THE MODERN COMMON LAW OF CRIME.

• Author: Leider, Robert

INTRODUCTION 409 I. BEYOND STATUTES AND PROSECUTORIAL DISCRETION 414 A. Statutory Criminal Law 415 B. Substantive Criminal Law as the "Law" of Prosecutorial Discretion 418 1. Prosecutorial Supremacy and Criminal Law 419 2. Objections to Prosecutorial Supremacy Accounts 423 II. CRIMINAL LAW AS A CONVENTIONAL SYSTEM 428 A. What Are Conventions? Why Have Them? 429 B. Some Evidence that Criminal Law Conventions Exist 437 III. REACHING EQUILIBRIUM: HOW DO CRIMINAL LAW CONVENTIONS DEVELOP? 453 A. Legislatures 453 B. Elections 459 C. Jurors 464 D. Judges 467 E. Federalism 470 IV. DOCTRINAL IMPLICATIONS OF A DE FACTO CONVENTIONAL CRIMINAL SYSTEM 475 A. Problems Created by the Gap Between Doctrinal and De Facto Criminal law 476 1. Substantive Criminal Law 476 2. Plea Bargaining and Sentencing 478 3. Criminal Procedure 479 B. Closing These Gaps 481 1. Formal Legal Rules and Conventional Criminal Law 482 a. The Classical Approach 482 b. Direct Enforcement 484 c. Judicial Recognition and Indirect Enforcement 487 2. Harnessing Conventions to Correct for Overcriminalization's Problems 489 a. Prosecutorial Discretion over Guilty Defendants 489 b. Developing Conventions to Cabin Statutory Mandatory Minimum Sentences and to Reduce the Need for Congress to Pass Such Sentencing Laws 492 c. Misdemeanor Practice 494 d. Discouraging Arbitrary Enforcement 495 e. Criminal Procedure and Pretext 496 CONCLUSION 498 INTRODUCTION

Two visions of contemporary American criminal law have emerged. The first vision, often recited by judges, is that criminal law has become statutory. (1) Proponents of this opinion observe that federal courts do not have jurisdiction over common law criminal prosecutions, (2) and that a supermajority of states have abolished common law crimes. (3) Instead, legislatures now decide which conduct is permissible and which is prohibited. In theory, this is a good thing. Only by making criminal law statutory can the criminal law comport with basic principles of legality. (4) The people's representatives decide what should be criminalized, and individuals have notice that the government has prohibited certain conduct.

The second vision, more common in academic circles, contends that modern criminal law has devolved into the "law" of prosecutorial discretion. Adherents to this vision argue that contemporary legislatures badly draft and maintain criminal codes. Legislatures enact too many laws. (5) Congress, in particular, has created a federal criminal law that duplicates state criminal codes. (6) State and federal laws are often too broad, criminalizing actions that should be lawful. (7) Worse still, the statutes are often vague, making it difficult to tell what conduct is criminal. (8) If breadth and vagueness were not bad enough, legislatures hesitate to repeal or amend crimes that have become desuetudinal or are rarely enforced. (9) Combined, proponents argue that these problems leave us with a criminal justice system that suffers from vast over-criminalization. In modern America, everyone commits "three felonies a day." (10)

According to the adherents of this view, these legislative defects provide prosecutors with plenary power over the administration of criminal justice. (11) Because modern criminal law is so broad, prosecutors are delegated the power to decide who to charge and with which crimes. (12) Even where a person has clearly violated the law, prosecutors have absolute discretion to select which crimes to charge, and that selection has an enormous impact on the defendant's ultimate sentence. (13) Conversely, defendants have little power. Most constitutional rights designed to protect defendants against the government are trial rights, and few people today go to trial. (14) Prosecutors have too many crimes to prosecute, while most defendants are guilty of some wrongdoing. (15) So, prosecutors offer defendants lower sentences in exchange for guilty pleas. Defendants who refuse and go to trial face a massive trial penalty if they are convicted. (16) Faced with offers they cannot refuse, (17) defendants almost always plead guilty. (18) Trials are for the reckless, the mentally ill, and the innocent--and sometimes even the innocent plead guilty because the risks are so high or because they wish to escape pretrial detention. (19) Courts have held that the exercise of prosecutorial discretion is a core executive power, almost entirely unreviewable by judges. (20) In essence, criminal law today is contract law between prosecutors and defendants, who have vastly unequal bargaining power. (21) One author laments that "our current system of judicial passivity, legislative delegation, and prosecutorial supremacy" is worse than the common law system it replaced. (22)

American criminal law scholars do not universally subscribe to either of these visions. Some have pushed back on the claims that criminal law is purely statutory. (23) These scholars argue that the common law remains an important part of our substantive criminal law and that vague statutes function as delegations to judges to define the scope of criminal law. (24) Some scholars have also pushed back on claims that prosecutors possess unfettered discretion, arguing that various institutional constraints curb prosecutors' de facto power. (25) But these recent articles have not provided a comprehensive account of how checks and balances turn statutory criminal law into a de facto common law system.

This Article articulates that vision of substantive criminal law. I argue that the structure of criminal law comprises not just statutory and formal common law, but also "conventions." Conventions are unwritten norms and customs that are not "law" in the strict sense but nevertheless act as obligatory rules. (26) Unlike formal common law, which is enforceable in courts, conventions are binding only through indirect means, such as political pressure. But even though conventions may not bind legal actors in a court of law, conventions cannot be reduced to exercises of mere prosecutorial discretion.

How did we end up with a conventional criminal law? This Article argues that our current system is a product of checks and balances. Darryl Brown and Daniel Richman have explained how some democratic separation of powers checks work to constrain prosecutors' discretion. (27) Even if statutory criminal law is overbroad, legislatures curtail the scope of criminal law through legislative reform, budgetary decisions, and oversight. (28) Courts occasionally curtail the scope of broadly drafted statutes by employing the rule of lenity or void for vagueness doctrines. And executive officials are accountable to the electorate and incentivized not to enforce criminal statutes when such enforcement would be unpopular with voters. (29) The checks they identify constrain prosecutors' discretion to prosecute conduct that society views as blameless, and they form part of my account, too. In addition, 1 argue that legislatures and judges have various soft-power tools to constrain prosecutors and that juries--or at least the threat of jury trials--heavily cabin which charges prosecutors bring. Prosecutors who violate these norms by prosecuting blameless conduct will struggle to secure a conviction, regardless of the defendant's technical legal guilt. Further, checks and balances constrain prosecutorial discretion by reducing prosecutors' ability to show excessive leniency. For example, prosecutors are accountable to voters, and federal overcriminalization allows federal prosecutors to compete with local prosecutors. These checks, along with others, reinforce the pressure to maintain the proper scope of criminal law against prosecutors inclined to decriminalize too much.

Finally, this Article explains how legislatures and courts should accommodate the existence of criminal law conventions. The existence of conventions poses a difficult challenge for legal actors because, although conventions are mandatory in some political sense, they are not formal law recognized by the legal system. Yet, this does not mean that courts, legislatures, and executive branch officials should ignore their existence. The forces that produce criminal law conventions provide a necessary check on prosecutorial discretion; their existence prevents criminal law from devolving into the prosecutor's private preferences about what should be unlawful. Given this, all three branches of government have a responsibility to facilitate the political, public, and private sanctions that are essential to maintaining a conventional system. In fact, the need for formal legal actors to support conventions is especially acute in criminal law, where occasional deviations from public conventions are often not publicized widely and prejudice unsympathetic or marginalized defendants.

This Article has four parts. In Part I, I argue against the two contemporary visions of criminal law. The first is that criminal law is statutory, while the second contends that, due to rampant overcriminalization, it has devolved into prosecutorial discretion. I argue that neither account is an accurate description of our current criminal law system. The statutory model has well-known shortcomings: Legislatures pass broad, vague, and overlapping laws, effectively delegating much of the criminal law to prosecutors. In addition, much criminal law remains common law, including the definitions of inchoate crimes, causation, and defenses. Even when legislatures purport to define these aspects of the law, they leave significant details to judges. But the prosecutorial discretion model does not offer a much better explanation. We have strong reason to believe that prosecutors are constrained actors. When we look at what prosecutors actually do, they primarily prosecute core crimes, such as murder, rape, robbery, theft, drug crimes, weapon violations, and driving under the influence of alcohol. Substantial portions of criminal law have fallen...