NCJ Number
18126
Journal
Journal of Criminal Law and Criminology Volume: 65 Issue: 3 Dated: (SEPTEMBER 1974) Pages: 315-333
Date Published
1974
Length
19 pages
Annotation
EXAMINED ARE A DEFENSE TO CRIMINAL PROSECUTION WHICH CONSIDERS THE PRESENT SOCIAL RELATIONSHIP BETWEEN STATUTE AND DEFENDANT AND AN ANTICIPATORY CHALLENGE TO THE STATUTE'S CONSTITUTIONALITY.
Abstract
THE FOLLOWING DEFENSES TO SURPRISE PROSECUTIONS UNDER OBSOLETE STATUTES, AND THEIR UTILITY, ARE DISCUSSED: THE DESUETUDE DEFENSE, THE DEFENSE OF MISTAKE OF LAW, THE DEFENSE OF ABSENCE OF FAIR NOTICE, THE VOID FOR VAGUENESS DEFENSE, AND THE EQUAL PROTECTION IN ENFORCEMENT DEFENSE. THE AUTHOR CONTENDS THAT ALL OF THESE DEFENSES AMOUNT TO 'TOO LITTLE TOO LATE,' SINCE THEY HAVE LIMITED APPLICATION, CAN ONLY BE INVOKED AFTER PROSECUTION IS INITIATED, AND FOCUS ON THE INDIVIDUAL DEFENDANT RATHER THAN UPON THE SOCIAL HARM CAUSED BY THE OBSOLETE STATUTE. HE POINTS OUT, HOWEVER, THAT AN ANTICIPATORY PROCEEDING, SUCH AS A DECLARATORY JUDGEMENT OR INJUNCTION, PERMITS A REEVALUATION OF THE PURPOSE AND FAIRNESS OF THE STATUTES, WITHOUT REQUIRING ITS PRIOR ENFORCEMENT AGAINST A LITIGANT. THE SECOND HALF OF THIS COMMENT, THEREFORE, DISCUSSES THE ADJUSTMENT OF STANDING AND RIPENESS DOCTRINES TO FIRST AMENDMENT AND PUBLIC RIGHTS CASES AND SHOWS HOW THE DISCRETIONARY RULES EVOLVED IN THOSE CASES CAN BE APPLIED TO THE ANTICIPATORY CHALLENGE OF AN OBSOLETE STATUTES. NUMEROUS SUPREME COURT AND LOWER FEDERAL COURT CASES ARE CITED.