‘Dead Crimes’ are Alive — and Dangerous

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Criminal codes around the U.S. are replete with numerous offenses that are no longer considered illicit behavior, like swearing—dubbed ‘dead crimes’ by criminologists. But their continued presence undermines the rule of law, warns a forthcoming Georgetown Law Journal article.

 Reflecting long-discarded community prejudices, such crimes are largely unenforced; nevertheless they can still trigger arbitrary prosecutions and questionable or biased law enforcement practices, writes the essay’s author, Joel S. Johnson, an appellate lawyer with the  Department of Justice.

Exacerbating the problem, Johnson notes, is the fact that no well-established doctrine enables a court to deem dead crimes void.

However, the doctrine of desuetude, under which judges could “abrogate crimes following a long period of nonenforcement in the face of open disregard,” may offer a solution, he suggests.

Unearthing Dead Crimes

 Dead crimes are wide ranging. Some, like engaging in business activities or certain kinds of innocuous behavior on Sundays, have outlasted their purpose. Others, like using a recording device in a place of public performance, are no longer aligned with contemporary technological developments.

Other dead crimes are moral in nature. Examples in some jurisdictions include providing massage services for a client of the opposite gender.

“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.

In the judicial system, dealing with dead crimes has proved challenging. Although a brief period for legislative repeal may open when “a crime falls out of favor,” the “prospect of repeal is usually slim,” Johnson adds.

As a result, many “dead crimes” continue to exert an impact om enforcement decisions. Their ambiguous status “undermines” the rule of law in the criminal justice system.

“Precisely because dead crimes are openly violated, their continued existence creates a serious danger for unfair surprise,” he 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.”

Indeed, arbitrary prosecutions have sometimes brought dead crimes back to life in damaging ways.

For example, in the late 1990s, an Idaho prosecutor charged eight pregnant high school girls and their boyfriends with “criminal fornication”—an offense long since abandoned in most jurisdictions Several of the girls were arrested.

Additionally, police have relied on dead crimes as a pretext to justify arrests, accompanied by searches, that produce evidence of more serious crimes. As with most mechanisms of the criminal justice system, dead crimes also amplify racial biases.

“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.

‘Meaningful’ Enforcement

 In order to address the “pernicious effects” of dead crimes, Johnson argues that the legal field should embrace a “new version” of the desuetude principle — one that asks “not just whether a crime has been enforced, but whether it has been meaningfully enforced.”

Such a formulation may enable American courts to void dead crimes.

Johnson proposes three ways to implement the desuetude principle into law. The first, implementing desuetude as a federal due process principle, is the “most natural solution,” he argues, because it reaches rule-of-law abuses that lie beyond the doctrine’s scope.

Alternatively, the doctrine could be implemented via state due process analogues 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.”

A full version of this forthcoming essay can be downloaded here.

Eva Herscowitz is a contributing writer to The Crime Report.