What if the National Basketball Association (NBA) vaguely defined a three-point shot as, “somewhere more or less around the three-point arc?”  Would the Dallas Mavericks still have defeated the Miami Heat in the finals?

Fortunately, the rule for three pointers is absolute.  Unfortunately, however, the same cannot be said about the language in much of the United States criminal code.  Consider the Armed Career Criminal Act (ACCA) which defines a violent felony as one committed “purposefully, violently, and aggressively.” 

This ambiguous language has confused many – including, recently, Justice Scalia.  Scalia labeled the majority opinion supporting the vague language as a “tutti-frutti opinion”:

We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step—indeed, I think it would be highly responsible—to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent. 

As noted last Thursday in a Legal Pulse post, the threat of imprecise language extends well beyond this particular case.  “The point [Scalia] makes is an important one, especially for those concerned, as WLF is, about the rampant criminalization of business conduct: people “of ordinary intelligence” deserve “fair notice” of a law’s reach.”

Fortunately, it’s not just Justice Scalia who understands the potential hazards of vague laws.  At a House Judiciary Committee Hearing on the Foreign Corrupt Practices Act (FCPA) on June 14, two men – both of who are “tough on crime” – railed against the increasing imprecision of criminal laws.  Former Attorney General Michael Mukasey emphasized the need to “clarify the meaning of a ‘foreign official,’” the need for a “willfulness requirement for corporate criminal liability,” and the general need for greater “clarity and certainly.”  George J. Terwilliger of White & Case LLP added his ideas to “help clarify ambiguity in the statute and its application.”

When the meaning and application of ambiguous statutory terms is left up to prosecutors and regulators, those largely unaccountable officials, in the words of former federal prosecutor Michael Volkov, “become not only enforcers of the law, but also judge and jury.” Mr. Volkov made that, and many other critiques of how the FCPA, at a WLF Web Seminar program today “Is An ‘Effective Compliance Program’ Enough?: Lessons from Foreign Corrupt Practices Act Enforcement Actions and Settlements.” A recording of that live program is available here.

We want Americans to follow the law, but it is fundamentally essential that those laws are well-defined and easily understood.