Reviving Saucier: Prospective Interpretations of Criminal Laws

Abstract:     
This article proposes a new framework for the criminal law's fair warning requirement. When adjudicating fair warning claims, courts should use the structure established by Saucier v. Katz for qualified immunity cases. In Saucier, the Supreme Court held that courts reviewing qualified immunity claims must first rule on the substantive constitutional issue, and only then proceed to the remedial ruling. The Saucier framework was intended to promote elaboration and clarification of constitutional norms while still protecting the ideal of fair warning.

Saucier offers an elegant solution for the criminal law's embattled fair warning doctrines. Importing Saucier would decouple questions of statutory interpretation from questions of notice. Importing Saucier would make the remedy for fair warning violations more commensurate with the doctrine's stated goals. Most controversially, importing Saucier would allow courts to issue rulings with prospective effect. Although these changes sound radical, the new framework is actually more moderate than the current fair warning doctrine, and the crossover application of Saucier already finds implicit support in Supreme Court doctrine. A fair warning requirement built around Saucier would be better than the fair warning requirement we have now.

Keywords: fair warning, rule of lenity, statutory interpretation, Saucier v. Katz, criminal law

JEL Classifications: K14

Accepted Paper Series