James Burnham has a new Green Bag piece on dismissing indictments, and it’s deservedly getting attention. In a nutshell, Burnham argues that the way that federal courts review indictments has facilitated over-criminalization. By simply reading a federal rule according to its terms and bringing criminal practice in line with civil procedure, Burham believes that federal courts can take a significant step toward curbing ever-expanding criminal liability. (By way of disclosure, I know Burnham from my law firm days and commented on a draft of his piece.)
Here’s the opening of the essay, with some edits:
Many lawyers are familiar with the problem of overbroad, vague federal criminal laws that ensnare unwary defendants and perplex the lawyers who defend them. …
[This essay proposes] a tool for combating overcriminalization that is, perhaps, simpler and more readily available than the heavy artillery of constitutional law – making it easier for criminal defendants to secure a legal ruling before trial on whether their alleged conduct actually constitutes a federal crime. Implementing this basic reform would require nothing more than applying the Federal Rules of Criminal Procedure, which already contain provisions for dismissing indictments that are materially identical to the familiar 12(b)(6) standard and the rules for dismissing civil complaints.
Yet the same federal judges who routinely dismiss complaints for failure to state a claim virtually never dismiss indictments for failure to state an offense. The judiciary’s collective failure to apply the dismissal standard in criminal proceedings … largely eliminates the possibility of purely legal judicial opinions construing criminal statutes in the context of a discrete set of assumed facts [and] leaves appellate courts to articulate the boundaries of criminal law in post-trial appeals where rejecting the government’s legal theory means overturning a jury verdict and erasing weeks or months of judicial effort.
Courts should eliminate this anomalous difference between criminal and civil procedure. There is no good reason why federal prosecutors cannot abide by the same pleading standards as civil plaintiffs. That is what the rules already provide. And holding prosecutors to that reasonable standard would go a long way toward making federal criminal law a little less lawless.
This is an important proposal that has the significant virtue of being realistic. For now, let me just make a few rather high-level points about why Burnham’s argument is so interesting.
First, the argument essentially rests on a point of system design. When a certain outcome seems bad, like overcriminalization, it’s tempting to want a new (constitutional?) legal rule that simply fiats an end to that badness. But in many instances those solutions are too broad-brush to be satisfying and in any event don’t grapple with the structural forces underlying the problem. By focusing on institutions and the way they make decisions, Burnham has uncovered what seems like a systematic procedural bias and potentially identified a way of transforming it into a solution. We need more reform proposals of this type.
Second, the argument is attentive to the connections between civil and criminal procedure. Unfortunately, those two worlds are too often thought of as distinct. Like research into historical or foreign practices, research that merges the worlds of civil and criminal procedure can expose unrealized assumptions and point toward realistic solutions. (See for example this piece by David Sklansky and my colleague Stephen Yeazell.) Burnham is able to write in that spirit, which strengthens the persuasiveness of his critique as well as the viability of his suggested reform.
Finally, Burnham’s piece is both good and short, befitting the Green Bag. And it’s informed by Burnham’s practice experiences. We could also use more essays like that.
First posted on Prawfs.