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The Judicial Process and Substantive Criminal Law: the Legacy of Roger Traynor

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The Judicial Process and Substantive Criminal Law: the Legacy of Roger Traynor Loyola of Los Angeles Law Review Volume 29 Number 2 Article 1 1-1-1996 The Judicial Process and Substantive Criminal Law: The Legacy of Roger Traynor John W. Poulos Follow this and additional works at: https://digitalcommons.lmu.edu/llr Part of the Law Commons Recommended Citation John W. Poulos, The Judicial Process and Substantive Criminal Law: The Legacy of Roger Traynor, 29 Loy. L.A. L. Rev. 429 (1996). Available at: https://digitalcommons.lmu.edu/llr/vol29/iss2/1 This Article is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. THE JUDICIAL PROCESS AND SUBSTANTIVE CRIMINAL LAW: THE LEGACY OF ROGER TRAYNOR John W. Poulos* I. INTRODUCTION Few issues are more debatable, though less debated, than the proper role of the judiciary in making substantive criminal law. Though heated discussions are easily found on the judiciary's role in creating law of other types, it is generally assumed that judges legitimately play no significant role in creating substantive criminal law. This lack of debate is founded upon a generally accepted view of the legal process as it applies to the substantive criminal law. With rare exceptions, we are told, there are no common-law crimes in America. Crimes are created by legislative acts. The common-law substantive process, the method by which the English courts recog- nized and defined new offenses, generally was abandoned in America before the turn of the century. Legislative bodies now create the substantive crimes and the courts apply them. Courts are assumed to have no substantial creative role in making substantive criminal law. What little substantive law they create flows from applying statutory law to new facts, from the inevitable process of interpreting statutory law, or from filling in the small gaps left by inadvertent legislative omission in certain limited circumstances. This simple statement of the traditional view raises the suspicion that it does not accurately reflect what courts do, or what they should be doing, in a mature system of substantive criminal law. We sense that the common-law process has not, and perhaps should not, be relegated to a minor role in creating new substantive criminal law. By nearly universal acclamation, Roger Traynor was one of the great masters of the judicial process in the twentieth century. For thirty years he sat on the California Supreme Court, first as an associate justice and later as Chief Justice of California. There, he * Professor of Law, University of California, Davis. 430 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 29:429 used the judicial process to modernize much of California's law. The Traynor opinions in torts, conflicts, civil procedure, and taxation, to name a few of the more prominent areas in which he worked, make special contributions to American law and to the American judicial tradition. These opinions created and solidified his reputation as one of the greatest judges of the common law in this century. Indeed, some would say that Roger Traynor should be ranked as one of the ten best judges in American history.' There has been no major study of Roger Traynor's contributions to substantive criminal law, nor has there been a study of Traynor's judicial philosophy and how it guided his creation of new substantive criminal doctrine.2 Furthermore, until very recently, there had not been a new analysis of Roger Traynor's judicial philosophy in the last two decades.' A new study of Traynor's judicial philosophy has recently appeared.4 This Article builds upon that work. The goal of this Article is to analyze how Roger Traynor employed his remarkable philosophy of the judicial process to create a substantial body of new substantive criminal law in California. Our ultimate goal, of course, is to learn what we can from the legacy left us by Roger Traynor about how judges appropriately make substan- tive criminal law in our democracy today. This discussion is divided into four parts. The first part looks at Roger Traynor and the status of substantive criminal law as it developed during his thirty years on the bench in California. We will see that during Traynor's initial decade on the California Supreme Court, criminal law was in a moribund state. By the end of that decade, interest in the criminal law was sparked by a series of events that were not directly related to criminal law. This change in our legal culture continued until it developed into a renaissance in the substantive criminal law during the last decade of Traynor's tenure on 1. E.g., Bernard Schwartz, The JudicialTen: America's Greatest Judges, 1979 S. ILL. U. LUJ. 405, 407. 2. The only study of Justice Traynor's contributions to substantive criminal law I am aware of is by Jerome Hall. Jerome Hall, Chief Justice Traynor and Criminal Law, 35 HASTINGS LJ. 817 (1984). This article makes no systematic attempt to analyze Traynor's judicial philosophy as it applies across the entire range of his judicial lawmaking in substantive criminal law. 3. The most comprehensive analysis has been the chapter on Roger Traynor by G. Edward White. G. EDWARD WHITE, THE AMERICAN JUDICIAL TRADITION 292-316 (1988). 4. John W. Poulos, The Judicial Philosophy of Roger Traynor, 46 Hastings L.J. (forthcoming 1996). January 19961 THE LEGACY OF ROGER TRAYNOR the bench. As we shall see, Justice Traynor's creativity with the substantive criminal law was the product of this renaissance. The second section presents an overview of Justice Traynor's creativity with substantive criminal law during this thirty year period. The third section analyzes how Justice Traynor's judicial philosophy produced this substantial body of judge-made doctrine. The Article ends with an assessment of Traynor's legacy to the judicial role in creating substantive criminal law. 11. ROGER TRAYNOR AND THE CONTEXT FOR HIS WORK At an early point in the founding of our nation, we accepted the English common-law process as the model for our legal system. But because the state's authority to make and enforce substantive criminal law is truly awesome,5 and because there is a long history of its abuse in the not-too-distant past, the founders of our nation limited government power over criminal law in the federal constitution.6 With these modifications the common-law process has been used in American criminal law ever since. A preference for defining crimes and defenses by statute, rather than by judicial decision, slowly evolved within the American common-law system. This change was brought about by a metamor- phosis in our legal culture, not by constitutional command. The process began in England well before the American Revolution and ultimately became part of the legal culture in the New World. The development of the theft offenses, for example, illustrates the use of statutes to alter common-law crimes, to fill in unwanted gaps left by the cases, and to create new statutory offenses unknown to the 5. For example, it authorizes the state to kill its citizens and to coerce them in the most rudimentary ways, such as depriving us of our freedom. 6. The provisions of the U.S. Constitution restraining federal power over the substantive criminal law are (1) the prohibitions against bills of attainder in Article I, § 9, Clause 3; (2) ex post facto laws in Article I, § 9, Clause 3; (3) the treason provisions of Article III, § 3, Clauses 1 and 2; and (4) the Cruel and Unusual Punishment Clause of the Eighth Amendment. Those provisions applying against the state substantive criminal law power are the prohibitions of bills of attainder and ex post facto laws in Article I, § 10, Clause 1. Other provisions such as the First Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment have been interpreted as imposing substantive restraints on the criminal law power. In addition, there are a number of procedural protections that heavily affect substantive doctrine. The primary example is the guarantee of trial by jury set forth in Article III, § 2, Clause 3, and in the Sixth Amendment. 432 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 29:429 common law.7 It is easy to imagine that at some time there was a virtual partnership between Parliament and the royal courts in creating and tending the criminal law. This shared function is part of the Anglo-American criminal law tradition. Statutes have always played a significant role in American criminal law. Hence, we gradually developed a preference for statutory criminal law. Thus, rather than relying on the common-law of crimes, the first Congress enacted a comprehensive criminal statute as one of its initial acts.' By the turn of the twentieth century, much, if not most, of American criminal law was to be found in the statute books. Finally, many American jurisdictions have ended the partnership between the legislature and the courts with respect to recognizing new offenses. The techniques used to withdraw the power to "recognize" new crimes from the court vary among jurisdictions. The most common patterns are to enact statutes that either abolish all common-law crimes or declare that conduct is not criminal unless made so by statute.9 On occasion, the judiciary's power to recognize new crimes has been curtailed by judicial decision." Where this power has not been officially withdrawn, it has been virtually abandoned by the courts.
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