fair notice, a quality of special importance in criminal law, where a defendant's life and liberty are often at stake. (11)

      Second, and relatedly, the lack of public knowledge of common law rules often means not only the unfairness of lack of notice, but also a reduction in the likelihood of compliance. Common law crimes, which are generally unknown to the public, cannot "deter future offenders through fear of punishment." (12)

      Third, a "bedrock principle[] of criminal law is that legislatures, not courts, should be the primary definers of crimes." (13) "Criminal law choices are controvertible, fundamentally political, and thus best left to the political departments." (14) Fourth, the lack of a precise statutory definition leaves rules subject to interpretation. This is likely to reduce the uniformity in application, as different judges use, or decline to use, common law doctrines. (15) Finally, the judicial discretion introduced by reliance upon common law doctrines creates the potential for abuse. (16)

   2. Prohibition of Judicial Creation

      As offenses created by judges in the past through the common law process are abolished, it logically follows that the power of present courts to create new offenses ought to be similarly restricted. Bolstering this reasoning is the claim that there is now less need for such authority. While "courts throughout the nineteenth century found frequent occasion to invoke previously defined non-statutory crimes," there was a "progressively infrequent need to define new ones." (17) "Gaps in coverage were met by new legislation," and therefore "the sources of law became more elaborate, detailed, and particularized." (18) As such, "the need to rely on very broad rubrics of common-law authority ... declined." (19) Today, most state criminal codes expressly prohibit judicial creation of offenses, (20) and, even when they do not, the courts themselves recognize that the period of such broad judicial authority has ended. (21) "[I]t is well and wisely settled that there can be no judge-made offenses against the United States and that every federal prosecution must be sustained by statutory authority." (22)

      But even where there may be a need for judicial creation of new offenses, the same set of arguments works against the recognition of such power. A judicially created rule is necessarily one that did not previously exist, at least not in the case in which it is created. Such a rule therefore violates the doctrinal requirement that "all criminal laws ... give notice to the populace as to what activity is made criminal so as to provide fair notice to persons before making their activity criminal." (23) Indeed, "[t]he rationale for this is obvious: crimes must be defined in advance so that individuals have fair warning of what is forbidden." (24) The lack of prior notice also makes it less likely that the law can gain compliance, through deterrence or other such mechanism. (25) "[B]ecause we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." (26)

      A third offered rationale arises from the preference for legislative rather than judicial creation of criminal law rules. In the classic view, "legislatures ... faithfully represent popular norms, and hence accurately define the universe of serious norm-breakers, while prudish old judges seek to impose their unrepresentative values on an unfortunate population." (27) "Lawmaking was the legislative province. As the branch most directly accountable to the people, only the legislature could validate the surrender of individual freedom necessary to [the] formation of the social contract." (28)

      A fourth rationale opposing judicial creation of criminal law rules arises from a concern for uniformity in application. Different judges may well come to different conclusions about the rules that should be created and how they should be formulated. (29)

      Finally, and relatedly, judicial discretion creates the potential for the abuse of discretion. The danger is not just arbitrary application by judges but, because judicially created rules are usually less clear and less fixed, the danger is arbitrary application by other decision makers in the criminal justice process, with "the potential for arbitrary and discriminatory enforcement of the penal law and the resort to legal formalism as a constraint against unbridled discretion." (30) "The risk involved is that judicial particularization of the broad rubrics of common-law authority will be too 'subjective,' too closely...