What Constitutes a Crime?

Update: The discussion below was written before the Supreme Court decided Dubin v. United States. The decision narrowed the government’s proposed reading of aggravated identity theft.

In a thought-provoking opinion piece by Stephen L. Carter published in The Washington Post, Carter examines a Supreme Court case involving Medicaid fraud and identity theft that could have far-reaching implications on the interpretation of criminal law. The case’s outcome could redefine the concept of crime and highlight the importance of the right to clear notice of criminal laws.

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 is a longstanding legal principle that requires ambiguous criminal laws to be interpreted narrowly, with any uncertainty in the law resolved in favor of the defendant. This rule ensures that the government clearly communicates what actions it intends to prohibit.

However, the sheer number and complexity of criminal laws make it challenging for citizens to know precisely what conduct could result in legal consequences. The Justice Department gave up counting federal criminal laws in the 1980s at around 3,000. A January 2023 study by the Mercatus Center estimates the current figure to be 5,199, and that’s just federal law. The number reaches six figures if we include crimes created by federal agencies through power delegated by Congress.

Carter emphasizes that the sheer volume of laws and their ambiguity make it crucial to apply the rule of lenity in cases like Dubin’s. While Dubin isn’t a sympathetic character, upholding the rule of lenity, in this case, would prevent the countless ambiguities in our criminal laws from being subject to the whims of prosecutors. Doing so would reinforce the fundamental principle of clear notice in criminal law and ensure that individuals have fair warning of what constitutes illegal conduct. 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.