Foreword: Statutory Interpretation and the Federalization of Criminal Law
Henning, Peter J., Journal of Criminal Law and Criminology
A wiser course than judicial legislation, I submit, is simply to adopt a literal, reasonable construction of the text that Congress drafted.(1)
One of the striking features of the criminal law is the accelerating "federalization" of prosecutions. The federal code has over 3,000 provisions that permit the United States to pursue criminal charges,(2) and these statutes in large measure duplicate crimes that the states can prosecute.(3) Chief Justice Rehnquist has warned that the burgeoning federal criminal caseload may soon overwhelm the federal judicial system.(4) Yet, the Supreme Court's overall docket is shrinking, even with the crush of criminal prosecutions purportedly overwhelming the lower federal courts. In the 1994 Term, the Court heard 40% fewer cases than it had a decade earlier.(5)
As the Supreme Court's docket decreases and the number of criminal prosecutions increases, it is natural that the Court should devote greater attention to the federal law of crimes. In the 1994 Term, the Court considered six cases involving the construction of federal criminal statutes, including two unrelated cases that involved the same provision.(6) The most widely noticed case of the Term was United States v. Lopez,(7) a criminal prosecution in which the defendant challenged the constitutionality of the Gun Free School Zones Act.(8) Despite being the most widely noted case this term, Lopez is likely to have the least impact of the six on federal criminal prosecutions. Lopez's conclusion that the statute at issue was not a valid exercise of Congress's power under the Commerce Clause drew widespread attention because it marked the first time the Court overturned a provision on Commerce Clause grounds in almost sixty years.(9) Despite the broad constitutional ramifications that the decision may have in other areas, the effect of Lopez on federal criminal law is likely to be minimal.(10) The Court noted that Congress failed to include a jurisdictional element that might have saved the statute,(11) a mistake Congress is unlikely to make again, at least for criminal statutes.(12)
More likely to have an impact on federal prosecutions are the Court's statutory interpretation pronouncements in the 1994 Term. Indeed, the Court's opinions construing criminal provisions have occasionally included an explicit message to Congress that it must rewrite a provision to achieve a particular result.(13) The 1994 Term showed the Court grappling with the demands of a growing body of law fueled by the increasing federalization of criminal law. The Court's consideration of a variety of federal criminal provisions reflects a continuing struggle to adopt a consistent approach to reviewing criminal provisions that both respects Congress's power to enact criminal laws and avoids judicial second-guessing as to what the legislature should have written.
In United States v. X-Citement Video, Inc.,(14) the Court stretched the limits of statutory interpretation to reach a decision that ignored both legislative history and the rules of grammar in applying the intent element of the child pornography statute to one of the attendant circumstances of the crime. The Court obfuscated the legislative history and resorted to linguistic subterfuge to rewrite the provision the way the Court believed it should have been written. Although the Court treated the child pornography statute as similar to any other criminal provision, it ignored the important free speech concerns that made the government's attempt to regulate an area that may involve protected speech subject to closer scrutiny.
By approaching the question as merely an exercise in statutory construction that was not controlled by the overriding constitutional concerns, X-Citement Video signals to lower courts that they may disregard or stretch the language of statutes to reach desired results. A consequence of treating the statutory language as something to be ignored may be greater imprecision by the legislature, since the courts will not respect the language anyway, and inconsistent results among different circuit courts and between states. …