Melissa J. Mitchell, Cleaning Out the Closet: Using Sunset Provisions to Clean Up Cluttered Criminal Codes

• Citation: Vol. 54 No. 4
• Publication year: 2005

CLEANING OUT THE CLOSET: USING SUNSET PROVISIONS TO CLEAN UP CLUTTERED CRIMINAL CODES

INTRODUCTION

Imagine facing criminal charges for using bad language in front of a young child or being prosecuted for engaging in premarital sexual activity. Or, imagine a nonprofit advocacy organization being charged with a federal crime for engaging in peaceful protest. It is unlikely that those engaging in any of these acts are aware that their behavior constitutes a crime in some jurisdictions. Criminal prosecution for these acts, of course, is improbable. Under current federal and state criminal statutes, however, such prosecution is a possibility.¹

The penal law and criminal codes play an important and powerful role in our society. They are the instruments by which the legal system sets forth acceptable standards of conduct for society and grants the power to punish conduct straying from these standards.²While one aim of the penal law works to protect society against injury, there is ample room for abuse and injustice through the improper use of criminal codes.³

The potential for abuse often lies dormant within state or federal penal statutes. Many criminal codes are full of antiquated and unused provisions.⁴

Acts that were once deemed unacceptable and proscribed by statute may now be inoffensive and widely accepted by the community.⁵Some statutory provisions, because social norms shift within society, are no longer administratively enforced, and thus fall into disuse.⁶However, these dead letter laws remain on the statute books in a state of desuetude.⁷

Additionally, many codes, both state and federal, contain overlapping provisions that have the effect of criminalizing the same conduct; multiple statutes may punish the same crime.⁸Both the unused and overlapping provisions clutter the criminal codes of our country and plague these codes with problems. While criminal codes are problematic in many ways,⁹the issues of overlapping and obsolete provisions are the focus of this Comment.

Criminal code reform has been a focus of legal commentators' attention for quite some time. For decades, countless books and articles have been written about the problems associated with penal codes and the potential solutions to such problems.¹⁰Although much has been written on the subject, there has been no solution set forth to date that has accomplished the goal of clearing the codes of their cluttered state. Moreover, as demonstrated later, the problems associated with the codes are as prevalent today as ever.

Part I of this Comment will illustrate the existence of unused and overlapping code provisions. Part II will examine the political process behind code drafting and suggest why the phenomenon of cluttered codes exists. Part III will identify and illustrate the issues that arise with having old and overlapping provisions on the books. Part IV will examine and critique potential solutions to the defects. Finally, in Part V, this Comment will propose the incorporation of sunset provisions into criminal statutes to aid in the effective and efficient cleanup of the codes, with an aim towards creating a criminal code that is current and streamlined.

I. THE STATE OF CRIMINAL CODES: EXISTENCE OF ANTIQUATED AND

OVERLAPPING STATUTORY PROVISIONS

A. The History of Penal Codes: From Past to Present

A brief look at the development of criminal codes in the United States helps explain their current, chaotic state. Criminal code drafting has been undertaken in this country almost since its founding.¹¹In the late 1800s, David Dudley Field sought to codify the various and disparate criminal laws of the United States.¹²This in turn prompted several states to adopt the criminal code that these efforts produced.¹³After this initial surge of code adoption, however, virtually no state adopted codes until after World War II.¹⁴

The abandoned codification effort "revealed itself in a substantive criminal law that was often archaic, inconsistent, unfair and unprincipled, and was saved from disaster only by the sensible exercise of discretion of prosecutors and judges."¹⁵While academic commentators and commissions of inquiry recognized the need to fix this problem, state legislatures took no action.¹⁶

Following World War II, the American Law Institute embarked on a project to reexamine and reform the nation's substantive criminal law.¹⁷The final product of this effort was realized in 1962 with the submission of the Proposed Final Draft of the Model Penal Code (MPC).¹⁸The MPC was successful in encouraging States to reexamine their own codes.¹⁹

While thirty-four states revised their codes in the wake of the MPC, many states' reforms were modest.²⁰Further, approximately one-third of the states did not adopt a modern code during the recodification wave.²¹Many of the newer codes contain drafting flaws; furthermore, certain provisions in these revised codes that once may have been useful are now badly out of date.²²

Professor William J. Stuntz provides some insight into the current state of penal codes and their rapid rate of growth.²³From the year 1856 to 1951, Illinois' criminal code grew from 131 to 460 separate crimes.²⁴Influenced by the MPC reforms underway at the time, in 1961 Illinois substantially reduced the number of crimes on its books.²⁵By 1996, Illinois had reduced the number of separate offenses in its 1961 criminal code to 263.²⁶Since then, however, the number of crimes has steadily climbed its way back up, reaching 421 in

2000.²⁷Stuntz argues that the growth pattern and number of crimes in the

Illinois code are a fair representation of other state codes.²⁸For example, over the past 150 years Virginia's criminal code has grown from 170 to 495 offenses and the Massachusetts code has grown from 214 to 535 offenses.²⁹

The federal code has grown in much the same manner.³⁰One hundred eighty-three separate offenses were included in the title on federal crimes in

1873; today title 18 of the United States Code, which enumerates federal criminal offenses and criminal procedure, includes over 1000 distinct crimes.³¹

Even that lofty number represents fewer than half of the total number of federal offenses that are on the books.³²These numbers illustrate the sheer size of criminal codes today and perhaps shed some light on how our codes have become cluttered.

B. Antiquated and Obsolete Statutes

Criminal law scholars and legislators responsible for creating criminal statutes openly acknowledge that many laws in codebooks have virtually no application in today's law enforcement scheme. In 1998, an Alabama state representative was quoted as saying that his state has "far too many laws on the books, and a large number of them are antiquated to the point of lunacy."³³He also recognized the danger in these provisions, stating that such laws may be the basis for unfounded lawsuits.³⁴Further, allowing such laws to remain on the books undermines the legitimacy of the law.³⁵

1. "Morals" Laws

Laws proscribing sexual activity often remain on the books and yet are continually unenforced. These laws are often referred to as regulating crimes against morality and are frequently the focus of scholars criticizing desuetudenal statutes.³⁶Morality laws are typically those forbidding sexual acts such as sodomy,³⁷fornication,³⁸and adultery.³⁹As of 2003, sodomy was still on the books as a crime in fourteen jurisdictions.⁴⁰As of 2003, fornication remained a criminal act in eleven jurisdictions,⁴¹while twenty-four jurisdictions still criminalized adultery.⁴²In some of those jurisdictions, adultery is considered a felony.⁴³In other jurisdictions, adultery is merely a misdemeanor.⁴⁴In some jurisdictions, statutes addressing adultery provide only a civil remedy.⁴⁵In the remaining jurisdictions, no statute at all addresses adultery.⁴⁶"[I]t is commonly thought that adultery charges are never prosecuted. This is true to a great extent . . . ."⁴⁷

Further, the Supreme Court's recent decision in Lawrence v. Texas⁴⁸held a state sodomy law to be an unconstitutional infringement of the Due Process Clause of the Fourteenth Amendment. As state courts now interpret this holding, the validity of many laws regulating morals has been called into question. Therefore, such laws are not only unenforced, but also are now in fact unenforceable.⁴⁹Thus, these unobserved, unenforced, and in some cases, unenforceable laws lie dormant in many criminal codes.

2. Other Antiquated Laws

Laws regulating morals are not the only type of unenforced statutes that are clogging codes. Even those who are not in the business of scholarship or legislating find laughable many of the activities and behavior that American jurisdictions criminalize. Entire books have been written on the "loony" criminal laws that exist.⁵⁰

To illustrate, Massachusetts outlaws dueling between two opponents who want to use water pistols.⁵¹New Jersey subjects anyone who slurps soup in a public restaurant to a fine, arrest, and potential time in jail.⁵²In Alabama, a statute bans children from playing dominoes on the Sabbath.⁵³

These laws may seem arbitrary, silly, and old-fashioned. That is because they are. It may seem like citizens engage in this type of behavior all the time without running into any sort of trouble with the law. That is because they do. These laws may make us laugh and seem to be of little importance; however, they are still on the books prohibiting (or requiring) behavior, and disobeying them could theoretically result in criminal charges.

C. Overlapping Statutes

In addition to the obsolete laws that remain on the statute books, there are also many duplicate statutes and overlapping crimes.⁵⁴As William Stuntz explains, "[s]eparate criminal offenses are rarely completely separate; the more common pattern is a few general offenses with a host of more targeted crimes, and the targeted crimes themselves overlap."⁵⁵These overlapping crimes, like obsolete statutes, exist at both the state and federal level.⁵⁶

One example of these...