What Constitutes a Crime?

Update: The Supreme Court decided Dubin v. United States on June 8, 2023, rejecting the government’s broad reading of the aggravated identity theft statute.

In an opinion piece published before the Supreme Court ruled, Stephen L. Carter discussed David Dubin’s prosecution for Medicaid fraud and identity theft. The case raised a basic question: how clearly must Congress define conduct before the government can punish it?

David Dubin’s case involved overbilling Medicaid for psychological testing that had been provided. The Supreme Court decided the case on June 8, 2023, holding that misuse of another person’s identifying information must be central to what makes the underlying conduct criminal. The Court rejected the government’s broad reading of the aggravated-identity-theft statute and vacated the appeals court’s judgment.

Carter points out that this act, though clearly illegal, doesn’t fit the conventional understanding of identity theft. Dubin didn’t claim to be the patient but instead lied about the services provided to the patient. Justices from both sides of the political spectrum expressed doubts about the prosecution’s broad interpretation of identity theft during oral arguments.

As Carter argues, the significance of this case lies in the fundamental principle that individuals should have clear and unambiguous notice of what constitutes a crime. Vague statutes can lead even the most law-abiding citizens to break the law and face punishment unknowingly. To address this issue, the rule of lenity has been developed.

The rule of lenity favors the defendant when a criminal statute remains seriously unclear after a court uses the usual tools of statutory interpretation. Under the Supreme Court’s approach, the remaining uncertainty must amount to “grievous ambiguity.” A dispute over a statute’s meaning does not, by itself, require a ruling for the defendant.

The number and complexity of federal criminal laws can make their reach hard to understand. A January 2023 Mercatus Center report estimated that the United States Code contained 5,199 federal crimes as of 2019. That estimate excluded additional crimes defined through federal regulations.

Carter urged courts to use the rule of lenity to protect fair notice. The Supreme Court ultimately resolved Dubin through the statute’s text and context, without expressly relying on lenity. The decision shows why courts must closely examine whether the conduct charged falls within the law Congress enacted.

In a federal criminal case, the defense should examine whether the government’s reading of the statute reaches the conduct alleged.

In order to create a more just and equitable society, we must remain vigilant and demand that our legal system provides fair notice about what actions are criminal.