Lawmakers should work toward adopting strong, standardized language in criminal statutes
My recommendation is to follow this format:
It is unlawful to [adverbial mens rea] [actus reus]. Violation of this provision is [class/grade of offense] [punishable by penalty].
This convention has many advantages over other possibilities by avoiding: (1) overlong sentences, (2) subject–verb separation, (3) sexist language (or the ungainly avoidance thereof), and (4) circumlocutions in which unlawfulness is only implied. Again and again, this approach’s clarity and consistent utility will be evident.
THE WILD VARIABILITY ACROSS THE LAND
Legislatures now express criminal prohibitions and punishments in at least eight ways. In each of these formulations, a mens rea (the requisite mental state, such as knowingly) is optional before the actus reus (the prohibited conduct):
1. Whoever [actus reus] shall be [penalty].
2. Any person who [actus reus] is guilty of [class/grade of offense].
3. If a person engages in [actus reus], such person is guilty of [class/grade of offense].
4. A person commits an offense if the person [actus reus]. An offense under this provision is [penalty].
5. No person shall [actus reus]. Violation of this act shall be [penalty].
6. A person may not [actus reus]. A person who violates this provision is subject to [penalty].
7. [Name of offense] is [actus reus]. [Name of offense] is punishable by [penalty].
8. It is unlawful to [actus reus]. Violation of this act is punishable by [penalty].
Many slight variations are possible—any becomes every; whoever becomes anyone, etc. But these eight structures account for almost all the principal varieties.
Let’s briefly consider their merits and demerits. The first three all put the actus reus—which can be quite long—in the middle of a sentence. That poor convention accounts for many an unreadable criminal statute. The fourth repeats person within seven words and very likely again in the actus reus. It’s ungainly. The fifth misuses shall for may. (No person shall really does not mean “no person is required to”; it means something more like “no person is permitted to.”) The provision is meant to negate permission, not a requirement. That brings us to the next point. The sixth uses may not, which sounds as if permission to murder, pillage, etc. is being denied. It’s just odd—and this objection also militates against No person may. Negating permission isn’t what criminal prohibitions are about. The seventh wrongly assumes that every crime has an easily identifiable name. It’s also undesirably repetitious. Though these objections may seem like so much nitpicking to some, they in fact pinpoint problems that emerge again and again with these faulty conventions.
The eighth method is clean. It clearly states illegality. It separates the actus reus and the penalty into discrete sentences. It avoids all sorts of person … he or she problems. And it works consistently.
Consider an example:
The federal law against assault on a foreign official exemplifies option No. 1 above:
“Federal Assault on Foreign Official
(a) Whoever assaults, strikes, wounds, imprisons or offers violence to a foreign official, official guest or internationally protected person, or makes any other violent attack upon the person or liberty of such person, or if likely to endanger his person or liberty makes a violent attack upon his official premises, private accommodation or means of transport, or attempts to commit any of the foregoing shall be fined under this title or imprisoned not more than three years, or both.”
Notice the huge subject-verb separation with 62 words intervening. Notice also that the statute sets out the illegal conduct without any words of prohibition. Nowhere does it say that it is unlawful to assault a foreign official. While words of prohibition may seem like surplusage, they serve an important function as a socializing force and transmitter of moral values. The statute is greatly improved if the actus reus is moved to the predicate and unlawfulness is made explicit:
“Federal Assault on Foreign Official
(a) It is unlawful to assault, strike, wound, imprison or offer violence to a foreign official, official guest or internationally protected person or to make any other violent attack on the person or liberty of such a person, or, if likely to endanger his person or liberty, to make a violent attack on his official premises, private accommodation or means of transport, or to attempt to commit any of these acts. Violation of this provision is a Class D felony [punishable by fine under this title, imprisonment of up to three years in federal prison, or both].”
We now have two sentences: one for the actus reus and one for the penalty. Subjects and verbs are kept together. The bracketed language is optional—Class D felony might say all that needs saying. It depends on the context. More might be done, of course, but the demonstration here shows merely how a minor adjustment in syntax leads to a more workable statute.
While few scholars have discussed the appropriate way to express criminal prohibitions and criminal punishments, some legislative-drafting manuals contain recommendations.
The Texas Legislative Council Drafting Manual touts option No. 4 from the list above: “A person commits an offense if the person [verb] [the prohibited act].” The council and other legislative-drafting organizations say this formula accomplishes at least two goals. First, it neatly separates the actus reus from the penalty. That is true, and it’s an advantage. Second, it uses language that expressly makes the prohibited act criminal. But as we have seen, it leads to often grotesque subject–verb separations—and therefore unreadable sentences. Hence it is less than ideal.
But there’s another problem with this formula. Like many recent American-style criminal statutes, it blurs the distinction between tort and crime. In fact, perhaps the most common wording of criminal prohibitions in American law takes the form of “whoever [actus reus] shall be [penalty].” A jury (or a would-be criminal) looking at a statute with this sort of wording sees a trade-off, not moral condemnation.
For criminal sanctions to be effective, they must do three essential things: (1) identify the prohibited conduct, (2) signify that it is morally culpable to society at large, and (3) specify the penalty for engaging in the prohibited conduct. Any deviation from these essentials may threaten the criminal law’s legitimacy.
In keeping with the spirit of what criminal law has historically represented—a system of moral education and socialization—the best wording for a prohibition in a criminal statute is one that makes it most clear that society deems the behavior morally repugnant.
IS UNLAWFUL THE BEST WORD?
Why not say It is a crime to … ? That formulation has some appeal. But remember, we’re announcing not just felonies but also misdemeanors and lesser infractions. Is running a stop sign a crime? Yes, technically—but the popular mind doesn’t think of traffic infractions as creating criminals. So crime is probably too extreme a word for many prohibitions. Further, seemingly no jurisdiction uses this formulation, whereas It is unlawful … is prevalent in many jurisdictions.
But does unlawful carry enough moral condemnation for serious crimes? One could argue that the more serious the crime—the more it is seen as malum in se—the more natural opprobrium automatically arises in the reader’s mind. Unlawful is a broad word intended to fit misdemeanors as well as felonies. Some have claimed that it might even suggest mere civil violations to the ordinary reader, such as breaches of contract. This seems far-fetched. When English speakers use the phrase against the law, they invariably mean “against the criminal laws.” The most concise equivalent of that idea is unlawful—not its near-synonyms illegal, which is often applied broadly to nonstatutory prohibitions, and illicit, which has strong connotations of salaciousness and lubricity and is often confused with elicit. And because It is unlawful to … is already a prevalent convention, it requires little by way of reacculturation.
A GRAMMATICAL NOTE ON MENS REA ADVERBS
The statement of mens rea has created recurrent problems in criminal law. Take the sentence “Whoever knowingly pushes, shoves or otherwise touches another in an offensive manner commits a Class B misdemeanor.” Must the shoving and offensive touching be committed knowingly? Yes—probably—under the series-qualifier canon of construction. But the rule of lenity might suggest otherwise. Judicial decisions will vary.
One advantage of the It is unlawful … formula is that the best placement of the state-of-mind adverb—after the to in the infinitive—more clearly keeps it modifying each of the infinitives: “It is unlawful to knowingly push, shove or otherwise touch another person in an offensive manner. Violation of this provision is a Class B misdemeanor.” Both the shoving and the offensive touching must be done knowingly, in a fair reading.
But what ho! We’ve split an infinitive. No matter, say the most respected grammatical authorities: Doing so is often necessary, and especially in this particular context. If you’re using the convention recommended here, you must eradicate any hangups you might have about the split infinitive (that is, at least when you’re using an -ly adverb to specify the mens rea). And you may well have to be prepared to enlighten a legislator who raises an objection. Even if the split infinitive were a blemish—and it never has been—it would be the smallest of the many blemishes found on every page of the statute books. Here, though, it definitely helps make the prohibition unambiguous.
The American trend away from words declaring unlawfulness is unfortunate. To instill the socializing effects of criminal law, some strong language is necessary. The most desirable language for statutory prohibitions is that which makes it most clear that the conduct is both disallowed and morally objectionable. The formulation It is unlawful to … followed by a sentence expressing the penalty, perhaps through simply stating the classification of the crime, is the optimal wording—not just for expressing content clearly but for making the syntax manageable. Every legislative body should work toward systematizing its criminal prohibitions and penalties.
This article originally appeared in the July 2015 issue of the ABA Journal with this headline: “On Prohibitions, Pains and Penalties: Lawmakers should work toward adopting strong, standardized language in criminal statutes.”
Bryan A. Garner (@BryanAGarner) is the president of LawProse Inc., the continuing-legal-education provider for courses in advocacy and writing.