Vague Laws And Over-Criminalization

R13 [3] "It seems only reasonable that society tell its members in an understandable form what the criminal law expects of them. Indeed, our condemnation and punishment of criminals, as distinguished from civil violators, rests upon the assumption that a criminal violation requires some consciousness of wrongdoing, or at least gross deviation from a clearly defined standard of lawful conduct. How can this assumption be sustained if the commands of the criminal law are unclear? How can we condemn and punish violations of the rules of lawful conduct if the general public does not, and cannot reasonably be expected to, know those rules? One also may wonder how effective the criminal law can be in deterring criminal conduct if the law's prohibitions are unclear.

"When a violation of the rules of conduct occurs, the criminal law takes on a different role, an adjudication function. The adjudication function has two components: the code must decide whether the violation merits criminal liability and, if so, how much...[4] Where it is established that criminal liability is to be imposed, criminal law must address the residual adjudication issue of grading, assessing the general range of punishment that ought to be imposed...It must consider such factors as the relative harmfulness of the violation and the level of culpability of the actor."

[15] "To communicate the rules of conduct effectively to the public, the code must be easy to read and understand. It must gve a clear statement, in objective terms if possible, of the conduct that the law prohibits and under what conditions it is prohibited. Readability, accessibility, simplicity, and clarity are the useful characteristics of this function."

"[A legal code] [16] should not include provisions that outlaw patently trivial moral transgressions or that are incapable of enforcement.

"The enactment of 'trivial offenses' is itself far from trivial. Such provisions undercut the moral force of the criminal law and may have potential spillover effects on law enforcement or prosecution."

B20 [223] "One of the great and intractable weaknesses of American democracy is its inability to create and maintain rational criminal law policy. The politics of crime are perennially perverse: the electorate demands that legislatures enact more crime and tougher sentences, and no interest groups or countervailing political forces lobby against those preferences. The political process of criminal law legislation is, as several leading scholars have characterized it, a 'one-way ratchet.' Criminal codes expand but do not contract...This state of affairs does more than expose ordinary people to criminal punishment for innocuous behavior. It expands the discretion of prosecutors to the point of lawlessness because, with broad codes, they can effectively pick and choose offenders as well as offenses. It aggravates disparities in punishment because the same [224] conduct is covered by multiple statutes carryng different sentences. It makes the criminal law incomprehensible to ordinary citizens. All these things undermine criminal law's legitimacy."

[227] "America has singularly severe punishment policies.

"Criticisms of overcriminalization capture several distinct complaints about the general growth of substantive criminal law. One is simply that codes have grown. Studies of the federal code document its dramatic growth in the last four decades, and every state code has expanded as well. As a rough measure of representative growth in state codes, Paul Robinson and Michael Cahill note that the Illinois code went from less than 24,000 words in 1961 to approximately 136,000 in 2003 -- a six-fold increase. Bill Stuntz found that over the past 150 years, Virginia's code grew from 170 to 495 offenses, and Massachusetts from 214 to 535."

[229] "Other overcriminalization arguments complain of overbreadth -- statutes that criminalize conduct that most people believe to be innocent, innocuous, or trivial."

[230] "[P]rosecutors are especially effective lobbyists for criminal law expansion."

S9 [xxxiii] [from Foreword by Alan Dershowitz:] "[N]o person should ever be prosecuted unless he has made a conscious decision to violate the criminal law..."

M10 [1614] "Under fair notice doctrine, due process demands that the law state explicitly and precisely what conduct is forbidden."

Throughout this site, for purposes of brevity sources are abbreviated ('A1,' etc.). However the titles of some are so good, they bear repeating outside of the 'Bibliography' itself. The following is one of them:

"Too Many Laws, Too Many Prisoners: Never in the Civilized World Have So Many Been Locked Up for So Little"

E2 "[The American system] criminalizes acts that need not be criminalised. [And,] it is unpredictable. Many laws, especially federal ones, are so vaguely written that people cannot easily tell whether they have broken them."

[28] "In many criminal cases, the common-law requirement that a defendant must have a mens rea (i.e., he must or should have known he is doing wrong) has been weakened or erased. 'The founders viewed the criminal sanction as a last resort, reserved for serious offences, clearly defined, so ordinary citizens would know whether they were violating the law. Yet over the last 40 years, an unholy alliance of big-business-hating liberals and tough-on-crime conservatives has made criminalization the first line of attack -- a way to demonstrate seriousness about the social problem of the month. . .,' writes Gene Healy, a libertarian scholar...'You're (probably) a federal criminal,' declares Alex Kozinski, in a provocative essay of that title...When so many people are technically breaking the law, it is up to prosecutors to decide whom to pursue. No doubt most prosecutors choose wisely. But members of unpopular groups may not find that reassuring."

R12 [634] "The last thirty years have seen a serious and growing degradation of most criminal codes."

"[M]ost legislatures no longer use their criminal law codification power to promote broad and useful change, but have become 'offense factories' churning out more and more narrow, unnecessary, and often counterproductive new offenses. Because no elected legislative member can afford to apear 'soft on crime,' proposed penalty enhancements and new offenses often sail through the legislature with little public complaint, even though privately legislators recognize they contain serious flaws. Many legislators bemoan the 'enormous, almost hydraulic pressure to pass any criminal law bill that is offered, unless you don't care about [keeping] your job.'"

[638] "[O]verstuffed criminal codes make it more difficult for the average citizen to understand what the criminal law commands...[R]ather than promoting the principle of notice, today's criminal law carries an impregnable network of prohibitions that only a criminal law expert could decipher.

"The notice problem is further exacerbated by the increasing level of criminalization...Even attorneys, police officers, and other law enforcement officials cannot grasp all of the prohibitions of modern criminal law...The increasing complexity, inconsistency, and unfamiliarity of most criminal codes increase the likelihood of costly mistakes by both lawyers an trial judges, and the odds of disparate treatment.

"This ties into a second problem, which is that the criminalization trend effectively destroys the rule of law. The creation of new statutory offenses may seem like an acceptable and even desirable exercise of legislative prerogative, in full accord with the core principles of legality that are central to the criminal law. But the modern expansion of criminalization also reflects a shift of practical authority away from the legislature to prosecutors and police, who now have broad discretion over who gets punished and the level of punishment. As Douglas Husak noted, the combination of that broad discretion with the modern trend toward 'all-encompassing offenses. . .is destructive of the rule of law.' Arrest, punishment, and the level of punishment are now determined as much by the ad hoc decision-making of individual law enforcement officials as they are by the legal rules."

S24 [1372] "The void-for-vagueness doctrine requires that a penal statute define a criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."

[1376] "The state's downfall is its absolute failure to list any of the acts which will subject one to its punishment."

Throughout this site, for purposes of brevity sources are abbreviated ('A1' etc.). However the titles of some are so good, they bear repeating outside of the 'Bibliography' itself. The following is one of them:

"Rough Justice: America Locks Up Too Many People, Some for Acts That Should Not Even Be Criminal" E1 "So many federal rules carry criminal penalties that experts struggle to count them. Many are incomprehensible...The potential for injustice is obvious...America needs fewer and clearer laws, so that citizens do not need a law degree to stay out of jail. Acts that can be regulated should not be criminalised."

B18 [965] "James Vorenberg, and more recently Daniel Richman and William Stuntz, call for legislatures to revise criminal codes to narrow offense definitions. Richman and Stuntz emphasize that code reform would foster oversight by voters and legislatures, while Vorenberg stresses that better definitions of crimes and punishments would reduce prosecutorial power over sentencing. [966] Vorenberg also advocates that prosecutors report annually on their discretionary decisions to legislative committees in order to foster oversight."

"[L]egislatures broaden criminal liability, pass overlapping statutes, and raise punishments to give prosecutors extra plea-bargaining chips.

Another source which bears repeating outside of the 'Bibliography' itself:

"The Pathological Politics of Criminal Law"

S22 [506] "Anyone who reads [507] criminal codes in search of a picture of what conduct leads to a prison term, or who reads sentencing rules in order to discover how severely different sorts of crimes are punished, will be seriously misled. The reason is that American criminal law, federal and state, is very broad; it covers far more conduct than any jurisdiction could possibly punish...Since all change in criminal law seems to push in the same direction -- toward more liability -- this state of affairs is growing worse: legislatures regularly add to criminal codes, but rarely subtract from them. In a world like that, lists of crimes in statute books must bear only slight relation to the conduct that leads to a stay in the local house of corrections."

[588] "Consider three hypothetical constitutional rules that, taken together, might go far towards reining in excessive criminal liability (and toward removing the incentive for legislatures to overcriminalize):

a. Notice. The first rule is one we already have, at least nominally: no one may be convicted of a crime without fair notice. The core idea is simple. A necessary condition of any free society is the ability to avoid going to prison; one has the ability only if one can know what behavior will lead to prosecution and punishment. [591]

b. Desuetude...[T]he statute books contain a host of crimes that are not crimes at all in terms of popular understanding. [594]

c. Sentencing Discretion...[A]nother equally dangerous prosecutorial power [is] the power to stack charges...When deciding whether to plead guilty, any rational defendant...takes account of the sentence the defendant may receive if he goes to trial and loses...By stacking enough charges, prosecutors can jack up the threat value of trial and thereby induce a guilty plea, even if the government's case is weak."

[This last bit was certainly true of the Nickel case.]

D14 [1171] "[I]n a consistent pattern, legislatures continually create new offenses, and ratchet up the theoretical maximum penalty for existing ones."

M9 [2189] "[There is a] problem of 'overcriminalizarion' in our criminal codes...Not everyone should be prosecuted for every crime they apparently committed. Such a practice would lead to an overabundance of prosecution, drain government assets, and impose penalties for outmoded or ill-defined crimes that regrettably remain on the books.

"Prosecutors are generally urged [via model ethical codes] to consider [inter alia,] the impact on the victim of the charging determination. Prosecutors should also evaluate the availability of noncriminal dispositions in their decisions and need not present all charges supported by the evidence, let alone the highest ones. Several ethical codes, moreover, forbid prosecutors from 'overcharging' solely in the hopes of developing leverage for plea bargaining negotiations."

[from FN14:] "Scholars perceive the practice of 'overcharging' to be rampant in the criminal justice system...('Prosecutors routinely engage in overcharging, a practice that involves "tacking on" additional charges that they know they cannot prove beyond a reasonable doubt or that they can technically prove but are inconsistent with legislative intent or otherwise inappropriate.')" *

[2191] "It is often said that the grand jury serves as a rubber stamp to validate prosecutorial charging choices rather than as a bulwark against injustice. Indeed, the roles governing grand jury practices undeniably favor the prosecution. First and foremost, prosecutors dictate the flow of information to the grand jury. The bulk of a grand jury's efforts occur away from judges, defense lawyers or the media. In fact, defense counsel is typically barred from the room. Secondly, prosecutors may present inadmissible evidence in making their case, and they generally are not required to present evidence that exculpates a defendant. Third, grand juries usually [2192] may issue an indictment when a bare majority of its members find probable cause to believe in the defendant's guilt. Overall, a strong presumption of deference, even correctness, for prosecutorial charging decisions animates the early stages of the criminal process and shrouds their choices in a veil of secrecy that is rarely lifted for public view."

R12 [645] "[P]rosecutors actually benefit (or think they do) from the fruits of degradation [of legal codes] because a complex code with [646] hundreds or thousands of overlapping provisions provides them with a great deal of discretionary power and increased leverage to induce plea bargains on their terms. The greater the number of offenses available, the greater their discretion as to what and how many offenses are charged. The greater the number and variety of offenses charged, the greater the opportunity to intimidate defendants into plea bargains favorable to the state."

W16 [130] "[Prosecutors] also enjoy another form of 'charging discretion,' the discretion to decide which of many possible charges to bring against a given [suspect]."

[from FN24:] "'Not only are threatened penalties in American jurisdictions harsher than Europe, but prosecutors have also more freedom to decide how many charges to derive from what many Continental systems would regard as a single criminal event.'" **

"The availability of [131] these unusual weapons gives American prosecutors a measure of power over accused persons that their counterparts elsewhere do not enjoy."

[139] "The job of the Continental prosecutor takes a very different form from the job of his American counterpart. In seeking plea bargains, the Continental prosecutor does not engage in charge bargaining ['tacking on' extra, higher, and often unwarranted charges in order to pressure a defendant into taking a plea]; and in proffering charges, he does not offer multiple possible counts covering the same conduct."

W32 [1595] "Certainly by comparison to criminal codes in most American jurisdictions, the typical criminal code in a civilian [i.e., continental European] system is a model of clarity that offers a prosecutor a limited set of options for charges based on a given set of facts."

[1598] "Concerns about the fairness, wisdom and consistency of the charge elections of prosecutors appear in the academic literature and in public discourse. The conditions that produce this problem include the multiple charging options in all but the simplest cases, and the incoherence and bloat of most American criminal codes."

H13 [732] "The prosecutor's authority is increased by the expansiveness of criminal codes which often permit the govertnment to file charges under multiple provisions based on a single course of conduct. As Professor Richman noted, '[p]rosecutors. . .emerge as mediators between phenomenally broad legislative pronouncements and the equities of individual cases...'"

D17 [645] "[A] symbiotic relationship exists beween plea bargaining and overcriminalization because these legal phenomena do not merely occupy the same space in our justice systems, but also rely on each other for their very existence.

"To illustrate the co-dependent nature of plea bargaining and overcriminalization, consider what it would mean if there were no plea bargaining. Novel legal theories and overly-broad statutes would no longer be tools merely for posturing during charge and sentence bargaining, but would have to be defended and affirmed both morally and legally at trial. Further, the significant costs of prosecuting individuals with creative, tenuous, and technical charges would not be an abstract possibility used in determining how great of an incentive to offer a defendant in return for pleading guilty. Instead, these costs would be a real consideration in determining whether justice is being served by bringing a prosecution at all.

"Similarly, consider the significant ramifications that would follow should there no longer be overcriminalization. The law would be refined and clear regarding conduct for which criminal liability may attach...[646] [N]ovel legal theories and overly-broad statutes would not be used to create staggering sentence differentials that coerce defendants, even innocent ones, to falsely confess in return for leniency.

"As these hypothetical considerations demonstrate, plea bargaining and overcriminalization perpetuate each other, as plea bargaining shields overcriminalization from scrutiny and overcriminalization creates the incentives that make plea bargaining so pervasive."

[653] "[O]vercriminalization, the phenomenon that initially created swelling dockets and the need for plea bargaining, makes creating the incentives to plead guilty easy by propagating a myriad of broad statutes from which staggering sentence differentials can be created. All the while, plea bargains prevent these incentives, sentencing differentials, and, in fact, overcriminalization itself, from being reviewed.

"Despite the ever-growing number of Americans captured by the criminal justice system through an increasingly wide application of novel legal theories and overly-broad statutes, these theories and statutes are seldom tested. No one is left to challenge their application -- everyone has pleaded guilty instead."

B31 [24] "The core critique of the American criminal justice system -- and [25] in my view the correct one -- is over-crimiminalization, leading to overcharging, resulting in mass incarceration."

[29] "[T]he system cannot provide trials to everyone (or even close to everyone) charged with a crime. Defendants, on the other hand, have a Sixth Amendment right to a jury trial and a speedy one at that. So, what would happen if all the lawyers exercised those rights on behalf of all clients?...[T]he criminal justice system would effectively be stopped dead in its tracks." [Emphasis original.]

"Given the exponentially growing backlog of the dockets...[30] prosecutors would have no choice but to offer (substantially) better deals by reducing charges, recommended sentences, or both.

"The majority of legal academics and all criminal defense lawyers lament prosecutorial excess in charging, the bone-crushing sentencing regime, and the resulting mass incarceration. Yet the plea beat goes on...But why don't we do something about it? They have in their hands the power to create systemic change."

[38] "Zealous advocacy on behalf of criminal defendants is to be applauded. However, in its current form, the defense counsel's focus on obtaining the best possible result for each individual client legitimizes and stabilizes the status quo of overcharging, guilty pleas, draconian sentences, and mass incarceration. If lawyers had the ability to act collectively and to take actions, something approaching structural reform of the criminal justice system would likely be achieved. The current state of affairs would no longer be sustainable, and over a (likely brief) period of time, a new normal would set in."

S22 [509] "As criminal law expands, both lawmaking and adjudication pass into the hands of police and prosecutors; law enforcers, not the law, determine who goes to prison and for how long. The end point of this progression is clear: criminal codes that cover everything and decide nothing, that serve only to delegate power to district attorneys' offices and police departments."

[510] "Begin with the basic allocation of power over criminal law: legislators make it, prosecutors enforce it, and judges interpret it. In this system of separated powers, each branch is supposed to check the others. That does not happen. Instead, the story of American criminal law is a story of tacit cooperation between prosecutors and legislators, each of whom benefits from more and broader crimes...Prosecutors are better off when criminal law is broad than when it is narrow. Legislators are better off when prosecutors are better off. The potential for alliance is strong, and obvious."

G20 [263] "[A]s professor LaFave argued in 1970, our system has 'legislative overcriminalization.'"

D15 [407] "Justice Scalia discussed the charging power and discretion of American prosecutors in his dissent in Morrison v. Olsen, quoting Justice Robert Jackson in a speech he made when he was Attorney General under President Franklin Roosevelt:

'With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.'"

C32 [331] "[M]ost people habitually violate the law, and whether on the job, at home or on the street, commit a variety of both violent and non-violent 'crimes' in their lifespan. One counting of such empirical data claims that in the U.S. more than 90% of all Americans have committed at least one 'crime' for which they could be incarcerated."

L18 "[W]ith so many sweeping and often ambiguous criminal laws...it is impossible for any person...to stay abreast of what is legal and what is criminal. Moreover, the deluge of overly broad and vague criminal laws gives police and prosecutors virtually untrammeled authority to arrest and indict anyone...Conservative commentator and former prosecutor Tony Blankley observed that criminal law was once a series of clearly demarcated 'tall oak trees' whereas now it is a vast meadow in which 'blades of glass' are virtually indistinguishable.

"Lavrentiy Pavlov Beria, the apparatchik who headed the Soviet secret police under Joseph Stalin, declared proudly, 'Show me the man and I'll find you the crime.'"

Throughout this site, for purposes of brevity sources are abbreviated ('A1,' etc.). However the titles of some are so good, they bear repeating outside of the 'Bibliography' itself. The following is one of them:

"The Pathological Politics of Criminal Law"

R22 [102] "Given the [103] vast web of legislation and regulation that exists today, virtually any American bears the risk of being targeted for prosecution.

"Prosecutors themselves understand just how much discretion they enjoy. As Tim Wu recounted in 2007, a popular game in the U.S. Attorney's Office for the Southern District of New York was to name a famous person -- Mother Teresa, or John Lennon -- and decide how he or she could be prosecuted:

'It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were usually not rape, murder, or other crimes you'd see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. code like a jurisprudential minefield: crimes like 'false statements' (a felony, up to five years), 'obstructing the mails' (five years), or 'false pretenses on the high seas' (also five years). The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The result, however, was inevitable: "prison time".'

[104] "The result of overcriminalization is that prosecutors no longer need to wait for obvious signs of a crime. Instead of finding Professor Plum dead in the conservatory and launching an investigation, authorities can instead start an investigation of Colonel Mustard as soon as someone has suggested he is a shady character. And since, as the game Wu describes illustrates, everyone is a criminal if prosecutors look hard enough, they are guaranteed to find something eventually."

[105] "Despite the problems described above, most of us remain safe. Prosecutors have limited resources and there are no political constraints on egregious overreaching...Unfortunately, these limitations on prosecutorial power are likely to be least effective where prosecutors act inappropriately because of politics or prejudice. Limited resources or not, a prosecutor who is anxious to go after a political enemy will always find sufficient staff to bring charges, and political constraints are least effective where a prosecutor is playing to public passions or hysteria."

[The latter was certainly true of the Nickel case.]

R17 "'Why is adultery still a crime"' asked Deborah Rhode. Believe it or not, cheating on your spouse remains illegal in 21 states; in Wisconsin and Oklahoma, it's a felony. These laws are rarely enforced -- if they were, Donald Trump might not have boasted about his serial philandering. But the fact that adultery is still a crime enables employers and the government to punish people for it. 'Courts have permitted dismissals or discipline of police officers, librarians, fire department employees, and FBI trainees based on marital infidelity that had no demonstrable connection to their job performance.' In states that have repealed adultery laws, there has been no resulting epidemic of cheating; indeed, research today shows that about 20 percent of married men and 15 percent of married women admit to having been unfaithful -- substantially lower rates than in the 1950s. Legal scholar Thurmond Arnold once made this cogent observation about unenforced laws: 'They are unenforced because we want to continue or conduct, and unrepealed because we want to preserve our morals.' Let's stop playing that hypocritical game, and get these 'anachronistic [and] intrusive laws off the books."

R7 [from FN11:] "See...Harvey A. Silverglate, Three Felonies a Day: How the Feds Target the Innocent (2009) (setting out an analysis of the prevalnce of over-criminalization and over-punishment)."

S22 [511] "[W]e are likely to come ever closer to a world in which the law on the books makes everyone a felon, and in which prosecutors and the police both define the law in the street and decide who has violated it."

W16 [from FN23:] "German law does not define some offenses as major offenses that are so treated in American law."

[131] "[T]he European Human Rights jurisprudence places far more severe limits on the substantive power of legislatures to criminalize behavior than does American constitutional law."

R12 [641] "New offenses, or aggravations of existing offenses, commonly introduce questionable, and sometimes transparently disproportionate, grading distinctions. Not all offenses can be the worst; yet the trend over time is to enhance the penalties for [642] offenses so that even inherently less serious offenses, such as inchoate endangerment crimes where nobody is harmed, are potentially subject to the same treatment as homicides."

[ Nickel's current aggregate sentence is 32 years, which is similar to that imposed for 1st Degree Murder.]

[644] "This trend is both intrinsically harmful, in that it treats less serious crimes more harshly than is appropriate, and subtly harmful, in that it calls into question the moral authority and credibility of the criminal code. It promotes disrepect for the law's commands rather than increasing the law's deterrent effect."

H19 [1205] "With so many overlapping criminal and quasi-criminal provisions, few people know what the law really is."

[1211] "Overcriminalization has made the criminal justice [1212] system more uncoordinated and illogical, more unjustifiable . When society is faced with the inconsistent enforcement and overly harsh application of criminal laws, it affects how the public views the criminal justice system as a whole. It erodes the criminal law's legitimacy." [Emphasis original.]

[1214] "By delegitimizing the criminal law, overcriminalization fosters the rationalizations offenders employ that allow their bad acts to go forward. Thus, overcriminalization not only creates more criminal laws, but it also creates more criminal behavior , which undermines its deterrent goals." [Emphasis original.]

G30 [175] "When two minors below the age of consent have sex, who is the victim and who is the offender. No one can agree. Consider these two recent cases: In the first, four or five middle school boys and girls have consensual oral sex and vaginal intercourse at a 'sex party.' The police arrested and charged all the minors. The second case concerned two preteen boys who had consensual anal sex several times. After one boy's father complained to the police, the other boy was adjudicated guilty of statutory rape and sentenced to suspended incarceration, probation for an indefinite number of years, and sex offender treatment. Statutory rape law makes consensual sexual activity among minors illegal in almost every state. At the same time, sex among minors is extremely [176] widespread -- almost half of all high school students have had intercourse, millions of younger children have as well, and minors of all ages have engaged in oral sex and other sexual activity. The law's immense scope and requisite underenforcement give police and prosecutors the power to virtually define the crime."

['Statutory rape law makes consensual sexual activity among minors illegal in almost every state.' Let's step back, and consider how striking this fact truly is. Perhaps like many, we had assumed that 'the law' only went after sexual interactions between minors and adults ; that it was there to 'protect' the former from the latter. But that does not appear to be the case. A more accurate statement would be that the law is there to 'protect' minors against all sexual interactions with another human being, regardless of the latter's age. Thus, to the extent that minors may be said to have any rights in the sexual sphere, they are solely of a negative nature; that is to say, the 'right' to be 'free' from sexual interactions with anyone , similar-age peers included. They do not have any positive sexual rights; that is to say, any right to such interactions.]

"In this Article, I define and critique 'vaguenets' -- broad and under-defined laws that invite selective enforcement. Vaguenets criminalize harmless conduct or conduct bringing some harm, where the costs of criminalization outweigh the benefits. The scope of covered conduct means that underenforcement is inevitable, as is a vast gap between the law on the books and the law in action."

'Vaguenets criminalize harmless conduct or conduct bringing some harm, where the costs of criminalization outweigh the benefits.' This is a remarkably apt characterization of the Nickel case.]

"Peer statutory rape, or the criminalization of consensual sex between minors, is a particularly good lens into the over-criminalization vaguenets present. The immense pool of law-breakers, lack of a mens rea requirement in most jurisdictions, [the] gap between empirics and morality about adolescent sex, and severe sanctions and stigma accorded to sex offenders combine to make statutory rape one of the most punitive of these laws...[178] Lacking any legislative distinction between legal and illegal conduct, prosecutors may pick and choose based on ad hoc and subjective factors...[P]eer statutory rape prosecutions are sometimes based on the similarly illegitimate criteria of gender roles and an ongoing distaste for same-sex intimacy."

[184] "[T]he strong view [held] by adults against adolescent sexuality likely reflect what one expert has described as a class, gender, and race-based '[a]dult [d]isgust [] and...[d]emand for [i]nnocence.' **** Just as the use of vagrancy [laws] by 'the establishment to keep the untouchables in line' was impermissible, so is the [185] use of peer statutory rape by prosecutors and parents to police minors' sexual conduct that displeases them."

[187] "Overcriminalization is undoubtedly the most pressing criminal justice problem of our era. It is defined in a number of ways; here I use the broadest definition to include both the volume of criminal laws as well as the range of prohibited conduct. These combine to create an impermissible level of state coercion. Scholars have identified three main types of harms stemming from overcriminalization -- too much criminal law and punishment; excessive and uneven discretion; and the erosion of the criminal law's legitimacy."

"[C]riminal laws must...be based on empirical data."

[189] "Prosecutorial discretion is particularly powerful; the wide net of criminal laws gives them incredible charging leverage...The modern plea bargaining system compounds this by rewarding charging decisions -- and any impermissible discretion used to decide them -- largely invisible. Indeed, [190] [William] Stuntz aptly characterized prosecutors as today's 'real lawmakers.'"

"[E]xcessive and unfair punishment warps the criminal law's expressive value and erodes its legitimacy...[T]he law's loss of legitimacy itself has a crimogenic [i.e., crime- causing ] effect."

[196] "The regulation of adolescent sexuality has long relied largely on fear and sensationalism rather than empirical data. One scholar aptly compares Foucault's seminal critique of anti-masturbation materials to current frenzies about sexual predators of children. Foucault noted that the ironic effect of [197] moralistic and unscientific policies, such as a ban on masturbation, was to sexualize children while also 'din[ning] it into parents' heads that their children's sex constituted a fundamental problem.'...In his seminal study of legal responses to adolescent sexual offending, Frank Zimring reveals that policies towards the treatment of minor sex offenders ignore empirical and scientific evidence and depend largely on stereotypes."

[199] "[M]andated child abuse reporters [e.g., doctors, therapists, teachers, etc.] [are required] to report even voluntary sexual activity between minors."

[This reinforces our own above paragraph re: minors possessing only 'negative' sexual rights. Also note that reporting is mandated regardless of the age of the other person involved.]

[203] "[S]tatutory rape laws [204] 'are enforced largely by how angry the parents of [one] party are' ***** or 'as a means of policing their children's sexuality.'" @ ]

[235] "Broad and vague laws criminalizing widespread behavior render unclear the line between legal and illegal. In the modern world, criminal statutes no longer function to define prohibited conduct, but rather serve 'as items on a menu from which the prosecutor may order as she wishes.' @@

S5 [26] "All unwanted sexual advances are wrong, possibly criminal, and have the potential to do psychological harm to the victim. As a society, however, we need to decide whether we wish to count an unwanted touch on the buttocks as an unreported sexual crime...Decades ago, the bar was set too high, and many victims suffered in silence, unable to get the help and protection they so desperately needed. Now the pendulum has swung too far in the other direction."

F4 [78] "[W]hat we have is a conceptualization of abuse which is entirely arbitrary. The act of abuse lacks any structure or fixity because it is defined through the eyes of those who believe they have been abused."

K2 [78] "We have expanded the category of sexual abuse to include issues that would have been regarded three decades ago as nuisances or nothing: a wide variety of touching, some of it at least ambiguous; suggestive language; exhibitionism that used to be passed off as casual; and voyeurism...The [79] 'intention of the abuser' is becoming more and more central in differentiating what is sexual abuse from what isn't, even when this means 'that children can be abused without being aware of it (for instance, in some forms of voyeurism).' *** . We constantly expand definitions, partly because we suppose we have grown more sensitive to less obvious offenses and more subtle victimizations, partly because the expansions feed the alarming discourse. By adding 'intent' to the law we have greatly increased the possibilities of sexual interpretation...[For example, a California Court ruled that] 'any touching of an underage child with the intent of arousing the sexual desires of either the perpetrator or the child' [would be the determining factor as to whether the law had been broken]. How can any touching be clearly and unequivocally legal under such a ruling? Won't it be necessary to discuss each and every touch, weighing the possibilities, dissecting the erotic experience of both the adult and the child?" [Emphasis original.]

[The above California ruling is very much in line with the law in New York State. The least serious crimes Nickel was convicted of -- for which, unlike the most serious ones, some credible evidence does exist -- involved touching outside of clothing. The above logic is persuasive: There is no such thing as touch which is unquestionably 100% devoid of erotic content. Therefore, anyone who touches another person without unambiguous 'consent' could theoretically be convicted of the crime of sexual abuse. (And touching the genitals or other intimate parts is not necessarily required either: courts have ruled that touching the top of a child's head can qualify as sexual abuse.)]

L22 [35] "The vagueness of the concept, sex crime, which covers felonies and misdemeanors, facilitates the constant erasure of meaningful distinctions between violent and nonviolent acts, between the acts that cause genuine harm and those that are merely socially disapproved."

[120] "One likes to imagine that severe penalties are applied only to truly awful crimes: I never got beyond my initial astonishment that such extraordinary penalties could be applied in cases where the accusation amounted, at worst, to a charge of inappropriate touching."

[Such are the least serious charges Nickel was convicted of -- the only ones which he is arguably guilty of. Amounting to brief touches outside of clothing, these charges, of 'Sexual Abuse in the First Degree,' carry terms of 7 years each (times two).]

U14 [2] "In a trial in December, 1986...we described the criminalization of behaviors that had formerly been viewed as foolish or deplorable but not as criminal acts..."

N1 [62] "Such ['sodomy'] laws are as striking for their vagueness as for their intrusiveness. Presumably legislators wanted to avoid what they took to be offensive language; they also wanted to avoid giving people ideas. The result is a high degree of unclarity about what is forbidden."

[67] "[M]any of the [sodomy] laws are intolerably vague, leaving far too much to the discretion of the interpreting agents of government. Vagueness typically raises constitutional problems."

from New York State Penal Law §130.00 Sex Offenses; definitions of terms.

3. "Sexual contact" means any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as touching of the victim by thee actor, whether directly or through clothing ... [Emphases added.]

Several courts have held that a person’s buttocks are an intimate part.

[So, one is presumed to know not only the details of the law itself, but of court rulings regarding it as well?]

Touching of the 'upper leg,' or simply 'rubbing of the leg,' have been held sufficient to constitute 'sexual contact.'

Courts have ruled that when deciding what constitutes "sexual or other intimate part," "one must consider our general societal mores."

For Class "D" felonies, going back to at least the 1960s, the maximum penalty was 7 years, and the minimum was 3 years. Sexual Abuse in the First Degree, which can involve as little as touching outside of clothing, is a Class "D" felony. The least serious (two) crimes Nickel was convicted of were precisely that.

Interestingly, in Sex Offender Registration Act ('SORA') risk assessment hearings, "sexual contact with a victim under clothing" is assessed +10 points, whereas such contact over clothing is assessed only +5 points. Therefore, SORA would appear to deem touching under clothing to be twice as 'bad' as touching over clothing; and yet, for purposes of the crime itself, this makes no difference whatsoever.

Under New York State Penal Law §130.65, Sexual Abuse in the First Degree,

"A person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact...

3. when the person is less than eleven years old..."

Therefore, anything from 'light petting' over clothing, on up to masturbation, rubbing of genitals together, etc.; that is, anything short of actual penetration -- by a part of the body or an object -- would fall under this provision. So, does it make sense -- i.e., would it be just -- to punish the least intensive of these acts just as severely as the most intensive? That is precisely what was done in the Jeffrey Nickel case: He received the maximum of 7 years on each of these counts.

R24 [820] "Both sides of the political spectrum have come to realize that the proliferation of criminal law, at its core, undermines the moral force of the law itself. For when everything becomes a crime, then nothing, in the end, is truly wrong."

----- * Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor, at 31.

** Mirjan Damaska (2004).

*** Child Sexual Abuse, Glaser and Frosh.

**** R. Danielle Egan, Becoming Sexual: A Critical Appraisal of the Sexualization of Girls 107 (2013).

***** John Gramlich, New Laws Take 'Romeo' Into Account, Pew Charitable Tr. (July 16, 2007).

@ Carolyn E. Cocca, Jailbait 137 (2004).

@@ William Stuntz, Plea Bargaining and Criminal Law's Disappearing Shadow, 117 Harv. L. Rev. 2548, 2549 (2004).