Seventy-five years ago, in the summer of 1942, four friends decided to while away the afternoon playing bridge in a Baltimore city park. Instead of enjoying their game, they found themselves under arrest. The city had an ordinance that forbade the use in a public park of any device that might be used for gambling -- such as a deck of cards. They didn’t know about the rule, of course. But under a longstanding tradition of our jurisprudence, ignorance of the law is no excuse.
Maybe it shouldn’t be. That’s the intriguing thesis of a recent post by Clark Neily of the Foundation for Economic Education. “America’s judges, Neily writes, “still cling to the proposition that it’s perfectly fine to lock people up for doing something they had no idea was illegal.”
He doesn’t like it: “The justifications for that palpably unfair rule have only grown more threadbare with time.”
All of us, without knowing it, break the law -- and frequently. With thousands of federal criminal laws, and hundreds of thousands of federal criminal regulations, along with countless state statutes tossed in, nobody can keep track. Ignorance of the law has become our normal condition. Neily argues to stop punishing us for not keeping up.
You won’t be surprised to learn that I rather like his idea. True, I have some quibbles with Neily’s argument. But in the main, I think he’s on to something.
The claim of ignorance of a bizarre administrative regulation is nothing new. The principle that not knowing the law is no excuse has been around for a long time. So has the practice of applying the principle to laws it’s not likely everybody would know. In connection with other work, I’ve spent a great deal of time gathering historical instances of prosecutions for violations of little-known regulations. A few examples from my collection:
In 1897, the Hartford Courant reported on the case of a restaurant owner who offered a free mug of beer with every meal. Charged with selling liquor without a license, he said that he had thought the law did not apply if he gave the beer away. He lost.
In 1902, Atlanta police arrested a woman for violating a city ordinance by wearing men’s clothing in public. She said she was just having fun and had no idea she was breaking the law.
In 1911, a respected Episcopal priest in Washington married a young couple who subsequently left town, much to the chagrin of their families. As it turned out, the license had been issued in the name of a different pastor. The priest said he was unaware that his actions violated city law.
In 1915, a woman selling tomatoes on a New York street was arrested under an ordinance forbidding the sale of vegetables in public. She argued that she was unaware she was violating the law because she had assumed that a tomato is not a vegetable but a fruit. (She was right; the police were wrong.)
In 1928, a New Jersey legislative committee investigated how over 1,100 Democrats had cast ballots in the Republican primary, supposedly at the instance of the state Democratic machine. Most of the crossover voters who were hauled before the committee insisted that they didn’t know they were breaking the law.
In 1947, a Milwaukee man was arrested for violating a city ordinance that prohibited placing a “for sale” sign in the window of a vehicle. He claimed not to have known the sign was illegal.
The same plea has been offered in the case of more controversial statutes. In 1971, a Florida woman prosecuted for obtaining an illegal abortion said she thought she had acted legally because her doctor had recommended the procedure. Implausible? Not really. She might well not have realized that state’s complex abortion law of the time required the recommendation of not one but two physicians.
So although Neily and others are plainly correct that the number of laws carrying criminal penalties has gotten out of hand, there’s actually nothing new about defendants finding themselves trapped in a welter of hard-to-find and hard-to-follow legal rules. The principle that ignorance is no excuse has been stretched beyond recognition.
Why, then, do I have a quibble with Neily? Because I think he too readily accepts the conventional view that the reason for the principle is to provide an incentive for citizens to inform themselves about the law -- a task that is, as he notes, impossible. He’s right about what the courts always say, but there are stronger cases to be made on behalf of the principle. Before abandoning the rule entirely, one ought in fairness to tackle them.
Even if we don’t formally dispense with the rule, we can certainly encourage judges to set it aside when fairness requires. The idea is hardly without precedent. In 1878, an Italian sailor was arrested in New York for selling “unstamped cigars.” When the seaman told the judge that he had just arrived on these shores and did not realize he was breaking the law, the charges were thrown out. And in the case of the Episcopal priest who married the couple with the wrong license, the US attorney’s office announced that it was not inclined to prosecute.
What’s that you say? You’re worried about giving judges and prosecutors so much discretion? Fair enough. Then we should either adopt Neily’s proposal or prune the statute books until we have several hundred thousand fewer criminal laws.
As to the afternoon bridge players with whose story I began, the record does not disclose their fate. But later that same year, a local grand jury recommended that the courts adopt a more precise definition of “gambling,” in order to protect people in their “amusement and entertainment.” Seems like a very good idea.
By Stephen L. Carter
Stephen L. Carter is a Bloomberg View columnist. -- Ed.