The Danger of Vague Laws

In our chapter on bureaucracy, we quote James Madison's warning about "laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood." Harvey Silvergate writes at Reason:

In the United States, we have legal safeguards against Soviet-style social controls, not least of which is the judicial branch’s ability to nullify laws so vague that they violate the right to due process. Yet far too many federal laws leave citizens unsure about the line between legal and illegal conduct, punishing incorrect guesses with imprisonment. The average working American adult, going about his or her normal life, commits several arguable federal felonies a day without even realizing it. Entire lives can change based on the attention of a creative federal prosecutor interpreting vague criminal laws.

Consider the federal prohibition of “mail fraud,” which mainly describes the means of a crime (“through the mails”) rather than the substantive acts that violate the law (“a scheme or artifice to defraud”). In 2004, Steven Kurtz, an art professor at the State University of New York in Buffalo, was indicted on mail fraud charges for what boiled down to a paperwork error. Federal agents, after learning that Kurtz was using bacteria in his artwork to critique genetic engineering, launched a full-scale bioterrorism investigation against him. Finding nothing pernicious about the harmless stomach flora, they resorted to a creative interpretation of the mail fraud statute. Because Kurtz had ordered the bacteria through a colleague at the University of Pittsburgh Human Genetics Laboratory, his “scheme” to “defraud” consisted of not properly indicating on the order form that the bacteria were meant for his own use.