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The Sources and Limitations of the Criminal Law

A good example of this cautious judicial approach is Keeler v. Superior Court. [12]The defendant was charged with murder (Killing a “human being”) under California law after he intentionally shoved his knee into the abdomen of his former wife, who was in an advanced state of pregnancy, and said: “I am going to stomp it [the unborn fetus] out of you.” The fetus was delivered stillborn with a fractured head.

The majority, rejecting the prosecution’s argument that the statute should be interpreted in light of changing medical technology, interpreted the phrase “human being” as used in the California murder statute as having the common law meaning of “born alive,” which was the generally understood meaning of “human being” when the statute was enacted first in 1850 and reenacted in 1872. The majority decided that a court should not expand the reach of a criminal statute to include conduct beyond that intended by the legislature. In its view, to do so might violate the separation of powers by judicially rewriting a law enacted by the legislature, thus usurping the legislature’s law-making authority.

Interpreting the phrase “human being” to include a viable fetus might also violate federal and state due process, according to the majority. Providing a new judicial definition of this material element of murder was constitutionally impermissible. Under the applicable law in effect when the defendant struck his wife, he had only committed an assault on his former wife (and possibly an abortion). Deciding after the fact that his conduct actually constituted murder would be an exercise in retroactively increasing the severity of the defendant’s crime and its penalty.[13]

However, the Supreme Court more recently has given courts greater authority to expand retroactively the scope of the criminal law. In Rogers v. Tennessee, 532 U.S. 451 (2001), the defendant stabbed the victim, who died more than one year and a day after the stabbing. Even though Tennessee at the time followed the common law rule that the victim must die within one year and a day of the defendant’s act to establish murder, the state supreme court retroactively abolished this rule and upheld the defendant’s murder conviction. Without this authority courts could not engage in “incremental and reasoned development” [14]of precedent. So long as a court’s decision is not “unexpected and indefensible,” [15]it has the power to broaden the reach of the criminal law.

The Rule of Lenity

This fear of improper judicial expansion of a statutory definition of crime is also reflected in the rule of lenity. English courts originally developed this principle to restrict capital punishment in response to the increasing number of felonies punishable by death.[16] This rule of strict judicial construction requires courts to “construe a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit.” [17]Simply put, ambiguity in the statutory language should be resolved in the defendant’s favor. Some courts, however, will apply the rule of lenity only if other strategies for interpreting a criminal statute fail to make its meaning clear.


[12] 2 Cal. 3d 619 (1970).
[13] Subsequent to this decision, the California legislature amended the state murder statute to include the unlawful killing of a “fetus.” 1970 Cal. Laws ch. 1311, §1. This amended statute would punish as murder what Keeler did.
[14] 532 U.S. at 461.
[15] 532 U.S. at 462.
[16] Jeffries, supra n. 7, at 198.
[17] Keeler, 2 Cal. 3d at 631.

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