Journal of Criminal Law and Criminology Volume 111 Issue 2 Article 2 Spring 2021 The Modern Common Law of Crime Robert Leider Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons Recommended Citation Robert Leider, The Modern Common Law of Crime, 111 J. Crim. L. & Criminology 407 (2021). This Article is brought to you for free and open access by Northwestern Pritzker School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern Pritzker School of Law Scholarly Commons. 0091-4169/21/11102-0407 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 111, No. 2 Copyright © 2021 by Robert Leider Printed in U.S.A. THE MODERN COMMON LAW OF CRIME ROBERT LEIDER* Two visions of American criminal law have emerged. The first vision is that criminal law is statutory and posits that legislatures, not courts, draft substantive criminal law. The second vision, like the first, begins with legislative supremacy, but it ends with democratic dysfunction. On this view, while contemporary American criminal law is statutory in theory, in practice, American legislatures badly draft and maintain criminal codes. This effectively delegates the “real” drafting of criminal law to prosecutors, who form the law through their charging decisions. This Article offers a third vision: that modern American criminal law is primarily conventional. That is, much of our criminal law is defined by unwritten common-law-like norms that are widely acknowledged and generally respected, and yet are not recognized as formal law enforceable in courts. This Article makes three contributions. First, it argues that criminal law conventions exist. Second, it explains how nonlegal checks on prosecutorial power bring about criminal law conventions. Third, it provides an account for how legislatures and courts should respond to a criminal law heavily comprised of norms that rely primarily on nonlegal sanctions for their enforcement. INTRODUCTION ............................................................................ 409 I. BEYOND STATUTES AND PROSECUTORIAL DISCRETION ........................................................................ 414 A. Statutory Criminal Law ..................................................... 415 B. Substantive Criminal Law as the “Law” of * Assistant Professor, George Mason University, Antonin Scalia Law School. My thanks to: R. Seth Banks, Will Baude, Caroline Cecot, D. Bruce Johnsen, E. Lea Johnston, Jeremy Rabkin, Michael Reksulak, Daniel C. Richman, Paolo Saguato, Megan Stevenson; participants in CrimFest!; participants in the Levy Workshop; participants in the New Scholars Workshop at the Southeastern Association of Law Schools 2019 Annual Conference, including Bruce Green; participants in the Manne Faculty Forum, including Carissa Byrne Hessick and Craig Lerner; my research assistants, Gelane Diamond, Oren Litwin, and Tyler Shannon; and the editors of this journal, especially Katherine Hanley, Leah Karchmer, and Ryan Neu. 407 408 LEIDER [Vol. 111 Prosecutorial Discretion .................................................. 418 1. Prosecutorial Supremacy and Criminal Law .............. 419 2. Objections to Prosecutorial Supremacy Accounts ...... 423 II. CRIMINAL LAW AS A CONVENTIONAL SYSTEM ............. 428 A. What Are Conventions? Why Have Them? ...................... 429 B. Some Evidence that Criminal Law Conventions Exist ..... 437 III. REACHING EQUILIBRIUM: HOW DO CRIMINAL LAW CONVENTIONS DEVELOP? .................................... 453 A. Legislatures ....................................................................... 453 B. Elections ............................................................................ 459 C. Jurors ................................................................................. 464 D. Judges ................................................................................ 467 E. Federalism ......................................................................... 470 IV. DOCTRINAL IMPLICATIONS OF A DE FACTO CONVENTIONAL CRIMINAL SYSTEM ........................... 475 A. Problems Created by the Gap Between Doctrinal and De Facto Criminal law ............................................. 476 1. Substantive Criminal Law ........................................... 476 2. Plea Bargaining and Sentencing ................................. 478 3. Criminal Procedure ..................................................... 479 B. Closing These Gaps ........................................................... 481 1. Formal Legal Rules and Conventional Criminal Law ............................................................ 482 a. The Classical Approach ........................................ 482 b. Direct Enforcement ............................................... 484 c. Judicial Recognition and Indirect Enforcement .... 487 2. Harnessing Conventions to Correct for Overcriminalization’s Problems ................................ 489 a. Prosecutorial Discretion over Guilty Defendants .......................................................... 489 b. Developing Conventions to Cabin Statutory Mandatory Minimum Sentences and to Reduce the Need for Congress to Pass Such Sentencing Laws ........................................ 492 c. Misdemeanor Practice ........................................... 494 d. Discouraging Arbitrary Enforcement .................... 495 e. Criminal Procedure and Pretext ............................ 496 CONCLUSION ................................................................................. 498 2021] THE MODERN COMMON LAW OF CRIME 409 INTRODUCTION Two visions of contemporary American criminal law have emerged. The first vision, often recited by judges, is that criminal law has become statutory.1 Proponents of this opinion observe that federal courts do not have jurisdiction over common law criminal prosecutions,2 and that a supermajority of states have abolished common law crimes.3 Instead, legislatures now decide which conduct is permissible and which is prohibited. In theory, this is a good thing. Only by making criminal law statutory can the criminal law comport with basic principles of legality.4 The people’s representatives decide what should be criminalized, and individuals have notice that the government has prohibited certain conduct. The second vision, more common in academic circles, contends that modern criminal law has devolved into the “law” of prosecutorial discretion. Adherents to this vision argue that contemporary legislatures badly draft and maintain criminal codes. Legislatures enact too many laws.5 Congress, in particular, has created a federal criminal law that duplicates state criminal codes.6 State and federal laws are often too broad, criminalizing actions that should be lawful.7 Worse still, the statutes are often vague, making it difficult 1 Jones v. Thomas, 491 U.S. 376, 381 (1989); 1 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 2.1(a) (3d ed. 2017); Carissa Byrne Hessick, The Myth of Common Law Crimes, 105 VA. L. REV. 965, 971–72, 972 nn.17 & 19 (2019) [hereinafter Hessick, Myth] (collecting authority for the claim and ultimately arguing against it); Kevin C. McMunigal, A Statutory Approach to Criminal Law, 48 ST. LOUIS U. L.J. 1285, 1287 (2004) (“The dominant attitude expressed in American jurisdictions is one of legislative supremacy and exclusivity.”); John W. Poulos, The Judicial Process and Substantive Criminal Law: The Legacy of Roger Traynor, 29 LOY. L.A. L. REV. 429, 432 (1996) (“Statutes have always played a significant role in American criminal law. Hence, we gradually developed a preference for statutory criminal law.”). 2 United States v. Hudson, 11 U.S. 32, 33 (1812). Perhaps erroneously, this case now stands for the proposition that “[t]he definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute.” Liparota v. United States, 471 U.S. 419, 424 (1985). But Hudson did not rule out Congress passing a statute conferring jurisdiction on federal courts over common law crimes. 3 Hessick, Myth, supra note 1, at 980–83 (surveying states). 4 Id. at 971–98 (describing the conventional view). 5 See, e.g., Leslie C. Griffin, The Prudent Prosecutor, 14 GEO. J. LEGAL ETHICS 259, 263 (2001); Robert L. Misner, Recasting Prosecutorial Discretion, 86 J. CRIM. L. & CRIMINOLOGY 717, 744–45 (1996). 6 See Stephen F. Smith, Federalization’s Folly, 56 SAN DIEGO L. REV. 31, 35 (2019) [hereinafter Smith, Folly]. 7 Carissa Byrne Hessick & Joseph E. Kennedy, Criminal Clear Statement Rules, 97 WASH. U. L. REV. 351, 360 (2019); William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 506–07 (2001) [hereinafter Stuntz, Pathological Politics]. 410 LEIDER [Vol. 111 to tell what conduct is criminal.8 If breadth and vagueness were not bad enough, legislatures hesitate to repeal or amend crimes that have become desuetudinal or are rarely enforced.9 Combined, proponents argue that these problems leave us with a criminal justice system that suffers from vast over- criminalization. In modern America, everyone commits “three felonies a day.”10 According to the adherents of this view, these legislative defects provide prosecutors with plenary power over the administration of criminal justice.11 Because modern criminal law is so broad, prosecutors are delegated the power to decide who to charge and with which crimes.12