Federal Criminal Law (Update)

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If a constitutional snapshot is taken of the current status of the federal criminal law, the picture that emerges is somewhat changed from a decade ago. It continues to be the case that the Supreme Court does not with great frequency label as unconstitutional federal prosecutorial action, judicial penalties, or federal criminal statutes under the doctrines of double jeopardy, cruel and unusual punishment, excessive fines, or void for vagueness, but there have been some new developments.

Although the Court is reviewing fewer criminal cases overall, the Justices are addressing more federal criminal cases, particularly those involving key issues of statutory interpretation or questions arising under the sentencing guidelines and criminal forfeiture. This activity has marginally increased the number of cases in which the Court has addressed constitutional issues in a federal criminal context.

In 1993, in United States v. Dixon, the Court over-ruled its earlier decision in Grady v. Corbin (1990) that had established a new test for double jeopardy in a successive prosecution context. Grady had applied a "same conduct" test as a supplement to the Blockburger test which provides that in successive prosecution cases, if each of the statutes involved in the two prosecutions contains an element that the other does not, double jeopardy does not bar the second prosecution. In Dixon, a majority of the Court ruled that Grady had been wrongly decided and reinstated the Blockburger test as the exclusive means of adjudging whether the double jeopardy standard has been violated in a successive prosecution context.

The Court also applied the double jeopardy clause in cases involving both civil sanctions and criminal prosecution. As in the Grady and Dixon cases, the Court overruled a decision that had won the Court's approval only a handful of years earlier.

In Hudson v. United States (1997), which involved administrative sanctions imposed against bankers followed by their indictment for the same conduct, a majority of the Court "largely disavowed" the approach developed in 1989 in United States v. Halper. The Court adopted a two-pronged test for determining whether double jeopardy barred the second prosecution. Were the administrative sanctions imposed intended by Congress to be civil? If so, were they nevertheless punitive in nature or effect despite the congressional intent? Only the "clearest proof" would suffice to overturn the legislative intent. In both Dixon and Hudson, the Court returned to an approach that is easier to apply; one that focuses mainly on the statutory setting rather than the particular circumstances of the case; one that makes it more difficult for a defendant to sustain a claim of double jeopardy.

Because forfeiture is now part of a number of federal criminal statutes, it should not surprise that during this period, the Court also addressed constitutional issues regarding the use of this sanction. First, in Alexander v. United States (1993), the Court held that criminal forfeiture is "no different, for Eighth Amendment purposes, from a criminal fine," and in the same year in Austin v. United States, relying in part on Halper, the Court ruled that civil forfeiture is limited by the excessive fines clause of the Eighth Amendment if at least part of its purpose was punishment.

Subsequently in United States v. Usery (1996), the Court ruled that, for purposes of the double jeopardy clause, civil in rem forfeitures under the drug laws and money laundering statutes were not punitive and not to be treated as criminal. The approach used in Austin was thus restricted to the excessive fines clause.

Then in 1998, in United States v. Bajakajian, the Court applied the excessive fines clause to strike down the criminal in personam forfeiture of $357,144 that the defendant had been transporting out of the country without reporting it as required by federal law. The majority concluded that the forfeiture of the "property involved in the [failure to report] offense" constitutes punishment and is thus a fine within the meaning of the excessive fines clause. The majority proceeded to use the same standard applied under the cruel and unusual punishments clause—gross disproportionality—as the test of constitutionality under the fines clause.

While the double jeopardy and excessive fines clauses have been applied by the Court in recent federal criminal cases, the void for vagueness doctrinal area continues to be quiescent. One case is worth mentioning because it involved what the Sixth Circuit Court of Appeals described as the "most ambiguous of federal criminal statutes." In United States v. Lanier (1997), the Court unanimously rejected a vagueness challenge to Title 18, section 242, which makes it a federal crime for a person acting willfully and under color of law to deprive another of rights protected by the Constitution. A local judge who allegedly sexually assaulted several women in his chambers had been charged with a violation of section 242.

The Supreme Court stated that the "touchstone" of vagueness doctrine is "whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant's conduct was criminal." The Court remanded the case to the Court of Appeals to determine whether, in light of preexisting law, the unlawfulness of the judge's behavior under the Constitution was apparent. The decision appears to leave open the possibility of a wide-ranging use of section 242 to address conduct not covered by other federal criminal statutes, and it suggests that the Court is not likely to restrict on vagueness grounds other broad criminal statutes found in the Federal Criminal Code.

In its recent constitutional decisions affecting the federal criminal law, the Supreme Court has shown a willingness to strike down prosecutorial action and judicial penalties, but it has not invalidated criminal statutes on substantive grounds. That the Court has been closely divided in many of its recent constitutional rulings, and that dissenting Justices (not always the same group) have not been reluctant to overrule recent precedents when they later obtain a majority, does not bode well in the near term for the stability, certainty, and predictability of federal criminal law.

Norman Abrams


Amar, Akhil R. 1997 Double Jeopardy Law Made Simple. Yale Law Journal 106:1807–1848.

Jeffries, John C., Jr. 1985 Legality, Vagueness and the Construction of Penal Statutes. Virginia Law Review 71:189–244.

King, Nancy J. 1996 Portioning Punishment: Constitutional Limits on Successive and Excessive Penalties. University of Pennsylvania Law Review 144:101–196.

Thomas, George C., III 1995 A Blameworthy Act Approach to the Double Jeopardy Same Offense Problem. California Law Review 83:1027–1070.

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Federal Criminal Law (Update)

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Federal Criminal Law (Update)