by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Yesterday, the U.S. Supreme Court held, in United States v. Davis, that a federal law authorizing heightened criminal penalties for using, carrying, or possessing a firearm in connection with a “crime of violence or drug trafficking crime” is unconstitutionally vague. Justice Gorsuch starts his opinion for the majority by reminding Congress of its constitutional responsibilities:
Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct.
Whether or not you agree with the court’s conclusion regarding the vagueness of the particular section of the United States Code under consideration in Davis, you should recognize the importance of the basic principle enunciated by Justice Gorsuch: when a legislative body creates a crime, it has a duty to provide proper notice to the people who are affected. That principle applies to Congress, and it applies to state legislatures as well.
Unfortunately, the North Carolina General Assembly has often failed to fulfill that duty in the past, and, as result, it has become impossible for ordinary people in our state to know “what consequences will attach to their conduct.” The problem isn’t just that many of our criminal laws are vague and poorly drafted; it’s also that, instead of being consolidated in a single, comprehensive and well-organized criminal code, the definitions of thousands of crimes are scattered throughout more than 140 chapters of the General Statutes, and hundreds of additional crimes are defined outside the statute book altogether.
Fortunately, some members of the General Assembly are aware of the problem and are trying to improve matters. Senate Bill 584 was approved by the Senate last month, and a revised version is currently under consideration in the House. It includes several provisions designed to stop the proliferation of crimes outside the appropriate chapters of the General Statutes. Approving SB 584 won’t solve the problem of insufficient notice on its own, but it will prevent it from getting worse while the General Assembly works on a comprehensive, long-term solution. And, for that reason, it constitutes a very good first step.