The Myth of Common Law Crimes

Conventional wisdom tells us that, after the United States was founded, we replaced our system of common law crimes with criminal statutes and that this shift from common law to codification vindicated important rule-of-law values. But this origin story is false on both counts. The common law continues to play an important role in modern American criminal law, and to the extent that it has been displaced by statutes, our justice system has not improved. Criminal statutes regularly delegate questions about the scope of criminal law to prosecutors, and judges have failed to serve as a check on that power. As a consequence, the current system provides less notice, less accountability, less separation of powers, and more potential for abuse than the common law system. Thus, to the extent the statute has displaced common law, the shift is not a story of the triumph of the rule of law; it is instead a story of legislative excess, prosecutorial supremacy, and judicial abdication. The conventional wisdom of criminal common law is not only false, but it also conceals the failings of our current criminal justice system.