Legal Doctrine and Conventional Criminal Law

Legislatures and courts should assist the development and enforcement of beneficial legal conventions.


In previous posts, I have argued that legal conventions form a de facto common law and that this de facto common law remedies many defects in our statutory criminal law system. Despite these criminal law conventions, however, significant overcriminalization problems remain. Broadly, overcriminalization problems occur in areas of criminal law in which (1) there do not exist any legal conventions, (2) there exist legal conventions, but we have difficulty controlling isolated defections from them, and (3) traditional methods of enforcing legal conventions and controlling prosecutorial discretion substantially break down.

Let me start with the first. Much of the worst overcriminalization problems involve excessive harshness against defendants who are, in fact, guilty of violating some community norm. But we do not have many legal conventions governing plea bargaining and sentencing. Individual judges and prosecutors may have "going rates" for plea bargains. But these rates are often arbitrarily set, not public, and sometimes primarily known only by insiders of that particular courthouse. "Going rates" are not true legal conventions because, even if they are special customs, they are not generally accepted as binding and they are not enforceable through nonlegal sanctions.

Recidivist statutes compound the problems with plea bargaining. Prosecutors often use these provisions to extort guilty pleas, and they follow through with their threats to charge these provisions when defendants will not plead. Moreover, based on their views of what is just, different prosecutors may (or may not) charge such provisions, creating arbitrariness across jurisdictions and, in some cases, within any individual jurisdiction. The breadth of these recidivist provisions often ensnares those for whom the mandatory minimum penalty seems disproportionate, such as defendants who have stolen golf clubs or possessed a single round of ammunition.

A second problem with conventional criminal law is that criminal conventions, unlike constitutional ones, are easily susceptible to isolated deviations. Individual deviations are often low-information events that affect marginalized members of the community. The community may care a great deal if a town's police officers routinely ticket residents who exceed the speed limit by any margin. The community probably does not care if its officers use de minimis speeding as a pretext to detain drivers suspected of drug violations or other crimes. Overbroad statutory law facilitates arbitrary enforcement against isolated individuals in a manner that would not be tolerated if the law were applied in the same way to the wider community.

Isolated deviations create other serious rule-of-law problems. Rudy Giuliani infamously instituted "federal day" for drug crimes in New York City. Ordinarily conventional rules determine which drug crimes are prosecuted in state court (e.g., possession crimes related to personal use) and which are handled in federal court (e.g., interstate and foreign trafficking). But on federal day, which was a random day rotated from week to week, Giuliani had local drug cases diverted to federal court, which imposed more serious penalties. General principles of distributive justice require treating like cases alike, and it is extraordinarily arbitrary to increase someone's penalty because he was caught on Monday rather than on Tuesday.

In a conventional system, the harm from this kind of arbitrary enforcement runs even deeper than just violating norms of distributive justice. Unusual prosecutions unsettle the community's shared understanding of the law and, correlatively, they interfere with the basic requirements of notice, clarity, and prospectivity that underlie the rule of law. An unwritten common law or conventional system can still respect these rule of law values—but only if the law is actually enforced in ways that track widely understood social norms and customs.

A third problem is that, in many cases, traditional legal checks that curb prosecutorial discretion break down. In many misdemeanor cases, defendants lack the right to counsel and to trial by jury. Many poor defendants, moreover, lack adequate money to post bail, leading them to languish in pretrial detention. Prosecuting weak or trivial cases "in the shadow of the jury" looks quite different when the prosecutor knows that the defendant cannot afford to sit in jail for months while he awaits a jury trial.

Because penalties are often small, misdemeanors and traffic offenses may not seem like a huge deal; but they are. Convictions can have lingering effects as defendants face burdens of paying off fines, complying with probation, and getting transportation in the face of suspended driver's licenses. Additionally, more arrests and detentions for small matters lead to more felony arrests, as police use such offenses as pretexts to fish for more serious wrongdoing. Uneven enforcement of misdemeanors and traffic laws leads to uneven enforcement of felonies.

In the article, I offer a series of suggested policy proposals in problematic areas of criminal law. Few are novel. But I want to suggest a different theoretical grounding for them. To continue fixing the defects in statutory criminal law, we need to develop legal conventions. And to do that, we need to provide mechanisms to sanction violations of those conventions.

For example, one option to cabin prosecutorial discretion over the sentencing of guilty defendants is to further empower juries. Judges often recoil at informing juries about a defendant's sentencing exposure. And under Almendarez-Torres, juries do not have to find the fact of a previous conviction, even if it leads to extraordinary high sentencing enhancements (e.g., the Armed Career Criminal Act, which elevates a felon-in-possession gun crime from a maximum of ten years' imprisonment to a minimum of 15 years and a maximum of life for those with three or more qualifying convictions).

Faced with a defendant who unlawfully possessed a single bullet and with an understanding of the sentencing consequences, a jury might return a conviction on simple felon in possession, while acquitting on the recidivist charge. Judges often argue that such proposals invite lawless juries. But this may be the wrong way to look at it. In these cases, the community, through the jury, polices whether the prosecutor has acted lawlessly by overcharging individual cases—that is, by charging them outside of widely understood norms about the cases to which such laws should apply.

Another sentencing reform is to have greater transparency in plea bargains. Prosecutors should have to publish their "going rates" for pleas. In a conventional system, information transparency confers several advantages. Among them, publication of information will deter prosecutors from deviating in isolated cases. Disclosure also subjects the information to public scrutiny, including by voters. This facilitates political sanctions against prosecutors who act unreasonably as defined by community norms.

More broadly, increasing transparency in law enforcement may help curtail arbitrary deviations from widely understood criminal law customs. For example, it would be helpful to know the details of the 40 people ticketed in Virginia in 2018 for going fewer than five miles per hour over the limit. Were the drivers engaged in significant speeding but the tickets reduced by the officer? Were drivers going at an unsafe speed through a school zone? Or were these pretextual stops or individuals whom the police arbitrarily selected? Having this information facilitates the application of political pressure against improper enforcement practices.

I am more skeptical of the ability of legal conventions to fix all the problems that overbroad criminal law has on criminal procedure and civil redress. Overbroad statutory law narrows the effective scope of the exclusionary rule because officers may justify detentions and arrests based on objective probable cause that any offense has been committed, no matter how minor or how customary it is for individuals to violate it. Relatedly, overbroad statutory law limits civil redress because officers who have probable cause of any legal violation will have a defense for false imprisonment or malicious prosecution either under state law or when raised as an unreasonable search or seizure under 42 U.S.C. § 1983.

But judges may ameliorate some of these problems by acknowledging that criminal law conventions exist and by facilitating their enforcement. For example, judges may require officers to have subjective good faith when they enforce laws that customarily go unenforced. In Whren v. United States, the Supreme Court said that they were "aware of no principle that would allow [them] to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement." But judges, no less than other members of the community, have general knowledge about customary norms of how laws are enforced. Officers who pull drivers going one mile per hour over the speed limit as a pretext to search are not enforcing the law in accordance with traditionally understood community norms.

The development and recognition of criminal law conventions will not fix every problem of statutory overcriminalization. But in a system like ours in which legislating takes place under nonideal conditions, we primarily improve our criminal law by developing and improving our unwritten customs and traditions.

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  1. There’s another issue, which is that because courts, prosecutors and prisons are overwhelmed with BS cases, they don’t have the time and resources to deal with genuine cases.

    I have an ex-client with two felony convictions (burglary and armed assault), multiple misdemeanor convictions for domestic battery, drug crimes, theft, and using a stolen driver’s license, and the most he’s ever done in any one stretch is six months. That’s because even when he is caught red handed inside a home he was burglarizing, the prisons are overcrowded and the prosecutor is overworked so they cut him a deal just to get rid of the case. And yeah, he is accumulating convictions, but given his chosen lifestyle so what.

    1. Seems like we need more courts, prosecutors and prisons.

      1. Nah, ending the war on drugs would unclog the courts without raising taxes.

        1. Nah, the drug dealers will just turn to other crimes

          1. Then they can be prosecuted for those crimes.

            The US already incarcerates a higher percentage of its population than any other Western nation. Obviously lack of incarceration isn’t the problem.

            1. We under-incarcerate. Your ex-client is an example.

  2. Nice intentions, I suppose, but most of it sounds like (a) the government made its usual mess of something, (b) let’s fix it by doing more government.

    I suppose there is some slight chance of government occasionally fixing something by accident, but always at the cost of more complexity, more burrocrata, more expense. On the other hand, the chances of government actually rescinding something it did in order to fix what it broke is even slighter.

    For instance, Prohibition. Once it was found to not work, which was a remarkably rare occurrence, they fixed it not by repealing it, but by adding a forced distribution scheme. No one wanted to lose face by admitting government had screwed up, especially with FDR on the verge of a massive government expansion. Bad optics, doncha know.

    1. It’s an urban legend that the government screws up whatever it puts its hand to. It has had many successes over the years. You simply suffer from confirmation bias.

      1. I note your post lists all the successes you believe it has.

        1. Social security has greatly reduced elder poverty. The postal service delivers 98% of the mail on time (or did, until Trump and the Republicans eviscerated it to make 2020 mail in balloting more difficult). We have a national network of interstate highways. We have an air traffic control system that results in nearly all flights taking off and landing safely. We have dozens of dams that generate lots of hydroelectric power. We funded and developed a Covid vaccine in record time. Polio and smallpox have been eradicated. There’s actually quite a long list.

          I realize that like Pavlov’s dogs, you’ve been conditioned to think “failure” whenever you hear government, but the reality doesn’t bear that out. It’s your confirmation bias talking.

          1. “We funded and developed a Covid vaccine in record time.”

            Thanks President Trump!

            1. Trump’s major contribution was not being a bull in a china shop for once.

          2. Yes, you do list some good successes there. Most of them come down to “we paid the private sector to do something for us”. And also show your falling for fake news (as in the case of the USPS). The issue is the government can be used to create a success….and simultaneously cause a massive screw up because of that solution. Law of unintended consequences and all that. Your highlighting of social security is a good example of this. It’s a massive wealth transfer from the young, who have the least wealth, to the aged, who have the most. Further, it inhibits people from being able to save up for retirement on their own. Oh, what people could do if they had the extra ~12% of their income they are forced to pay towards someone else’s retirement instead of being able to save it for their own.

            By the way, as a government employee, I have to live daily with congress’s stupid rules.

            1. Under the law of unintended consequences, anything at all that you do (and regardless of whether “you” is a public or private entity) will create issues elsewhere. That’s the facts of life.

              And of course you can point to things that could have been done better too. Anything as big and cumbersome as the federal government is going to be big and cumbersome. I used to work for IBM and I can assure you it’s every bit as bloated and inefficient as the federal government.

              But on the bottom line question of whether we are better off with it than we would be without it, yes, we definitely are.

              1. The difference is that when IBM screws the pooch, they lose money, they lose customers, they are in danger of bankruptcy. When the government screws up, they spend more to make up for it.

          3. Covid Vaccine/ We funded and developed a vaccine in record time mostly because government kept its hands off. At least one vaccine maker refused government funds. And the FDA still managed to drag its heels and delay public access by weeks if not a month or more.

            Our ability to create a novel vaccine was entirely due to drug makers making a profit that they can invest in R+D – both drug-specific, and in the infrastructure to do that R+D. (Having that infrastructure is what allowed them to rapidly switch to focusing on Covid-19). And indeed, the actual vaccines were designed in ~2 days. Almost everything after that was trials for the FDA.

            Post Office/ Considering mail delivery has been a government monopoly, we don’t know how well a private company would do compared to the feds. Certainly package delivery is done better by UPS and Amazon than USPS. It’s worth noting that the post office has a huge problem breaking even, so how well is it really doing?

            Social Security/ How do you disentangle SS from the increasing wealth across society since SS was created? How much would elderly poverty have gone down without it? Could it have been more? The obvious comparison would seem to be ‘what would your retirement look like if you had invested your SS contributions in the stock market instead’. By this metric, SS has actively destroyed savings by a massive amount. I’d also note that, unlike investments, SS can’t be inherited by your children – if you die before retirement (or early after retirement before you’ve collected anywhere near what you put in), that money is just lost to the government – this seriously disrupts wealth formation in a regressive manner (it hits poorer people harder, since they’re least likely to have excess funds remaining after SS is extracted to invest in their future). SS may well be responsible for a lot of the increased inequality in the US.

            Polio/ based on what are you crediting the US government? Even the vaccination campaign was primarily pushed by a NGO non-profit – March of Dimes. And development of the vaccine received massive commercial interest – no government needed.

            Small pox/ its not clear to me government was deeply involved in either developing vaccines nor the vaccination drive itself. (WHO, an NGO, spear-headed the international eradication effort).

            Highways/ which government then fails to maintain properly. Many of the important highways are toll roads (so could have been supplied privately), and some of which are basically privately owned.

            Dams/ would have been built privately, anyway.

            You can’t take something where the government has displaced private actors and say ‘government success’ unless you can show government did it better than private actors would have. Just saying ‘it exists’ is hardly enough.

            1. Spooner did have a competing post office, and scared the USPS so much that they outlawed competition.

          4. I didn’t say the government can’t do things. But everything it does is poorly done. If you actually think the post office does a good job, tell that mugger to get the wool off your eyes. If you actually think Social Security delivers anywhere close to the pension a private retirement fund could, or think roads before the interstate didn’t exist or were government created, think again. Did you know the original ATC system was privately developed, and the government merely took it over (and ruined it)? Dams were built by private concerns long before government got into the act.

            Government is incompetent. I did not say incapable.

      2. The real urban legend is that government is competent.

        What really annoys me about your attitude is that because a government project doesn’t end in abject failure, you consider it a success. Government brings nothing to the table that private enterprise doesn’t have, except coercive eminent domain. Government paychecks do not imbue their recipients with magical pixie dust that makes them altruistic, wise, and all-knowing. There is zero reason to think that government can do anything better than private enterprise which doesn’t involve coercion, and every reason to believe competition and free markets keep private enterprise more efficient and better incentivized, not to mention having to attract and keep customers with better products. Hell, even the Mafia numbers racket has better payouts than state lottos!

  3. Perhaps Mr. Giuliani will become reacquainted with some of those unlucky ‘federal day’ inmates after Mr. Giuliani is incarcerated.

    Lock him up!

  4. The problem I have found is that such conventions in practice result in a circular “passing of the buck”:

    1. Prosecutors say they have no discretion and if the Legislature passes a criminal law then they have to prosecute.
    2. Judges argue that they have no discretion, and if a prosecutor decides to prosecute ….
    3. Jury nullification is not viewed favorably and the belief is that if it is a law, and the prosecution proves it, the jury must convict …
    4. Then there are a number of recent cases in our area where the Governor has said that it is not proper to issue pardons because he should not overturn the decisions of the criminal justice system.
    5. Then the Legislature says it is not their problem because all the above are supposed to use discretion; we really didn’t mean for you to actually prosecute what we criminalize.

    In the Catholic Church, and one of the courts is the Apostolic Signatura. One of its explicit responsibilities is to handle cases where “strict application of the law results in decisions that are contrary to justice and fairness…” That responsibility is lacking in the American judicial system. We imported English law, without the Sovereign who has the ability to directly act when to do so is necessary to ensure justice, fairness, and common sense.

    This is a fundamental problem of any organization (or society): If no one is explicitly responsible, then no one takes responsibility.

    1. I’ll emphasize your point. ” If no ONE is explicitly responsible, then no one takes responsibility.” There needs to be ONE responsible. Giving multiple entities responsibility means that none will be responsible. It’ll always be “another groups responsibility”.

      That said, it seems the people are satisfied with the current system. If they weren’t, the politicians would be voted out for ones that would change. Er go, the status quo is acceptable to enough of a majority at all levels that it remains as is.

    2. Which governor? Seems like the exception that proves the rule. Pardon power is in the Constitution and alive and well in most states.

    3. Jury nullification is not viewed favorably and the belief is that if it is a law, and the prosecution proves it, the jury must convict

      This isn’t a mere “belief”. It is true. Jury nullification is a serious violation of the juror’s oath, and when courts get wind it is happening before a verdict they kick the offending jurors off the jury.

      Jury nullification is terrible. Jurors didn’t go to law school, do not know the cases or the statutes, and are completely uninformed about the law. That isn’t their job. And the result of nullification isn’t any sort of real justice- it just sort of randomly lets criminals out (often the ones who have the most privilege and popularity).

      People romanticize juries going off the reservation as some ancient right. No. It’s just what happens when people promise to do something and then do something else instead.

      1. “Jury nullification is terrible. ”

        Lots of jury nullification in the Jim Crow South for instance.

        1. Yes, that would be Exhibit A.

          I used to be a huge proponent of jury nullification. The reality, however, is that a nullifying jury is every bit as likely to be exhibiting bigotry, prejudice and small mindedness as it is to be standing for truth, justice and the American way. One of the benefits of the rule of law, even when I happen to disagree with it in a given instance, is that it keeps our worst impulses somewhat in check.

      2. Jury nullification is part of the common law tradition. The jury was to judge the *facts* and the *law*.

        That modern justices don’t like it is a rejection of the common law tradition, not a part of it.

      3. This isn’t a mere “belief”. It is true.

        No it simply is not. It is the simply the opinion of some set of technocrats or priesthood that the peons should conform. The law and justice are two entirely different things and as far as I can tell with the system that has been created, they seldom have anything to do with one another.

        I would suggest if you can find a large number of laws that a randomly selected jury of your peers would negate in the first place, you have pretty much already lost your free society anyway.

        This is also probably a major differentiator between libertarian and authoritarian viewpoints. The libertarian would give final say to the small group and it is better to let the guilty walk than to impose tyranny. The authoritarians always know that they have a “better” way to organize the world and everyone should bow to their narcissistic and self righteous vision to make the world a better place at the barrel of a gun if need be. I can’t imagine a libertarian that would ever give up jury nullification or an authoritarian that would ever accept it.

  5. “Isolated deviations create other serious rule-of-law problems. Rudy Giuliani infamously instituted “federal day” for drug crimes in New York City. Ordinarily conventional rules determine which drug crimes are prosecuted in state court (e.g., possession crimes related to personal use) and which are handled in federal court (e.g., interstate and foreign trafficking). But on federal day, which was a random day rotated from week to week, Giuliani had local drug cases diverted to federal court, which imposed more serious penalties. General principles of distributive justice require treating like cases alike, and it is extraordinarily arbitrary to increase someone’s penalty because he was caught on Monday rather than on Tuesday.”

    General principles of distributive justice require treating like cases alike even though the first premise is that there are two applicable legal systems with different punishments (federal versus state). What’s the rule-of-law problem of enforcing dumb drug laws through the federal system?

  6. “An unwritten common law or conventional system can still respect these rule of law values—but only if the law is actually enforced in ways that track widely understood social norms and customs.”

    The entire series presumes the impossibility of maintaining consistent enforcement even when the law is written yet naively hopes that in an unwritten system people will know what the law is, and (more bizarrely) judges will be expected to enforce the law to the extent of widely understood social norms and customs? If there’s so much discretion in the existing legal system for “arbitrary” (you use this so much) enforcements, why aren’t the existing players already self-policing on the basis of “widely understood social norms and customs”? And why will they magically begin doing so when untethered by legislation that has at least the theoretical possibility of relating to “widely understood social norms and customs”?

    1. why aren’t the existing players already self-policing on the basis of “widely understood social norms and customs”?

      I would guess because there is more than one group of players and they have different “widely understood social norms and customs”. I suspect most judges aren’t members of the community that they are issuing rulings on. Maybe the modern world is just too wide and disparate for this to really work anymore.

  7. I’m inclined to think the biggest problem here is failing to seriously review sentences for proportionality and reasonableness. Michigan v. Harmelin is a huge problem here.

    Imagine a system where rather than depending on a trial penalty or how the prosecutors stacked the charges, your sentence was determined by a fact based determination of what you actually were found to have done, with a functional appeal and a favorable standard of review of any sentence which is disproportionate. That would cure many of the ills adverted to by OP.

  8. A few posts ago, Profesor Leider appeared to argue that representative government is illegitimate because it only imperfectly represents the demos and is subject to influence by elites. This arguments a classic example of attempting to use reductio ad absurdum in political discourse; establishing a position has a flaw, however small and then concluding it’s worthless. That just doesn’t work in human affairs. Pretty much everything in human affairs is imperfect and has flaws. Showing this obvious fact about a proposal is in no way sufficient proof that it is worthless.

    In pointing this out, however, I want to avoid making the same fallacy myself. Professor Leider overargued his case and made a mistake; this mistake does not make his position worthless. Customary and common law has a great deal to offer a complex society with a republican form of government. Legislative law cannot foresee all cases and must leave gaps, and can be too rigid. And Congress has indeed overlegoslated vague, broad laws leaving a great deal to administrative and prosecutorial discretion; common and customary law could help cabin that discretion.

    Nonetheless, common law and its judges should be subject to legislative oversight, and not the other way around. This means in particular that a kind of legislative supremacy and legislative pre-emption must prevail, roughly analogous to federal prevention, whereby any common-law rules cannot be imconsistent with a statute or statutory scheme, and legislatures must be permitted to overturn common-law rules and decisions by statute.

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