ISSUE 20:1 SPRING 2015 Charles Lindbergh, Caryl Chessman, and the Exception Proving the (Potentially Waning) Rule of Broad Prosecutorial Discretion Wesley M. Oliver* Perhaps ever since legislatures started defining crimes, they have given prosecutors a variety of ways to prosecute the same conduct. Courts have, almost without exception, deferred to legislatures’ broad definitions of crime. Kidnapping statutes are the exception. The high profile execution of Caryl Chessman in 1960 for kidnapping prompted considerable scholarly criticism and prompted courts nationwide to impose limiting constructions on kidnapping statutes. Recently, scholars have called for a curb in prosecutorial discretion generally, attributing the explosion in the prison population to broad criminal codes, mandatory minimums, and sentencing guidelines that provide prosecutors leverage in plea negotiations. In the last two terms, the United States Supreme Court appears to have taken on this concern, limiting the scope of federal criminal statutes, twice in cases involving criminal doctrines that are part of most state criminal codes, and once in a case expressly recognized by many of the parties as an example of overcriminalization. The Supreme Court has rarely considered “ordinary” criminal law doctrines, typically interpreting complex or jurisdictional aspects of federal criminal statutes. And neither the Supreme Court, nor any appellate court in non-kidnapping cases, has used overcriminalization as a basis for limiting the scope of a criminal statute. Academics have long criticized the growing prison population, often attributing the phenomenon to increasing prosecutorial discretion, a product of overcriminalization. The Supreme Court’s recent cases suggest that America’s mass incarceration epidemic may be able to * Professor of Law and Associate Dean for Faculty Research and Scholarship, Duquesne University. B.A., J.D., University of Virginia; LL.M., J.S.D., Yale. I appreciate the comments of Wayne LaFave and Frank Zimring on an earlier version of this article. ISSUE 20:1 SPRING 2015 2 BERKELEY JOURNAL OF CRIMINAL LAW Vol. 20:1 prompt reforms in a way that Caryl Chessman’s execution prompted reforms in kidnapping laws. I. Introduction........................................................................................... 2 II. Courts Allow Broad Criminal Codes to Transfer Discretion to Prosecutors ..................................................................................... 9 A. A Choice Among Crimes...................................................... 11 1. Burglary .......................................................................... 13 2. Robbery ........................................................................... 17 3. Kidnapping ...................................................................... 22 B. In for a Penny, in for a Pound ............................................... 22 1. Statutory Interpretation ................................................... 24 2. Complicity and Conspiracy ............................................. 26 3. Felony Murder ................................................................. 28 III. The Special Historical Exception of Kidnapping ............................ 30 IV. Recent Limits on the Scope of Substantive Criminal Law .............. 57 A. Rosemond and the Doctrine of Natural and Probable Consequences ....................................................................... 61 B. Burrage and the Felony Murder Rule ..................................... 65 C. Yates and Overcriminalization ................................................ 68 V. Conclusion......................................................................................... 72 I. INTRODUCTION Historically, courts have accepted – and indeed been a part of – the transfer of power from judges to prosecutors. They have accepted and created broad definitions of crimes that provide prosecutors in relatively less serious cases the option of obtaining more severe sentences, or using the threat of a broadly defined crime as leverage to obtain a plea. Kidnapping has, however, been an exception to this rule. One high-profile execution for kidnapping in 1960 led courts nationwide to impose limiting constructions on kidnapping statutes to prevent excessive discretion from vesting in the hands of prosecutors. Recent decisions from the United States Supreme Court suggest that courts may be expanding their concern about prosecutorial discretion beyond the anomalous example of kidnapping. Over the last two decades, academics have raised substantial concern about the effect of the ever-expanding scope of substantive ISSUE 20:1 SPRING 2015 2015 PROVING THE RULE OF PROSECUTORIAL DISCRETION 3 criminal law.1 The most frequently offered explanation for the expanding definition of crimes is that the political popularity of tough- on-crime laws has led legislatures to create a host of new crimes – carjacking and RICO, for instance – that carry substantial penalties.2 The reality is far more complex. Even traditional crimes, such as burglary, robbery, and kidnapping have, through a concert of action between courts and legislatures, been given sufficiently expansive definitions that encompass even nominal or incidental criminal conduct. Additionally, courts have been the primary actors in fashioning and retaining broad theories of liability for group criminal conduct and felony murder. Complicit themselves in the expanding definitions of crime, courts are rarely heard to express concern, frequently heard from academics, that substantive criminal law is shifting power from judges to prosecutors.3 1 Kimberly D. Bailey, Watching Me: The War on Crime, Privacy, and the State, 47 U.C. DAVIS L. REV. 1539, 1579 (2014); WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE 81–82, 260 (2011); Zachary Price, The Rule of Lenity as a Rule of Structure, 72 FORDHAM L. REV. 885, 887 (2004) (observing that frequently drafted “broad language in criminal statutes may reflect an effort to delegate the definition of terms to courts and executive officials”). 2 See, e.g., Stephanos Bibas, The Real-World Shift in Criminal Procedure, 93 J. CRIM. L. & CRIMINOLOGY 789, 806 (2003) (“Legislators pass myriad new criminal statutes to prove their toughness on crime.”); Michael A. Simons, Prosecutorial Discretion Guidelines: A Case Study in Controlling Federalization, 75 N.Y.U. L. REV. 893, 897– 98 (2000) (describing Congress as primarily responsible for expansion of scope of federal criminal powers); Sara Sun Beale, What’s Law Got to Do With It? The Political, Social, Psychological and Other Non-Legal Factors Influencing the Development of (Federal) Criminal Law, 1 BUFF. CRIM. L. REV. 23 (1997); Gerard E. Lynch, RICO: The Crime of Being a Criminal, 87 COLUM. L. REV. 661, 723 (1987) (observing that RICO “is so much broader than other criminal statutes” that the amount of discretion it confers on prosecutors may be seen as “different in kind” than other statutes that overlap with other offenses); William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 518–19 (2001) (describing expansion and contraction of “core” crimes that involve judicial interpretation of doctrines, but observing that legislatures have the primary role in defining new types of crimes, which are defined quite broadly); Jay M. Zitter, Validity, Construction, and Application of State Carjacking Statutes, 100 A.L.R.5th 67 (2002) (observing that “the area of behavior criminalized by state carjacking statutes overlaps a number of other state statutes,” requiring courts to consider whether crimes implicate double jeopardy issues). 3 By contrast, judges are quick to complain about procedures, particularly relating to sentencing, which shift powers to prosecutors. See, e.g., Kate Stith & Jose Cabranes, Judging Under the Federal Sentencing Guidelines, 91 NW. U. L. REV. 1247, 1265 (1997); Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901, 924–25 (1991). Judges have also been heard to complain about procedural rules giving procedural advantages to prosecutors in other ISSUE 20:1 SPRING 2015 4 BERKELEY JOURNAL OF CRIMINAL LAW Vol. 20:1 There is, however, a glaring exception to the trend toward ever- expanding criminal statutes. Decisions interpreting the definition of state kidnapping laws frequently express the concern that such laws be interpreted narrowly so as not to permit that charge when the victim’s detention is merely incidental to another crime.4 Remarkably, courts interpreting kidnapping statutes frequently express concern that a broad interpretation of these statutes would vest too much power in the hands of prosecutors.5 The origins of this concern, about the scope of kidnapping statutes, lie in the once famous case of Caryl Chessman, sentenced to die in California for kidnapping women he briefly detained as he robbed and sexually assaulted them.6 Neither robbery nor rape carried the death sentence in California at that point, but kidnapping did in California and several other states. Kidnapping laws became considerably more broad and punitive with the outrage over the 1932 kidnapping of the infant son of Charles Lindbergh in 1932, soon after the elder Lindbergh made international headlines when he became the first American to fly solo across the Atlantic Ocean.7 Commentators were quick to criticize the interpretation of a kidnapping law in a California case that allowed a contexts. See United States