Dealing with Dead Crimes

Abstract

Our criminal codes are replete with “dead crimes”—i.e., crimes that are openly violated, have long gone unenforced, and no longer reflect majoritarian views. For example, many states still criminalize conduct as commonplace as engaging in certain innocuous behavior on Sundays, swearing, and spitting on the street. Many states also continue to criminalize fornication, cohabitation, and adultery. While the prospect of legislative repeal of these prohibitions is usually slim, the ancient doctrine of desuetude offers a potential solution. Under that doctrine, judges could abrogate crimes following a long period of nonenforcement in the face of open disregard. But American courts have long rejected the doctrine, citing separation-of-powers concerns. That has deprived our criminal justice system of an essential mechanism for clearing dead crimes.

The problem is that these crimes are not really dead: their continued existence undermines the rule of law by enabling abuses in the criminal justice system, such as arbitrary prosecutions and investigative practices. These abuses are similar to those caused by unconstitutionally vague laws. But unlike with vague laws, no well-established doctrine protects the rule of law by enabling a court to deem dead crimes void. Dead crimes also produce broader collateral effects, such as exacerbating racial biases in policing practices and stripping rights under civil law.

In light of these wide-ranging effects, a modern American conception of the desuetude principle is needed. I propose a new conception of the principle that is fit for the statutory age and is rooted in a theory of criminalization. The conception is more capacious than the historical formulation of desuetude insofar as it potentially covers a broader range of crimes by asking not just whether a crime has been enforced, but whether it has been meaningfully enforced—i.e., for a non-pretextual reason. But it is more restrictive insofar as it constrains a judge’s analysis of a potentially dead crime to a means-end assessment under the familiar intermediate-scrutiny tier of judicial review. With that conception in mind, I consider three mechanisms for implementing the desuetude principle into American law—the federal Due Process Clause, state due process analogues, and the Fourth Amendment. Implementing desuetude as a due process principle is the most natural solution. But a Fourth Amendment solution may also be needed to address pretextual uses of dead crimes in investigative contexts.

Keywords: criminal law, criminal procedure, criminal justice, desuetude, vagueness, Fourth Amendment, rule of law, legality, fair notice, dead crimes, zombie crimes, constitutional law, due process

JEL Classification: K00, K14, K10, K40