Foreword: statutory interpretation and the federalization of criminal law.

AuthorHenning, Peter J.
PositionSupreme Court Review

A wiser course than judicial legislation, I submit, is simply to adopt a literal, reasonable construction of the text that Congress drafted.(1)

One of the striking features of the criminal law is the accelerating "federalization" of prosecutions. The federal code has over 3,000 provisions that permit the United States to pursue criminal charges,(2) and these statutes in large measure duplicate crimes that the states can prosecute.(3) Chief Justice Rehnquist has warned that the burgeoning federal criminal caseload may soon overwhelm the federal judicial system.(4) Yet, the Supreme Court's overall docket is shrinking, even with the crush of criminal prosecutions purportedly overwhelming the lower federal courts. In the 1994 Term, the Court heard 40% fewer cases than it had a decade earlier.(5)

As the Supreme Court's docket decreases and the number of criminal prosecutions increases, it is natural that the Court should devote greater attention to the federal law of crimes. In the 1994 Term, the Court considered six cases involving the construction of federal criminal statutes, including two unrelated cases that involved the same provision.(6) The most widely noticed case of the Term was United States v. Lopez,(7) a criminal prosecution in which the defendant challenged the constitutionality of the Gun Free School Zones Act.(8) Despite being the most widely noted case this term, Lopez is likely to have the least impact of the six on federal criminal prosecutions. Lopez's conclusion that the statute at issue was not a valid exercise of Congress's power under the Commerce Clause drew widespread attention because it marked the first time the Court overturned a provision on Commerce Clause grounds in almost sixty years.(9) Despite the broad constitutional ramifications that the decision may have in other areas, the effect of Lopez on federal criminal law is likely to be minimal.(10) The Court noted that Congress failed to include a jurisdictional element that might have saved the statute,(11) a mistake Congress is unlikely to make again, at least for criminal statutes.(12)

More likely to have an impact on federal prosecutions are the Court's statutory interpretation pronouncements in the 1994 Term. Indeed, the Court's opinions construing criminal provisions have occasionally included an explicit message to Congress that it must rewrite a provision to achieve a particular result.(13) The 1994 Term showed the Court grappling with the demands of a growing body of law fueled by the increasing federalization of criminal law. The Court's consideration of a variety of federal criminal provisions reflects a continuing struggle to adopt a consistent approach to reviewing criminal provisions that both respects Congress's power to enact criminal laws and avoids judicial second-guessing as to what the legislature should have written.

In United States v. X-Citement Video, Inc.,(14) the Court stretched the limits of statutory interpretation to reach a decision that ignored both legislative history and the rules of grammar in applying the intent element of the child pornography statute to one of the attendant circumstances of the crime. The Court obfuscated the legislative history and resorted to linguistic subterfuge to rewrite the provision the way the Court believed it should have been written. Although the Court treated the child pornography statute as similar to any other criminal provision, it ignored the important free speech concerns that made the government's attempt to regulate an area that may involve protected speech subject to closer scrutiny.

By approaching the question as merely an exercise in statutory construction that was not controlled by the overriding constitutional concerns, X-Citement Video signals to lower courts that they may disregard or stretch the language of statutes to reach desired results. A consequence of treating the statutory language as something to be ignored may be greater imprecision by the legislature, since the courts will not respect the language anyway, and inconsistent results among different circuit courts and between states. Regardless of the Court's opposition to federalizing certain crimes traditionally handled exclusively at the state and local level, the nature of the legislative process should not determine whether a statute receives more--or less--respect from the courts.

While the statutory interpretation in X-Citement Video is open to question, the Court also responded to the increased federalization of criminal law by addressing some of its own interpretive shortcomings in overruling two long-standing but ill-considered precedents. In Hubbard v. United States,(15) the Court restricted the scope of the false statement statute by overturning a prior decision on the meaning of "department."(16) In United States v. Gaudin,(17) the Court reconfigured the scope of the Fifth and Sixth Amendments on what issues must be submitted to ajury by overruling a 1929 precedent that had long been considered the final word on the division of power between judge and jury to determine the materiality of a false statement.(18)

Reversing two precedents in the same term is striking.(19) More important, Gaudin may be a sign that the Court will adopt an expansive constitutional approach to determining what the prosection must prove to a jury in order to secure a conviction, rather than simply defer to the legislature's definition of the crime. The majority opinion held that "the Fifth and Sixth Amendments require conviction by a jury on all elements of the crime," an understanding of "the core meaning of the constitutional guarantees [that] is unambiguous."(20) But the scope of this "core meaning" is not entirely apparent. Is the legislature's power to define a crime constrained by the requirement that factual issues must be decided only by the jury and not the court? Moreover, does the Due Process Clause, in combination with the Jury Trial Right, guarantee a defendant the right to place every factual issue that relates to proof of the elements of the crime before the jury? If so, does this constitutional combination then mean that all facts related to proving the defendant's guilt beyond a reasonable doubt must be decided ultimately by the jury? If the constitutional rights go that far, then a question arises about the extent to which the trial judge must pass evidentiary issues to the jury in order that the proper factfinder render the verdict.

It is questionable whether the Court intended Gaudin to serve as the harbinger of a radical restructuring of the power of the trial judge. Yet, the opinion signals a potentially expansive role for the Court in deciding traditional criminal law issues under the aegis of determining the scope of a defendant's Fifth and Sixth Amendment rights. Under Gaudin's reasoning, a court may be required to delineate what elements a crime must incorporate to protect the defendant's Jury Trial Right. Such an approach would inject federal courts into the construction of both statutory and common law crimes in the guise of deciding the constitutional question of what a jury must decide.

While Lopez garnered the greatest attention, the 1994 Term may herald the Court's broader involvement in fashioning criminal law at both the state and federal levels. The point is not just the increasing federalization of criminal law, but possibly its further "constitutionalization" as well.


    The individual defendant in X-citement Video sold to an undercover police officer forty-nine video tapes that depicted an underage performer engaging in sexually explicit conduct. The government indicted the defendant for conspiracy and for violating the Protection of Children Against Sexual Exploitation Act of 1977.(21) The prosecution demonstrated at trial that the seller knew that the performer was a minor at the time the tapes were made.(22) Despite that evidence, the United States Court of Appeals for the Ninth Circuit reversed the conviction on the ground that the provision was facially unconstitutional because it did not require the government to prove the defendant's knowledge of the performer's age when shipping the visual depiction.(23)

    The relevant language of 18 U.S.C. [sections] 2252(a)(1), under which the government charged the defendant, is:

    (a) Any person who--

    (1) knowingly transports or ships in interstate or foreign

    commerce by any means including by computer or mails, any visual

    depiction, if--

    (A) the producing of such visual depiction involves the use of a

    minor engaging in sexually explicit conduct; and

    (B) such visual depiction is of such conduct.

    Similarly, [sections] 2252(a) (2) covers any person who "knowingly receives, or distributes" any visual depiction if it has been transported or shipped in interstate or foreign commerce. On its face, the statute appears to impose strict liability with regard to the age of the performer, what is known as an "attendant circumstance" of the crime,(24) if the defendant knew that the visual depiction was shipped or distributed. A broad criminal provision that appeared to ignore First Amendment concerns arising from governmental regulation of potentially protected speech led the Ninth Circuit to consider the facial validity of the provision's imposition of strict liability.

    The critical issue before the Supreme Court was whether the statute's mens rea element of "knowingly" applied to the depiction "of a minor engaging in sexually explicit conduct"(25) or just to the shipment or distribution of the items.(26) In a seven to two decision reversing the Ninth Circuit, with Justices Scalia and Thomas dissenting, the Court began its analysis by admitting that "[t]he most natural grammatical reading, adopted by the Ninth Circuit, suggests that the term 'knowingly' modifies only the surrounding verbs: transports, ships, receives, distributes, or reproduces."(27) One might assume that would be...

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