by Brooke Kaufman
Criminologists have a term for offenses in the criminal code that are no longer considered criminal — “dead crimes.” In the United States, dead crimes are clogging up the criminal code, threatening to undermine the rule of law, according to a forthcoming Georgetown Law Journal article.
Dead crimes are thought to reflect outdated community prejudices against behaviors like swearing, so they are rarely enforced. But their existence alone is enough to “trigger arbitrary prosecutions and questionable or biased law enforcement practices,” according to the article’s author, Joel S. Johnson, an appellate lawyer with the DOJ. Johnson says the potential for harm is worsened by the fact that no legal doctrines exists to deem dead crimes void. The only solution he suggests is the doctrine of desuetude, which allows judges to “abrogate crimes following a long period of nonenforcement in the face of open disregard.”
Dead crimes run the spectrum of acceptable behavior, though what is “acceptable” at a given time is a question both moral and practical in nature. Engaging in business on a Sunday is now common, as is using a cell phone to record a public performance. In some states, however, providing massage services for a client of the opposite gender remains a moral consideration under criminal law.
“While the ‘dominant view’ now is that sexual chastity and marital fidelity are issues of private morality, not criminal law, many states continue to have laws criminalizing fornication, cohabitation and adultery,” Johnson writes.
Even though a “crime [can fall] out of favor” with the judicial system and the public, “the prospect of [legislative] repeal is usually slim,” according to Johnson. As a result, dead crimes continue to impact law enforcement practices and undermine the rule of law.
“Precisely because dead crimes are openly violated, their continued existence creates a serious danger for unfair surprise,” Johnson writes. “So long as dead crimes remain on the books, government officials have vast discretion to bring any one of them back to life in a particular investigative or prosecutorial context, regardless of how illegitimate or idiosyncratic the official’s reasons for doing so might be.”
Police have been known to use dead crimes as a pretext to justify searches and arrests, uncovering supposed evidence of more serious crimes. These practices can exacerbate the racial biases already rampant within law enforcement agencies. “Dead crimes exacerbate racial biases already present in policing practices by granting officers additional discretion to enforce low-level, order-maintenance crimes disparately along racial lines,” Johnson writes.
Johnson recommends that the legal field pursue a “new version” of the desuetude principle that goes beyond mere enforcement of a dead crime to ask whether it has been “meaningfully enforced.” He proposed implementing desuetude as a federal due process principle so that “rule-of-law abuses” beyond the doctrine’s scope are able to be addressed. The doctrine could also be implemented through state due process procedures or a Fourth Amendment doctrine banning the pretextual use of dead crimes.
“American law has lacked a tool for dealing with dead crimes long enough,” Johnson writes. “A modern American conception of the desuetude principle fit for the statutory age is needed.”
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