Very Broad Laws Offend Due Process

Repurposing "fair notice" principles to tackle an important aspect of overcriminalization.


Many thanks to the editors for inviting me to discuss my new article, Very Broad Laws, in which I develop a due process argument against extreme breadth in criminal law; my goal is to lay the conceptual groundwork for a "void-for-breadth" doctrine, whereby courts can bring the hammer down on criminal statutes that are so porously drafted, they effectively sweep in large swaths of everyday conduct. These types of criminal statutes suffer the same essential infirmity, I suggest, as vague and ambiguous criminal statutes: they fail to give ordinary people "fair notice" of how the legal system is likely to respond to their conduct. This is a due process problem because it frustrates predictability. When people lack a meaningful sense of what conduct invites serious intrusion into their lives — either because criminal statutes fail to convey what conduct they prohibit, or because they sweep so broadly that no one has a clue what the "actual" prohibition is — the rule-of-law is undermined.

The problem has not been lost on courts, including the Supreme Court, but the judicial response has been treat breadth as a species of vagueness or ambiguity. This is conceptually unsound. And not surprisingly, it has produced doctrinal confusion. In response, I argue that judges should identify the proverbial spade for what it is, and attack the breadth problem directly. By enforcing constitutionally-derived limits on broad lawmaking, the hope is that courts can encourage narrower laws, just as constitutionally-derived limits on indeterminacy — the rule of lenity and the void-for-vagueness doctrine — have long encouraged more precise laws.

For a concrete example of what I have in mind, consider Yates v. United States, the well-publicized "fish case" from 2015. After a wayward boat captain instructed his crew to throw some undersized snapper back into the ocean, in order to avoid being sanctioned by federal fishing and wildlife authorities for non-regulation catch, an entrepreneurial prosecutor decided to charge him under the obstruction of justice provision of Sarbanes-Oxley (Sec. 1519), a statute that carries a maximum sentence of twenty years, and that criminalizes the destruction or concealment of "record[s], document[s], or tangible object[s]" in order to obstruct a federal investigation.

The boat captain appealed his conviction on the theory that fish are not "tangible objects," and a majority of the Court agreed. Although fish are certainly objects, and it would be hard, abiding the normal parameters of English, to call them intangible, the Court reasoned that "ambiguity … should be resolved in favor of lenity," not "reading [Sec. 1519] expansively to create a coverall spoliation-of-evidence statute." In dissent, Justice Kagan pounced on this conflation of breadth and ambiguity. "Even in its most robust form," she wrote,"[the] rule [of lenity] only kicks in when, after all legitimate tools of interpretation have been exhausted, a reasonable doubt persists regarding whether Congress has made the defendant's conduct a federal crime." But here, "[n]o such doubt lingers." Although "the [Court] points to the breadth of [Sec. 1519] as [if] breadth were equivalent to ambiguity, … [i]t is not. Section 1519 is very broad. It is also very clear. Every traditional tool of statutory interpretation points in the same direction, toward 'object' meaning object [and including fish]. Lenity offers no proper refuge from that straightforward (even though capacious) construction."

My article (1) defends Justice Kagan's analytic position in Yates, while (2) embracing with the majority's overall perception of the case. The Yates Court was right, in other words, to discern a problem here. But the problem is not one of ambiguity. In fact, it is not a linguistic problem at all. It is a normative problem — a concern about the unpalatable results that follow from reading criminal statutes in wooden, but linguistically viable, ways.

Yates is far from the only example of this pattern. Others recent cases in which the majority reins in an alarmingly broad criminal statute by pretending that the problem is linguistic — over vociferous dissenting opinions — include: Marinello v. United States (rejecting an extremely broad theory of tax obstruction), Bond v. United States (invalidating a prosecution for garden-variety assault under a federal statute criminalizing the use of "chemical weapons"), and Morales v. Chicago (striking down an ordinance criminalizing public association with known gang members). Nor is the phenomenon limited to the Supreme Court. On the contrary, the pattern is traceable in lower federal courts and state jurisdictions alike.

In the article itself, I explore these examples in more detail. (And I'll provide more color in subsequent posts.) In each case, however, the same core point holds true. The court would have been on sturdier footing, both conceptually and doctrinally, if it had acknowledged the normative problem — that extremely broad criminal laws subvert due process — and fashioned remedies accordingly. Generally speaking, those remedies fall into two categories. The first, which enjoys favor among courts as well as numerous scholars, is to constrain the operation of broad laws through extra-textual limiting principles. I refer to this as the "rule of narrowness." The second is to limit legislative authority to enact very broad laws in the first place — by striking down statutes (or portions of statutes) as unconstitutionally broad. This, I call the "void-for-breadth" doctrine.

Ultimately, each tool has virtues and drawbacks. The first is nimbler. It leaves the overall statutory scheme intact, while still allowing judges to push back against overzealous, unfair, or otherwise-unreasonable enforcement decisions. The second is stronger medicine — in some cases, overly so — but it also attacks the problem at its root, responding to the reality that lawmakers often have an incentive to write broad laws. In other words, because legislatures frequently want criminal statutes to be broadly drafted and enforced, it stands to reason that limits on legislative authority, above and beyond constraints on enforcement power, would be necessary to corral the problem.

Ultimately, I argue that both tools should be available, just as courts have long taken a dual approach to linguistic indeterminacy, using the rule of lenity to dispel ambiguity, and the void-for-vagueness doctrine to curb amorphousness. Which anti-breadth tool should be used in which contexts is a complex question, but I close by suggesting that it roughly tracks a dichotomy (delineated in the article) between two different modes of breadth.

In one mode, the problem is essentially one of disproportionality: relatively minor violations triggering extremely draconian penalties. In that case, the proper remedy will typically be the rule of narrowness. In the other mode, the problem is, so to speak, the criminalization of everyday life: even if the relationship between conduct and penalty is not terribly asymmetrical, the statute simply criminalizes too much. In this case, by contrast, the proper remedy will usually be the void-for-breadth doctrine.

NEXT: Prof. Kiel Brennan-Marquez Guest-Blogging About Very Broad Laws

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  1. Isn’t throwing back the ones that are too small exactly what fishermen are supposed to do? That was the rule when I was a Boy Scout, anyway.

    You see, if you don’t throw the little ones back, they never grow into bigger ones. That’s sort of the whole point of the rule about minimum size in the first place.

    Apparently this prosecutor is a moron. This is my shocked face.

    1. My memory is that he only threw them back after they had been noticed by the police. But I only have a vague memory of it being an obvious (to the layman) case of prosecutors with too much time on their hands.

    2. Well, dumping small dead fish doesn’t leave much opportunity for them to grow bigger either. Let’s put it in story form to help you understand.

      See young Perlchpr, proud in his new Boy scout uniform, nice new fishing pole, net and creel. Being a good Boy Scout, he prepared by reading the conditions of his fishing license, including the requirement to release any fish under eight inches (and his beginner’s model creel conveniently includes an inscribed eight-inch rule).

      He’s in luck, the fishing’s good and over the course of 90 minutes he pulls in several fish of sizes ranging from 5 to 10 inches and places them in his creel. Having had enough, he wades back to shore, only to find a Game Warden waiting for him.

      What does young Perlscpr do? Why, dumps the contents of his creel back in the stream and watches the current carry the now dead fish away. But it’s OK, because he released the undersized fish, just as the law requires!

      If that’s what you did as a Boy Scout I understand your confusion. But you might want to be a little more careful in use of the word, “moron.”

      1. “Some billionaires wrecked many peoples’ life savings, so you have to go to jail, son.”

    3. Throwing them back immediately is what you’re supposed to do. It isn’t what he did.

      There’s a difference between catch-and release and limit-grading, which is why the second one’s rightly banned in some states.

  2. In my fantasy land, all cases concerning unconstitutional laws would be hard by juries, and there could be no appeals — if a jury does not unanimously agree on what a law means, or whether it is clear, that itself is proof it is unclear and void. Other reasons for being voided are internally inconsistency, inconsistent or very rare enforcement, and unexpected or unmet consequences (requiring that every law include a set of expected consequences). And I’d void laws in their entirety — jurors don’t get to rewrite bad laws or clean them up.

    Mainly I am just fed up with laws so vague and fuzzy that no one really agrees on when they apply, or that are applied in novel ways by clever vote-hungry jerks masquerading as legal guardians of society.

    1. To get a bit philosophical, the problem is that clarity is in tension with ease of understanding. Legal language is so stilted and crappy because it needs to handle all the various attempts to interpret it by differing parties in different times and contexts with different agendas. Language for communication can handle some ambiguity around the edges because people generally have an incentive to pick up what the other is laying down.

      This alignment is not the case with laws. And language did not evolve with this use in mind. That’s why it sucks at it’s usual job – communication – when it’s being used for this other job – directing or binding parties in often complex circumstances.

      Of course, this tension has zero to do with a law being overbroad, which is separate from clarity or lack of ambiguity; it is clear and easy to understand. It is unjust for a whole different set of reasons, much of which seem to involve legislatures assuming good faith in prosecutors.

      1. To get to the root of the problem, if laws are meant to tell people what they can do or not do, then they need to be clear to the people who are expected to obey them.

        But if all you care about is whether lawyers can have fun at cocktail parties, then by all means, fill them with legal jargon. After all, what does it matter if people can unknowingly break laws, if it provides full employment for legislators, lawyers, and judges?

        1. Clarity has two denotations, and laws need to encompass them both:
          to be both unambiguous and easily readable.

          These two requirements are in tension. It is not some plot to keep ordinary people from interpreting statutes and contracts. If it did, it’d have a lot more latin BS in it, because that’s how actual lawyer jargon rolls.

          1. The two are not in tension unless the law is intending to reach ephemeral conduct, or it appears to be in tension because the plain meaning of the statute is so absurd that people won’t believe it even when they read it.

            Example: Murder is the unlawful killing of a human being with malice aforethought.

            Now we have a common sense and long developed definition of malice aforethought, and thus murder is applied consistently and in keeping with the average person’s perception of murder. But imagine a brand new island nation in the middle of the Atlantic, and they write that into the law. Say its a peaceful place and no one is murdered for a decade, and then someone hits an old lady while driving. Under normal American or British law this is an accident, maybe negligent homicide if the person was going too fast, but, this enterprising prosecutor of the island nation argues that killing people is necessarily malicious and the driver was thinking about driving which was the act that caused the killing, so he has murdered this old lady.

            So we have an unambiguous and easily read statute that has been intentionally made ambiguous through application in a way that offends justice.

            And we don’t have to make up fake scenarios for this to work, this is exactly how 18 USC ? 1001 applies today. It is an offense to justice that a person can deny being at a strip club in front of his wife to FBI officials and then be sent to prison even though the FBI knew he was there the whole time.

            1. You say it’s a common sense definition, I say it takes quite a bit of study to really get an understanding of that body of law and how it works.
              Reduce to practice, common sense is not as universal as people wish.

              If you want to argue there are some laws that create perverse unjust traps, I’ll go along. But I don’t think the complications of legalese are some lawyer’s trick to screw the common man.

              Disclosure: I was a lawyer for some years, but found my heart lay elsewhere and nowadays I keep my bar membership up only as a fallback.

            2. As an attorney I think a lot of times it does happen in a similar way to what you described.

              Part of it, IMO is just a way to generate money for attorneys and prevent pro se representation. Not that pro se people are typically even that smart, but we should understand that things like professional prosecuting offices are a pretty recent invention (thus creating the Scotus mandate for free public defenders), back in the day self-representation was common and quite successful even in serious criminal cases.

              In my specific field of patent law, some of the complexity has arisen as a result of demands of technology, but many of it also is caused by strange arguments over the definitions of simple words. Typically, the complexity happens when attorneys successfully argue for broadening the statute to allow more patents to issue. This creates an environment where a skilled scrivener is more important than a skilled inventor in certain technologies (most notably computer implemented tech). None of those developments advance the interests of clients, as now (typically) patents issued are narrower (thus you need more), nor of interest to the public because legalese has developed such that reading a patent doesn’t tell you much about what it covers (and increasingly few fail to teach the invention).

  3. “Too broad, too narrow, too vague…sheesh, it’s like you guys don’t want us making any arbitrary laws at all!”

  4. An excellent example of very broad laws that are also ambiguous are state prohibitions on the so-called “unauthorized practice of law”. In most states, it is a de facto common law crime since the statutes don’t define the term and the courts (usually the highest state court, citing its “inherent powers”) don’t bother trying to give it a comprehensive definition, instead leaving it vague enough so that their decisions can be conclusory, which basically leaves them free to claim that conduct they don’t like is clearly within the ambit of the prohibition, while leaving it vague enough to deflect any type of constitutional challenge. A few state courts have limited what constitutes UPL to only situations where there is a “client” that necessarily puts their trust in the person giving advice or rendering services. AFAIK, the District of Columbia has the most detailed and limited scope of what constitutes UPL (limited to position of trust, doesn’t include teaching or lobbying), with North Carolina being close behind. In most states however, it is an open ended question/inquiry that courts have explicitly stated cannot be defined with precision and they decline to provide any all-encompasing definition. (continued…)

    1. (…continued) While some aspects of UPL are somewhat settled and defined in detail (like multijurisdictional practice by lawyers, practice by disbarred lawyers, and the prohibition on the corporate practice of law (clearly an unconstitutional speaker-based restriction on speech)), in most states “legal advice” and “legal services” are prohibited, which seem to be defined only on a case-by-case basis and can be construed to mean anything law-related. The courts deflect First Amendment challenges by claiming UPL is a regulation of conduct that can’t be subjected to First Amendment scrutiny and that the First Amendment only allows publications by non-lawyers, not conversation. They deflect vagueness challenges by saying the law must be vague in all applications (but Johnson v US & Sessions v Dimaya have clearly, although not explicitly, overturned that test) and then consider as-applied challenges and point to past cases using broad terms like “legal advice” to ban such things as direct speech (as opposed to publishing something, or speaking to a crowd) that affects important rights. SCOTUS considered the First Amendment implications of some UPL regulations as applied to NAACP employment of lawyers and solicitation of prospective civil rights litigants as well as to lawyers hired by and working directly for labor unions (alleged corporate practice of law), but not as applied to non-lawyers nor has it had a case dealing with the vagueness/breadth of UPL regulations.

      1. Here’s how the Florida Supreme Court defines what constitutes the “practice of law”:

        “[I]f the giving of such advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitute the practice of law.” (State ex rel. Florida Bar v. Sperry, 140 So. 2d 587, 591 (1962), vac’d on other grounds Sperry v. Florida, 373 US 379 (1963))

        “This definition is broad and is given content by this Court only as it applies to specific circumstances of each case. We agree that any attempt to formulate a lasting, all encompassing definition of `practice of law’ is doomed to failure for the reason that under our system of jurisprudence such practice must necessarily change with the everchanging business and social order.” (Florida Bar v. Brumbaugh, 355 So. 2d 1186, 1191-92 (1978))

        The court then considers whether the “conduct” is authorized.

      2. So what has been determined to be UPL?

        “in Florida Bar v. Warren, … , the Court held that it constitutes the unlicensed practice of law for a nonlawyer to advise persons of their rights, duties, and responsibilities under Florida or federal law and to construe and interpret the legal effect of Florida law and statutes for third parties. In Florida Bar v. Mills, … , the Court found that it constitutes the unlicensed practice of law for a nonlawyer to interpret case law and statutes for others.” 177 So.3d 941 (Fla. 2015)

        “(3) giving advice and making decisions on behalf of others that require legal skill and a knowledge of the law greater than that possessed by the average citizen, (4) advising about or explaining legal remedies and possible courses of action that affect the procedural or substantive legal rights, duties and privileges of persons” 709 So. 2d 96, 100 (Fla. 1996)

        Again, Florida is NOT a state that limits UPL to only compensated work or there is an attorney-client relationship of trust! Consider where two non-lawyers working on a writing/video/play need to consider how copyright law affects them…it’s a crime to explain such laws to the other and how the laws affect what they’re working on/can do. And how about helping someone complete an application for entitlements like food stamps or FAFSA (student grants/loans), which is “advising about or explaining…possible courses of action that affect the … substantive legal rights…and privileges of persons”?

  5. The New Jersey crime of official misconduct is a perfect example, particularly as those duties “inherent in the nature of [the] office” do not necessarily have to be spelled out anywhere, such as in a statute, regulation or case and also given that even local bureaucratic directives can establish official functions. Also any government employee is an official under this statute. Here’s the gist of the statute:

    2C:30-2. Official misconduct

    A public servant is guilty of official misconduct when, with purpose to obtain a benefit for himself or another or to injure or to deprive another of a benefit:

    a. He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner; or

    b. He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.

    Under this statue, a teacher was indicted for turning in a phony doctor’s note to excuse an absence. Also, a school security guard was indicted for turning in a phony medical claim to the school’s insurance company.

  6. As I see it, “the rule of law” = a general guarantee that the legality of specific conduct, and the degree of punishment, should always be predictable beforehand. This implies among other things that neither a cop (via laws that give police a power to give and enforce arbitrary orders) nor a prosecutor (via laws that give prosecutors the discretion to grossly overcharge someone, but are rarely used except as a way to compel agreement to plea bargains) can rightfully be given discretion. Choices such as these examples can rightfully be made only by judges, and even they should have to justify them or be not only overturned but punished.

    1. Judges are not gods. They are lawyers wearing robes. They make mistakes, are arbitrary, biased, lazy and incompetent just like other people, perhaps more so on average since they usually get to the bench not based on merit, but through politics.

  7. I dunno, I reread it and Kagan seems to have the best of it.

    The breadth arguments seem properly aimed at Congress, not the judiciary.

    1. nonzenze, I agree.

  8. Brennan-Marquez seems to be trying, thoughtfully and on purpose, to limit the scope of commercial lawmaking to laws which enable law breaking as a pure cost-of-doing business decision. Anything which would make the law formidable against that conduct, he wants the courts to strike down.

    If a law is unambiguous, broad, within the scope of enumerated powers, and doesn’t infringe protected rights, what business is it of any court to overturn it? This article seem another among many examples in which the pro-corporate right probes for extra-constitutional means by which courts can burden and narrow the right of self-government.

  9. “seems another among many”

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