Volume 111

Dealing with Dead Crimes

by Joel S. Johnson

Our criminal codes are replete with “dead crimes”—crimes that are openly violated, have long gone unenforced, and no longer reflect majoritarian views. At common law, judges could eliminate these crimes as they refined substantive criminal law through the development of precedent. As our criminal justice system entered the statutory age, however, that mechanism was lost. And federal, state, and local legislatures have continuously added crimes to the books while rarely clearing outdated ones. Footnote #1 content: See infra Part II. While non-criminal laws can also fall into disuse, they are less prone to do so. Even non-criminal laws that are “anachronistic” tend to remain vital because civil “litigants find them advantageous in their own specific situations.” GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 17–30 (1982); see also Newman F. Baker, Legislative Crimes, 23 MINN. L. REV. 135, 137 (1939) (noting that updates to social legislation, particularly penal codes, are less prevalent than updates to other types of legislation, such as business codes). 

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Johnson, Dealing with Dead Crimes