Desuetude-Based Severability: a New Approach to Old Morals Legislation

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Desuetude-Based Severability: A New Approach to Old Morals Legislation

ERIK ENCARNACIÓN*

Sometimes officials fail to enforce a statute despite its widespread violation over a long period of time. Under the doctrine of desuetude, such statutes are considered void and therefore may be abrogated by judges. This Note articulates and defends a version of the doctrine that would prevent arbitrary and capricious enforcement of obsolete morals legislation, while simultaneously preserving the residual symbolic value that otherwise obsolete morals legislation may retain for citizens. Judges would ac- complish this by invalidating the punishment-enabling provisions of morals legislation as desuetudinal, while preserving the offense-defining provisions that may still have symbolic value.

I. INTRODUCTION

What should a court do when deciding whether to enforce obsolete morals legislation, such as a statute banning fornication?1

* The author would like to thank Ankush Khardori, Patty Li, Peter Romer- Friedman, Matthew Vogele, and Professor Kendall Thomas for their valuable input. Above all, the author would like to thank his parents Claudia and Jose Luis Encarnación for their constant love and support. 1. This Note uses “morals legislation” broadly to refer to regulations of so-called “victimless crimes,” including, but not limited to, criminal regulations on consensual sexual activity. For a similar usage, see Sara Sun Beale, The Many Faces of Overcriminiliza- tion: From Morals and Mattress Tags to Overfederalization, 54 AM. U. L. REV. 747, 750 (2005) (suggesting that morals legislation often criminalizes “common and innocuous” behavior). For a narrower understanding of “morals legislation,” see Lawrence v. Texas, 539 U.S. 558, 599 (2003) (Scalia, J., dissenting) (emphasizing the role that morals legislation plays in regulating sexual conduct consistent with notions of traditional sexual morality). File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

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Such statutes are landmines.2 They lie dormant, often for dec- ades, while law enforcement officials make no effort to enforce them despite widespread violation by the public.3 Normally these statutes are harmless because nobody comes into contact with them. But as one commentator notes, they are capable of causing “grave injustice.”4 This is because, as Cass Sunstein has explained, obsolete statutes are enforced against private citizens in “an unpredictable and essentially arbitrary way.”5 What should be done about such legislative landmines? Should they be deactivated or left alone? If they should be deactivated, by whom and by what means? This Note considers judicial approaches to deactivating obsolete morals legislation. Specifically, this Note proposes a way to disarm such legislation while simultaneously accommodating the values they may reflect. It argues that in a limited class of cases it is appropriate for judges to sever parts of old morals legislation while leaving the rest intact. That is, this Note argues that it is sometimes appropriate to sever provisions defining the punishment, while leaving untouched provisions defining the proscribed conduct. Thus, as the title suggests, this Note argues for a type of severability doctrine. The title also suggests something about desuetude, the doctrine providing that anachronistic statutes become void when

2. A sampling of morals legislation that is still “on the books”: ALA. CODE § 13A-12- 1 (LexisNexis 1975) (prohibiting, inter alia, shooting, hunting, gaming, card playing, or racing on Sunday); D.C. CODE ANN. § 22-1307 (LexisNexis 2001) (making it unlawful, inter alia, for anyone to curse, swear, or make use of any profane language or indecent or ob- scene words, or engage in any disorderly conduct in a wide variety of public places); MASS. ANN. LAWS ch. 272, § 14 (LexisNexis 1992) (criminalizing adultery); id. § 18 (banning fornication); VA. CODE ANN. § 18.2-388 (1950) (banning profane cursing or swearing in public); and W. VA. CODE ANN. § 61-8-15 (LexisNexis 2005) (restricting cursing or swearing in public). 3. See Corey R. Chivers, Desuetude, Due Process, and the Scarlet Letter Revisited, 1992 UTAH L. REV. 449, 453-56; Linda Rodgers & William Rodgers, Desuetude as a De- fense, 52 IOWA L. REV. 1, 1-3 (1966); Arthur E. Bonfield, The Abrogation of Penal Statutes by Nonenforcement, 49 IOWA L. REV. 389, 389-91 (1964). 4. Bonfield, supra note 3, at 391. 5. Cass R. Sunstein, What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, and Marriage, 2003 SUP. CT. REV. 27, 50. Making essentially the same point, the legal counsel for one Massachusetts State Senator remarked, “It’s not just that [obsolete morals statutes] are no longer relevant, but some of these could be used for the purpose of target- ing or embarrassing someone for political or other reasons . . . . The only time these things rear their head [sic] is when somebody has it out for somebody else.” Jonathan Finer, Old Blue Laws Are Hitting Red Lights, WASH. POST, Dec. 4, 2004, at A3. File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

2005] Desuetude-Based Severability 151 they go unenforced for long periods of time. While the doctrine has not been widely accepted in the United States, various versions of the doctrine have been proposed in the case law and aca- demic literature. Part II describes three judicial approaches to the problem of desuetudinal legislation, two of which explicitly invoke the doctrine of desuetude. While these approaches all have advantages and disadvantages, existing desuetude-based proposals fail to account for a curious problem that arises when public officials attempt to repeal obsolete morals legislation. While typically no one cares whether desuetudinal statutes are vigorously enforced, vocal opposition often develops when public officials attempt to remove them,6 which undermines the view that the legislation in question is actually desuetudinal. Part III explains this phenomenon in greater detail. In an attempt to de- velop a viable, desuetude-based solution to the problem of obsolete morals legislation, Part IV observes that previous versions of the doctrine of desuetude have failed to recognize that morals legislation often serves a unique expressive or symbolic purpose that may survive even long-term non-enforcement. This Part also develops a desuetude-based severability doctrine, which would sever as void the punishment-enabling provisions of morals legislation, but would leave untouched the remaining symbolic aspects. Part V demonstrates how the doctrine would be applied. There are several likely objections to this proposal addressed in Part VI, including the objection that the proposed doctrine invites judicial activism. Finally, Part VII concludes by noting that despite the concerns inevitably raised when judges abrogate legislation, desuetude-based severability nonetheless provides an administrable standard that enables courts to remedy the problems associated with obsolete morals legislation, while achieving political compromise with those who value morals legislation. At a minimum, judicial intervention invites a legislative response to address the problems of desuetudinal morals legislation, where legislators might otherwise lack the incentive to remedy the problem.

6. See, e.g., Ted Olsen & Todd Hertz, Does Lawrence v. Texas Signal the End of the American Family?, CHRISTIANITY TODAY, June 30, 2003, http://www.christianitytoday.com /ct/2003/126/11.0.html; Neil A. Lewis, Conservatives Furious Over Court’s Direction, N.Y. TIMES, June 27, 2003, at A19. File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

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II. EXPLAINING LEGAL DESUETUDE

This Part explains the rationale underlying the various versions of the doctrine of desuetude, which roughly states that it is procedurally unfair to enforce obsolete statutes against unsus- pecting individuals. While most jurisdictions do not give any judicial notice to the fact that a particular law has fallen into disuse from nonenforcement,7 there are several commentators,8 and at least two American jurisdictions,9 that have expressed interest in some applicable doctrine of desuetude. For these courts and commentators, the question is not whether an applicable doctrine of desuetude should be adopted, but rather what form it should take. Several versions of the doctrine of desuetude have emerged from the literature and, more rarely, from the case law. The classical form of the doctrine of desuetude, for example, permits complete judicial abrogation of desuetudinal statutes.10 Before discussing the doctrine’s rationale, the concept of desuetude should be distinguished from the doctrine of desuetude. The concept of desuetude simply means that some law has fallen into disuse.11 It functions descriptively, suggesting that law en-

7. Chivers, supra note 3, at 449 (observing that American courts have generally adopted the “American Rule” whereby non-enforcement of statutes under no circumstances justifies their judicial abrogation). There is, however, a very important exception. The Supreme Court of West Virginia expressly adopted a doctrine of desuetude, coinciden- tally in the same year that the Chivers article was published. Committee on Legal Ethics v. Printz, 416 S.E.2d 720, 726 (W. Va. 1992). The test set forth in Printz was later applied in State ex rel. Canterbury v. Blake, 584 S.E.2d 512, 516 (W. Va. 2003), and again in State v. Donley, 607 S.E.2d 474, 479 (W. Va. 2004). Printz is discussed in more detail infra Part II.B. 8. See, e.g., ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 148-56 (2nd ed. 1986); GUIDO CALABRESI, A COMMON LAW FOR AN AGE OF STATUTES 17-25 (1982); Bonfield, supra note 3, at 389; Chivers, supra note 3, at 449. 9. The state courts of West Virginia expressly adopted a doctrine of desuetude. See Printz, 416 S.E.2d at 726; Donley, 607 S.E.2d at 479. At least one Connecticut Appellate Court raised the possibility of an applicable doctrine of desuetude but ultimately declined to decide the matter. State v. Linares, 630 A.2d 1340, 1346 n.11 (Conn. App. Ct. 1993), overruled on other grounds by State v. Linares, 655 A.2d 737 (Conn. 1995). 10. See infra Part II.B. 11. Sometimes the “concept” and “doctrine” of desuetude are used interchangeably. See, e.g., Mark Peter Henriques, Note, Desuetude and Declaratory Judgment: A New Chal- lenge to Obsolete Laws, 76 VA. L. REV. 1057, 1068 (1990); Printz, 416 S.E.2d at 724-25. This is unnecessarily confusing. A judgment that a statute has fallen into disuse does not entail any prescription about what to do about it. It is also possible for a court to find that a statute has not fallen into disuse, while simultaneously refusing to pass judgment on whether in future cases the court would accept any doctrine of desuetude. See United

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2005] Desuetude-Based Severability 153 forcement officials have acquiesced to widespread violation of a statute, which has consequently become a “dead letter” law.12 By contrast, the doctrine of desuetude functions prescriptively, suggesting that judges should take judicial notice of the fact that a statute has fallen into desuetude.13 The fact that a statute can become a dead letter by disuse, as a descriptive matter, seems relatively uncontroversial.14 The controversial question is whether judges charged with applying the law should ascribe any prescriptive significance to this observation.

A. THE BASIC RATIONALES SUPPORTING THE DOCTRINE

The idea that people should not suffer under old, obsolete statutes that have long since been rendered “dead letter” law has a certain commonsense appeal. It seems fundamentally unfair to hold people accountable for violating laws that are never enforced, which no one cares about, and whose original purpose appears anachronistic. This basic sense of unfairness can be traced to three legal defects. First, desuetudinal statutes are prone to arbitrary and capricious enforcement. Second, governments often fail to provide citizens with fair notice about desuetudinal statutes. Third, desuetudinal statutes reflect a complete failure of the law as applied to reflect the law as written. Together these defects represent failures of procedural fairness. The doctrine of desuetude, whatever the form it takes, seeks to protect individuals against the risk of injustice posed by these defects. Judicial protection of individuals against desuetudinal statutes is justified because those statutes are, as Professor Sunstein notes, “a recipe for unpredictable and discriminatory enforcement

States v. Elliott, 266 F. Supp. 318, 326 (S.D.N.Y. 1967) (upholding an indictment under a rarely enforced statute forbidding destroying, inter alia, property belonging to a friendly foreign government). 12. Bonfield, supra note 3, at 389. 13. Id. at 395-401 (recounting the civil law origins of the doctrine, which permitted courts to abrogate statutes determined to have fallen into desuetude). 14. Few people would doubt that an ordinance banning blasphemy has fallen into disuse. See Finer, supra note 5. Consider also Boston’s ordinance instructing: No person shall, within any market limits, permit any box, cask, or other recep- tacle, or any vehicle, or any horse or other beast, to remain in a street or side- walk on the Lord’s day, except in the evening and in a place assigned by the Su- perintendent of Markets or his deputies. BOSTON, MASS., MUN. CODE ch. 16 § 10.3 (2004). File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

154 Columbia Journal of Law and Social Problems [39:149 practices” by public officials.15 In United States v. Elliott, a fed- eral district court judge warned that “[a] desuetudinal statute . . . contains the potential for abuse that rests in any over-broad administrative discretion; its selective enforcement raises equal protection problems analogous to the Yick Wo doctrine.”16 In Yick Wo v. Hopkins17 the Supreme Court noted:

Though the law itself be fair on its face and impartial in ap- pearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practi- cally to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.18

Yick Wo involved Chinese immigrants who were denied permits to operate laundry businesses by an administrative board in California.19 While the ordinance requiring consent by the board was facially valid, it was applied in a discriminatory manner against the immigrants in violation of the Equal Protection Clause.20 Similarly, the problem with desuetudinal statutes is that virtually any attempt to enforce them will often suggest “adminis[tration] by public authority with an evil eye and unequal hand.”21 Suddenly enforcing long dormant statutes raises the suspicion that law enforcement officials are using dead texts as pretexts for harassing individuals. Abrogating these statutes prevents abusive administration and enhances fair administration of the law. Preventing enforcement of desuetudinal statutes against individuals is also justified because long-disregarded statutes fail to

15. Sunstein, supra note 5, at 73. 16. 266 F. Supp. 318, 326 (S.D.N.Y. 1967). The court ultimately rejected the defendant’s invocation of desuetude — not because the court refused to recognize the doctrine, but rather because it found that the statute under which the defendant was prosecuted had not fallen into disuse. Id. (“Conspiring to destroy a bridge is not, and never has been, permitted by community mores.”). 17. 118 U.S. 356, 373-74 (1886). 18. Id. 19. Id. 20. Id. 21. Id. File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

2005] Desuetude-Based Severability 155 provide citizens with fair notice.22 Citizens should be able to rely on the consistent behavior of public officials, even if that behavior suggests a conspicuous policy of nonenforcement.23 If a citizen has no fair notice that she might be violating a law, then it would be presumptively unfair for the law to be enforced against her.24 This idea is similar to the rationale supporting the void-for- vagueness doctrine.25 Like vague penal statutes, desuetudinal statutes permit too much official discretion over the lives of citizens and fail to adequately inform them of their duties under the law.26 The Supreme Court has long recognized that failure to provide notice “violates the first essential of due process of law.”27 Finally, the doctrine enhances legal congruence, which is a virtue of any legal system in which formally adopted law reflects, or is consistent with, actual institutional practice.28 To illustrate what happens when formal law becomes grossly incongruent, one might consider North Korea’s constitution, which contains formal recognition of freedom of speech and of the press.29 These and other North Korean constitutional “guarantees” are so astonish- ingly incongruent with actual practice that they render the entire legal system a sham.30 In general, formal law that is extremely incongruent with institutional practice undermines the legitimacy and integrity of the legal process. The doctrine of desue-

22. Bonfield, supra note 3, at 391. 23. Committee on Legal Ethics v. Printz, 416 S.E.2d 720, 726 (W. Va. 1992). 24. Id. 25. Id. at 724-25. As one commentator explains: No one may be required at peril of life, liberty, or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State [really] commands or forbids . . . . [If] men of common intelligence must necessarily guess as to its meaning and differ as to its application, [it] violates the first essential of the due process of law. Bonfield, supra note 3, at 417 (citing Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939) (citations omitted)). 26. See, e.g., Papachristou v. Jacksonville, 405 U.S. 156, 162-63 (1972) (declaring a vagrancy statute void for vagueness). 27. Connally v. General Const. Co., 269 U.S. 385, 391 (1926). 28. LON L. FULLER, THE MORALITY OF LAW 81-91 (rev. ed. Yale University Press 1969). 29. N. KOREA CONST. ch. 5, art. 67 (1998) available at http://www.novexcn.com/ dprk_constitution_98.html (“Citizens are guaranteed freedom of speech, of the press, of assembly, demonstration and association.”). 30. Compare id., with Amnesty International U.S.A., North Korea Human Rights Concerns, http://www.amnestyusa.org/countries/north_korea/summary.do (last visited Oct. 24, 2005). File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

156 Columbia Journal of Law and Social Problems [39:149 tude keeps formal law aligned with institutional practice by preventing law enforcement officials from suddenly reviving formal law that has for all practical purposes become obsolete. The doctrine of desuetude preserves procedural fairness, rather than substantive fairness, in the sense that it is primarily concerned with fair administration of the law rather than the content of the law itself.31 Several commentators and a few courts have recognized the inherent unfairness of applying dead letter laws, as well as the similarity between constitutional principles of procedural fairness and desuetude doctrine. Two promi- nent approaches for implementing some version of the doctrine of desuetude have emerged: classical doctrine of desuetude and desuetude as defense. A third approach that will be considered would employ constitutional proxies for desuetude doctrine. This approach views the doctrine as unnecessary in light of constitutional precedent that achieves substantially the same results as would a formally recognized doctrine of desuetude.

B. CLASSICAL DESUETUDE DOCTRINE

Although the doctrine of desuetude derives from the civil law tradition, it has periodically attracted scholarly attention in the United States.32 Nevertheless, most jurisdictions in the United States have not adopted any express form of the doctrine of desuetude.33 The Supreme Court of Appeals of West Virginia provides one notable exception in Committee on Legal Ethics v. Printz.34 The court adopted what is essentially the classical view of the doctrine of desuetude, which holds that certain laws lose their binding force when citizens openly and notoriously violate them with the tacit consent of law enforcement officials, typically over a long period of time.35 Because the laws are thereby void, the judiciary is not remiss in abrogating them.36 To determine

31. For more on desuetude, see Rodgers & Rodgers, supra note 3, at 1. For a skepti- cal assessment of the doctrine, see Robert Misner, Minimalism, Desuetude, and Fornica- tion, 35 WILLAMETTE L. REV. 1, 13-23 (1999) (arguing that desuetude does not serve the goals of judicial minimalism and violates separation of powers). 32. Chivers, supra note 3, at 449-50. 33. Id. at 450. 34. 416 S.E.2d 720, 726 (W. Va. 1992). 35. Id. at 726. 36. Id. File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

2005] Desuetude-Based Severability 157 whether a statute has fallen into desuetude, and therefore is subject to complete judicial abrogation, the Supreme Court of Ap- peals of West Virginia adopted a judicially-created doctrine of desuetude involving three elements.37 First, a judge may not abrogate a statute that prohibits conduct that is malum in se, because they do not lose their criminal character through desuetude, while crimes that are malum prohibitum may.38 The court provides a partial explanation for this requirement:

[I]f no one had been prosecuted under an obscure statute prohibiting ax murders since Lizzie Borden was acquitted, we would still allow prosecution under that statute today. Even though no one has been prosecuted for an ax murder in 50 years, we all still understand that it is inappropriate to resort to garden tools to settle family quarrels.39

The basic idea is that the procedural concerns motivating the doctrine — fair notice and arbitrary enforcement — are not likely to be relevant when an act is malum in se. Commonsense morality obviates the need for notice, and if a crime is malum in se, then its rare enforcement can be explained by reference to the rarity of the crime itself. Officials rarely enforce statutes prohibiting ax murders because ax murders are rare. The second prerequisite for determining whether a statute is void by desuetude is that “there must be an open, notorious, and pervasive violation of the statute for a long period.”40 This language suggests that mere frequent violation is insufficient to render a statute void. If that were the case, then the doctrine of desuetude would threaten a whole range of legislation that is socially valuable though frequently violated.41

37. Id. 38. Id. 39. Id. 40. Id. 41. Sunstein, supra note 5, at 58 (suggesting that “rarely arresting or convicting teenagers for use of alcohol, or infrequently arresting or convicting people for marijuana use” would not suffice to render statutes void under a properly articulated doctrine of desuetude). File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

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Finally, the Printz court suggests that, “there must be a conspicuous policy of nonenforcement.”42 The idea is that “a very long-continued and well-settled failure to enforce a widely- ignored statute is as much a positive expression of public policy as would be its express legislative abrogation.”43 In Printz, the court created and applied its classical doctrine of desuetude to a statute that forbade attorneys from threatening criminal action to gain an advantage in civil proceedings.44 The facts involved an attorney who discovered that someone in his father’s company had embezzled money.45 Rather than tarnish the company’s image or embarrass the embezzler by seeking criminal charges, the attorney arranged for the embezzler to return all the money in installments.46 When the embezzler did not return the money pursuant to the agreement, the attorney con- tacted the authorities.47 The attorney was later reprimanded for having violated a rarely enforced provision in the West Virginia Code of Professional Responsibility forbidding attorneys from threatening criminal action to gain advantage in civil proceedings.48 It is unclear from the case whether the respondent-attorney argued that the provision of the Code of Professional Responsibil- ity was void by reason of desuetude, or whether the court inde- pendently found the statute void.49 What is clear from the opinion, however, is that the court expressly recognized the doctrine, perhaps for the first time in the United States. In applying the first criterion, the court found that the ethics provision proscribed an activity that was malum prohibitum “since it utterly defies both human nature and good sense.”50 The court suggested that using the threat of criminal prosecution to extract a civil remedy for embezzling is a common and desirable practice.51 But the

42. Printz, 416 S.E.2d at 726. 43. Bonfield, supra note 3, at 391 (“The reason for this is that such a protracted course of administrative conduct must at least reflect the electorate’s acquiescence to the provision’s demise as effective law.”). 44. Printz, 416 S.E.2d at 722-24. 45. Id. at 720-22. 46. Id. 47. Id. 48. Id. at 722-24. 49. See id. at 720. 50. Id. at 727. 51. Id. at 722-24, 727. File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

2005] Desuetude-Based Severability 159 court did not provide much guidance on how to distinguish crimes malum in se from those malum prohibitum. Instead, the court focused narrowly on the ethics provision under review. With re- gard to this provision, the court implied that laws prohibiting extortion alleviate any concerns that originally necessitated the ethics provision.52 In applying the second criterion — “open, notorious and pervasive violation of the statute”53 — the court noted that, in limited circumstances, it had become “acceptable legal strategy” to seek mutually desirable civil solutions to potentially criminal matters.54 To the extent that the ethics provision denied this pervasive practice, it was being openly and notoriously violated.55 Finally, in determining under the third criterion that there was a “conspicuous policy of nonenforcement,” the Supreme Court of Appeals of West Virginia noted that no attorney had been sanc- tioned in the United States (under similar provisions) in twenty years.56 After applying the test to the ethics provision and finding it had fallen into desuetude, the court declared it void and dismissed the action against the respondent-attorney.57

C. DESUETUDE DOCTRINE AS A DEFENSE

The classical account of the doctrine of desuetude contains a core element common to all accounts of the doctrine: it provides some method for determining the threshold question of whether a particular statute has fallen into disuse. In Committee on Legal Ethics v. Printz, the Supreme Court of West Virginia adopted a three-part test that serves this purpose.58 But while finding whether a statute has fallen into desuetude is one thing, the legal consequences of such a finding are another.59 In Printz, the court found that the statute in question was void, in effect striking the provision from the books, in addition to dismissing the claim

52. Id. at 727 n.4. 53. Id. at 726. 54. Id. at 726-27. 55. Id. at 727. 56. The court was careful, however, not to apply a numerical formula for determining the critical number of years required to find a statute void by desuetude. See id. 57. Id. 58. Id. at 726. 59. See supra note 11 and accompanying text. File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

160 Columbia Journal of Law and Social Problems [39:149 brought under the desuetudinal provision.60 These are the hall- marks of classical desuetude doctrine. Some commentators, however, have suggested that classical desuetude doctrine reflects an overly broad and unnecessary policy of judicial intervention into the legislative process.61 Recog- nizing the separation of powers concerns inherent in judicial abrogation of legislation, some have advocated permitting individuals to use desuetude as a defense against penalties, without abrogating the desuetudinal statute.62 Rodgers and Rodgers propose a narrow mistake of law defense to be included in the Model Pe- nal Code:

A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: . . . [the defendant] acts in reasonable reliance upon a clear practice of non-enforcement of the statute or other enactment defining the offense by the body charged by law with responsibility for enforcement, unless notice of intent to enforce the statute or other enactment is reasona- bly made available prior to the conduct alleged.63

This mistake of law defense, while presented as a model rule, need not await legislative codification. Conceivably a court, in its equitable capacity, might decide to accept a similar defense. Ei- ther way, when understood as a defense, the doctrine of desuetude would serve two of the three basic rationales of classical desuetude doctrine — non-arbitrariness and fair notice — without the alarming result of judicial abrogation of the statute. The predicate inquiry into whether a statute has fallen into desuetude remains essentially the same as the inquiry required for the classical doctrine of desuetude, because an alleged violator of the statute must act in reasonable reliance upon a clear practice of non-enforcement. The major difference is the practical result:

60. Printz, 416 S.E.2d at 727. 61. See, e.g., Misner, supra note 31, at 13 (arguing against any doctrine of desuetude as an unconstitutional encroachment into legislative powers); Rodgers & Rodgers, supra note 3, at 1 (making the narrower criticism that the purposes supporting a doctrine of desuetude are best served by recognizing, in statutory form, a limited defense of desuetude that would not result in the statute’s abrogation). 62. Rodgers & Rodgers, supra note 3, at 28. 63. Id. File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

2005] Desuetude-Based Severability 161 when the doctrine of desuetude is understood as a pure defense, the desuetudinal statute is not abrogated. If a judge permits the doctrine of desuetude as a defense rather than as a method for statutory abrogation, she might appear less like an “activist.” Yet when desuetude plays the role of a defense, it cannot serve the third rationale of restoring legal congruence between formal law and enforced law. Because the desuetudinal statute remains on the books unaltered, applying desuetude as a defense perpetuates this troublesome incongru- ence between written law and enforced law.

D. CONSTITUTIONAL PROXIES FOR DESUETUDE DOCTRINE

The doctrine of desuetude as a defense against criminal prosecution is a fairly modest proposal. The classical doctrine of desuetude, to the extent that it permits judges to declare statutory law void, is fairly immodest. Yet there is a third way that judges may respond to the hazards of desuetudinal legislation that is arguably even more radical than the classical doctrine: abrogating desuetudinal statutes by applying already-existing constitutional principles.64 For example, the procedural values motivating the doctrine of desuetude also motivate other constitutional doctrines like vagueness.65 Thus, judges may employ those constitutionally protected procedural values directly, in lieu of expressly recognizing the doctrine of desuetude. Of course, this approach is not a form of the doctrine of desuetude at all, but rather a substitute for the doctrine. To illustrate one constitutional legal response to desuetudinal legislation, it is helpful to consider the landmark cases of Gris- wold v. Connecticut66 and Lawrence v. Texas.67 Sunstein has ob- served that these cases involve desuetudinal legislation.68 In

64. See, e.g., United States v. Elliott, 266 F. Supp. 318, 326 (S.D.N.Y. 1967) (“We find little analytical aid in merely applying, or refusing to apply, the rubric of desuetude. The problem must be approached in terms of that fundamental fairness owed to the particular defendant that is the heart of due process.”). 65. BICKEL, supra note 8, at 148-56. 66. 381 U.S. 479 (1965). 67. 539 U.S. 558 (2003). 68. See Sunstein, supra note 5, at 27-28. Sunstein further argues that these decisions illustrate an emerging due process norm under which desuetudinal statutes are considered unconstitutional. While this Note does not directly address the provocative sugges- tion that there is an already-existing constitutional doctrine of desuetude, it accepts Sun-

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Griswold, the Court encountered legislation banning the use of contraceptives,69 while in Lawrence, the statute in question barred certain sexual acts by individuals of the same sex.70 The Court found these old, rarely-enforced statutes unconstitutional because they violated liberty interests protected by the Due Proc- ess Clause.71 At least one state court has followed the Griswold- Lawrence approach, citing Lawrence to justify striking down a desuetudinal ban on fornication.72 Thus courts may sometimes employ constitutionally protected liberty interests to achieve the same results as an expressly recognized doctrine of desuetude. Of course, the Griswold-Lawrence liberty-based approach does not exhaust the constitutional means of striking down desuetudinal legislation. Other constitutional principles may play similar roles as proxies for desuetude doctrine. As noted earlier, Printz cited Yick Wo v. Hopkins to highlight the equal protection bar on arbitrary and capricious enforcement of the law.73 Moreover, because the concerns motivating the doctrine of desuetude are essentially procedural in nature, they might be translated into procedural due process terms.74 But the problem with using any constitutional principle as a proxy for a doctrine of desuetude is that it threatens to be both over- and under-inclusive given the purposes underlying desuetude doctrine. The constitutional method may be under-inclusive because there might not always be a readily applicable constitutional principle or precedent for every instance of desuetudinal legisla- stein’s observation that the statutes considered in Griswold and Lawrence were desuetudinal. 69. Griswold, 381 U.S. at 480. 70. Lawrence, 539 U.S. at 563. 71. Id. at 567 (“When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more endur- ing. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”); Griswold, 381 U.S. at 485-86 (“The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees . . . . Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”). 72. Martin v. Ziherl, 607 S.E.2d 367, 370-71 (Va. 2005) (applying Lawrence to strike down a statute banning fornication, or extramarital sex); cf. Williams v. Att’y Gen. of Ala., 378 F.3d 1232, 1238 (11th Cir. 2004), cert. denied, 125 S. Ct. 1335 (2005) (upholding a statute enacted in 1998 banning private use of sex toys). 73. See supra Parts II.A, II.B. 74. See, e.g., Rodgers & Rodgers, supra note 3, at 13-17. File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

2005] Desuetude-Based Severability 163 tion that poses a threat.75 For example, in Commonwealth v. Stowell, the Massachusetts Supreme Judicial Court upheld an adultery conviction.76 It is not obvious that statutes prohibiting adultery are unconstitutional, despite Lawrence.77 It is plausible, however, that many are desuetudinal. The possibility that desuetudinal statutes may escape constitutional invalidation means that using constitutional precedent to protect individuals against desuetudinal statutes may not suffice.78 A clearly-stated doctrine of desuetude would encourage direct judicial notice of the dangers posed by desuetudinal legislation. The threat of over-inclusion is that even if the judiciary is willing to apply existing constitutional principles to eliminate desuetudinal legislation, the breadth of the holding may extend beyond the narrow purpose for which the principle was invoked. Con- sider the scope of the liberty principle invoked in Lawrence.79 Although Lawrence had the effect of striking down desuetudinal morals legislation, the liberty principle raises far-reaching questions that go well beyond a mere finding of invalidity-by- desuetude. Such questions include whether a state can criminally regulate consensual sexual activity in a marital bedroom, and whether a state can regulate the extramarital bedroom. If a state cannot criminally regulate marital and extramarital bedrooms, then does this in fact, in Justice Scalia’s words, “decree[ ] the end of all morals legislation”?80 While the Lawrence Court took steps to limit the scope of its holding by stressing that the decision should not be taken to undermine state bans on prostitu- tion,81 there remains for the lower courts the politically-volatile

75. Chivers, supra note 3, at 450-51 (citing Commonwealth v. Stowell, 449 N.E.2d 357, 360-61 (Mass. 1983), in which the Court upheld an adultery conviction as an example of a constitutionally valid, though desuetudinal, law). 76. Stowell, 449 N.E.2d at 361. 77. Michael C. Dorf, Should the Law Punish Adultery? The Troubling Case of General Kevin Byrnes, FINDLAW, Aug. 15, 2005, http://writ.corporate.findlaw.com /dorf/20050815.html (suggesting that statutes prohibiting adultery may be distinguished from statutes prohibiting other forms of consensual sex because adultery harms third parties, while ultimately concluding that this distinction does not decisively answer the question of whether Lawrence protects adulterers from criminal adultery statutes). 78. Chivers, supra note 3, at 450-51. 79. Sunstein, supra note 5, at 48-51. 80. Lawrence v. Texas, 539 U.S. 558, 599 (2003) (Scalia, J., dissenting). 81. Id. at 578 (majority opinion) (“The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitu-

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164 Columbia Journal of Law and Social Problems [39:149 question of how much morals legislation survives after Lawrence. Speaking in terms of a liberty principle at least facially threatens legislation far beyond a narrow principle of desuetude. Rather than risking this over- and under-inclusion, some form of the desuetude doctrine should be adopted to address the issues directly.82 This Part does not address all the potential judicial approaches to deactivating desuetudinal legislation. But the three broad methods illustrated above suffice for the purposes of the next Part, which shows how any desuetude-based solution faces difficulties in the special case of desuetudinal morals legislation.

III. A PUZZLE ABOUT DESUETUDINAL MORALS LEGISLATION

This Part describes a puzzle about desuetudinal morals legislation. Simply put, attempts to repeal such legislation — either by the judiciary or by the legislature — are often met with forceful opposition.83 This is counterintuitive because the very concept of desuetude — statutory disuse — implies that the public frequently flaunts such statutes under the approving eyes of the law enforcement community. If a statute is so frequently violated, and if neither law enforcement officials nor the community at large seems to care much about it, then why would there be such formidable opposition to repealing such legislation? To illustrate why this is puzzling, it might be helpful to revisit Lawrence.84 The outcome of Lawrence might have plausibly been supported by some conception of desuetude, whether covertly or overtly. Covertly, the actual holding of Lawrence might represent an tion. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”). 82. Chivers, supra note 3, at 454-55 (“To the extent that these tools employ subter- fuges or unnecessarily require constitutional amendment before a legislature could reenact a statute, they are poor substitutes for a desuetude doctrine that addresses the problem directly.”) (footnote omitted). 83. Bonfield, supra note 3, at 391 (citing THURMAN W. ARNOLD, THE SYMBOLS OF GOVERNMENT 160 (1935) (“And in some cases it may be that ‘unenforced criminal laws survive [on the statute books] in order to satisfy moral objections to established modes of conduct. They are unenforced because we want to continue our conduct, and unrepealed because we want to preserve our morals.’”)); Finer, supra note 5 (noting how religious organizations have stopped legislative repeal of anachronistic bans on blasphemy and adultery twice since 2000). 84. 539 U.S. 558. File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

2005] Desuetude-Based Severability 165 emerging constitutional norm of due process, based on an implicit acceptance of the doctrine of desuetude.85 Overtly, it is possible to imagine a world in which the Texas Court of Criminal Appeals adopted the West Virginian doctrine of desuetude, or a desuetude-based defense, that would permit the court to sidestep the controversial constitutional question.86 But no matter which desuetude-based understanding one takes of Lawrence (and of similar cases involving old morals legislation), one is faced with a question: if the offending Texas statute criminally proscribing homosexual sodomy was so obsolete, or had fallen into disuse, then why were so many people outraged by the Court’s decision?87 It would seem, almost by definition, that abrogating truly desuetudinal legislation should not spark a political firestorm, since desuetude suggests that neither the citizenry nor the law enforcement community cares about enforcing the statute in question. If this is true, what explains the outrage sparked by Law- rence? In the particular case of Lawrence, some of the outrage might have stemmed from the fear that striking down the Texas statute put the nation on a slippery slope leading to the end of all morals legislation. In addition, some believe that Lawrence will inevitably lead to a broader recognition of gay rights, such as the right to same-sex marriage.88 This reaction does not necessarily view Lawrence’s outcome as wrong per se, but rather wrong by virtue of where it may lead.89 Another view, however, is that Lawrence was wrongly decided per se.90 Under this view, Lawrence was

85. Sunstein, supra note 5, at 48-51. 86. The actual defendants made only constitutional claims. Lawrence, 539 U.S. at 562-564. Avoiding the constitutional question in favor of a finding of desuetude would involve imputing a defense upon the defendants that they did not raise. 87. See Olsen & Hertz, supra note 6; Lewis, supra note 6. 88. Olsen & Hertz, supra note 6. 89. Id. (“‘I do not oppose sexual freedom for homosexuals, but I worry about the slippery slope’ created by the decision, Richard Mouw, president of Fuller Seminary, told Christianity Today. ‘If this were simply a decision that said we are going to strike from the books all state laws that prohibit genital intimacy between persons of the same sex, then we wouldn’t be deeply frightened or offended by that. But this seems to be not the last item on the agenda of a movement that wants to undermine traditional notions of family.’”). 90. A cursory reading of the published responses to Lawrence reveals that most nega- tive reaction was not couched in terms of the wrongness of homosexual sex acts per se, but rather in terms of where the decision may lead. But there remains the pervasive belief that homosexual sex acts are per se wrong. See, e.g., CATECHISM OF THE ROMAN CATHOLIC

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166 Columbia Journal of Law and Social Problems [39:149 wrong at least in part because homosexual sex acts are wrong. Statutes that proscribe these acts are important for expressing a community’s norms of “correct” sexual morality.91 These reactions and their underlying value judgments are of no constitutional import unless they reflect the view that what the Court did was somehow constitutionally illegitimate, not just wrong from a particular moral perspective. Accordingly, proponents of these views must filter their respective disagreement with the outcome through some theory of why the Court’s behavior was illegitimate.92 Such a theory might be characterized roughly as follows: as a matter of constitutional principle the state should be and is permitted to regulate its preferred sexual mores through legislation — including a norm against homosexual sex — consistent with “traditional” values.93 On this view, Lawrence was illegitimate because it prevented the state from exercising its police power to legislate sexual morality generally or regulate homosexual sex acts specifically.94 This rough charac- terization of the theory of legitimacy shared by opponents of Law- rence might be called anti-liberal majoritarianism.95

CHURCH, art. 6, § 2357, available at http://www.usccb.org/catechism/text/ pt3sect2chpt2art6.htm (“Basing itself on sacred Scripture, which presents homosexual acts as acts of grave depravity, tradition has always declared that homosexual acts are intrinsically disordered. They are contrary to the natural law. They close the sexual act to the gift of life. They do not proceed from a genuine affective and sexual complementarity. Under no circumstances can they be approved.”). 91. Of course, these views are not mutually exclusive because one may hold both coherently. 92. In fact, many opponents of Lawrence took precisely this strategy, predictably calling it an instance of “judicial activism.” For a survey of typical reactions from social conservatives, see Lewis, supra note 6. 93. See Bowers v. Hardwick, 478 U.S. 186, 196-97 (1986) (Burger, J., concurring) (asserting that “proscriptions against sodomy have very ‘ancient roots.’”); Lewis, supra note 6. 94. Lewis, supra note 6 (“Gary Bauer, a former Republican presidential candidate and the president of American Values, said, ‘Once again, an activist Supreme Court has substituted its judgment over the decisions of the citizens of Texas, who, through their elected representatives, had made a moral and legal judgment about behavior.’”). 95. “Liberalism” as used here is meant in its classical sense, which is closely associated with John Stuart Mill’s harm principle. For a more modern manifestation of the liberalism/anti-liberalism debate about the legitimacy of “legislating morality,” see generally H.L.A. HART, LAW, LIBERTY, AND MORALITY (1965) (representing the liberal position); LORD PATRICK DEVLIN, THE ENFORCEMENT OF MORALS (1959) (representing the anti- liberal position). For a more recent defense of the anti-liberal position, see generally ROBERT P. GEORGE, MAKING MEN MORAL 65-82 (1993) (reinterpreting Devlin’s argu- ments). File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

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The fact that the Lawrence decision provoked such a forceful reaction seems to undermine the observation that Texas’s anti- sodomy statute had fallen into disuse. Yet Lawrence is merely an instance of a more general political phenomenon. For most ostensibly desuetudinal morals legislation, the same pattern seems to emerge: politically potent forces coalesce in opposition to any effort to repeal the statute whether by legislative or judicial proc- esses.96 When ostensibly desuetudinal legislation is challenged, the very presence of robust counter-challenges raises questions as to whether the legislation in question has really fallen into “disuse.” Is there any response to this puzzle that is adequate to de- fend desuetude-based solutions to old, unenforced morals legislation?

IV. SOLVING THE PROBLEM WITH OFFENSE RULES, PUNISH- MENT RULES, AND THE EXPRESSIVE FUNCTION OF LAW

This Part lays out the elements necessary to understand how a desuetude-based solution to the problem of obsolete morals legislation can be helpful despite the problem posed in Part III. This Part argues that once morals legislation is understood as serving a largely symbolic function, the judiciary may then preserve its symbolic elements while disarming its potentially harmful aspects. This Note’s proposal is not the first to recognize that an applicable doctrine of desuetude would be a useful way to mitigate the problems associated with obsolete statutes. A few courts and several commentators have argued that courts should use some version of the doctrine of desuetude to abrogate desuetudinal legislation. Cass Sunstein recognizes an implicit version running through a line of constitutional cases including Griswold and Lawrence.97 Others have advocated express recognition of a doctrine of desuetude.98 Yet these proposals do not overcome the

96. See, e.g., Bonfield, supra note 3, at 391 (suggesting that the failure to repeal obsolete legislation might reflect a desire to enshrine our morals in positive law even if the public simultaneously does not desire enforcement); Finer, supra note 5 (detailing resis- tance to legislative repeal of obsolete morals legislation by religious organizations). 97. Sunstein, supra note 5, at 27. 98. Committee on Legal Ethics v. Printz, 416 S.E.2d 720, 726 (W. Va. 1992); Chivers, supra note 3, at 449. File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

168 Columbia Journal of Law and Social Problems [39:149 problem discussed in Part III. When desuetudinal morals legislation is threatened, judicially or otherwise, something strange oc- curs. A particularly strong and vocal contingency that views such legislation as somehow important emerges,99 and undermines the motivating premise that the morals legislation in question is desuetudinal. The question is how to preserve an operative desuetude doctrine that relies on a judgment that a statute has fallen into “disuse,” in light of the fact that a considerable number of people may view the statute in question as serving an important purpose, and thus not desuetudinal.

A. THE EXPRESSIVE FUNCTION OF LAW

The solution to the problem requires recognizing an ambiguity in the notion of legal disuse. This notion begs the question of the purpose for which a statute is used. Most literature on the doctrine of desuetude assumes that disuse is best signaled by a policy of official nonenforcement amidst frequent statutory viola- tions. This understanding of “disuse” ignores the peculiar way in which a particular jurisdiction may “use” morals legislation. In some cases, the value of morals legislation lies not in its frequent and reliable enforcement, but rather in its expressive function.100 Numerous theorists have argued that legal norms generally, and criminal law specifically, have expressive dimensions or serve symbolic functions.101 The law can express attitudes, beliefs, emotions, or virtually anything capable of being communi- cated to a populace.102

99. Bonfield, supra note 3, at 390. 100. See Finer, supra note 5 (“‘In spite of the fact that [old morals statutes] are no longer enforced, we think there's something vital lost in this position that morality should have no role to play in public policy,’ said Daniel Avila, associate director for policy and research at the Massachusetts Catholic Conference.”). 101. For a general discussion of expressive theory, see Elizabeth S. Anderson & Rich- ard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503, 1531-64 (2000); Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903, 964 (1996). For variations on the theme of expressive theory in the criminal legal context, see SANFORD H. KADISH, BLAME AND PUNISHMENT 22-28 (1987); JOEL FEINBERG, DOING AND DESERVING 95-118 (1970); Joseph Gussfield, On Legislating Morals: The Symbolic Process of Designating Deviancy, 56 CAL. L. REV. 54, 58-59 (1968); Morris R. Cohen, Moral Aspects of the Criminal Law, 49 YALE L.J. 987, 1017 (1940). 102. Anderson & Pildes, supra note 101, at 1516-17. File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

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While legal norms generally carry expressive content, this fact is particularly salient in criminal law. Sometimes the main reason that certain criminal regulations persist at all is to show social disapproval. Consider Morris Cohen writing in 1940:

It is one of the functions of the criminal law to give expression to the collective feeling of revulsion toward certain acts, even when they are not very dangerous — for example, buggery. There are, of course, various forms and degrees of social disapproval and it is not always necessary to bring the legal machinery into operation. But at some point or other the collective feeling must be embodied in some objec- tive communal act. By and large such expression of disapproval is a deterrent. But deterrence here is secondary. Ex- pression is primary . . . [This explains] why it is difficult to repeal penal statutes where no one believes that the punishment will have any reformatory effect on the offender or any deterrent effect on others and consequent diminution of the number of of- fenses. An example of this is the law against suicide. There are also statutes such as those making adultery a crime which the community does not want to see enforced. For the publicity in the matter would do more harm than good. Yet people will not vote to repeal it; for such repeal would look like removing the social disapproval.103

Cohen’s assessment of the symbolic function of criminal law helps explain the politics preventing legislatures from repealing unenforced morals legislation. The legislation goes unenforced because various political actors do not deem it important enough to merit robust enforcement. The citizens, however, do not push for the repeal of the legislation (or even actively oppose its repeal) because repealing it may be misunderstood as endorsing the conduct it proscribes.104 Cohen’s illuminating passage will be discussed further when responding to objections to desuetude-based severability. For now, it is important to note that the symbolic or

103. Cohen, supra note 101 (emphasis added). 104. Others have implicitly accepted Cohen’s explanation for why rarely enforced morals legislation persists in criminal codes. See, e.g., Beale, supra note 1, at 773-76 (suggesting that legislators fear the political fallout from repealing morals legislation). File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

170 Columbia Journal of Law and Social Problems [39:149 expressive function of law generally, and criminal law specifically, has remarkable explanatory power. It explains why seem- ingly desuetudinal morals legislation can evoke such strong political sentiment when efforts are made to repeal it. Despite its non-enforcement, such legislation is regarded as meaningful.

B. SHOULD ANTI-LIBERAL MAJORITARIAN COMPLAINTS BE DISREGARDED?

Perhaps anti-liberal majoritarian objections do not discredit assessments of statutory desuetude. A law’s desuetude depends on the actual practices of law enforcement officials, not on public opinion polls. Even if Lawrence had many opponents,105 this fact alone would not undermine the judgment that Texas’s officials had rendered its anti-sodomy statute desuetudinal. Thus, the argument would go, the views of the anti-liberal majoritarians may be safely disregarded, because public opinion is irrelevant when assessing whether a law has fallen into desuetude. This response, however, is not fully satisfying. It leaves unan- swered a crucial question: if so-called desuetudinal legislation is still useful for preserving broader political principles (about the state’s authority to “legislate morality”) and expressing social disapproval of certain conduct (such as extramarital sex), then is that legislation truly desuetudinal?106 The response sketched above fails to take seriously the anti-liberal majoritarians’ view that such statutes are still capable of serving useful purposes. This Note proposes a judicially administrable way to split the difference between the various supporters of desuetudinal morals legislation and those who recognize that such legislation is dangerous and should be disarmed. This Note argues that judges should take notice of morals legislation’s severability in a way that would preserve its expressive value while simultaneously disarming its more hazardous aspects.

105. See supra Part III. 106. Id. File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

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C. OFFENSE RULES AND PUNISHMENT RULES

Recognizing that even unenforced legal norms can be meaningful to people helps explain why even ostensibly desuetudinal legislation is difficult to repeal, which takes us a step closer to understanding this Note’s solution to the puzzle of why attempts to abrogate or repeal ostensibly desuetudinal legislation provoke opposition. The next step involves distinguishing between offense rules and punishment rules of criminal law. Many criminal provisions are offense rules, punishment rules, or mixtures of both. An offense rule is a provision that defines the conduct that the statute regulates. A punishment rule is a provision that defines the sanctions one faces for violating an offense rule. In the context of criminal law, punishment rules give offense rules their teeth by threatening individuals with sanctions for violating the offense rules. Punishment rules also en- able sanctions by providing a goal around which law enforcement officials coordinate a range of criminal procedures. An offense rule without a punishment rule, however, prevents a person from being ushered into the criminal process because it removes the reason to prosecute. Without a punishment rule, the various offi- cers of the law enforcement community have no reason to pursue any given individual for violating the offense rule. To illustrate the distinction, consider the statute invalidated in Lawrence, Texas Criminal Code section 21.06:

§ 21.06. Homosexual Conduct

(a) A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.

(b) An offense under this section is a Class C misdemeanor.107

Subsection 21.06(a) is best understood as an offense rule defining the offense, while subsection 21.06(b) is primarily a punishment rule. Subsection (a) defines a code of conduct directed to-

107. A “Class C misdemeanor” is a punishment “by a fine not to exceed $500.” TEX. PENAL CODE ANN. § 12.23 (Vernon 2004). File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

172 Columbia Journal of Law and Social Problems [39:149 wards the public, tantamount to “thou shalt not have homosexual intercourse.” Subsection (b), by contrast, defines the punishment for violating (a). To the degree that (a) primarily defines the pro- hibited conduct and (b) primarily explains what happens to of- fenders, (a) is an offense rule and (b) is a punishment rule. This distinction between offense and punishment rules offers a way for a desuetude-based method of disarming desuetudinal morals legislation to address the puzzle posed in Part III.

D. RECOGNIZING OFFENSE RULES AS EXCLUSIVELY EXPRESSIVE LAWS

This Note suggests that the anti-liberal majoritarians who support old morals legislation tend to express strong support for the values expressed by the offense rules, but not necessarily the values expressed by the punishment rules enabling state officials to hold people accountable for violating the offense rules. This argument speculates that anti-liberal majoritarians care deeply about the symbolism of striking down offense rules — which suggests denying the State’s authority to “legislate sexual morality” — but care less that people are no longer punished under them. To illustrate the proposed solution to the puzzle, consider again Texas’s anti-sodomy statute.108 By observing that subsec- tions (a) and (b) are different kinds of rules serving relatively independent functions, one can understand that the values underlying them potentially diverge. One might suspect that the outrage sparked by the outcome in Lawrence was not necessarily outrage over preventing officials from enforcing offense rule (a) by punishing people under (b), but rather that Texas merely could no longer express symbolic condemnation of certain acts using the offense rule in (a), and more generally the principle that States may express acceptable modes of sexual conduct through legislative acts. This Note speculates that anti-liberals were outraged over the symbolic implications of striking down (a), but cared much less whether (b) was actually being brought to bear against individuals. Put another way, while the symbolic value preserved in (a) sufficed to sustain (a) on the books, it did not suffice to justify punishing anyone as required by (b). Some valued the stat-

108. See supra Part IV.C. File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

2005] Desuetude-Based Severability 173 ute symbolically, to express a community’s allegiance to a certain form of sexual morality, but were not willing to endorse strong and intrusive official action to enforce that sexual morality.109 Supporting this speculation is the fact that the statute in Law- rence was rarely enforced but frequently violated, yet there was far less outrage about this fact than there was about Lawrence’s outcome. In short, arguably the punishment rule had fallen into disuse and should have been removed to avoid injustice. Because there was a sense in which the offense rule had not fallen into disuse, there is at least a prima facie reason why it should have remained on the books. Once one accepts that legal norms have expressive content, offense rules might make sense as functional legal rules even without punishment rules. An offense rule is still a legal norm, and as such, it still has expressive content regardless of whether it is enforceable through punishment. Such a rule would express dis- content with that conduct, irrespective of whether the rule is supported by a corresponding punishment rule. In Lawrence, the offense rule may have expressed hateful intolerance towards persons of homosexual orientation in a way that would not survive equal protection analysis; it may have attempted to stigmatize such persons in an effort to legitimize their social subordination in a similarly unconstitutional manner; or it may have served as a marker of allegiance to a political community, like “Texans are not happy about gay sex.” Perhaps it expressed all of these ideas. Ultimately, the expressive content of a legal norm is vitally important with respect to a statute’s validity under constitutional provisions like the Equal Protection Clause. No state, for example, may pass a declaration proclaiming whites to be the superior race, even if the declaration is merely expressive.110 In Shaw v. Reno, the Su-

109. This latter observation — that a community no longer supports the values underlying the punishment rule — can be inferred from a range of factors, including money allocated to law enforcement of the morals legislation in question, number of years since enactment, and the frequency of punishment. If the community’s law enforcement budget does not allocate any money towards pursuing convictions, has not sought convictions for a long time, or does not do so with any stable frequency, it is likely that the community does not care enough about the “crime” in question to punish its violation, though its expressive interests may remain. 110. More generally, “a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest” necessary to survive rational basis review

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174 Columbia Journal of Law and Social Problems [39:149 preme Court recognized a constitutional cause of action under the Fourteenth Amendment for alleging that a state’s congressional redistricting scheme was “so irrational on its face that it can be understood only as an effort to segregate voters into separate voting districts because of their race, and that the separation lacks sufficient justification.”111 Shaw concerned white appellants who objected to the creation of what appeared to be an exclusively black voting district of highly irregular shape.112 As Richard Pildes and Richard Niemi have suggested, Shaw is significant for its recognition of an “expressive harm . . . that results from the ideas or attitudes expressed through a governmental action, rather than from the more tangible or material consequences the action brings about.”113 In Shaw, the highly irregular congressional districting raised the specter of “the most egregious racial gerrymanders of the past.”114 It is important to recognize that while morals legislation may be valued primarily in its expressive capacity, nothing in this Note should be interpreted to suggest that the expressive aspects of government actions are or should be immune from constitutional scrutiny. Similarly, if the statute invalidated in Lawrence was a positive attempt to further the social subordination of homosexuals as a “politically unpopular group,”115 then nothing in this Note should be interpreted to protect that expression from constitutional invalidation. This Note will bracket the constitutional concerns raised by subsection 21.06(a), assuming for the purposes of illustration that subsection 21.06(a) is constitutionally valid.116 under the Equal Protection Clause. Romer v. Evans, 517 U.S. 620, 634-35 (1994) (citing Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973)). For this reason, it seems dubious that § 21.06(a) would survive in any event. 111. 509 U.S. 630, 658 (1993). 112. Importantly, the Court recognized a constitutional cause of action even though the appellants did not claim that their votes had been diluted, while conceding that race is not per se an illegitimate consideration for the purposes of drawing congressional districts. Id. at 640-43. 113. Richard Pildes & Richard Niemi, Expressive Harms, “Bizarre Districts,” and Vot- ing Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 MICH. L. REV. 483, 506-07 (1993). 114. Shaw, 509 U.S. at 641. 115. Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973). 116. In particular, this analysis of the Texas statute brackets the very troubling equal protection concerns it raises. Justice O’Connor raises the equal protection concern in Lawrence v. Texas, 539 U.S. 558, 579-85 (2003) (O’Connor, J., concurring) (arguing that

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Bracketing the constitutional question, this Note’s proposed severability doctrine emerges from the recognition that part of Texas’s criminal anti-sodomy statute was valued primarily for its symbolic content, while the enforcement-enabling provisions had withered from desuetude. Because subsection 21.06(a) had meaningful expressive content independent of (b), one could sever (b) from section 21.06 without worrying that (a) would be meaningless or senseless. Subsection (a)’s role would be purely symbolic: it would serve a purely expressive function as, for example, an identifying marker of a political community, or perhaps a broad censure against a type of activity. Thus, severing the punishment rule and preserving the offense rule would not make the remaining statute meaningless. Having seen that an offense rule without a punishment rule is plausible, we now turn to the question of whether desuetude-based severability doctrine is administrable.

V. THE OPERATION OF DESUETUDE-BASED SEVERABILITY

This Part defends the possibility of a workable, desuetude- based severability doctrine to be applied to certain kinds of criminal morals legislation. The goal of this Part is to show how such a doctrine might be administered in practice. As an illustration of how the proposed doctrine would be applied, consider how it would apply to someone prosecuted under Georgia’s anti- fornication statute: “An unmarried person commits the offense of fornication when he voluntarily has sexual intercourse with another person and, upon conviction thereof, shall be punished as for a misdemeanor.”117 Assume a person prosecuted under the statute admits to having committed the offense, but challenges the statute as unconstitutional under Lawrence. When might a judge facing a Lawrence challenge think it pru- dent to employ a desuetude-based severability doctrine? It should be recalled that desuetude-based severability does not need to be expressed in constitutional terms, nor is it intended to be an extension or reinterpretation of existing constitutional doc-

Texas’s prohibition on homosexual sex acts reflected an unconstitutional desire to harm a politically unpopular group — homosexuals — in violation of the Equal Protection Clause). 117. GA. CODE ANN. § 16-6-18 (2004). File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

176 Columbia Journal of Law and Social Problems [39:149 trine. While constitutional principles can serve to justify the doctrine, the doctrine may also be expressed as an independent policy of judicial abrogation of the desuetudinal punishment provisions of morals legislation. This Note endorses this variation because it targets the specific challenges associated with desuetudinal morals legislation. To apply desuetude-based severability, the first inquiry is whether the legislation in question is indeed morals legislation.118 As stated above, morals legislation refers broadly to so-called “victimless crimes,” a rough definition that includes legal regula- tion of sexual behavior.119 If the legislation is not morals legislation, then the doctrine will not apply. (Again, this is because morals legislation is often in the peculiar position of being supported with respect to the offense rule but not with respect to the punishment rule.120) The above statute is clearly a piece of morals legislation because it aims to proscribe voluntary “sexual intercourse” between “unmarried” persons. After identifying the statute in question as morals legislation, the next step is discovering whether and to what extent the statute has fallen into disuse. This requires fact-specific evaluation of the statute in the context of actual law enforcement practice. Taking our cue from Committee on Legal Ethics v. Printz, this inquiry involves evaluating whether there has been “open” and “notorious” violation of the statute under a “conspicuous policy of nonenforcement.”121 With respect to the Georgia statute, such information is currently unknown. But it is plausible to suppose, for the sake of illustration, that the statute is never enforced — that there is “open” and “notorious” violation of the statute under a “conspicuous policy of nonenforcement.”122 If these two condi- tions are satisfied, this provides strong support for striking down at least part of the statute. Then the question becomes, how much of the statute be struck down—just the punishment- defining parts, or the entire statute?

118. This discussion continues to focus on such legislation, though it is true that the doctrine may be applicable outside of this narrow context — perhaps in the context of non- criminal regulations that are desuetudinal. 119. See supra note 1. 120. See discussion supra Part IV.D. 121. Committee on Legal Ethics v. Printz, 416 S.E.2d 720, 726 (W. Va. 1992). 122. Id. File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

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At this stage, the judge should recognize that the community might support the offense rule as a matter of symbolic expression. It is possible that preserving the state or local government’s ability to express its professed sexual mores is very important to some people.123 To recognize whether a particular community vests independent expressive value in offense rules, judges must be sensitive to the social and political atmosphere of that community. If the Georgia Supreme Court decided that the fornication statute was probably valued by Georgia more for its symbolism than its substance, desuetude-based severability would permit the court to void the punishment rule contained in the statute. Skeptics may argue that judges are not competent to determine whether their political communities endorse a particular value, or at least are not more competent than legislatures to make this determination.124 That may be true, but desuetude- based severability does not prevent legislatures from correcting perceived judicial errors by reenacting punishment rules. If the judge’s assessment about the social and political atmosphere proves inaccurate, the legislature is free to reenact the full text of the severed statute. The process of reenactment should provide the public with notice of the legislature’s intent to take its own statute seriously, contrary to the long-term official practice that made the statute in question appear to be dead letter. Thus, this Note’s proposed doctrine would still be a useful way to force the legislature to confront the law enforcement community’s failure to enforce validly enacted morals legislation. Returning to the Georgia statute, suppose our hypothetical judge decides that the fornication statute’s only real value resides in its symbolic role, and that its operative punishment rule is hazardous. This Note maintains that the best route for the judge wishing to respect the symbolic role that morals legislation continues to play in certain communities, while simultaneously recognizing that such legislation threatens procedural fairness, would be to sever the punishment rule. What would Georgia’s

123. See supra Part III. 124. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 63-69 (1980) (arguing that courts should not rely on an emerging social consensus as a source of fundamental constitutional values because judges are not any better than legislatures in detecting it). File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

178 Columbia Journal of Law and Social Problems [39:149 severed statute look like? The punishment rule would be excised leaving the offense rule behind. For the Georgia statute, the clause reading, “[a]n unmarried person commits the offense of fornication when he voluntarily has sexual intercourse with another person” defines the elements of the offense and is therefore the offense rule.125 This part would remain. The clause reading, “and, upon conviction thereof, shall be punished as for a misdemeanor” is the punishment rule. This clause would be abrogated. The statute remaining on the books would read: “[a]n unmarried person commits the offense of fornication when he voluntarily has sexual intercourse with another person.” As a result, the statute is rendered toothless. By removing Georgia’s punishment rule and leaving the offense rule intact, the judge attempts to both respect the State’s ability to express its preferred sexual morality and prevent the statute from being applied in an unfair manner. The defendant’s conviction would be overturned, and future defendants would never be prosecuted under this provision. Desuetude-based severability, however, is not a principle of constitutional law. Therefore, if the legislature decides to reactivate the legislation’s severed provision, it can do so, as long as the legislature provides citizens with notice of the reenactment.

VI. OBJECTIONS TO DESUETUDE-BASED SEVERABILITY

There are several expected objections to the proposal. First, the proposal does not truly respect anti-liberal majoritarianism because it does not permit full enforcement of the terms of the offense rule. Second, it encourages judicial activism because it provides non-constitutional grounds for abrogating duly enacted legislation. In response to these respective objections, it will be noted that anti-liberal majoritarian values are not the primary concern of the doctrine, and that desuetude is a powerful limiting principle that should prevent judicial activism. It might also be objected that the doctrine violates basic principles of criminal law. A response to this objection is that the doctrine coheres with the functions of criminal law once its symbolic function is taken seriously. This Part discusses these objections in detail.

125. GA. CODE ANN. § 16-6-18 (2004). File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

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A. DESUETUDE-BASED SEVERABILITY ADEQUATELY RESPECTS ANTI-LIBERAL MAJORITARIANISM

The proposed doctrine claims to respect the beliefs of various groups who endorse morals legislation as a way to express preferred moral values. Arguably, the proposal does not truly respect these groups because it assumes without warrant that the supporters of desuetudinal morals legislation would be satisfied with toothless legislation on the books that goes unenforced. It is possible that supporters of such legislation would only be pla- cated if the entire statute is upheld. This objection, however, misunderstands the priority of purposes underlying the proposal. The point of the proposed doctrine is not primarily to placate proponents of desuetudinal morals legislation, and secondarily to prevent injustice posed by such legislation. It is the other way around. The doctrine simply recognizes that, for some groups, striking down an entire piece of desuetudinal morals legislation may have some residual symbolic significance that should not be entirely ignored. To the extent that the doctrine takes the ex- traordinary step of accommodating that symbolism, it can hardly be said to disrespect those constituencies that value that symbolism.

B. DESUETUDE-BASED SEVERABILITY DOCTRINE DOES NOT ENCOURAGE JUDICIAL ACTIVISM

One might object that the doctrine is undesirable because it invites judicial activism. This objection is difficult to respond to because “judicial activism” is hard to define. If the argument is that the doctrine violates separation of powers because it encourages judicial intervention into the legislative process, 126 then this objection does not apply only to desuetude-based severability. Any judicial review of legislation involves judicial second- guessing of the legislative process. If, on the other hand, an act of judicial activism is one in which a judge substitutes his or her own personal views for the one prescribed by law, then arguably desuetude-based severability promotes activism by licensing judges to rid the codes of stat-

126. Misner, supra note 31, at 38-40. File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

180 Columbia Journal of Law and Social Problems [39:149 utes they find distasteful. Yet this should not be a significant concern, because the doctrine’s requirement that a statute be desuetudinal is a very strong limiting principle that would effec- tively constrain judges. The only statutes that are candidates for severability are those that go unenforced for long periods of time in a manner suggesting a tacit policy of abrogation by the law enforcement community.127 Because few statutes plausibly fit this description, the scope of legislation subject to judicial review under desuetude-based severability is limited. Moreover, even if there were a legitimate concern that the doctrine encourages judicial activism, the doctrine does not prevent state legislatures from remedying activist courts, because desuetude-based severability does not prevent a legislature from reenacting a severed statutory provision. Rather, desuetude-based severability is a sound judicial policy that aims to keep the law on the books in line with the law in practice. It is not a doctrine emanating from the Constitution or any state’s constitutional jurisprudence (even though it can be explained in terms of constitutional principles). If a state’s legislature decides that it wants to reinvigorate enforcement of a previously desuetudinal statute, it is free to reenact a severed statute, provided that the legislature gives proper notice to its citizens and enforces the statute consistently and predictably.

C. SEVERING A PUNISHMENT RULE FROM A CRIMINAL STATUTE DOES NOT NECESSARILY VIOLATE BASIC PRINCIPLES OF CRIMINAL LAW

Other objections stem from apparently axiomatic principles of criminal law. One argument would be that a criminal law is simply not valid law if it does not contain a punishment rule.128 An- other objection is that, even if criminal law does serve an ancillary symbolic or expressive function, it cannot serve that function exclusively.

127. See supra Part II.B. 128. Another way of expressing this idea is that a crime without punishment is not a crime. See Nunley v. State, 26 P.3d 1113, 1117 (Alaska Ct. App. 2001) (citing WAYNE R. LAFAVE & AUSTIN W. SCOTT, SUBSTANTIVE CRIMINAL LAW, §1.2(d), at 13 (1986)). File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

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The first objection assumes the primary purposes of criminal laws are to punish and deter socially undesirable activity, and that criminal law must be able to punish and deter in order to be criminal law. Severing a punishment rule means the state cannot punish or deter activity defined by the offense rule with threat of sanction. Therefore, severing a punishment rule means that the remaining statute is not legally cognizable as a criminal law at all. In response, this Note recognizes that the most familiar purposes of criminal law — punishment, deterrence, and rehabilita- tion — are not served by severing the punishment rule. One can only suggest that there is another function of criminal law toward which this Note has already alluded — the expressive or symbolic function. This is not a novel idea. Morris Cohen argues that “[i]t is one of the functions of the criminal law to give expression to the collective feeling of revulsion toward certain acts, even when they are not very dangerous.”129 Cohen also suggests that there exists a logical space in the criminal law between expressing public disapproval for behavior and actually punishing someone based on that expression.130 For example, the anti-sodomy statute in Lawrence was rarely enforced, nor did it appear that many people really cared that it was so rarely enforced. Some people, however, cared greatly about removing it. This pattern of legislative ambivalence with respect to old, anachronistic legislation continues today.131 A more recent commentary by Joseph Gussfield on the functions of criminal law suggests that the legislature might serve as a forum for clashes between culture warriors.132 Under this in-

129. Cohen, supra note 101. 130. Id. (“There are also statutes such as those making adultery a crime which the community does not want to see enforced.”). For a virtually identical diagnosis, see Bon- field, supra note 3, at 391 (citing THURMAN W. ARNOLD, THE SYMBOLS OF GOVERNMENT 160 (1935) (“And in some cases it may be that ‘unenforced criminal laws survive [on the statute books] in order to satisfy moral objections to established modes of conduct, and unrepealed because we want to preserve our morals.’”)). 131. Finer, supra note 5 (noting how religious organizations have stopped legislation attempting to repeal anachronistic bans on blasphemy and adultery twice since 2000); Bonfield, supra note 3, at 390-91 (“An administrative emasculation of an obsolete statute may be easier to achieve, and a great deal less painful, than its legislative abrogation. This is true because of an observable reluctance among legislators to repeal existing en- actments. And it is especially so when a well-organized and active minority opposes a measure’s demise.”). 132. See Gussfield, supra note 101. File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

182 Columbia Journal of Law and Social Problems [39:149 terpretation, criminal morals legislation might be thought of as a legislative expression of intercultural dispute resolution:

Affirmation through law and governmental acts expresses the public worth of one subculture’s norms relative to those of others, demonstrating which cultures have legitimacy and public domination . . . . Victory or defeat has thus symbol- ized the status and power of the opposing cultures, indicat- ing that legal affirmation or rejections can have symbolic as well as instrumental importance.133

By recognizing that the criminal law sometimes performs a symbolic function that people take seriously, one might explain the persistence of unenforced morals legislation and the accompanying foot dragging that allows small numbers of highly organized religious groups to prevent their repeal.134 Yet, observing that criminal law serves an expressive function does not answer the second objection, which argues instead that criminal law cannot serve expressive or symbolic goals exclusively. This second objection is willing to concede that criminal law may have an ancillary expressive or symbolic function, but is not willing to concede that it can serve only that function. This objection might be understood in one of two ways. First, one might argue that there has never been a formally inoperative criminal law that has served an exclusively symbolic or expressive function. Second, it might be suggesting that as a matter of normative public policy, there should never be a formally inoperative criminal law serving exclusively symbolic or expressive functions. In response to the first claim, one might concede that perhaps there has never been an exclusively symbolic criminal statute before. Part of this Note’s argument, however, is that there is currently desuetudinal morals legislation that seems to be serving precisely that purpose. If indeed some morals legislation is useful only in its symbolic capacity, the existence of punishment rules is at best unnecessary, and at worst distorts what such morals legislation is supposed to provide. Judicial application of

133. Id. at 58-59. 134. Finer, supra note 5. File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

2005] Desuetude-Based Severability 183 the proposed doctrine serves this purpose by making the message of the statute congruent with actual institutional practice.135 Moreover, even if it is true that exclusively symbolic criminal statutes have never existed, this is not an argument as to why they should not be recognized now in light of compelling reasons. One must further provide reasons why criminal statutes should not perform that function as a normative matter. This relates to the second view of what it means to say that law cannot serve exclusively symbolic purposes. If what under- lies the objection is the normative claim that criminal law should never take the form of inoperative symbolic statutes, then a full response to the objection is far beyond the scope of this Note. The objection is important enough, however, to merit a brief response. Saying that a statute will serve an exclusively symbolic function does not mean it will not be recognizable as a criminal statute. Severed morals legislation still may express moral condemnation of certain behavior. An offense rule without a punishment rule might be characterized as an official censure condemning, for example, the act of fornication as opposed to the individuals who fornicate. What makes the offense rule without a punishment rule different from an offense rule with a punishment rule is that no individual would ever be singled out for condemnation in a criminal tribunal, because the explicit punishment-enabling provision is excised from the statute. Ridding the statute of a punishment rule does not entail removing the moral disapprobation characteristically associated with criminal law. Finally, if there really is a deep normative problem with exclusively expressive criminal statutes, then state or local legislatures will be in a position to respond as they best see fit. The legislature may choose to do nothing, repeal the entire statute, or re-enact the statute as it existed before being severed. In any event, the judicial intervention may actually stimulate a legislative response to the severed statute. This seems to mitigate normative concerns stemming from the fundamental principles of criminal law.

135. It may be argued that as a normative matter criminal law should never serve a merely symbolic-expressive purpose. But as a descriptive matter, it seems that much morals legislation ends up serving this purpose. The question then becomes how to limit the damage that such symbolic legislation can do. File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM

184 Columbia Journal of Law and Social Problems [39:149

VII. CONCLUSION

This Note began by observing that desuetudinal legislation is hazardous to the public’s health. Most American courts have not taken any direct approach to dealing with such statutes. There are, however, several judicial approaches for deactivating potentially harmful desuetudinal statutes. These approaches range from using existing constitutional doctrine to strike down the dangerous legislation to adopting an independent, classical doctrine of desuetude as a matter of judicial policy. While each approach has its advantages and disadvantages, this Note argues that they all fail to account for the puzzling political phenomenon uniquely associated with desuetudinal morals legislation: that efforts to repeal such legislation are often met with robust opposition. Although this appears to cast doubt on the judgment that a particular statute had fallen into disuse, the opposition may derive less from popular support for punishing individuals under the statute than from popular support of the symbolism underlying the definition of the offense. In response, this Note proposes a limited, desuetude-based severability doctrine. Rather than complete abrogation of the statute, desuetude-based severability would allow for a compromise. The compromise begins by recognizing that significant por- tions of the population might consider the statute in question an important symbolic gesture, even if the same group does not care as much about whether that statement is enforced by the reliable threat of punishment. Thus, this Note proposes to sever the dangerous provision — the punishment rule — from the statute as a whole, leaving behind the offense rule to serve an exclusively symbolic function. The proposed doctrine captures all the advantages associated with other desuetude doctrines: it diminishes the possibility of arbitrary and capricious enforcement; it reduces the risk of enforcement without fair notice; and it tightens the fit between the “law on the books” and the law in practice. Yet the proposed doctrine is unique because it also achieves a political compromise with those who appreciate morals legislation for its symbolic value. Desuetude-based severability is a highly administrable way to deactivate the legislative landmines buried in state and municipal codes. At a minimum, applying the proposed doctrine may stimulate legislative efforts to clear the minefield.