Legality
§
5.01 Principle of Legality
[A] “Legality”:
Definition
There
are a lot of things in this world that you shouldn’t do, but not all of them
are crimes. In our legal system, only
things that are defined by statute as criminal can be punished. This is the overarching doctrine of the
American legal system, and it even supercedes the interest in punishing guilty
defendants.
1. Regular people
should be able to understand criminal statutes.
2. Criminal
statutes should be clear enough such that major policy decisions are not left
to the executive or judicial branches of government.
3. When courts
interpret statutes, they should lean in favor of the defendant.
[B] Rationale
The
principle of legality prevents the government from abusing its enemies using
the criminal justice system. It
maximizes personal freedom by minimizing the risk that someone can break a law
without being aware of it. The legality
principle also assures “fair warning” of what conduct is considered criminal
and what punishments may be enforced against such conduct. “Fair warning” is important for both
retributive and utilitarian justifications of the criminal justice system.
The
latter argument may be seen as weak because people rarely look at penal codes
before deciding how to act, and if they do, it’s so they can be as bad as
possible without getting punished.
Courts
rarely invalidate a law for being too vague.
However, retroactive laws are not enforced.
[C] Constitutional
Law
[1] Bill of Attainder and Ex Post Facto Clauses
The
Constitution forbids laws that declare the guilt and punishment of a specific
person. It also forbids the retroactive
application of laws.
[2] Due Process Clause
The
due processes clauses in the Fifth and Fourteenth amendments are the judicial
analogue of the ex post facto and bill of attainder prohibitions.
§ 5.02 Statutory Clarity
Vague statutes are
unconstitutional because they fail to give people fair warning as to what
conduct is unlawful.
Courts look at several
criteria to determine whether statutes are too vague. In particular, courts will find statutes unconstitutional
if they could be construed to impair an important constitutional right, such as
free speech.
Barring such constitutional
problems, judges rarely find criminal statutes to be too vague. For example, it is permissible for a statute
to hold people to an imprecise standard of good behavior.
The ideal behind statutory
clarity is far from the reality. Most
people neither have the time, training, or else money to actually research
criminal statutes before they act.
§ 5.03 Avoiding Undue Discretion in Law Enforcement
Vague statutes allow cops and
prosecutors to discriminate against people.
Several examples of “loitering”
ordinances that have been found unconstitutional are provided.
§ 5.04 Strict Construction of Statutes (Rule of Lenity)
If a statute is unclear, the
court needs to consider what the intent of the legislature was in drafting the statute.
The rule of lenity says that
when there’s a tie between the state and the accused, the accused wins. It only kicks in when there’s really a tie
and the court is right on the razor’s edge with its decision.
Since statutes can be
interpreted different ways, lenity may cause courts to act contrary to
legislative intent. For this reason,
many states and the Model Penal Code have rejected the Rule of Lenity.