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September 7, 2023

New CRS document explores "Supreme Court’s Narrow Construction of Federal Criminal Laws"

The Congressional Research Service has this notable new "Legal Sidebar" reviews past and recent Supreme Court rulings that limit the scope of federal criminal statutes. This six-page document gets started this way:

Criminal law marks a boundary between conduct that society deems permissible and behavior that it deems worthy of punishment.  Those who cross the line may be subject to penalty and social disapproval.  In addition to punishment, transgressors may face wide-ranging collateral consequences, among other things.

Defendants charged with criminal offenses have mounted various legal challenges to the line drawn by criminal law itself.  One category of legal challenge centers on arguments related to where or how the boundary between lawful and unlawful conduct is established.  For example, defendants have argued that certain criminal statutes are unclear and fail to give fair notice to the public as to what conduct is wrongful; that other criminal statutes improperly reach those with no awareness that they have crossed the line and thus fail to reserve criminal punishment for those who are truly culpable; and that the application of particular criminal statutes in individual circumstances strays beyond what Congress intended or clashes with countervailing constitutional values.

In recent years, the Supreme Court has issued a series of decisions agreeing with defendants that have raised each of these arguments, narrowly construing some criminal statutes in the process.  A federal appellate judge described these rulings as “nearly an annual event.”  In the Court’s latest term, the Justices again issued opinions limiting the reach of specific criminal statutes.  This Sidebar addresses this apparent Supreme Court trend, identifying the substantive reasons why the Court has limited the scope of criminal statutes and offering examples from historic and modern cases.  The discussion and examples are not comprehensive but are representative in nature.  The Sidebar also summarizes four cases from the recently concluded 2022 Supreme Court term — Counterman v. Colorado, Dubin v. United States, United States v. Hansen, and Twitter v. Taamneh — in which the Court narrowly construed the criminal laws and concepts at issue.  The Sidebar closes with considerations for Congress.

September 7, 2023 at 11:55 PM | Permalink


Something for all to chew on: https://victorygirlsblog.com/more-new-york-city-subway-attacks-no-one-intervenes/

Bragg is a disgusting POS.

Posted by: federalist | Sep 8, 2023 9:02:24 AM

The CRS post is unfortunately a very abstract gloss over the issue which gives very little guidance to the relevant committees charged with drafting new laws.

Speaking from the experience of a state practitioner, the battle is always between clearly very broad, ambiguously broad, and clearly narrow.

To use some examples, our felony murder statute is very clear and very broad -- it applies to any felony that results in death. As such, it has been applied to distributors on drug overdose cases, felony DWIs resulting in death, and resisting arrest cases in which a bystander gets killed during a high speed police chase, and challenges based on it not applying to certain felonies have been uniformly rejected. I can see the argument from a policy standpoint that the law should not be that broad, but it is impossible to credibly argue that it does not apply to all felonies that result in death.

On the other hand, our traditional stealing statute only covers the theft of property and services. While those are broad categories, when identity theft became an issue, it was unclear if the misuse of a person's identity involved the taking of that person's property. To clearly cover identity theft, we had to pass a new statute (ultimately deciding on a separate statute rather than trying to shoehorn identity theft into the traditional theft statute).

And just like identity theft, there have been other new types of misconduct that were not clearly covered by existing statutes.

The bottom line is that drafters have to -- a limited extent -- expect the unexpected in drafting new statutes -- which is, to some degree, the point of the recent batch of Supreme Court cases. Lack of clarity as to what types of conduct you are covering is a path to either the courts narrowly construing the statute or the courts finding that the statute is void for vagueness. You can have well-defined broad categories that leave some room for unexpected conduct that is somewhat similar to the core conduct or you can have statutes that only apply to the core conduct. But you can't get away with poorly defined broad categories.

Posted by: tmm | Sep 8, 2023 1:34:28 PM

Another recent case narrowing the application of a Federal criminal statute is United States v. Percoco, 598 U.S. 319, 337 (2023), where the Court said, "Under our system of separation of powers, the Legislative Branch must do the hard work of writing Federal criminal laws. Congress cannot give the Judiciary uncut marble, with instructions to chip away all tht does not resemble David." The jury instructions were wrong because the defendant was not a public servant at the time of the crimes, so he didn't really owe an honest services duty to the taxpayers, even though he had been like a brother to New York Governor Cuomo when he worked for him for years, and the defendant had committed to returning to work in staate government soon. Congress simply has not created a criminal law that fits those circumstances. so the 18 U.S.C. 1346 instructions were not harmless beyond a reasonable doubt.

Posted by: Jim Gormley | Sep 11, 2023 5:18:37 PM

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