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June 15, 2019

"Criminal Clear Statement Rules"

The title of this post is the title of this notable new paper authored by Carissa Byrne Hessick and Joseph Edward Kennedy available via SSRN. Here is its abstract:

There is a broad consensus in the criminal justice community that our criminal statutes are a mess: They are imprecise, overly broad, and overly punitive.  Legislatures write these laws because there are significant political incentives for them to be “tough on crime” and few incentives for them to write carefully crafted laws.  The problems of over-criminalization thus seems to be both a predictable yet intractable consequence of the incentives that legislatures face.  But this Article offers a novel solution: Judges should develop new clear statement rules to interpret criminal statutes.

The Supreme Court has created clear statement rules to protect important values, such as federalism and the separation of powers.  Legislatures can overcome those values, but only if they do so affirmatively and unambiguously.  Just as existing clear statement rules protect important structural values, new criminal clear statement rules would protect important criminal justice values.  Unless statutes clearly state that they reject those values, clear statement rules will result in statutory interpretations that better protect the interests of criminal defendants. 

The result will be clearer and more thoughtful criminal laws — both because legislatures will write better statutes and because judges will construe poorly drafted statutes in a more narrow and predictable manner.  In addition to making the case for criminal clear statement rules as a general interpretive tool, this Article proposes two specific clear statement rules.  One rule would create a default presumption of a knowing mental state requirement for material elements.  The other would impose a substantial harm requirement.  Both would markedly improve the state of modern criminal law.

June 15, 2019 at 01:23 PM | Permalink

Comments

In my opinion: Get rid of all the Attorney garble and write the Laws in plain language that the common people can understand. With computers today, there is no need to abbreviate or keep referring to other statutes - just put it out there! When a Government Agent/Employee/Officer can not understand what has been written by an Attorney and the people suffer, there is something wrong. Maybe that is why the Original 13th Amendment has been hidden?

Posted by: LC in Texas | Jun 16, 2019 12:21:13 PM

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