#17088 - Concept Of Legality Introduction, Principle For Statutory Interpretation, Constitutiona Requirement - Criminal Law

Concept of Legality

1. Introduction

2. Legality as a Guiding Principle of Statutory Interpretation

3. Legality as a Constitutional Requirement

RULE: No punishment without law. Law must provide fair and clear notice and control arbitrary and discriminatory discretion and policymaking

• Law must meet these requirements:

  • (1) provide fair notice and

  • (2) provide clear notice

  • (3) control arbitrary/ad-hoc discretion/policymaking exercised by enforcement officials

• No retroactively lawmaking (statutes)

  • No common law crimes

    • Exception Mochan - based on Miller precedent, common law misdemeanor punishing conduct that is injurious to public morality applies to Mochan's solicitation of married woman on her home phone

    • Common law crime defined from previous judicial decision okay

    • Problems with

      • Judicial definition of crime: (a) separation of powers concern (legislature should define crimes); (b) unpredictable; (c) difficult to extract holding and the scope

      • Statutory definition of crime: (a) insufficient notice about what would be impermissible conduct; (b) courts step in interpret laws and in the process seem to start making laws!

        • This case shows the importance of legality; without it, broad range of actions can be criminalized even without notice to the public

    • States have moved away from these crimes and created state penal codes

  • Problems with creation of this crime (in Mochan) by

    • (1) judiciary: unpredictable, separation of powers (leave to legislature), difficult to extract holding, making instead of interpreting law

    • (2) legislature: still not provide fair notice, judiciary steps in to interpret and starts to make law through interpretation

STATUTORY INTERPRETATION

Interpreting statutes - is there clear and fair notice?

• General arguments: **[gov arguments/ def arguments]

  • Grammar and sentence structure of statute

  • Plain meaning VS. common understanding of statutory language

  • Legislative intent/history/loopholes (legislative had broad purpose…/legislature did not intend to cover…)

  • Consistent practices of other statutes

  • Rule of lenity

  • Political economy - onus on government to clarify/change laws than for defendants to do so

  • Unreasonable disparity between punishment in the statute and alleged criminalized conduct

  • General knowledge/notice of wrong behavior VS. no fair and clear notice

  • Separation of powers (legislature should be left to decide crimes and consequences, not the court)

  • Noscitur a sociis canon - "known by one's associates" word is known by the company it keeps (construe term based on surrounding words, not ascribe meaning so broad that is inconsistent with accompanying words)

  • Ejusdem generis canon - "of the same kind" interpret general catch-all phrase as limited to object enumerated by the specific words preceding it

  • Surplusage canon - each word in statute should be interpreted to have a unique meaning/function, otherwise redundant

  • Expressio unius est exclusio alterius - "expression of one thing is exclusion of another" If you have expressly included some things in a category, other things in the category are excluded

• McBoyle - airplane does not fall under "self-propelled vehicle"

  • because statute enumerated only land vehicles, no mention of airplanes and common understanding is land vehicles

  • RULE Statute must be as clear as possible to give fair warning about what acts are criminalized

• Rule of lenity

  • Substantive canon of interpretation: If law is ambiguous, must resolve the ambiguities in favor of D

  • Yates - fish does not fall under statute including "tangible object"

    • Because canons of interpretations (noscitur, ejusdem, surplusage) show tangible object means objects used to record/preserve information and rule of lenity favor D

      • Dissent thinks tangible object is clear and applies to fish; majority improperly used canons

  • RB likes rule of lenity because this puts onus on the government to change laws to make them more specific (vs. defendants changing laws after court's broad interpretation)

    • BUT it may not reflect the legislature's intent to actively criminalize

CONSTITUTIONAL ANALYSIS

Constitutional analysis of statutes - limits on vagueness

• Void for Vagueness doctrine

  • May be vague on its face or as applied!!

  • 2 reasons for voiding a statute as vague

    • (1) failure to provide notice that enables ordinary people to understand what conduct it prohibits

    • (2) authorizes or encourages arbitrary and discriminatory enforcement (OR does not provide sufficient guidance for law enforcement)

  • Morales - loitering law

    • 3 justices void it under prong #1: unclear what conduct is covered by definition of loitering, dispersal order itself is vague

    • 5 justices void it under prong #2: too much discretion for officers to determine who is a gang member (officers could determine all in a group are gang affiliated based on knowing only one is a member)

  • Doctrine not very effective in practice

    • Can save a vague law with a reasonableness or mens rea requirements

    • Even if law is clear, it still allows room for discriminatory enforcement

      • See certain cities disproportionately ticketing black people for clear laws like jaywalking and failure to walk on sidewalk

      • If law unclear, even more room for discrimination

Summary table