Overcoming overcriminalization

Journal of Criminal Law and Criminology

Volumn 102, Issue 3, 2012, Pages 537-592

  Smith, Stephen F ^a  

^a UNIVERSITY OF NOTRE DAME   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84872030126     PISSN: 00914169     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (250)

1. As one leading scholar has explained, overcriminalization "has long been the starting point for virtually all the scholarship in this field, which (with the important exception of sexual assault) consistently argues that existing criminal liability rules are too broad and ought to be narrowed."
2. William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 507 (2001).
3. DOUGLAS HUSAK, OVERCRIMINALIZATION: THE LIMITS OF THE CRIMINAL LAW 3 (2007) (emphasis added).
4. AM. BAR ASS'N, THE FEDERALIZATION OF CRIMINAL LAW 7 (1998).
5. John S. Baker, Jr., Corporations: Measuring the Explosive Growth of Federal Crime Legislation, ENGAGE: J. FEDERALIST SOC'Y'S PRAC. GROUPS, Oct. 2004, at 23, 27, available at http://www.fed-soc.org/doclib/20080313_CorpsBaker.pdf. (finding more than a one-third increase in the number of federal crimes since the early 1980s).
6. JOHN S. BAKER, JR., HERITAGE FOUND., LEGAL MEMORANDUM NO. 26: REVISITING THE EXPLOSIVE GROWTH OF FEDERAL CRIMES 5 (2008).
7. United States v. Dotterweich, 320 U.S. 277, 284 (1943). As Dotterweich explained, regulatory offenses employ criminal penalties as a form of regulation to promote the effectiveness of health, safety, and welfare rules otherwise enforced through noncriminal means. See id. at 280-81. Regulatory offenses differ from the types of crimes punishable at common law, which were deemed mala in se, or wrong in themselves. See Morissette v. United States, 342 U.S. 246, 251-57 (1952) (distinguishing common law and regulatory offenses).
8. Another frequently voiced complaint about the scope of modern criminal codes is that they contain a host of outmoded "morals" offenses, commonly understood as offenses that punish even "victimless" crimes principally as a means of expressing moral disapproval.
9. HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 296-331 (1968).
10. Even when the moralistic impulses that originally gave rise to such laws have abated, and such laws have fallen into desuetude, the laws remain enforceable at the whim of law enforcement agents and prosecutors. A case in point is the White Slave Traffic Act, also known as the Mann Act, which as originally passed prohibited the transportation of females "for the purpose of prostitution or debauchery, or for any other immoral purpose." Ch. 395, § 2, 36 Stat. 825 (1910) (codified as amended at 18 U.S.C. § 2421 (2006)).
11. Although largely unenforced today, the prospect of federal prosecution for a dalliance with a prostitute was serious enough to force former New York state governor Eliot Spitzer to resign from office.
12. Danny Hakim & William K. Rashbaum, No U.S. Prostitution Charges Against Spitzer, N.Y. TIMES, Nov. 7, 2008, at A1.
13. See generally Stuntz, supra note 1. A closely related phenomenon, not strictly speaking falling under the heading of overcriminalization, is overpunishment-the constant push to increase penalties by, for example, imposing mandatory minimum sentences and raising maximum punishments.
14. Stephen F. Smith, Proportionality and Federalization, 91 VA. L. REV. 879, 887-888 (2005).
15. According to the leading account of the political economy of criminal law, lawmakers' political and institutional incentives "always push[] toward broader liability rules, and toward harsher sentences as well." Stuntz, supra note 1, at 510. The Constitution, as presently interpreted, not only fails to counteract this dynamic, it actually promotes it, albeit unintentionally, by regulating criminal procedure and taking a laissez faire approach to the funding of indigent criminal defense and to substantive criminal law (i.e., what can and cannot be punished criminally, and how crimes must be defined). This is perverse, Professor Stuntz explains, because it "encourage[s] bad substantive law and underfunding."
16. William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 YALE L.J. 1, 6 (1997).
17. Viewed as a quantitative matter, in short, overcriminalization is a problem without a constitutional "fix."
18. See, e.g., Smith, supra note 8.
19. Samuel W. Buell, The Upside of Overbreadth, 83 N.Y.U. L. REV. 1491 (2008).
20. As the statement in the text suggests, my focus is on statutory interpretation. Thus, I do not address the other means through which the federal courts have greased the skids of overcriminalization: their expansive interpretation of Congress's power to punish crimes under the Commerce Clause, which has served as the primary basis for the federalization of crime. See, e.g., Gonzales v. Raich, 545 U.S. 1 (2005) (ruling that Congress can regulate home-grown marijuana raised for personal medicinal use); United States v. Scarborough, 431 U.S. 563 (1977) (holding that Congress can regulate the possession of any item that, at any time, has crossed a state line, even years after the item has come to rest in a particular state); United States v. Perez, 402 U.S. 146 (1971) (allowing Congress to regulate intrastate activities that, in the aggregate, have commercial effects).
21. See generally Stuntz, supra note 1, at 529-46 (comparing the institutional incentives of actors in state and federal criminal law).
22. See generally id. at 533-34, 540 (discussing the motivations and incentives of directly elected prosecutors and judges). For an argument that reelection concerns push elected prosecutors and judges to enforce the death penalty with unwarranted vigor.
23. Stephen F. Smith, The Supreme Court and the Politics of Death, 94 VA. L. REV. 283, 307-333 (2008).
24. Stuntz, supra note 1, at 543.
25. These horror stories include small businessmen imprisoned for almost ten years for importing lobsters in safe containers that comported with American packaging standards but allegedly not those of a foreign nation, and an accident victim being convicted for having inadvertently wandered into a federal wilderness area on a snowmobile during a blinding blizzard.
26. Gary Fields & John R. Emshwiller, As Criminal Laws Proliferate, More Ensnared, WALL ST. J., July 23, 2011, at A1. For a collection of similar cases, see, for example, Case Studies, OVERCRIMINALIZED.COM, http://www.overcriminalized.com/CaseStudy.aspx (last visited Nov. 26, 2012).
27. Adam M. Gershowitz & Laura R. Killinger, The State (Never) Rests: How Excessive Prosecutorial Caseloads Harm Criminal Defendants, 105 NW. U. L. REV. 261, 266-279 (2011).
28. See U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, PRISONERS IN 2010, at 34 (Dec. 2011, rev. Feb. 9, 2012), available at http://www.bjs.gov/content/pub/pdf/p10.pdf (demonstrating widespread prison overcrowding nationally). Prison overcrowding may turn out to be an even bigger issue for states after Brown v. Plata, 131 S. Ct. 1910 (2011), which upheld the authority of federal courts to order states to release prisoners held in unconstitutional conditions resulting from prison overcrowding. As a result of Plata, California has been ordered to release more than 30,000 prisoners over the next two years, and more than a dozen other states may face similar prisoner-release orders. See Michael Doyle, Ruling on Prison Overcrowding a Warning to States?, MCCLATCHY (May 24, 2011), http://www.mcclatchydc.com/2011/05/24/114702/ruling-on-prison-overcrowding.html.
29. A pertinent recent example comes from Indiana. Republican Governor Mitch Daniels bucked opposition from Indiana prosecutors and spearheaded an effort (so far unsuccessful) to reduce the grades of certain nonviolent crimes and to create more effective alternatives to imprisonment for low-grade offenders. He did so to fend off a projected double-digit percent increase in the state's already overcrowded prison system, which would require an additional $1.2 billion in state spending.
30. Carrie Ritchie, Nonviolent Crime Might Get Less Time, INDIANAPOLIS STAR, Dec. 16, 2010, at B1. 20543 U.S. 220 (2005).
31. As I have explained elsewhere: "Even where there is no applicable statutory mandatory minimum, the 'advisory' guidelines powerfully constrain discretion. That is because the 'advisory' guidelines system created by Booker exerts significant pressure on district judges not to impose sentences below the range recommended by the guidelines."
32. Stephen F. Smith, Proportional Mens Rea, 46 AM. CRIM. L. REV. 127, 144 (2009) (citing data showing widespread post-Booker sentencing within the guidelines range).
33. Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117 YALE L.J. 1420 (2008) (explaining that even advisory federal guidelines serve to anchor federal sentences in the guidelines).
34. See, e.g., William H. Rehnquist, Congress Is Crippling Federal Courts, ST. LOUIS POST-DISPATCH, Feb. 16, 1992, at 3B (arguing that the federal judiciary "cannot possibly become federal counterparts of courts of general jurisdiction, which are required to take virtually all kinds of cases, without seriously undermining their usefulness in performing their traditional role and jeopardizing those qualities that have made them special").
35. Professor Stuntz, for example, attributes the remarkable breadth and depth of federal and state criminal law to "tacit cooperation between prosecutors and legislators, each of whom benefits from more and broader crimes, and growing marginalization of judges," who "cannot separate these natural allies." Stuntz, supra note 1, at 510.
36. Sara Sun Beale, Too Many and Yet Too Few: New Principles to Define the Proper Limits for Federal Criminal Jurisdiction, 46 HASTINGS L.J. 979, 983 (1995)
37. (arguing that the "explosion of new federal criminal statutes has serious costs" and "threatens to impair the quality of the justice meted out in criminal cases and significantly impairs federal judges' ability to perform their core constitutional functions in civil cases").
38. Kathleen F. Brickey, Criminal Mischief: The Federalization of American Criminal Law, 46 HASTINGS L.J. 1135, 1166 (1995) ("If the federal justice system is to function effectively and continue to dispense justice, the legislative and executive branches of government must exercise restraint.").
39. This phenomenon also gives rise to a critique that the courts are engaging in crime creation under the guise of statutory interpretation, in violation of the maxim that the legislature is the only appropriate body to create crimes. See infra notes 108-14 and accompanying text.
40. State courts, too, routinely broaden the reach of ambiguous criminal statutes, and so the same basic story could be told of the state courts.
41. Zachary Price, The Rule of Lenity as a Rule of Structure, 72 FORDHAM L. REV. 885, 901 (2004) (noting that even in states where the rule of lenity, or the doctrine of strict construction of criminal statutes, is formally the rule, "rigorous applications of lenity are extremely rare").
42. Fraud is a perfect illustration: [T]he federal criminal code contains... exactly three hundred and twenty-five provisions that prescribe criminal penalties for fraud [or fraudulent behavior].... These frauds range in statutory maximum penalties from a fine of $ 300 or $ 1000 or six months' imprisonment to 10 years or 20 years or life. These latter provisions are not aberrational: the federal code contains fifty fraud statutes that provide for a maximum penalty of ten years or more. It also contains at least triple that number that are misdemeanors, with the rest obviously falling in between one and ten years.
43. Jeffrey Standen, An Economic Perspective on Federal Criminal Law Reform, 2 BUFF. CRIM. L. REV. 249, 289-290 (1998) (footnotes omitted).
44. For a more extensive treatment of these cases, see Smith, supra note 8, at 896-908.
45. 242 U.S. 470 (1917).
46. Ch. 395, § 2, 36 Stat. 825, 825 (1910) (codified as amended at 18 U.S.C. § 2421 (2006)).
47. The House Report was emphatic on the limited scope of the law: The legislation is needed to put a stop to a villainous interstate and international traffic in women and girls. The legislation is not needed or intended as an aid to the States in the exercise of their police powers in the suppression or regulation of immorality in general. It does not attempt to regulate the practice of voluntary prostitution, but aims solely to prevent panderers and procurers from compelling thousands of women and girls against their will and desire to enter into and continue in a life of prostitution. H.R. REP. NO. 61-47, at 9-10 (1910).
48. Caminetti, 242 U.S. at 485-86. The Caminetti dissenters, by contrast, advocated a considerably narrower interpretation, arguing that "everybody knows that there is a difference between the occasional immoralities of men and women and that systematized and mercenary immorality epitomized in the statute's graphic phrase 'white-slave traffic.' And it was such immorality that was in the legislative mind, and not the other." See id. at 502 (McKenna, J., dissenting).
49. DAVID J. LANGUM, CROSSING OVER THE LINE: LEGISLATING MORALITY AND THE MANN ACT 139-160 (1994).
50. In the immediate aftermath of Caminetti (1917-1928), "prostitution cases were not the true focus of the federal efforts;" rather, "the targets were generally... adulterers and lovers." Id. at 159-60. In 1924, for example, an incredible 70% of those convicted under the Mann Act were "interstate adulterers or boyfriends and girlfriends." Id. at 155. It was not until a shift in Justice Department policy in 1962 that the law went "virtually unenforced in noncommercial settings, except for rape." Id. at 242.
51. The Mann Act was amended in 1986, just shy of its eightieth anniversary, to make the statute gender-neutral and to replace the outmoded concept of "debauchery" and the catchall phrase with more modern language. See Child Sexual Abuse and Pornography Act of 1986, Pub. L. No. 99-628, § 5(b)(1), 100 Stat. 3510, 3511 (codified as amended at 18 U.S.C. § 2421 (2006)) (prohibiting interstate transportation "with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense"). In the "significant minority" of states in which adultery and other forms of consensual sex outside of marriage remain crimes, federal prosecutors thus retained authority to prosecute interstate transportation for those purposes.
52. Anne M. Coughlin, Sex and Guilt, 84 VA. L. REV. 1, 21 (1998).
53. Smith, supra note 8, at 900-01.
54. See generally LANGUM, supra note 31, at 125-27.
55. This interpretive principle posits that where general words follow the enumeration of specific words in a statute, the general words are to be read as limited to the same type of objects as the specific words.
56. A NORMAN J. SINGER & J.D. SHAMBIE SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 47:17 (7th ed. 2007).
57. Act of June 8, 1872, ch. 335, § 301, 17 Stat. 283, 323 (current version at 18 U.S.C. § 1341 (2006)).
58. 161 U.S. 306 (1896).
59. Id. at 312.
60. Id. at 313-14.
61. Id.
62. See infra text accompanying notes 49-56.
63. 484 U.S. 19 (1987).
64. Id. at 22-24.
65. Id. at 24.
66. Id. at 28. It was not until a decade later, in United States v. O'Hagan, 521 U.S. 642 (1997), that such trading was held to constitute securities fraud. Even if O'Hagan had come out the other way, misappropriation would still have been subject to prosecution as mail and wire fraud under Carpenter.
67. John C. Coffee, Jr., From Tort to Crime: Some Reflections on the Criminalization of Fiduciary Breaches and the Problematic Line Between Law and Ethics, 19 AM. CRIM. L. REV. 117 (1981).
68. See Neder v. United States, 527 U.S. 1, 4 (1999) (holding that materiality is an implied element in prosecutions for mail fraud); McNally v. United States, 483 U.S. 350, 360 (1987) (holding that the object of a scheme to defraud must be acquisition of money or property, as opposed to "intangible rights" such as the right to "good government" or "honest services"). McNally and the "intangible rights" doctrine are addressed in more detail below. See infra text accompanying notes 49-56. Similarly, in Cleveland v. United States, 531 U.S. 12, 15 (2000), the Court held that government-issued licenses obtained through deceptive means do not count as "property" and thus cannot support mail and wire fraud charges.
69. Jed S. Rakoff, The Federal Mail Fraud Statute (Part I), 18 DUQ. L. REV. 771, 771 (1980).
70. See, e.g., 18 U.S.C. § 201(b) (2006) (bribery); § 666 (federal program bribery).
71. McNally, 483 U.S. at 360.
72. The federal program bribery statute, 18 U.S.C. § 666, covers bribery by state and local officials if their agency "receives, in any one year period, benefits in excess of $ 10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance." § 666(b). Section 201, the bribery statute applicable to federal officials, also applies to state and local officials to the extent they are acting as agents of the federal government. See Dixson v. United States, 465 U.S. 482, 498-501 (1984). With the enactment of the Travel Act, 18 U.S.C. § 1952 (2006), and RICO, 18 U.S.C. §§ 1961-1968 (2006), the coverage of state and local bribery was expanded as part of the war on organized crime. These crimes, however, are restricted in ways that make them ill-suited to serve as a basis for rooting out corruption within state and local government.
73. The Travel Act requires proof of a particular federal jurisdictional nexus (such as interstate movement, interstate telephone calls, or use of the mails) and thus does not apply to purely localized bribery involving state and local officials. See § 1952(a). As for RICO, state law bribery is included in the laundry list of predicate crimes that can support a racketeering prosecution. See § 1961(1)(A). Given, however, that a "pattern of racketeering" is a necessary element of a RICO charge, RICO cannot be used against a single act of bribery or even multiple episodes of bribery that are sporadic in nature. See § 1961(5) (providing that a pattern of racketeering "requires at least two acts of racketeering... within ten years"). In short, from a federal enforcement perspective, the problem with these tools for prosecuting state and local bribery is that they are too narrow to reach many bribery schemes.
74. See, e.g., United States v. Isaacs, 493 F.2d 1124 (7th Cir. 1974); Shushan v. United States, 117 F.2d 110 (5th Cir. 1941). The "intangible rights" doctrine, though fashioned primarily as a basis for prosecuting governmental corruption, was also used as a basis for prosecuting undisclosed kickbacks and bribes involving commercial actors. See, e.g., United States v. George, 477 F.2d 508, 512 (7th Cir. 1973).
75. See McNally, 483 U.S. at 362-64 (Stevens, J., dissenting) (surveying pre-McNally intangible-rights case law from the lower courts).
76. NORMAN ABRAMS & SARA SUN BEALE, FEDERAL CRIMINAL LAW AND ITS ENFORCEMENT 132 (2000).
77. 483 U.S. 350 (1987) (holding that the necessary object of a fraudulent scheme is the acquisition of money or property, not "intangible rights," from the victim through deceptive means).
78. See 18 U.S.C. § 1346 (2006) (providing that deprivations of "the intangible right of honest services" can constitute mail and wire fraud). Ultimately, of course, the Supreme Court declared § 1346 void for vagueness as applied to conduct other than bribery and kickbacks. See Skilling v. United States, 130 S. Ct. 2896, 2933 (2010).
79. 18 U.S.C. § 1951 (2006). The Hobbs Act makes it a crime, punishable by up to twenty years in prison, for anyone to "affect[] commerce" in any way by means of "robbery or extortion." § 1951(a). This penalty was considerably higher than the five-year maximum traditionally authorized for mail and wire fraud.
80. "Extortion" is defined as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." § 1951(b)(2). The first appellate case to endorse the notion that official-right extortion could encompass bribery was United States v. Kenny, 462 F.2d 1205, 1229 (3d Cir. 1972).
81. 504 U.S. 255 (1992).
82. See id. at 260 (concluding that "[e]xtortion by the public official was the rough equivalent of what we would now describe as 'taking a bribe'"); id. at 266-68 (ruling that acceptance of an unsolicited bribe constitutes extortion under color of official right).
83. Compare id. at 269-71, with id. at 280-84 (Thomas, J., dissenting). Noting that there were "substantial arguments" on both sides of that debate, Justice O'Connor sensibly declined to take a position on the relationship between extortion and bribery at common law. Id. at 272 (O'Connor, J., concurring in part and concurring in judgment). To be sure, Congress is presumed to intend the common law meaning when it uses a common law term. That presumption, however, only makes sense if the term had an established meaning in the common law.
84. 8 U.S.C. § 1951(b)(2) (emphasis added).
85. The inducement requirement does, however, make sense in the broader context of robbery and the other offenses created by the Hobbs Act. These offenses, without exception, require active use by the defendant of wrongful, coercive means to obtain the victim's money or property. Robbery requires the defendant to use "actual or threatened force, or violence, or fear of injury," § 1951(b)(1), just as extortion requires the use of "force, violence, or fear," § 1951(b)(2). The point is even clearer with the other crime created by the Hobbs Act, for the defendant must "commit[] or threaten[] physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section." § 1951(a). Seen in light of these other Hobbs Act offenses, it only made sense to treat extortion under color of official right as involving a different kind of wrongful coercion-namely, the power of public office-to compel people to surrender their money or property.
86. Evans, 504 U.S. at 266.
87. For example, physical attack that can be prosecuted as assault and battery can also constitute homicide if death results. Although these crimes overlap, they protect victim interests of differing weight, and the penal consequences of prosecuting a fatal beating as murder instead of assault, though dramatic, are justified by the fact that death resulted and by the defendant's seriously culpable state of mind in inflicting the beating.
88. See infra text accompanying notes 69-100.
89. In those circumstances, prosecutors will naturally charge the offense carrying the highest penalty regardless of whether that sanction is commensurate, morally speaking, with the defendant's culpability. Indeed, they are required to do so by Department of Justice policy: "It is the policy of the Department of Justice that, in all federal criminal cases, federal prosecutors must charge and pursue the most serious, readily provable offense or offenses that are supported by the facts of the case.... The most serious offense or offenses are those that generate the most substantial sentence under the Sentencing Guidelines, unless a mandatory minimum sentence or count requiring a consecutive sentence would generate a longer sentence."
90. Memorandum from Attorney Gen. John Ashcroft to All Federal Prosecutors, Department Policy Concerning Charging Criminal Offenses, Disposition of Charges, and Sentencing 2 (Sept. 22, 2003), available at http://www.justice.gov/opa/pr/2003/September/03_ag_516.htm. This so-called "Ashcroft Memorandum" allows exceptions in certain enumerated "limited circumstances" (such as the defendant having assisted prosecutors in the apprehension of other suspects), but only with prior approval of designated Justice Department superiors. Id.
91. The Supreme Court has "long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants." United States v. Batchelder, 442 U.S. 114, 123-24 (1979).
92. Batchelder held that, even when there are multiple federal laws aimed at precisely the same criminal act, prosecutors can elect to use the harsher of the two laws. Id.; see also, e.g., United States v. Computer Scis. Corp., 689 F.2d 1181 (4th Cir. 1982) (holding that prosecutors can proceed under the mail and wire fraud statutes for conduct that falls within the False Claims Act, 18 U.S.C. § 287 (2006)).
93. See supra text accompanying notes 42-45.
94. Compare Carpenter v. United States, 484 U.S. 19, 24 (1987), with id. at 28.
95. The current monetary limit for most purposes is $1,000 in any given year. See 15 U.S.C. § 1644(a), (d), (f) (2006).
96. In United States v. Maze, 414 U.S. 395 (1974), the Court recognized that, even after enactment of the credit-card fraud statute, the fraudulent use of credit cards could be prosecuted as mail fraud. In fact, Chief Justice Warren Burger's dissent specifically endorsed the use of the mail fraud statute to skirt restrictions contained in more specific fraud statutes. Id. at 406 (Burger, C.J., dissenting) ("The mail fraud statute continues to remain an important tool in prosecuting frauds in those areas where legislation has been passed more directly addressing the fraudulent conduct.").
97. 18 U.S.C. § 1961-1968 (2006).
98. Subsections 1962(a), (b), and (d) prohibit racketeers from using (or conspiring to use) the methods of organized crime, or money generated through such methods, to gain a toehold in an "enterprise," and subsection (c) is the completed offense in which the "enterprise" has already not only been infiltrated but also corrupted by being used to commit a pattern of racketeering activity. § 1962(a)-(d). The "infiltration" understanding of RICO is made explicit in the statute's preamble, which declares that RICO was intended to stop the "money and power" of "organized crime" from being "used to infiltrate and corrupt legitimate business and labor unions." Organized Crime Control Act of 1970, Pub. L. No. 91-452, pmbl., 84 Stat. 922, 923. The legislative history supports this view: "[N]owhere in the legislative history is there even a glimmer of an indication that RICO or any of its predecessors was intended to impose additional criminal sanctions on racketeering acts that did not involve infiltration into legitimate business."
99. Gerard E. Lynch, RICO: The Crime of Being a Criminal, Parts I & II, 87 COLUM. L. REV. 661, 680 (1987).
100. 452 U.S. 576 (1981).
101. Id. at 589.
102. See, e.g., MODEL PENAL CODE § 5.03 (1962).
103. See 18 U.S.C. § 371 (2006).
104. See § 1963(a). The twenty-year maximum becomes life imprisonment in the event any racketeering activity committed is punishable by life imprisonment. Id.
105. Indeed, the danger of disproportionate punishment was present in Turkette itself. As Professor (now Judge) Gerard Lynch explains: Granted that Turkette himself had made crime into a full-time livelihood, his 'organization' seems to have consisted of a couple of people with whom he committed robberies from time to time, and a few others he recruited to help when he was asked to arrange a few fires. It is not immediately clear why Turkette and his cronies should be subject to any greater punishment... [than] any other criminals guilty of multiple crimes. Lynch, supra note 74, at 705 (footnote omitted).
106. In dictum the lower courts would later find to be significant in the effort to limit RICO liability to acceptable bounds, Turkette declared that the enterprise "is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates [comprising the enterprise] function as a continuing unit." Turkette, 452 U.S. at 583. In several cases, the Court added that the "pattern of racketeering" essential to a valid RICO charge cannot be shown simply by proving two or more racketeering crimes were committed within ten years. A valid "pattern" also requires proof of "continuity" (that the scheme lasted or would have lasted for an extended period of time) and that the racketeering activities bore some "relationship" to each other (such as manner of commission, intended victims, or purpose).
107. See H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989) (reading "continuity" and "relationship" requirements into the definition of "pattern"); Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n.14 (1985) (suggesting that two acts of racketeering may not be enough to constitute a "pattern").
108. 556 U.S. 938, 947-48 (2009).
109. Id. at 944; see also id. at 950 (emphasizing the "clear but expansive text of the statute").
110. Id. at 945-49. Tellingly, although the majority found it "easy to envision situations in which proof that individuals engaged in a pattern of racketeering activity would not establish the existence of an enterprise," id. at 947 n.4, it offered only one.
111. That lone example is where "several individuals, independently and without coordination, engage[] in a pattern of crimes listed as RICO predicates." Id. This is significant because it is only without the coordination and shared purpose that conspirators necessarily have that the majority could claim that individuals committing racketeering crimes do not constitute a RICO "enterprise." With the common purpose and coordination that inheres in the very notion of a conspiracy, the conspirators are easily (if not invariably) classified as an associated-in-fact "enterprise" under Boyle.
112. Id. at 957 (Stevens, J., dissenting).
113. See supra notes 57-64 and accompanying text.
114. 504 U.S. 255 (1992).
115. Less dramatic, but nonetheless troubling, is the effect Evans had on the penalty for bribery involving federal officials. If the federal bribery statute was the sole basis for prosecuting bribery at the federal level, the maximum punishment available would be fifteen years. See 18 U.S.C. § 201(b) (2006). Under Evans, however, bribery involving federal officials can be charged as extortion under color of official right under the Hobbs Act, which carries a maximum of twenty years imprisonment.
116. E.g., United States v. Stephenson, 895 F.2d 867 (2d Cir. 1990). Allowing federal officials to be prosecuted for extortion under color of official right under the Hobbs Act produces yet another strange result: the penalty for such extortion by federal officials, which otherwise would be three years, increases almost seven-fold to twenty years. See 18 U.S.C. § 872 ("Whoever, being an officer, or employee of the United States or any department or agency thereof,... under color or pretense of office or employment commits or attempts an act of extortion, shall be fined under this title or imprisoned not more than three years, or both....").
117. The Supreme Court has explained the distinction between the two crimes in the following terms: Bribery requires intent "to influence" an official act or "to be influenced" in an official act, while illegal gratuity requires only that the gratuity be given or accepted "for or because of" an official act.
118. In other words, for bribery there must be a quid pro quo-a specific intent to give or receive something of value in exchange for an official act. An illegal gratuity, on the other hand, may constitute merely a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken. United States v. Sun-Diamond Growers, 526 U.S. 398, 404-05 (1999) (quoting 18 U.S.C. § 201(b) (bribery); § 201(c) (gratuities)).
119. Compare 18 U.S.C. § 201(b) (bribery), with § 201(c) (gratuities).
120. Sun-Diamond Growers, 526 U.S. at 404-05.
121. Evans, 504 U.S. at 268.
122. United States v. Schaffer, 183 F.3d 833, 840 (D.C. Cir. 1999), vacated as moot, 240 F.3d 35 (D.C. Cir. 2001).
123. Sun-Diamond Growers, 526 U.S. at 404.
124. Sarah N. Welling., et al., FEDERAL CRIMINAL LAW AND RELATED ACTIONS: CRIMES, FORFEITURE, THE FALSE CLAIMS ACT AND RICO § 7.4, at 216 (1998).
125. After surveying the case law on this point, the Seventh Circuit concluded: We therefore join the circuits that require a quid pro quo showing in all [Hobbs Act] cases [involving payments to public officials]. That said, we also agree... that the government need not show an explicit agreement, but only that the payment was made in return for official acts-that the public official understood that as a result of the payment he was expected to exercise particular kinds of influence on behalf of the payor.
126. United States v. Giles, 246 F.3d 966, 972 (7th Cir. 2001). Of course, as an evidentiary matter, intent to be influenced might be inferred from proof that an official accepted a payment with knowledge that it was offered for or because of a future official act, but, absent such an inference, such proof alone would be insufficient to convict for bribery. Under Evans, however, such proof is itself a sufficient basis for conviction, and lack of intent on the part of the official to be influenced is no defense.
127. See Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, § 903, 116 Stat. 745, 805 (amending 18 U.S.C. §§ 1341, 1343 to increase the five-year maximum for mail and wire fraud). The legislation also made securities fraud a twenty-year offense. § 1106 (amending 15 U.S.C. § 78ff(a)).
128. See 18 U.S.C. § 287 (false claims); § 371 (conspiracy).
129. See 15 U.S.C. § 1644 (credit-card fraud); 18 U.S.C. § 1347 (health-care fraud).
130. The discussion so far has centered on some of the more frequently used fraud statutes, but this is just the tip of the iceberg because there are literally hundreds of anti-fraud provisions in federal criminal law. See Standen, supra note 25, at 289-90.
131. For instance, in Preiser v. Rodriguez, 411 U.S. 475 (1973), the Court held that the federal cause of action against state actors for infringements of federally guaranteed rights, 42 U.S.C. § 1983 (2006), cannot be used by state prisoners to obtain release from imprisonment in lieu of the federal habeas corpus statute, 28 U.S.C. §§ 2241-2255 (2006). Despite the "literal applicability" of § 1983, the habeas statute "must be understood to be the exclusive remedy" for state prisoners challenging the fact or duration of their incarceration.
132. Rodriguez, 411 U.S. at 489. Otherwise, prisoners could, simply by suing under § 1983 instead of the habeas statute, evade the express statutory requirement that habeas petitioners must exhaust available state-court remedies before challenging their convictions in federal court. Similarly, in Great Am. Sav. & Loan Ass'n v. Novotny, the Court held that a Reconstruction-era statute parallel to § 1983, 42 U.S.C. § 1985(3) (2006), cannot be used to enforce rights conferred by Title VII of the Civil Rights Act of 1964. 442 U.S. 366, 378 (1979).
133. Title VII remedies must be treated as exclusive of § 1985(3) as a means of enforcing Title VII rights, Novotny held, because § 1985(3) would empower Title VII plaintiffs to "avoid most if not all of the[] detailed and specific provisions" of Title VII. 442 U.S. at 375-76. These cases reflect a longstanding principle of statutory interpretation: "As always, '[w]here there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of the enactment.'" Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987) (quoting Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976)) (internal quotation marks omitted).
134. This notion inheres in the "principle of legality." As one leading scholar summarizes the concept: "The principle of legality... stands for the desirability in principle of advance legislative specification of criminal misconduct."
135. John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 VA. L. REV. 189, 190 (1985).
136. Although legality is often understood merely as a rejection of judicial crime creation, the principle reflects the broader notion, in Jeffries's words, that only legislatures are "politically competent to define crime." Id.; see also, e.g., United States v. Bass, 404 U.S. 336, 348 (1971) (stating that "because criminal punishment usually represents the moral condemnation of the community, legislatures... should define criminal activity"). So understood, allowing law enforcement agents to decide what is or is not a crime is just as offensive to the principle of legality as judicial crime creation. Support for the broader understanding of legality can be found in its "operational arm," Jeffries, supra at 196, the void-for-vagueness doctrine, which aims to prevent legislatures from using vague criminal statutes to delegate lawmaking power to police and prosecutors. See generally id. at 196-97.
137. Importantly, the federal sentencing guidelines do not solve this problem. The guidelines do nothing at all about situations where an overlapping generic crime carries a mandatory minimum that the more specific crime does not. In this circumstance (which cannot be ignored given the proliferation of mandatory minimums throughout federal criminal law, see infra note 147 and accompanying text), the prosecutor's ability to convict under the generic crime would strip judges of the latitude they would have had under the specific statute to impose a sentence below the mandatory minimum. In other cases, where the difference between the generic and specific statutes lies in the maximum punishment, it is true that similar offenses are grouped together rather than processed under separate guidelines.
138. So, for example, whether a public official is convicted of bribery under the federal bribery statute (which carries a fifteen-year maximum), 18 U.S.C. § 201, or of the same conduct as official-right extortion (which carries a twenty-year maximum under the Hobbs Act), 18 U.S.C. § 1951, the same sentencing guideline applies. In either case, the defendant starts out, for sentencing purposes, with a base offense level of fourteen. See U.S. SENTENCING GUIDELINES MANUAL § 2C1.1(a)(1) (2010). It would be wrong, however, to conclude that the choice of statute is irrelevant to sentencing.
139. The higher statutory maximum under the Hobbs Act, coupled with the breadth of the "relevant conduct" that goes into federal sentences, means that an official convicted of bribery under the Hobbs Act could receive a sentence in excess of the fifteen years authorized by § 201. The greater the differences in the relevant statutory maximums, the more likely it is that the ultimate sentence will exceed the lower one based on relevant conduct and other sentence enhancements. The ability of sentence enhancements to generate sentences at even high statutory maximums is shown most strikingly by federal fraud and drug offenses, where amount of loss and drug quantity, respectively, routinely generate enormous increases in sentences.
140. See supra notes 65-103 and accompanying text.
141. This is the very premise of the civil law tradition and of Anglo-American codification efforts dating back to Jeremy Bentham (who is widely credited with coining the term "codification").
142. Frederick Schauer, The Failure of the Common Law, 36 ARIZ. ST. L.J. 765, 772 (2004)
143. (explaining that the Benthamite, civil-law vision of law demands that legal rules be "set forth in advance in an accessible and precise canonical text which is expected to provide a clear... resolution of the vast majority of legal questions and human controversies").
144. Bentham himself argued that codes should be written and organized in the way that would be "best adapted for the generality of the people" and "most easily understood by the least skilful."
145. Jeremy Bentham, A General View of a Complete Code of Laws, in 3 THE WORKS OF JEREMY BENTHAM 22, 22 (John Bowring ed., 1843).
146. Ronald L. Gainer, Federal Criminal Code Reform: Past and Future, 2 BUFF. CRIM. L. REV. 45, 67 (1998) (footnotes omitted).
147. As Justice John Paul Stevens wrote in a fairly recent case: "[A]t least 100 federal false statement statutes may be found in the United States Code. About 42 of them contain an express materiality requirement; approximately 54 do not. The kinds of false statements found in the first category are, to my eyes at least, indistinguishable from those in the second category. Nor is there any obvious distinction between the range of punishments authorized by the two different groups of statutes." United States v. Wells, 519 U.S. 482, 505-06 (1997) (Stevens, J., dissenting) (footnotes omitted).
148. See Wiltberger v. United States, 18 U.S. (5 Wheat) 76, 95 (1820). Several prominent scholars have forcefully argued in recent years that the rule should be abolished. See Jeffries, supra note 102.
149. Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 SUP. CT. REV. 345.
150. See, e.g., United States v. Bass, 404 U.S. 336, 348 (1971).
151. The Court has long recognized that the rule of lenity promotes fair warning and the separation of powers in matters of crime definition. See, e.g., id.
152. Id. (quoting Henry J. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, reprinted in HENRY J. FRIENDLY, BENCHMARKS 196, 209 (1967)). The rule also has an important, albeit underappreciated, role in preventing courts from overriding legislative grading decisions by increasing the penalties for criminal acts. See generally Smith, supra note 8, at 934-44.
153. Muscarello v. United States, 524 U.S. 125 (1998), exemplifies the dismissive treatment lenity usually receives in federal court. Faced with a statutory term that even the majority admitted had literally dozens of different dictionary meanings and no evidence of the meaning Congress intended, the majority simply chose the one it preferred, and in doing so brought the defendant under a strict, and otherwise inapplicable, mandatory minimum. Id.
154. Where Justice Ruth Bader Ginsburg correctly saw an easy case for the rule of lenity, the majority dismissed the rule as irrelevant. Justice Stephen Breyer wrote: "The rule of lenity applies only if, after seizing everything from which aid can be derived,... we can make no more than a guess as to what Congress intended. To invoke the rule, we must conclude that there is a grievous ambiguity or uncertainty in the statute." Id. at 138-39 (citations and internal quotation marks omitted). For a discussion of the Supreme Court's schizophrenic case law on lenity, see Kahan, supra note 108, at 384-89.
155. Smith, supra note 8, at 926.
156. See supra Part II.
157. 342 U.S. 246, 250 (1952).
158. Id. at 251. Notice that, Morissette's colorful reference to the "evil-doing hand" notwithstanding, the actus reus often is innocuous conduct. For example, the actus reus of mail fraud is simply using the mails, see 18 U.S.C. § 1341 (2006), and the actus reus of Travel Act violations is interstate or international travel, see 18 U.S.C. § 1952(a) (2006). The blameworthiness of such crimes comes entirely from mens rea-in the examples just given, the illicit purpose for which the mails or channels of commerce are used. See 18 U.S.C. § 1341 (intent to defraud); § 1952(a) (intent to commit crimes).
159. Morissette, 342 U.S. at 252.
160. See Smith, supra note 20, at 133-35. As a consequence: [The role of mens rea] is broader than exempting morally blameless conduct from punishment. It involves limiting guilt and punishment in accordance with the blameworthiness of the defendant's act. The means of doing so differs. In some cases, mens rea serves to carve morally innocent conduct out of the reach of a criminal statute whereas, in others, it ensures that morally blameworthy conduct will not be punished out of proportion with its level of blameworthiness; in still others, it does both. The goal, however, is the same: to ensure that guilt and punishment track the moral blameworthiness of the conduct that gives rise to liability. Id. at 136.
161. PACKER, supra note 6, at 66-67. Packer was not alone in this regard. As no less an authority than Oliver Wendell Holmes Jr. declared: "a law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear."
162. Oliver Wendell Holmes, Jr., THE COMMON LAW 50 (1881).
163. Paul H. Robinson & John M. Darley, The Utility of Desert, 91 NW. U. L. REV. 453 (1997) (finding that deviations from moral desert can undercut the criminal law's moral credibility and hence its power to gain compliance by its moral authority).
164. To give but two examples, the National Firearms Act, 26 U.S.C. § 5861(d) (2006), construed in United States v. Freed, 401 U.S. 601 (1971), makes it a serious felony to possess unregistered grenades and other "firearms," but contains no express mens rea requirements. Similarly, the Hobbs Act, 18 U.S.C. § 1951 (2006), makes it a crime to commit extortion, defined as obtaining money or property from another, with his consent, through the wrongful use of coercion, § 1951(b)(2). No mens rea requirements appear in the definition of the crime.
165. The false statement statute, for example, requires that the false statement has been made "knowingly and willfully" but provides no mens rea requirement for the part of the crime requiring that the false statement has been made in a matter within the jurisdiction of a federal agency. See 18 U.S.C. § 1001. Similarly, the federal child-pornography law requires that the defendant "knowingly" transported or received a visual depiction, but prescribes no mens rea either for the sexually explicit nature of the visual depiction or the fact that it involved minors. See 18 U.S.C. § 2252(a).
166. Bryan v. United States, 524 U.S. 184, 191 (1998) (citations omitted). Even when the "bad purpose" definition of "willfulness" is adopted, there still may be no consistency of usage. In Bryan, the Court ruled that, in the context of a willful violation of federal firearms requirements, "willfulness" merely required proof that the defendant understood, in a general way, that his conduct was illegal. Id. In Ratlzaf v. United States, 510 U.S. 135 (1994), however, the Court adopted an even more stringent understanding of "willfulness." In order to commit a willful violation of the prohibition against "structuring" a cash transaction in excess of $10,000 into smaller transactions in order to evade currency transaction reporting requirements, the Court ruled, the defendant has to know specifically that "structuring" is illegal. Id. at 149.
167. 1 NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, WORKING PAPERS 119 (1970).
168. Id. at 119-20.
169. See MODEL PENAL CODE § 2.02(3) (prescribing "recklessness" as the default MPC level of mental culpability).
170. See § 2.02(2)(a)-(d) (defining "purpose," "knowledge," "recklessness," and "negligence").
171. See § 2.02(1) (mandating that all "material elements" of MPC offenses require mens rea); § 2.02(4) (supplying interpretive rule to determine mens rea for all elements where mens rea is prescribed for part but not all of an MPC offense).
172. A good example is Staples v. United States, 511 U.S. 600 (1994). In that case, the defendant was convicted for possession of an unregistered machine gun despite his claimed ignorance of his rifle's ability to fire automatically. Id. at 602-04. To the prosecution, all that mattered was that he knew his rifle was a gun. Id. at 606, 608-14. The Court disagreed. Id. at 619. In our gun-friendly culture, where ordinary firearms are lawful possessions in millions of households, mere knowledge that one is in possession of a gun fails to give notice of a potential violation. In order for the requisite culpable mental state to exist, the government must prove the defendant knew the characteristic of his gun (its automatic-firing capability) that placed it in the category of "quasi-suspect" weapons as to which citizens expect legal regulation. Id. at 602.
173. See Morissette v. United States, 342 U.S. 246, 258-60 (1952). As unfortunate as Morissette's dicta was in this respect, the Court had previously held that the category of regulatory offenses that Morissette later referred to as "public welfare offenses" "dispenses with the conventional requirement for criminal conduct-awareness of some wrongdoing." United States v. Dotterweich, 320 U.S. 277, 281 (1943) (emphasis added).
174. 401 U.S. 601, 607 (1971) (noting that common law crimes belong to a "different category" than the "expanding regulatory area involving activities affecting public health, safety, and welfare" as to which relaxed mens rea requirements apply).
175. 544 U.S. 696 (2000).
176. 510 U.S. 135 (1994).
177. 511 U.S. 600 (1994).
178. Ratzlaf held that, to be guilty of willfully violating the "structuring" ban, defendants must have known that "structuring" was illegal. See Ratzlaf, 510 U.S. at 136-37. Arthur Andersen held that ordering the destruction of documents to keep them out of the hands of federal investigators cannot be considered "knowing corruption," within the meaning of 18 U.S.C. § 1512(b), unless the person who gave the order knew he was acting illegally. See Arthur Andersen, 544 U.S. at 706.
179. Smith, supra note 20, at 127 (footnotes omitted).
180. John S. Wiley, Jr., Not Guilty by Reason of Blamelessness: Culpability in Federal Criminal Interpretation, 85 VA. L. REV. 1021 (1999).
181. Professor Jeffrey Meyer argues that this possibility has already materialized. On the goal of limiting punishment to blameworthy acts, he writes: These ideals are no more than myth for most federal criminal cases today. For a wide range of the most commonly charged federal crimes, judges routinely instruct juries to convict defendants regardless of their moral culpability-that is, even if there is no proof or finding that the defendant knew she was doing something wrong.
182. Jeffrey A. Meyer, Authentically Innocent: Juries and Federal Regulatory Crimes, 59 HASTINGS L.J. 137, 137 (2007).
183. Although I agree with Meyer's descriptive claim, I do not share his belief that federal mens rea doctrine is necessarily doomed to fail as long as it relies on judicial decision making to exclude blameless conduct from punishment. As I argue elsewhere, the reason that blameless conduct can result in conviction, in spite of a doctrine of mens rea specifically designed to prevent that from happening, is that the doctrine is restricted in ways that prevent courts from responding in all cases with heightened mens rea requirements (including knowledge of illegality) that are essential to exempting blameless acts from punishment.
184. Stephen F. Smith, "Innocence" and the Guilty Mind, at 50-74 (2005) (unpublished manuscript) (on file with author).
185. For example, even if knowledge of illegality is required to exempt blameless conduct from punishment, the Supreme Court will not make ignorance of the law a defense absent a textual indication from Congress, such as use of the term "willfully" or other language importing "a legal element in the definition of the offense," Liparota v. United States, 471 U.S. 419, 425 n.9 (1985), of legislative intent to require knowledge of the law. See generally Smith, supra at 51-61. Removing these counterproductive restrictions may well allow mens rea doctrine to achieve its important purposes without, as Meyer seems to propose, making jury trials freewheeling inquiries into moral blameworthiness.
186. The government's interpretation would have made it a crime either to withhold documents from federal investigators or to destroy documents pursuant to the sort of document-retention policies that are commonplace in the business world, even if the person responsible for nondisclosure or destruction of the documents honestly believed he was acting lawfully-and even if the person did not know, or have reason to know, that the documents pertained to a federal investigation. See Arthur Andersen, 544 U.S. at 705-08.
187. Id. at 697-98.
188. See Agnes T. Crane, Longing for Days of the Big Eight, N.Y. TIMES, Oct. 28, 2011, at B2 (discussing the implications of the demise of Arthur Andersen's consulting business).
189. According to 2011-2012 data, 39% of federal criminal defendants were charged with drug or weapons offenses. See ADMIN. OFFICE OF THE U.S. COURTS, 2011 ANNUAL REPORT OF THE DIRECTOR: JUDICIAL BUSINESS OF THE UNITED STATES COURTS 17-18 (2012). Moreover, suspects charged with drug or weapons offenses "had the highest prosecution rates in 2009" (77% and 69%, respectively, as compared to a 58% rate of prosecution for crimes of violence). See U.S. DEP'T OF JUSTICE, FEDERAL JUSTICE STATISTICS, 2009, at 7 (Dec. 2011).
190. Steven D. Clymer, Unequal Justice: The Federalization of Criminal Law, 70 S. CAL. L. REV. 643, 674 (1997).
191. Beale, supra note 22, at 982. As an example, Professor Beale cites federal drug offenses, which result in sentences that are often "ten or even twenty times higher" than the sentences that would be imposed in state court for the same conduct. Id. at 998-99.
192. Paul G. Cassell, Too Severe? A Defense of the Federal Sentencing Guidelines (and a Critique of Federal Mandatory Minimums), 56 STAN. L. REV. 1017, 1045 (2004).
193. See U.S. SENTENCING COMM'N, REPORT ON MANDATORY MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM (1991). In this regard, the Sentencing Commission followed the lead of the Judicial Conference of the United States, which passed a resolution in March 1990 urging Congress to "reconsider the wisdom of mandatory minimum sentence statutes." Id. at G-1.
194. Smith, supra note 8, at 895 (footnotes omitted).
195. 517 U.S. 456 (1996).
196. See Kimbrough v. United States, 552 U.S. 85, 96-98 (2007).
197. Id. at 479-80 (Stevens, J., dissenting). In a historic move, Congress recently addressed this unjust situation, albeit in a manner that operates prospectively only. Under the Fair Sentencing Act of 2010, which passed with bipartisan support, Congress rejected the 100-to-1 rule in favor of a more defensible (but still arbitrary) 18-to-1 rule. See Fair Sentencing Act of 2010, Pub. L. No. 111-220, §§ 2-3, 124 Stat. 2372 (amending 21 U.S.C. §§ 841, 844, 960). Congress also acted to ameliorate the harsh statutory mandatory minimums for crack offenses, raising the drug quantity necessary to trigger the mandatory minimums for crack and even going so far as to repeal outright the mandatory minimum for simple possession of crack. See id.
198. H.L.A. HART, PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF LAW 13 (1968).
199. See, e.g., id. at 13-14.
200. 18 U.S.C. § 1623(d) (2006).
201. The insanity defense is recognized by statute, but only because Congress sought to limit the defense in the wake of John Hinckley's acquittal on insanity grounds for the attempted assassination of President Ronald Reagan. See 18 U.S.C. § 17 (2006). Prior to that point, the insanity defense, like other common law defenses, existed in the federal system through decisional law only.
202. 522 U.S. 398 (1998). The "exculpatory no" doctrine would have exempted from punishment under the false statements statute, 18 U.S.C. § 1001 (2006), statements that consist only of a false denial of guilt.
203. Id. at 408.
204. 532 U.S. 483 (2001).
205. Id. at 490. Ultimately, the Court did not rest on this broad ground but instead on the narrow ground that the Controlled Substances Act impliedly precluded necessity arguments for medicinal uses of marijuana and other "Schedule I" drugs. See id. at 492, 494-95.
206. See, e.g., sources cited supra note 22.
207. See supra note 9.
208. E.g., United States v. Turkette, 452 U.S. 576 (1981). See generally Smith, supra note 8, at 911-13 (discussing the implications of Turkette for efforts to eradicate organized crime).
209. Smith v. United States, 508 U.S. 223 (1993), is a case in point. There, the defendant sought to trade a machine gun for drugs. He was convicted of multiple drug offenses, and presumably could have been convicted of any number of serious firearms offenses as well. Suffice it to say that there was no danger that he or others who purchase drugs with guns (much less machine guns) would slip through the federal cracks. The prosecutor, however, argued that exchanging guns for drugs constitutes use of a firearm "during and in relation to... [a] drug trafficking crime" pursuant to 18 U.S.C. § 924(c)(1)(A) (2006).
210. One would think that such barter is not a terribly significant problem: even if trading guns for drugs is common (which is far from self-evident), it would surely be the rare drug dealer whose access to firearms depends on bartering customers. Nevertheless, the Court rejected the ordinary meaning of "using a gun" (which connotes employment as a weapon) and endorsed the "universal view of the courts of appeals" that the statute encompasses barter with, as well as more lethal "uses" of, guns. Smith, 508 U.S. at 233.
211. That the Court stretched the statute to convict is all the more remarkable given the draconian penal consequences of its interpretation: for having bartered with a machine gun, Smith faced a mandatory minimum sentence of thirty years, to run consecutively with the sentence for his underlying drug convictions. Id. at 227; see § 924(c)(1)(A) (requiring that the mandatory minimum be imposed "in addition to the punishment provided for [the underlying] crime").
212. In Carter v. United States, 530 U.S. 255 (2000), the Court watered down the mens rea required to convict under the federal bank robbery statute, 18 U.S.C. § 2113, to "permit[] the statute to reach cases... where an ex-convict robs a bank [without any intent to abscond with the loot] because he wants to be apprehended and returned to prison." Carter, 530 U.S. at 271. The reader will be forgiven for regarding this as a solution in desperate search of a problem.
213. Kahan, supra note 108, at 426; see also Jeffries, supra note 102, at 220-21 (identifying situations in which criminal laws should be interpreted narrowly).
214. See generally Smith, supra note 8, at 893-930.
215. See Stuntz, supra note 1, at 510, 534-35 (describing legislatures and prosecutors as "natural allies").
216. Einer Elhauge, Preference-Eliciting Statutory Default Rules, 102 COLUM. L. REV. 2162, 2194 (2002).
217. William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331, 351 tbl.9 & 352 (1991).
218. This hypothetical inquiry is exactly how the Supreme Court decides federal mens rea issues. See Wiley, supra note 136, at 1023 (explaining that courts deciding such issues start by asking "as a hypothetical matter whether morally blameless people could violate [the statute]").
219. Pleas for proportionality of punishment inevitably encounter the objection that it is impossible to determine when, objectively speaking, punishments are proportional. Though familiar, the objection is misplaced. Proportionality serves as a judicially manageable legal standard in a variety of other contexts, such as determining the excessiveness of terms of imprisonment and of punitive-damages awards, and proportionality is used, by legislatures and judges alike, in grading offenses and sentencing offenders.
220. See Smith, supra note 8, at 891-92 (citing cases). Taking proportionality considerations into account in interpreting federal crimes is no more perilous than in these other contexts, especially if, as suggested here, the proportionality inquiry is grounded in a comparison with the penalties other laws provide for a particular crime and is used only as an interpretive principle (as opposed to a standard of constitutionality).
221. In Carter v. United States, 530 U.S. 255 (2000), for example, the Court declared that mens rea doctrine "requires a court to read into a statute only that mens rea which is necessary to separate wrongful conduct from 'otherwise innocent conduct.'" Id. at 269.
222. For an extensive argument along this line, see Smith, supra note 20.
223. See supra Part II.A.2.
224. The requirement that overlapping statutes be of the same type is an important limitation because it ensures that the penal comparison will be appropriate. For example, rape is both a battery (in the sense that it involves an unwanted, offensive touching) and a sexual assault. Those crimes, though capable of being committed by the same physical act, protect victim interests of differing weight (bodily integrity versus sexual autonomy), and so the penalty for battery is not an appropriate measure of what the penalty should be for rape. Similarly, in the example of a fatal beating, the fact that the beating is an assault would obviously not tell us what the punishment should be when it results in death. In both sets of crimes, the heightened punishment for the more serious crime (i.e., rape and murder, respectively) is justified by the greater seriousness of those crimes, and no rational legislature would grade those crimes at the level of battery and assault.
225. The Court has adopted such exclusivity principles in other contexts. See supra note 101.
226. Compare 15 U.S.C. § 1644 (2006) (credit-card fraud), with 18 U.S.C. §§ 1341, 1343 (2006) (mail and wire fraud, respectively). In some cases, however, exclusivity will actually require the prosecutor to use the statute carrying the higher punishment.
227. For example, if a defendant mails in a materially false credit application to a federally insured bank, the bank fraud statute would be the most specific statute as compared to mail or wire fraud. Bank fraud, however, is punishable by up to thirty years in prison versus the twenty-year maximum for mail and wire fraud. Compare 18 U.S.C. § 1014 (bank fraud), with §§ 1341, 1343 (mail and wire fraud, respectively).
228. Cases may arise in which it is unclear which of two potentially applicable crimes of the same type is the more specific. When it is unclear which statute should be the exclusive remedy, it makes sense to err on the side of caution and require use of the statute carrying the lower penalty. To be sure, this tiebreaker rule resolves ambiguous cases according to a substantive bias (avoiding potentially disproportionate punishment), but that is unexceptional. For instance, the federalism clear-statement rule resolves ambiguities about the scope of federal laws against alteration of the federal-state balance, United States v. Bass, 404 U.S. 336, 349 (1971), statutes in derogation of the common law are presumptively read as retaining entrenched common law principles, United States v. Texas, 507 U.S. 529, 534 (1993), and, where possible, statutes are read to ensure their constitutionality, INS v. St. Cyr, 533 U.S. 289, 299-300 (2001).
229. 18 U.S.C. § 13 (2006). The Act, passed at a time when there was little or no federal criminal law applicable to federal enclaves, allows prosecutors to fill "gaps" in federal enclave law by "borrowing" offenses from the state in which the enclave is located and using such offenses as the basis for a federal conviction. State crimes can be borrowed when the defendant committed, on a federal enclave, "any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State... in which such place is situated." § 13(a). The same basic approach governs under the Major Crimes Act, 18 U.S.C. § 1153 (2006), for crimes committed in Indian Country. Id. § 1153(b).
230. 523 U.S. 155 (1998).
231. Id. at 158.
232. Id. at 166-68 (citing statutes).
233. Id. at 165.
234. 532 U.S. 483 (2001) (holding that medical necessity is not a valid defense to the manufacture, possession, or distribution of controlled substances).
235. See, e.g., Regina v. Dudley & Stephens, 14 Q.B.D. 273 (1884). Necessity also includes a variety of established justification defenses, such as self-defense and law enforcement's privilege to use force in effecting arrests or to commit crimes (such as undercover "sting" operations) to catch lawbreakers in the act. None of these justification defenses exist by virtue of federal statute, and thus all are at risk under Oakland Cannabis.
236. In the case of justification defenses, such as necessity and self-defense, the defendant's conduct is morally appropriate and thus exempted from punishment. By contrast, excuses (such as insanity, immaturity, and duress) deal with situations where punishment is withheld, not because the defendant's conduct was morally blameless, but rather because exceptional circumstances (such as severe mental disease, extreme youth, or overwhelming external pressure, respectively) make it unfair to punish the defendant despite the blameworthiness of his act.
237. With the exception of the insanity defense, which has been abolished in four states, the classic justification and excuse defenses remain available in every state.
238. See Oakland Cannabis, 532 U.S. at 490.
239. See, e.g., Samantar v. Yousuf, 130 S. Ct. 2278, 2289-90 & n.13 (2010).
240. In response to the acquittal of President Reagan's would-be assassin on insanity grounds, Congress enacted a statute adopting a considerably narrower formulation of the insanity defense. See Act of Oct. 12, 1984, Pub. L. No. 98-473, § 402(a), 98 Stat. 1837, 2057 (current version at 18 U.S.C. § 17 (2006)) (rejecting the Model Penal Code's formulation, previously adopted by the federal courts, in favor of the common law's more restrictive one).
241. Indeed, the Court had recognized as much prior to Oakland Cannabis. See United States v. Bailey, 444 U.S. 394, 415-16 n.11 (1980) (noting that common law defenses to crimes remain enforceable because "Congress in enacting criminal statutes legislates against a background of Anglo-Saxon common law"). More controversially, it is possible to argue that, in legislating against the background of a common law containing nonstatutory criminal defenses, Congress not only accepted the previously created roster of defenses but also judicial power to create nonstatutory defenses. For an argument that Oakland Cannabis and, indeed, federal mens rea doctrine rest on an unduly cramped conception of the separation of powers in criminal law, see Smith, supra note 137, at 65-74, 84-89. 190342 U.S. 246, 251-52 (1952).
242. See, e.g., Carter v. United States, 530 U.S. 255, 269 (2000). See generally Smith, supra note 20, at 131 ("The Supreme Court has insisted that federal crimes be defined in terms that guarantee a path to acquittal for morally blameless conduct and has increasingly looked to the mental element of crimes to provide this protection against punishment for 'innocent' conduct.").
243. As I have explained: Where the nature of the prohibited act, as defined by Congress, is sufficient to guarantee that anyone convicted of the crime will be morally blameworthy, courts treat the legislative definition of the crime as conclusive and do not impose heightened mens rea requirements. If, however, the prohibited act is not "inevitably nefarious" and thus could potentially reach innocent conduct, courts adopt more stringent mens rea requirements designed to exclude all innocent conduct from the crime's reach.
244. Smith, supra note 20, at 130; see, e.g., Arthur Andersen LLP v. United States, 544 U.S. 696, 704-06 (2000) (ruling that, to convict for obstruction of justice on a "corrupt persuasion" theory, the government must prove that the defendant knew his or her efforts to conceal documents from federal investigators were illegal); Staples v. United States, 511 U.S. 600, 608-16 (1994) (holding that, because gun possession is an innocuous act in our gun-friendly culture, defendants cannot be convicted for possessing unregistered "firearms" unless they knew the characteristics of their weapons that subjected them to special federal registration requirements); Ratzlaf v. United States, 510 U.S. 135, 136-37 (1994) (requiring proof of knowledge of illegality to prevent punishment of innocuous efforts to structure cash transactions to avoid currency transaction reporting requirements).
245. See, e.g., Robinson & Darley, supra note 120. See generally Smith, supra note 8, at 887-88 (explaining the importance to retributivists and utilitarians alike of limiting punishment in accordance with moral blameworthiness).
246. For an argument along these lines, see Smith, supra note 20.
247. See generally id.
248. For a collection of case studies where this has occurred, see, e.g., Case Studies, supra note 16. The website does not mince words: [The] case studies are documented stories of good people whose lives were impacted by overcriminalization: criminal laws that are overbroad or flat-out ridiculous, prosecutors and prosecutions that are over-zealous, and sentences that are harsh, unreasonable, and unjust. The lives of some were shattered when they were arrested, prosecuted, and imprisoned for doing things no one would think are crimes. Others did an act that could be considered wrongful, but did so unintentionally-without "criminal intent" (what lawyers call mens rea)-and should not have been charged, convicted, or punished. Id.
249. Darryl Brown, Criminal Law's Unfortunate Triumph over Administrative Law, 7 J.L. ECON. & POL'Y 657, 677-683 (2011).
250. Sanford H. Kadish, The Folly of Overfederalization, 46 HASTINGS L.J. 1247, 1250-1251 (1995) (quoting remarks by Chief Judge Judith Keep of the Southern District of California).