Reviving Lenity and Honest Belief at the Boundaries of Criminal Law

It is a common misconception that there is a line between criminal and innocent conduct that is transparent and fixed. In fact, much of criminal law is fluid and elastic, free, if strategically applied, to label conduct as legal or illegal. In some cases, this reflects crimes that are vaguely defined or imprecise. In other cases, the prohibited conduct simply includes what is so conventionally accepted as legal that the criminal label is perceived as inapplicable until a prosecutor chooses to apply it. The problem of a fluid rather than a fixed line for criminality is that prosecutorial discretion becomes central to the application of the state’s imposition of criminal sanctions. This Article illustrates, by core examples, how elastic the application of the criminal law can be. It considers remedies that will protect against both good and bad faith abuse without sacrificing the legitimate and central role of prosecutorial discretion. In particular the Article argues for a reinvigoration of the rule of lenity and for the incorporation of the English requirement of dishonesty in theft crimes.