Flowers may die, and old soldiers may fade away, but statutes do neither. They live on indefinitely. That is true in the United States. Statutes may become obsolete or fall into desuetude, a legal term used to describe anachronistic and rarely (if ever) enforced laws, but they retain their force and effect until repealed by the legislature or held unconstitutional by the courts.
The problem also appears to be true in England. The New York Times recently described an effort by Parliament to repeal outmoded English criminal laws—some of them centuries old—“that nowadays seem irrelevant, and often absurd,” like the one that makes it a crime to handle a salmon under “suspicious circumstances.” “So voluminous and eccentric is Britain’s collective body of 44,000 pieces of primary legislation that it has a small team of officials whose sole task is to prune it.” Their task arose from a familiar concern: “To have a legal situation where there is so much information that you cannot sit down and comprehend it,” argues Andrew Lewis, professor emeritus of comparative legal history at University College London, “does seem to me a serious problem. I think it matters dreadfully that no one can get a handle on the whole of it.” Moreover, Parliament itself must undertake the job of pruning unnecessary criminal laws. Unlike this country, England does not have a written constitution—acts of Parliament are the supreme law of the land—so Parliament cannot act like Tom Sawyer and persuade the English courts to do this chore for them.
The same obsolescence or desuetude problem exists in the United States. Our federal criminal code contains more than 4,000 criminal laws, and many of them are no less “irrelevant” and “absurd” than Britain’s ban on “wearing of suits of armor in [Parliament’s] chambers.” Among the federal criminal statutes that are now obsolete (or were never worth much to start with) are the following:
- It is a crime to make unauthorized use of the 4-H club emblem, the Swiss Confederation coat of arms, and the “Smokey Bear” or “Woodsy Owl” characters;
- It is a crime to misuse the slogan “Give a Hoot, Don’t Pollute”;
- It is a crime to poll a servicemember before an election;
- It is a crime to transport dentures across state lines;
- It is a crime to sell malt liquor labeled “pre-war strength”;
- It is a crime to write a check for an amount less than $1; and (a personal favorite)
- It is a crime to install a toilet that uses too much water per flush.
As former Attorney General Edwin Meese III advised Congress, “It is difficult to believe that we need to use the federal criminal law” for such purposes.
England has begun to prune unnecessary criminal laws, and American officials have begun to consider how to trim our criminal code as well. Members in both houses of the 114th Congress have introduced bills that would reform federal criminal law. The bills include a long-needed default criminal intent (mens rea) standard and different methods for reviewing and repealing unnecessary criminal statutes. The latter bills—H.R. 4003 and H.R. 4023—indicate that Congress might address the desuetude problem as well as the related problem of “overcriminalization,” a neologism describing a surfeit of criminal statutes and the unreasonable use of the criminal law when civil or administrative remedies are more appropriate. Two of the pending bills propose useful models for the identification and repeal of unnecessary criminal laws.
The Constitutional Lawmaking Process
Criminal statutes almost never come with an expiration date, and lawmakers never repeal outdated laws. Consider some of the vice laws from the 19th and early 20th centuries, still on the books today, that prohibit the use of interstate commerce to promote a state-run lottery. Congress enacted those laws because state-run gambling was then deemed immoral. Today, however, most Americans no longer find state lotteries objectionable. In fact, numerous states operate lotteries to raise public funds, and the public seems more willing to allow people to gamble than to see their taxes raised. Similarly, a 19th century law, the Comstock Act, prohibited the distribution in interstate commerce of pamphlets or circulars advertising contraceptive products. Today, the public uses contraceptives on a widespread basis, and that practice is protected by the Constitution. As noted, other federal criminal statutes are likewise well past their “born on” date.
Unless Congress revisits the federal criminal code, the number of archaic criminal laws will increase inexorably over time. That is true for two reasons.
First, for the past 40 years, the federal government has displayed the unfortunate tendency to use the criminal law “to punish every mistake, and to compel compliance with regulatory objectives.” The prodigious growth of America’s federal criminal code testifies to this problem. That collection has expanded from the small number of core federal crimes needed in the nation’s early days to what is now more than 4,000 offenses. Over the past 30 years, Congress has enacted as many as 60 new federal crimes per year and 500 per decade. Even if every one of those criminal laws was necessary when it was adopted—and statutes like the federal carjacking act seem to prove the contrary—there is no reason to assume that those statutes will continue to play a vital role in the criminal law 50 years (or more) from now.
Second, only Congress can enact or repeal a federal criminal law. The Bicameralism and Presentment Clauses of Article I of the Constitution define the process by which the federal government can enact a law. Because Congress is a bicameral legislature consisting of a Senate and House of Representatives, both chambers must cooperate in the legislative process. To exercise its “legislative Power” and create a “Law,” each chamber must pass the identical bill and present it to the President for his signature or veto. The President then must sign it, or both houses must repass it by a two-thirds vote following a veto. Once a bill has become a law, Congress and the President must follow the same procedure to revise or repeal it.
The federal courts cannot play a supporting role in the enactment or repeal of a federal criminal law. In 1812, early in the tenure of Chief Justice John Marshall, the Supreme Court held in United States v. Hudson that the federal courts cannot create criminal offenses; that is Congress’s prerogative. What is true at the front end is also true at the back end. Sixty years ago, the Supreme Court explained in District of Columbia v. John R. Thompson Co. that only Congress can repeal a criminal law. That is true, the Court explained, even when a law has fallen into desuetude. “The failure of the executive branch to enforce a law does not result in its modification or repeal…. The repeal of laws is as much a legislative function as their enactment.”
Compliance with the Bicameralism and Presentment Clauses is therefore as necessary to modify or repeal a statute as it is to enact one in the first place. Accordingly, Congress cannot look to the federal courts to help prune the United States Code of needless criminal laws.
The Problems Created by Criminal Laws That Are Outdated or Have Fallen Into Desuetude
If criminal statutes were like museum statues whose purpose is merely to represent life in a bygone era like Prohibition, the continued presence of those laws on the statute books might offend a contemporary sense of feng shui, but would not create practical problems for the public. Statutes and statues, however, are materially different. A criminal law enacted by the First Congress that still can be found in the United States Code continues to outlaw and punish the same defined conduct today, regardless of whether the reason why that act was adopted has become unimportant or has been long forgotten. The statute may have fallen into desuetude, but it remains good law. As the Supreme Court explained in John R. Thompson Co., the executive branch’s refusal to enforce a statute, for however long, leaves that law on the books, and the courts must apply it. Federal courts are not free to disregard laws that have fallen into desuetude.
Indeed, the desuetude doctrine has never taken hold in Anglo–American law—and for good reason. Ad hoc application of any such doctrine by the courts would grant them a veto power that the Constitution reserves to the President and would offer the courts no guidance regarding when they can refuse to enforce a law as being overripe. Over time, statutes may lose their utility, but they always retain their vitality. The federal courts cannot send them on their way.
The continued presence of archaic criminal laws on statute books can create a serious problem for the public. An elementary rule of constitutional law is that the government must afford the public fair notice of the conduct defined as criminal so that the average person, without resort to legal advice, can comply with the law. The resurrection and enforcement of outmoded, rarely enforced, or never-enforced criminal laws raises a notice problem.
Most people are not lawyers, so they do not acquire their understanding of the law through formal education or hands-on experience. They learn what the criminal law forbids from their parents, ministers, teachers, the scriptures, and others in their community. Their knowledge extends to what the moral code puts out of bounds, but it does not stop there. They also come to learn how the law is enforced—that is, which laws are enforced strictly (e.g., murder or rape) or laxly (e.g., speed limits or bans on jaywalking). As argued elsewhere:
The criminal law draws its moral force from the assumption that everyone knows the law and can take steps to avoid breaking it. Obscure criminal statutes share an affinity with the laws of the infamous Roman Emperor Caligula, which were published in an unreadable site. Just as a secret criminal law provides no more notice than a law that is publicly available but incomprehensible, a law whose obscurity renders it, as a practical matter, unknown to the public is little better than an unrecorded statute. That is particularly true when the law does not reflect the prevailing moral code and is not limited to conduct that is inherently immoral or dangerous—circumstances in which the conduct itself might put someone on alert that the law may regulate his or her actions.
Resurrecting a statute that has long been dead could trip up the average person whose intent is to comply with the law, because no one would reasonably know what that statute forbids.
Two Pending Bills That Would Repeal Unnecessary Federal Laws and Address Desuetude
History shows that legislators occasionally do repeal unnecessary criminal laws. Congress repealed the Sedition Act, the Volstead Act (a Prohibition-Era law), and a national speed limit after recognizing that the laws were no longer necessary.
Two bills pending before the 114th Congress would follow in those footsteps. The Clean Up the Code Act of 2015, H.R. 4023, would repeal a few specific federal statutes that attach criminal penalties to trivial conduct, such as the seven noted earlier, laws that are “obsolete, superfluous, and unnecessary.” The Regulatory Reporting Act of 2015, H.R. 4003, goes much further. It would require each federal agency to provide the House and Senate Judiciary Committees with a list of and justification for all rules and regulations that carry criminal penalties. The bill directs Congress to scrutinize those rules under these specific criteria:
(1) Why civil penalties are inadequate to deter the regulated behavior. (2) What mens rea or criminal intent is required for criminal liability arising from a violation of the rule. (3) What notice is provided to persons subject to the rule that a violation of the rule may result in criminal penalties. (4) If the rule applies to all persons, including natural persons as well as corporations and other business associations. (5) If a violation of the rule is likely to result in any of the following (and if so, how): (A) Substantial bodily injury or death to another person. (B) Property damage or destruction. (C) Harm to public safety. (D) Harm to national security. (E) Fraud against the United States.
Those criteria would help to ensure that Congress uses the criminal law, rather than civil or administrative penalties, only when strictly necessary and only in connection with subjects that the federal government alone is best equipped to handle. That approach would finally heed the old wisdom of Chief Justice William H. Rehnquist:
[T]he trend to federalize crimes traditionally handled in state courts is not only taxing the Judiciary’s resources and affecting its budget needs, but it also threatens to change entirely the nature of our federal system…. The pressure in Congress to appear responsive to every highly publicized societal ill or sensational crime needs to be balanced with an inquiry into whether states are doing an adequate job in these particular areas and, ultimately, whether we want most of our legal relationships decided at the national rather than local level.
If Congress required federal agencies to answer those questions, and if Congress required Members to do the same when introducing new criminal laws, Congress could avoid enacting any laws that would be better executed by states or through the civil legal system.
Paths to Repeal: The Overcriminalization Task Force Should Continue to Operate as a Desuetude Review Board
In May 2013, the House Judiciary Committee chartered an Overcriminalization Task Force to review the federal criminal code and recommend how it could be improved. The task force did not issue a formal report outlining its recommendations, but two of its members introduced a bill—the Sensenbrenner–Scott Over-Criminalization Task Force Safe, Accountable, Fair, Effective Justice Reinvestment Act of 2015—that would reform the criminal justice system to “improve public safety, accountability, transparency, and respect for federalism in Federal criminal law.” The bill, however, does not identify any specific federal criminal laws that should be repealed, and the task force has since disbanded, its legislative mandate expired.
One of the best ways to improve the code would be to reduce its size. Congress should re-establish the Overcriminalization Task Force to assume that job and proceed along two tracks:
- Follow the approach taken in the Clean Up the Code Act of 2015 by identifying for repeal particular federal criminal statutes widely deemed unnecessary.
- Use the criteria specified by the Regulatory Reporting Act of 2015 to review the entire federal criminal code and recommend the repeal of additional unnecessary statutes.
The House Judiciary Committee should direct the task force to undertake both assignments and complete them by the end of this Congress. The Senate Judiciary Committee should create its own task force for the same purposes and should instruct it to complete that task before this Congress adjourns. Each committee should then take up the recommendations early in the 115th Congress so that there will be adequate time for debate both at the committee level and on the floor of each chamber.
Paths to Repeal: A Piecemeal Repeal Process
The Clean Up the Code Act of 2015 addresses overcriminalization on a piecemeal basis. Members of Congress have previously tried to approach this problem on a similar statute-by-statute basis by recommending the repeal of particular sections in discrete criminal laws that are no longer necessary or that create needless problems. An example is the Lacey Act, which makes it a crime to import flora and fauna in violation of a foreign nation’s laws.
Some states also have taken that approach. Consider what happened in Michigan. The legislature enacted a series of bills, each one repealing a few specific criminal laws. Michigan H.B. 4248, for example, repealed:
statutes that ban posting reproachful or contemptuous language for not fighting a duel; or using indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child; or leaving an abandoned refrigerator or other container where a child could crawl in and suffocate; or singing and playing the Star Spangled Banner in an entertainment venue as part of a medley.
Other bills repealed laws prohibiting “walkathons,” endurance contests, and the sale of dyed baby chicks, rabbits, or ducklings. Here, too, it is difficult to believe that we need to use the criminal law to regulate that conduct.
The federal criminal code is also due—some would argue long overdue—for a “spring cleaning.” Repealing anachronistic criminal statutes one or a few at a time would help to reduce overcriminalization, but such a piecemeal approach would take a considerable amount of time. For one thing, no one knows how many federal criminal laws are currently scattered throughout the federal code. As retired Justice Department official Ronald Gainer remarked, “You will have died and resurrected three times” before you can figure out how many federal crimes exist. A one-or-two-statutes-at-a-time approach also can get mired in the legislative process as Members of Congress try to turn a relatively uncontroversial bill into a Christmas tree. Accordingly, while Congress can and should pursue the path taken by the Clean Up the Code Act of 2015, it should also use the criteria listed in the Regulatory Reporting Act of 2015 in deciding what criminal laws should be jettisoned.
Paths to Repeal: A Bulk Repeal Process
Because the entire federal criminal code contains obsolete, “redundant, superfluous, and unnecessary criminal laws,” Congress should consider identifying large swaths of such provisions and repealing all of them at one time. To do so, there are several steps that Congress could take.
Congress should begin by directing the Department of Justice to compile a list of all federal criminal laws and to supply it with information regarding how often each statute has formed the basis for a criminal charge. Congress could impose a similar requirement on all federal agencies. Both requirements are part of current bills pending in the House and Senate. Only the Justice Department can bring criminal prosecutions, but agencies have the authority to promulgate regulations defining terms in statutes used in criminal prosecutions. A collection of all relevant regulations is necessary because estimates of the number of relevant rules exceed 300,000, a number far too high for any lay person to be able to run down. The Senate and House task forces can use those lists to decide what is and is not necessary for federal criminal law.
In the meantime, Congress could turn that list of statutes into an act of Congress and add it to Title 18 of the U.S. Code, the location where federal crimes belong. Doing so would collect all federal criminal law in one location for use by both the bar and the public.
Those paths to decriminalization are not mutually exclusive. Congress should pursue each one and should use all of the tools at its disposal to trim the federal criminal code.
The federal criminal code is long overdue for a “spring cleaning.” The explosive growth of federal criminal law requires legislative attention because people expect that certain conduct is a crime and other conduct is not. Leaving statutes that long ago lost resonance with the moral judgment of a community on the books, still available for use by creative and overzealous prosecutors, gives rise to a lack of notice and unfair selection.
The number and often inadequate composition of federal crimes can punish a myriad of actions that are no longer considered inherently blameworthy and that therefore do not deserve society’s most severe form of condemnation. Only Congress has the constitutional authority to repeal those laws. Common sense demands that legislators should exercise that prerogative. Congress should continue the hard work of identifying and repealing federal criminal laws that have fallen into desuetude or that are otherwise unnecessary, either on a piecemeal basis or all at once, to reduce America’s overcriminalization problem.
—Paul J. Larkin, Jr., is Senior Legal Research Fellow and John-Michael Seibler is a Visiting Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.