# Components of Federal Criminal Law > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR48177 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** September 12, 2024 - **Citation:** R48177 ## Text Components of Federal Criminal Law September 12, 2024 Congressional Research Service https://crsreports.congress.gov R48177 SUMMARY Components of Federal Criminal Law Congress has enacted many federal criminal laws covering topics as diverse as drug trafficking, immigration, assault, computer hacking, bribery, and wildlife trafficking, among others. Congress’s continuing interest in establishing criminal penalties for conduct in a wide range of areas presents the question: What are the requisite components of a valid federal law that is criminal in nature? This report examines that question, focusing on core components of a federal criminal law: (1) jurisdictional basis; (2) prohibited conduct; (3) mental states; and (4) penalties. R48177 September 12, 2024 Peter G. Berris, Coordinator Legislative Attorney Michael A. Foster Section Research Manager • Jurisdictional Basis. A jurisdictional basis addresses Congress’s constitutional authority to enact a criminal law. While the states possess a general police power to enact and enforce laws carrying criminal penalties, and most criminal law exists at the state level, several enumerated powers in the Constitution may provide Congress with the basis to enact federal criminal prohibitions, such as the authority to regulate interstate and foreign commerce; to protect federal property and personnel; and to secure certain rights under the Thirteenth, Fourteenth, and Fifteenth Amendments. • Prohibited Conduct. Assuming that there is a source of constitutional authority to enact a criminal law, Congress may define the behavior or activity that is to be criminalized—that is, the prohibited conduct. A key requirement of prohibited conduct is an act (affirmative conduct) or omission (a failure to act), though exact formulations of the concept vary. Questions that may arise in defining proscribable conduct include the potential line between thoughts and speech, and special considerations for status offenses (e.g., criminalizing a condition) and inchoate offenses (e.g., solicitation, conspiracy, attempt). • Mental States. With exceptions, criminal laws generally require not only a guilty act but also a guilty mind. The requirement of responsibility or blameworthiness implicates numerous, nuanced questions. For example, where on a spectrum of mental culpability should someone fall to trigger criminal liability under a statute, and what terminology can be used to identify that point? What happens if Congress omits a mental state requirement? If Congress includes a mental state requirement, to what portions of the prohibited conduct will it apply? Imprecise and variable terminology may complicate the answers to many of these questions. There is no centralized or standardized mental state framework at the federal level, meaning that the mental state required for a federal criminal offense depends on an array of interpretive tools, including context and caselaw. • Penalties. Congress has authorized a variety of penalties in federal criminal statutes, including imprisonment, capital punishment, fines, criminal asset forfeiture, and restitution. The Eighth Amendment may limit the availability of these penalties, particularly in the context of capital punishment, in light of the amendment’s prohibition of cruel and unusual punishment. Congressional Research Service Components of Federal Criminal Law Contents Jurisdictional Basis .......................................................................................................................... 2 Commerce Clause ..................................................................................................................... 3 Select Examples of Interstate Commerce as Jurisdictional Basis ....................................... 5 Special Maritime and Territorial Jurisdiction ............................................................................ 7 Select Examples of SMTJ as Jurisdictional Basis .............................................................. 8 Federal Property as Jurisdictional Basis.................................................................................... 8 Federal Personnel as Jurisdictional Basis................................................................................ 10 Select Examples of Federal Personnel as Jurisdictional Basis.......................................... 10 Reconstruction-Era Amendments .............................................................................................11 The Thirteenth Amendment ...............................................................................................11 The Fourteenth Amendment ............................................................................................. 13 The Fifteenth Amendment ................................................................................................ 17 Prohibited Conduct (Actus Reus)................................................................................................... 19 Requirement of a Voluntary Act .............................................................................................. 21 Omission and Possession .................................................................................................. 22 Status Offenses.................................................................................................................. 23 Inchoate Offenses.............................................................................................................. 25 Thoughts and Speech ........................................................................................................ 26 Other Elements ........................................................................................................................ 27 Circumstances ................................................................................................................... 28 Results ............................................................................................................................... 30 Jurisdiction and Venue ...................................................................................................... 31 Mental State ................................................................................................................................... 32 Selecting a Mental-State Requirement .................................................................................... 33 Background on Mental-State Requirements at Common Law ......................................... 33 MPC Approach to Mental States....................................................................................... 35 Federal Approach to Mental States ................................................................................... 36 Omitting a Mental State Requirement ..................................................................................... 44 Distribution of Mental State Requirement to Prohibited Conduct and Other Elements ......... 46 Punishment .................................................................................................................................... 49 Imprisonment .......................................................................................................................... 50 Capital Punishment ................................................................................................................. 52 Financial Consequences .......................................................................................................... 53 Fines .................................................................................................................................. 53 Criminal Asset Forfeiture .................................................................................................. 55 Restitution ......................................................................................................................... 55 Tables Table 1. Default Federal Criminal Fines ....................................................................................... 54 Contacts Author Information........................................................................................................................ 56 Congressional Research Service Components of Federal Criminal Law Congressional Research Service Components of Federal Criminal Law C riminal offenses are generally established by the legislative branch of government.1 At the federal level, this process dictates that Congress enacts criminal statutes and authorizes the relevant penalties for violations.2 When Congress seeks to enact legislation that would impose criminal penalties, considerations regarding constitutional authority and the requisite elements of criminal law necessarily arise.3 Consider the example of theft. Imagine that Congress wished to add a new federal theft statute to the U.S. Code.4 That process might raise several questions. First, does Congress have constitutional authority to criminalize theft? For example, is there some nexus between a source of such constitutional authority (say, the power to regulate interstate and foreign commerce) and the particular type of theft? Second, how can Congress describe the particular type of theft it wants to prohibit? Does the conduct to be proscribed include only certain types of goods, items only of a certain value, or theft only from certain places? Third, how culpable must a person be to fit within the confines of the statute? Must a person consciously intend to commit the theft? What if the person is merely negligent? Fourth, what penalties may Congress authorize for someone convicted of violating the theft statute? Does a violation of the theft statute subject the individual to fines and imprisonment, for example? Does the scale of the theft affect the amount of the punishment, and if so, at what amounts do penalties further increase? The answers to these questions may vary, but each inquiry implicates key legal considerations regarding the scope and content of criminal statutes, which correspond to key components of federal criminal law:5 (1) jurisdictional basis; (2) prohibited conduct; (3) mental states; and (4) 1 See, e.g., United States v. Santos, 553 U.S. 507, 523 (2008) (plurality opinion) (“[E]ven if . . . statutory ambiguity ‘effectively’ licenses us to write a brand-new law, we cannot accept that power in a criminal case, where the law must be written by Congress.” (citing United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812)). Congress may authorize the executive branch to develop the exact parameters of certain criminal conduct through regulations. See, e.g., 16 U.S.C. § 690g (“Any person who shall violate or fail to comply with any provision of, or any regulation made pursuant to sections 690d to 690i of this title shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not more than $500 or be imprisoned not more than six months, or both.”). Even so, only Congress may set the authorized penalties. L.P. Steuart & Bro. v. Bowles, 322 U.S. 398, 404 (1944) (“[I]t is for Congress to prescribe the penalties for the laws which it writes. It would transcend both the judicial and the administrative function to make additions to those which Congress has placed behind a statute.”). For example, a plurality of the Supreme Court concluded that Congress did not unconstitutionally delegate its legislative authority in a federal statute that allowed the Attorney General to make certain determinations about who should be subject to criminal penalties for failure to register as a sex offender. Gundy v. United States, 588 U.S. 128, 145 (2019) (plurality opinion). The crime of treason is somewhat anomalous in that it is defined by the Constitution, although it has been codified by Congress in a statute authorizing penalties for violations. U.S. CONST. art. III, § 3, cl. 1; 18 U.S.C. § 2381. 2 See, e.g., United States v. Polk, 546 F.3d 74, 76 (1st Cir. 2008) (“When Congress has identified a particular scourge and, using reasoned judgment, articulated a response, courts must step softly and cede a wide berth to the Legislative Branch’s authority to match the type of punishment with the type of crime.”). 3 For a discussion of the philosophical underpinnings of criminal punishment, see generally CRS Legal Sidebar LSB10929, Can Retribution Justify the Revocation of Supervised Release? Courts Disagree., by Dave S. Sidhu (2023). For a discussion of the line between criminal laws and noncriminal laws, see generally CRS Legal Sidebar LSB11033, The Supreme Court’s Narrow Construction of Federal Criminal Laws: Historical Practice and Recent Trends, by Dave S. Sidhu (2023). 4 See, e.g., 18 U.S.C. § 641 (criminalizing theft of public property); id. § 661 (proscribing theft in the special maritime and territorial jurisdiction of the United States); id. § 667 (prohibiting theft of livestock); id. § 668 (authorizing penalties for theft of certain artwork). 5 This report focuses only on substantive criminal law. The report does not address criminal procedure, which “is concerned with the legal steps through which a criminal proceeding passes, from the initial investigation of a crime through the termination of punishment.” WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 1:1 (3d ed. 2023). A discussion of the federal rules of criminal procedure and Congress’s role in creating them may be found in CRS In Focus IF11557, Congress, the Judiciary, and Civil and Criminal Procedure, by Joanna R. Lampe (2022). Congressional Research Service 1 Components of Federal Criminal Law penalties.6 This report discusses these four foundational elements of federal criminal law. It begins with jurisdictional bases, which link criminal prohibitions to a source of constitutional authority for Congress to legislate. The report describes the respective and relative authority of the federal and state governments to enact criminal laws and summarizes several sources of constitutional authority that Congress can potentially rely on in the criminal context. The report then discusses considerations relevant to defining the proscribable conduct and the attendant mental states required of a person to violate a given law. Finally, the report offers a brief overview of the various types of criminal penalties Congress may consider imposing—including imprisonment, capital punishment, fines, asset forfeiture, and restitution—as well as certain constitutional limitations applicable to criminal penalty provisions. Jurisdictional Basis When enacting criminal laws, state legislatures have a luxury that Congress does not—a general police power.7 The police power refers to the “inherent and plenary power of a sovereign to make all laws necessary and proper to preserve the public security, order, health, morality, and justice.”8 The Constitution reserves the police power to state governments, meaning that legislating to prohibit crime is a task that lies primarily within the purview of the states.9 In contrast, the Constitution provides no such general police power to the federal government.10 Instead, Congress can enact federal criminal statutes only pursuant to “one or more of its powers enumerated in the Constitution.”11 Federal criminal statutes—whether expressly or not—must therefore have a jurisdictional basis connecting the prohibited conduct to a source of constitutional authority.12 At the federal level, the jurisdictional bases invoked by Congress may in turn inform the substantive scope and framing of criminal legislation. For instance, intentionally killing another, without more, may lack a nexus to a congressional source of authority for proscribing it (though this conduct would surely constitute an offense subject to state law).13 A federal law could be enacted, however, if it prohibits killing when it involves interstate commerce,14 racial violence 6 Models and formulations of the essential components of a criminal law and the meaning of each vary. See infra “Requirement of a Voluntary Act” (describing, for example, the various ways the concept of an act has been interpreted). 7 United States v. Morrison, 529 U.S. 598, 618 n.8 (2000) (“Moreover, the principle that ‘[t]he Constitution created a Federal Government of limited powers,’ while reserving a generalized police power to the States, is deeply ingrained in our constitutional history.” (quoting New York v. United States, 505 U.S. 144, 155 (1992))). 8 Police Power, BLACK’S LAW DICTIONARY (12th ed. 2024); see also Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756 (1985) (“The States traditionally have had great latitude under their police powers to legislate as ‘to the protection of the lives, limbs, health, comfort, and quiet of all persons.’” (quoting Slaughter-House Cases, 16 Wall. 36, 62, 21 L.Ed. 394 (1873)). 9 See U.S. CONST. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”); Morrison, 529 U.S. at 618 (“Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.”). 10 Morrison, 529 U.S. at 618. 11 Id. at 607. 12 See infra “Commerce Clause”; “Special Maritime and Territorial Jurisdiction”; “Federal Property as Jurisdictional Basis”; “Federal Personnel as Jurisdictional Basis”; “Reconstruction-Era Amendments.” 13 E.g., CONN. GEN. STAT. ANN. § 53a–54a. 14 See, e.g., 18 U.S.C. § 249(a)(2)(B) (listing various circumstances, many of which involve commerce, that may trigger a provision prohibiting willfully causing bodily injury to another because of certain biases). Congressional Research Service 2 Components of Federal Criminal Law prohibited by the Thirteenth Amendment,15 a victim who is a federal employee, or a victim located where the federal government has jurisdiction.16 Each of these illustrations reflects a jurisdictional basis that Congress has used to enact criminal laws. This section provides an abbreviated overview of several common jurisdictional bases in federal criminal legislation. These bases are found primarily in Article I, Section 8 of the Constitution, which enumerates the powers of Congress, and in Reconstruction Amendments to the Constitution, which empower Congress to enforce these respective civil-rights-related amendments. A more comprehensive overview of Congress’s legislative authority may be found in other CRS products.17 Necessary and Proper Clause One constitutional source of authority relevant to federal criminal law is Congress’s power to “make all Laws which shall be necessary and proper for carrying” out other Constitutional powers. U.S. CONST. art. I, § 8, cl. 18. This provision—commonly known as the Necessary and Proper Clause—is “typically understood not as an independent grant of congressional power, but as an extension of all the other powers vested in the federal government, including Congress’s enumerated Article I powers.” CRS Report R45323, Federalism-Based Limitations on Congressional Power: An Overview, coordinated by Kevin J. Hickey, at 22 (2023) (footnote omitted). As numerous examples below illustrate, courts frequently interpret federal criminal statutes as grounded in a combination of the Necessary and Proper Clause and some underlying source of congressional authority like the Property or Enclave Clause. See United States v. Comstock, 560 U.S. 126, 156 (2010) (Alito, J., concurring) (explaining that “most federal criminal statutes rest upon a congressional judgment that, in order to execute one or more of the powers conferred on Congress, it is necessary and proper to criminalize certain conduct, and in order to do that it is obviously necessary and proper to provide for the operation of a federal criminal justice system and a federal prison system”). Commerce Clause The Commerce Clause, found in Article I, Section 8, clause 3 of the Constitution, grants Congress the power to “regulate Commerce with foreign Nations, and among the several States.”18 This provision gives Congress fairly broad authority, and many federal criminal statutes rely on Congress’s authority under the Commerce Clause.19 In United States v. Lopez, the Supreme Court held that Congress’s authority to regulate interstate commerce under the clause extends to “three broad categories of activity”:20 15 See, e.g., 18 U.S.C. § 249(a)(1) (criminalizing willfully causing bodily injury because of actual or perceived race, color, religion, or national origin); see also United States v. Cannon, 750 F.3d 492, 498 (5th Cir. 2014) (explaining that “§ 249(a)(1) rests solely on Congress's authority under § 2 of the Thirteenth Amendment”). 16 E.g., 18 U.S.C. §§ 1111(b), 1114. 17 See generally CRS Report R45323, Federalism-Based Limitations on Congressional Power: An Overview, coordinated by Kevin J. Hickey (2023). 18 U.S. CONST. art. I, § 8, cl. 3. The Commerce Power also extends to “Commerce . . . with the Indian Tribes.” Id. 19 E.g., 18 U.S.C. § 33(a) (imposing fines, imprisonment, or both for certain acts of destruction to “any motor vehicle which is used, operated, or employed in interstate or foreign commerce”); id. § 1030(a)(6) (prohibiting computer password trafficking if “such trafficking affects interstate or foreign commerce” or if it impacts a federal government computer); id. § 1201(a)(1) (proscribing kidnapping when a “person is willfully transported in interstate or foreign commerce”); id. § 1343 (criminalizing intentional participation in schemes to defraud involving wire, radio, or television communications transmitted in interstate or foreign commerce); see also United States v. DiSanto, 86 F.3d 1238, 1244 (1st Cir. 1996) (“Congress has often invoked its authority under the Commerce Clause to federalize criminal activity.”). 20 514 U.S. 549, 558 (1995). Congressional Research Service 3 Components of Federal Criminal Law 1. “Channels of interstate commerce,”21 generally the “physical conduits” necessary for interstate commerce to take place,22 such as highways and telecommunications networks;23 2. “Instrumentalities of interstate commerce, or persons or things in interstate commerce,”24 such as “automobiles, airplanes, boats . . . shipment[s] of goods . . . ‘pagers, telephones, and mobile phones’”;25 and 3. “Those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.”26 Under the third category, Congress may regulate intrastate conduct if it involves an economic activity that substantially affects interstate commerce when viewed in the aggregate.27 For example, even purely local conduct, such as an individual’s “production of [a] commodity meant for home consumption,” may fall within Congress’s commerce power if Congress has a rational basis to conclude that in the aggregate such conduct substantially affects “supply and demand in the national market for that commodity.”28 In United States v. Morrison, the Supreme Court outlined four relevant considerations in determining whether conduct prohibited by a statute substantially affects interstate commerce.29 The first consideration is whether the prohibited activity is commercial or relates to an economic enterprise.30 Second, courts look to whether the statute at issue contains an “express jurisdictional element” limiting its reach to conduct affecting interstate commerce through case-specific inquiry.31 The presence of an express jurisdictional factor weighs significantly in favor of a statute being an appropriate exercise of Congress’s interstate commerce authority.32 Third, courts examine whether the statute’s “express congressional findings” concern the effect of the 21 Id. 22 Cong. Rsch. Serv., ArtI.S8.C3.6.2 Channels of Interstate Commerce, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artI-S8-C3-6-2/ALDE_00013419/ (last visited Sept. 9, 2024). 23 United States v. Roof, 225 F. Supp. 3d 438, 452 (D.S.C. 2016). 24 Lopez, 514 U.S. at 558. 25 United States v. Ballinger, 395 F.3d 1218, 1226 (11th Cir. 2005) (internal citations omitted) (quoting United States v. Pipkins, 378 F.3d 1281, 1295 (11th Cir. 2004), vacated, 544 U.S. 902 (2005)). 26 Lopez, 514 U.S. at 558–59 (citation omitted). At least some federal courts have interpreted the extent of Congress’s power over foreign commerce under the clause to be different from its power over interstate commerce. See, e.g., United States v. Rife, 33 F.4th 838, 843–44 (6th Cir.) (holding that Congress’s power over foreign commerce contains no equivalent to the third Lopez category), cert. denied, 143 S. Ct. 356 (2022); see also CRS Legal Sidebar LSB10767, Congress’s Foreign Commerce Clause Power Questioned, by Charles Doyle, at 1–2 (2022) (surveying case law and discussing Rife). 27 Taylor v. United States, 579 U.S. 301, 306 (2016). 28 Gonzales v. Raich, 545 U.S. 1, 19, 22 (2005). 29 529 U.S. 598, 610–12 (2000). For an example of how lower courts may apply these factors in practice, see generally United States v. Roof, 225 F. Supp. 3d 438, 452–56 (D.S.C. 2016). 30 Morrison, 529 U.S. at 610. 31 Id. at 611–12; Roof, 225 F. Supp. 3d at 452; accord United States v. Gibert, 677 F.3d 613, 625 (4th Cir. 2012) (“We next consider . . . whether the statute at issue contains an express element limiting the statute’s reach to activities having an explicit connection with or effect on interstate commerce.”). 32 See United States v. Coleman, 675 F.3d 615, 620 (6th Cir. 2012) (“Where a statute lacks a clear economic purpose, the inclusion of an explicit jurisdictional element suffices to ‘ensure, through case-by-case inquiry, that the [violation] in question affects interstate commerce.”’ (brackets in original) (quoting United States v. Lopez, 514 U.S. 549, 561 (1995)); see also United States v. Hill, 927 F.3d 188, 204 (4th Cir. 2019) (“Notably, Defendant has not identified any case—nor have we found any such case—in which a federal criminal statute including an interstate commerce jurisdictional element has been held to exceed Congress’s authority under the Commerce Clause.”). Congressional Research Service 4 Components of Federal Criminal Law prohibited conduct on interstate commerce.33 According to at least one federal district court, “[c]ongressional findings may weigh in favor of the validity of a statute,” but their absence “cannot weigh against the validity of a statute.”34 The fourth consideration is the degree of attenuation between the prohibited conduct and its effect on interstate commerce.35 Select Examples of Interstate Commerce as Jurisdictional Basis As discussed, statutes that contain a jurisdictional element—language limiting the statute to conduct connected to or affecting interstate commerce—“may establish that the enactment is in pursuance of Congress’ regulation of interstate commerce.”36 Some federal criminal statutes enacted pursuant to Congress’s commerce authority refer to the jurisdictional basis in just a few words.37 For example, a federal threat statute imposes criminal penalties on “whoever transmits in interstate or foreign commerce any communication containing any demand or request for a ransom or reward for the release of any kidnapped person . . . .”38 Courts have generally concluded that the threat statute’s jurisdictional requirement may be satisfied where “a communication actually crosses state lines, however briefly.”39 Such an event could occur, for example, when a threatening communication, such as a phone call, is made from one state to a recipient located in another.40 Alternatively, the requirement may be satisfied when the recipient is located in the same state as the person making the threat if, for example, the threatening communication is conveyed by a phone call or instant message routed through equipment or computers located in a different state.41 33 Morrison, 529 U.S. at 612 (quoting Lopez, 514 U.S. at 562). 34 Roof, 225 F. Supp. 3d at 454. 35 Morrison, 529 U.S. at 612. 36 Id. For example, in Lopez, the Supreme Court concluded that Congress exceeded its Commerce Clause authority in enacting a law that made it a crime “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.” Lopez, 514 U.S. at 551 (quoting 18 U.S.C. § 922(q)(1)(A)). According to the Court, one issue with the statute was its lack of “a requirement that the possession be connected in any way to interstate commerce.” Id. Congress subsequently amended the provision to apply only to firearms that had moved in or otherwise affected interstate of foreign commerce, and federal courts “have generally upheld it on the basis of the added textual link to commerce.” CRS Report R45629, Federal Firearms Laws: Overview and Selected Legal Issues for the 116th Congress, by Michael A. Foster, at 16 (2019). For instance, one federal court explained that because the revised provision “contains an interstate-commerce requirement, i.e., the firearm in question must have been shipped or transported in interstate commerce, the statute ensures through case-by-case inquiry that the firearm in question affects interstate commerce.” United States v. Danks, 221 F.3d 1037, 1039 (8th Cir. 1999). 37 See, e.g., 18 U.S.C. § 39(a)(1) (“Whoever, in or affecting interstate or foreign commerce, knowingly sells a traffic signal preemption transmitter to a nonqualifying user shall be fined under this title, or imprisoned not more than 1 year, or both.”); id. § 1231 (“Whoever willfully transports in interstate or foreign commerce any person . . . .”); id. § 2421A (“Whoever, using a facility or means of interstate or foreign commerce or in or affecting interstate or foreign commerce . . . .”). 38 18 U.S.C. § 875 (emphasis added). 39 United States v. Nissen, 432 F. Supp. 3d 1298, 1321 (D.N.M. 2020). 40 E.g., United States v. Li, 537 F. Supp. 2d 431, 435 (N.D.N.Y. 2008). 41 See United States v. Kammersell, 196 F.3d 1137, 1138–39 (10th Cir. 1999) (affirming § 875(c) conviction where threat was sent via interstate message from Utah to a computer in Utah, through an AOL server in Virginia); Nissen, 432 F. Supp. 3d at 1321 (rejecting motion to dismiss on jurisdictional grounds an indictment charging § 875(c) in light of evidence that a call made from cellphone in New Mexico to a recipient in New Mexico was routed to a switch in Texas). At least one federal appellate court has examined whether use of the internet without proof that the message crossed state lines could suffice for § 875(c) purposes given the inherent “cross-border nature” of the internet, but it declined to resolve the issue, which it observed has divided other circuits in related contexts. United States v. Haas, 37 F.4th 1256, 1264–65 (7th Cir. 2022). Congressional Research Service 5 Components of Federal Criminal Law As another example, 18 U.S.C. § 247(a)(1) makes it a crime to “intentionally deface[], damage[], or destroy[] any religious real property42 . . . or attempt[] to do so” if that conduct is “in or affects interstate or foreign commerce.”43 As an example of when this jurisdictional requirement is satisfied in the context of § 247, a court concluded that § 247 encompassed the conduct of a defendant who set several churches ablaze in different states.44 Although each church burning occurred in a single state, the defendant’s conduct still affected interstate commerce because it “entailed weeks of travel in a van (an instrumentality of commerce) along interstate highways (a channel of commerce) and at least six separate interstate border crossings, all for the specific purpose of spreading the evil of church burning through four different states.”45 Other federal criminal statutes also prohibit specified conduct when certain circumstances implicating interstate or foreign commerce are present.46 For example, 18 U.S.C. § 116 criminalizes female genital mutilation47 if it occurs in one of several circumstances, including when • • • the defendant or victim travels in interstate or foreign commerce in connection with the offense; the defendant transmits a communication related to the offense in interstate or foreign commerce; or a payment is made in interstate commerce in connection with the underlying offense.48 Crimes Involving the U.S. Mail Some federal criminal statutes criminalize conduct targeting or involving the U.S. mail. See, e.g., 18 U.S.C. § 1701 (criminalizing knowing and willful obstruction of the mail); id. § 1706 (authorizing criminal penalties for certain act of damage to mail bags); id. § 2115 (prohibiting burglary of post offices). Federal criminal laws protecting the mail are likely rooted in Congress’s power to “establish Post Offices and post Roads” under Article I, Section 8, clause 7 of the Constitution, in conjunction with its authority under the Necessary and Proper Clause. For example, in U.S. v. Dittrich, the U.S. Court of Appeals for the Eighth Circuit relied on these provisions to reject a constitutional challenge to 18 U.S.C. § 2114—a statute criminalizing robbery of the mail, among other things. 100 F.3d 84, 85 (8th Cir. 1996). The Dittrich court held that “a law making it a crime to steal property from a Post Office is well within even the narrowest construction of the Necessary and Proper Clause.” Id. at 87. 42 In general, real property includes “[l]and and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land.” Property, BLACK’S LAW DICTIONARY (11th ed. 2019). 43 18 U.S.C. § 247(a)(1), (b). 44 See, e.g., United States v. Ballinger, 395 F.3d 1218, 1226 (11th Cir. 2005) (“Congress’[s] power to regulate activities that ‘affect’ commerce enables it to reach wholly intrastate conduct—that is, conduct that utilizes neither the channels nor the instrumentalities of interstate commerce—but only when it has ‘a substantial relation to’ (meaning it ‘substantially affect[s]’) interstate commerce.” (brackets in original) (quoting United States v. Lopez, 514 U.S. 549, 558–59 (1995)). 45 Id. at 1228.; see also United States v. Doggart, 947 F.3d 879, 887 (6th Cir. 2020) (observing that if he had raised interstate commerce challenge, defendant’s conduct would have implicated interstate commerce for § 247 purposes “[b]ecause [defendant] planned an attack in New York from his home in Tennessee and planned to use instrumentalities of interstate commerce to make the attack”). 46 E.g., 18 U.S.C. § 249(a)(2)(B). 47 For a discussion of the substantive scope of this statute, see generally CRS Legal Sidebar LSB10313, Congressional Authority to Enact Criminal Law: Female Genital Mutilation (FGM), by Michael A. Foster (2019). 48 18 U.S.C. § 116(d). Congressional Research Service 6 Components of Federal Criminal Law Special Maritime and Territorial Jurisdiction Another common jurisdictional basis for federal criminal statutes is conduct occurring in the special maritime and territorial jurisdiction of the United States (SMTJ).49 As one federal appellate court has explained, SMTJ generally includes “areas where American citizens and property need protection, yet no other government effectively safeguards those interests.”50 One quintessential example is the “high seas,”51 which are included in the definition of SMTJ in 18 U.S.C. § 7, along with certain international waterways, federal lands, particular islands containing deposits of bird guano,52 domestic aircrafts in flight,53 and in some instances even outer space.54 The constitutional source of authority for different areas included in SMTJ varies by type.55 For example, 18 U.S.C. § 7(3) defines SMTJ to include “[a]ny lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.”56 The constitutional grounding for much of this provision is Article I, Section 8, clause 17,57 sometimes referred to as the Enclave Clause,58 which grants Congress legislative power over, among other things, “all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.”59 The Enclave Clause “has been broadly construed” and extends beyond properties “itemized” in the provision.60 49 See infra “Select Examples of SMTJ as Jurisdictional Basis.” 50 United States v. Corey, 232 F.3d 1166, 1171 (9th Cir. 2000). This is not to say that another government may not also have laid claim to the territory or area in question. See United States v. Corey, 232 F.3d 1166, 1175 (9th Cir. 2000) (“[T]he United States at times did assert criminal jurisdiction over territories claimed by another sovereign.”). 51 In general terms, the high seas are sometimes described as “[t]he ocean waters beyond the jurisdiction of any country.” Sea, BLACK’S LAW DICTIONARY (12th ed. 2024). There is little case law examining the precise meaning of high seas as used in the statutory SMTJ definition. See United States v. Zenon-Encarnacion, 185 F. Supp. 2d 127, 134 (D.P.R. 2001) (“Few cases have interpreted 18 U.S.C. § 7(1).”). 52 For a historical perspective on federal criminal jurisdiction over islands containing bird guano, see generally Christina D. Burnett, The Edges of Empire and the Limits of Sovereignty: American Guano Islands, 57 AM. Q. 779 (2005); see also United States v. Corey, 232 F.3d 1166, 1174–75 (9th Cir. 2000) (discussing caselaw on whether “a murder on the guano island of Navassa was . . . under U.S. jurisdiction”). 53 18 U.S.C. § 7. 54 See generally CRS Legal Sidebar LSB10869, If You Do the Space Crime, You May Do the Space Time, coordinated by Peter G. Berris (2022); CRS Report WPD00038, Space Crime: Federal Jurisdiction in the “Final Frontier,” by Peter G. Berris and Michael A. Foster (2022). 55 See generally BARBARA E. BERGMAN, THERESA M. DUNCAN, AND MARLO CADEDDU, 1 WHARTON’S CRIMINAL PROCEDURE § 2:8 (14th ed. 2023). 56 18 U.S.C. § 7(3). 57 United States v. Gilbert, 94 F. Supp. 2d 157, 159 (D. Mass. 2000) (citing Bowen v. Johnston, 306 U.S. 19, 22, (1939)). 58 Courts sometimes refer to the provision as the Federal Enclave Clause—for example, United States v. Gabrion, 517 F.3d 839, 854 (2008); or simply the Enclave Clause—for example, United States v. Alaska, 521 U.S. 1, 41 (1997). 59 U.S. CONST. art. I, § 8, cl. 17. “Absent consent by the state, the United States does not take jurisdiction over the property. Instead it is simply an ordinary proprietor of the property.” Gilbert, 94 F. Supp. 2d at 160; accord BERGMAN, ET AL., supra note 55, at § 2:8 (similar). 60 Gabrion, 517 F.3d at 847 (quoting Kleppe v. New Mexico, 426 U.S. 529, 542 n.11 (1976). The Enclave Clause also has language relevant to regulating crime in the District of Columbia, giving Congress “[p]ower . . . [t]o exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government (continued...) Congressional Research Service 7 Components of Federal Criminal Law Another source of constitutional authority for portions of the SMTJ definition is Congress’s power to “make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States” under Article IV, Section 3, clause 2,61 also known as the Property Clause.62 As the U.S. Court of Appeals for the Sixth Circuit63 has explained, “[t]he Supreme Court has given this Clause an ‘expansive’ reading and stated, unequivocally, that the federal government ‘doubtless has a power over its own property analogous to the police power of the several States.’”64 Select Examples of SMTJ as Jurisdictional Basis Numerous federal criminal statutes expressly apply to conduct when it occurs in SMTJ. For example, 18 U.S.C. § 81, among other things, imposes criminal penalties on whoever “within the special maritime and territorial jurisdiction of the United States, willfully and maliciously sets fire to or burns any building, structure or vessel, any machinery or building materials or supplies, military or naval stores, munitions of war, or any structural aids or appliances for navigation or shipping.”65 Other statutes that employ similar language referencing SMTJ include laws governing assault,66 theft,67 sexual abuse,68 robbery,69 and kidnapping.70 Federal Property as Jurisdictional Basis A number of federal criminal laws regulate particular activities when they occur on, or target, federal buildings or land, such as military installations.71 As another example, 40 U.S.C. § 5104 authorizes various criminal penalties for a range of conduct and activities (such as acts of physical violence and vandalism) on Capitol grounds or in Capitol buildings.72 Numerous other federal criminal laws apply to particular national parks or federally protected lands.73 Congress of the United States.” U.S. CONST. art. I, § 8, cl. 17. As one federal appellate court has explained, pursuant to the Enclave Clause, “[w]hen Congress legislates with respect to the District of Columbia . . . it acts as a state government with all the powers of a state government.” United States v. Jenkins, 734 F.2d 1322, 1325 (9th Cir. 1983). 61 U.S. CONST. art. IV, § 3, cl. 2. 62 Gabrion, 517 F.3d at 846. 63 This report references decisions by federal appellate courts of various regional circuits. For purposes of brevity, references to a particular circuit in the body of this report (e.g., the Sixth Circuit) refer to the U.S. Court of Appeals for that particular circuit (e.g., the U.S. Court of Appeals for the Sixth Circuit). 64 Gabrion, 517 F.3d at 846 (quoting Kleppe, 426 U.S. at 539–40). 65 18 U.S.C. § 81. 66 Id. § 113. 67 Id. § 661. 68 Id. § 2242. 69 Id. § 2111. 70 Id. § 1201(a)(2). 71 E.g., id. § 1382 (“Whoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation . . . Shall be fined under this title or imprisoned not more than six months, or both.”). 72 40 U.S.C. § 5104. For more information on § 5104, see generally CRS Report R46829, Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues, by Peter G. Berris, Michael A. Foster, and Jonathan M. Gaffney (2021); CRS Legal Sidebar LSB10564, Federal Criminal Law: January 6, 2021, Unrest at the Capitol, by Michael A. Foster and Peter G. Berris (2021). 73 See, e.g., 16 U.S.C. § 146 (criminalizing certain intrusions onto, or appropriation from, public lands at Wind Cave National Park); id. § 256b (restricting hunting and fishing in Olympic National Park and authorizing criminal penalties for violations); id. § 371 (authorizing fines and imprisonment for lying about eligibility for bathing in the Hot Springs (continued...) Congressional Research Service 8 Components of Federal Criminal Law may be able to rely on multiple sources of constitutional authority to enact or amend criminal laws governing conduct on, or targeting, federal buildings and land, such as the Property and Enclave Clauses, discussed above.74 Not all federal criminal statutes protecting federal property are focused on land and buildings.75 One example is 18 U.S.C. § 641, which makes it a crime to steal “any record, voucher, money, or thing of value of the United States or of any department or agency thereof.”76 In United States v. Von Stephens, the Ninth Circuit rejected an argument that § 641 exceeded Congress’s powers under the Constitution as applied to the defendant.77 Von Stephens involved the theft of government funds that were part of an aid program.78 The court concluded that the underlying aid program was a valid exercise of congressional authority to “provide for the general welfare of the United States” under Article 1, Section 8, clause 1 of the Constitution.79 According to the court, the application of § 641 to theft from the aid program was necessary and proper for carrying out that underlying power.80 The court indicated that in “protecting the government from theft,” the statute facilitates the aid program by “helping to assure that federal funds will reach intended [aid program] recipients.”81 Von Stephens illustrates how congressional authority to protect federal property through criminal legislation may be premised on a combination of the underlying source of constitutional authority relevant to the particular type of property and the Necessary and Proper Clause.82 National Park); id. § 460n-5 (setting criminal penalties for violations of rules and regulations governing Lake Mead National Recreation Area). 74 See supra notes 57–64 and accompanying text. 75 Some federal statutes do not specify the type of property to which they apply but in practice are often used to prosecute conduct targeting federal buildings. One example is 18 U.S.C. § 1361, which authorizes various fines and prison terms for willful injury of federal property and has been used in prosecutions for damage to government buildings. See, e.g., United States v. N.B., No. 22-2492, 2023 WL 4881451, at *1 (8th Cir. Aug. 1, 2023) (per curiam) (discussing § 1361 prosecution for damaging buildings managed by the Bureau of Land Management); United States v. Lozano, No. 21-51076, 2022 WL 2713233, at *1 (5th Cir. July 13, 2022) (describing guilty plea under § 1361 by defendant for “spray painting graffiti onto a federal building in El Paso, Texas”). That statute can also be used to prosecute conduct targeting other types of government property. See U.S. DEP’T OF JUSTICE, CRIMINAL RESOURCE MANUAL § 1663, https://www.justice.gov/archives/jm/criminal-resource-manual-1663-protection-governmentproperty-protection-public-records-and (explaining that the destruction of public records may violate § 1361); see also United States v. Krause, 914 F.3d 1122, 1124–26 (8th Cir. 2019) (analyzing § 1361 as applied to incident that resulted in destruction of an antenna array owned by the Federal Aviation Administration). 76 18 U.S.C. § 641. 77 774 F.2d 1411, 1413 (9th Cir. 1985) (per curiam). 78 Id. at 1412. 79 Id. at 1413. The authority to provide for the general welfare, described by the Ninth Circuit, has generally been interpreted not as an independent power but rather as qualifying the power to tax and spend. See CRS Report R44729, Constitutional Authority Statements and the Powers of Congress: An Overview, by Whitney K. Novak, at 14 (2023) (“Importantly, the phrase general Welfare does not exist in isolation in the clause but is instead tied to the preceding language in the clause regarding the raising of revenue.”); see also United States v. Butler, 297 U.S. 1, 64 (1936) (“The view that the clause grants power to provide for the general welfare, independently of the taxing power, has never been authoritatively accepted.”). 80 Von Stephens, 774 F.2d at 1413. 81 Id. 82 Another illustration may be found in Sabri v. United States, a Supreme Court case involving a federal provision “proscribing bribery of state, local, and tribal officials [or] entities that receive at least $10,000 in federal funds.” 541 U.S. 600, 602 (2004). The Court explained that “Congress has authority under the Spending Clause to appropriate federal moneys to promote the general welfare, Art. I, § 8, cl. 1, and it has corresponding authority under the Necessary and Proper Clause, Art. I, § 8, cl. 18, to see to it that taxpayer dollars appropriated under that power are in fact spent for the general welfare, and not frittered away in graft or on projects undermined when funds are siphoned off or corrupt (continued...) Congressional Research Service 9 Components of Federal Criminal Law Federal Personnel as Jurisdictional Basis The protection of federal personnel serves as a jurisdictional basis underpinning a number of federal criminal statutes.83 The constitutional grounding of such laws is generally the Necessary and Proper Clause in conjunction with an underlying function belonging to the federal government under the Constitution.84 For example, in United States v. Peltier, the Eighth Circuit rejected a constitutional challenge to 18 U.S.C. § 1114, which prohibits the unlawful killing of certain federal officers and employees.85 Addressing the Necessary and Proper Clause, the court explained that “killing a federal officer engaged in his or her official duties affects the federal government’s ability to execute its laws” and held that a “statute like § 1114 is ‘necessary in order to insure uniformly vigorous protection of federal personnel.’”86 More broadly, the Supreme Court observed as early as 1892 that “no one doubts the power of [C]ongress to provide for the punishment of all crimes and offenses against the United States, whether committed within one of the states of the Union or within territory over which [C]ongress has plenary and exclusive jurisdiction.”87 Crimes targeting federal personnel in the course of their duties almost certainly qualify as crimes against the United States.88 Select Examples of Federal Personnel as Jurisdictional Basis A variety of federal criminal statutes protect federal personnel, including the following examples: • • • 18 U.S.C. § 111 authorizes various prison terms for (among other things) forcibly assaulting, resisting, opposing, impeding, intimidating, or interfering with certain federal officers or employees.89 18 U.S.C. § 351 prohibits assassinating or kidnapping Members of Congress, certain Cabinet officials, and Supreme Court Justices, among other things.90 18 U.S.C. § 1751 criminalizes assassinating or kidnapping the President or Vice President of the United States.91 public officers are derelict about demanding value for dollars.” Id. at 605. Thus, the Court held that the federal bribery provision at issue was a “valid exercise of congressional authority under Article I of the Constitution.” Id. at 602. 83 See infra “Select Examples of Federal Personnel as Jurisdictional Basis.” 84 See United States v. Peltier, 446 F.3d 911, 914 (8th Cir. 2006). 85 Id. 86 Id. (quoting United States v. Feola, 420 U.S. 671, 684 (1975)); accord Hinkson v. United States, No. 1:04-CR-127RCT, 2012 WL 3776023, at *14 (D. Idaho Aug. 28, 2012) (similar). 87 Logan v. United States, 144 U.S. 263, 283 (1892), abrogated on other grounds, Witherspoon v. State of Ill., 391 U.S. 510 (1968). 88 See Peltier, 446 F.3d at 914 (“Killing a federal officer engaged in his or her official duties affects the federal government’s ability to execute its laws and is thus an offense that the United States can punish.”); Hinkson, No. 1:04CR-127-RCT, 2012 WL 3776023, at *14 (“The murder of an officer of the United States engaged in the performance of official duties is undoubtedly a crime against the United States wherever committed.”). 89 18 U.S.C. § 111(a)(1). For more information on this statute, see generally Berris, Foster, and Gaffney, supra note 72 at 23–24. The same government officers and officials protected by Section 111 also fall within the scope of Section 1114 of Title 18 of the U.S. Code, which criminalizes the attempted or actual killing of such individuals. 18 U.S.C. § 1114. 90 18 U.S.C. § 351. 91 Id. § 1751. Congressional Research Service 10 Components of Federal Criminal Law Reconstruction-Era Amendments The Thirteenth, Fourteenth, and Fifteenth Amendments were ratified in the Reconstruction Era following the Civil War. Each amendment announces certain rights (e.g., that the government may not deprive individuals of the equal protection of the law) and authorizes Congress to enforce these rights “by appropriate legislation.”92 Congress appears to have used these enforcement authorities in the criminal law context (typically in conjunction with other powers).93 The Thirteenth Amendment The Thirteenth Amendment provides that “[n]either slavery nor involuntary servitude . . . shall exist within the United States, or any place subject to their jurisdiction,” and grants Congress the power to enforce this guarantee “by appropriate legislation.”94 The Thirteenth Amendment does not contain language limiting its prohibition of slavery or involuntary servitude to a particular race.95 The Supreme Court has interpreted the Thirteenth Amendment as a “denunciation” of the condition of slavery in general—“not a declaration in favor of a particular people”—and therefore it “reaches every race and every individual.”96 The Supreme Court has also held that the Thirteenth Amendment permits Congress to pass laws necessary to abolish not only the institution of slavery itself, but also “all badges and incidents of slavery in the United State[s].”97 According to the Court, Congress has the authority to rationally “determine what are the badges and the incidents of slavery” and to legislate accordingly.98 As a result, courts generally defer to Congress’s determinations regarding the scope of badges and incidents of slavery, so long as legislation “bears a rational relationship to the subject matter of the Amendment.”99 Courts have concluded that badges and incidents of slavery include “most forms of racial discrimination.”100 The Thirteenth Amendment is “unique among Reconstruction Era amendments” in that its “Enforcement Clause lacks a state-action101 provision, instead empowering Congress to directly regulate private conduct.”102 The types of criminal provisions premised on Congress’s Thirteenth 92 See generally CRS Report R47060, Overview of Federal Hate Crime Laws, by Peter G. Berris, at 46–50 (2022). 93 For additional information, see generally Hickey, supra note 17. 94 U.S. CONST. amend. XIII, §§ 1, 2. 95 Id.; see also WILLIAM J. RICH, MODERN CONSTITUTIONAL LAW, § 18:1 (3rd ed. 2023) (“Although originally enacted to abolish slavery of African Americans, the Amendment uses more inclusive language.”). 96 See Hodges v. United States, 203 U.S. 1, 16–17 (1906), overruled in part by Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968); accord United States v. Hatch, 722 F.3d 1193, 1208 (10th Cir. 2013) (quoting this language in support of proposition that Thirteenth Amendment protects all races). 97 Civil Rights Cases, 109 U.S. 3, 20 (1883). 98 Jones, 392 U.S. at 440. 99 RICH, supra note 95, at § 18:10; accord Jones, 392 U.S. at 440 (“Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.”); United States v. Cannon, 750 F.3d 492, 500 (5th Cir. 2014) (“The Supreme Court explained that courts should only invalidate legislation enacted under the Thirteenth Amendment if they conclude that Congress made an irrational determination in deciding what constitutes ‘badges’ and ‘incidents’ of slavery in passing legislation to address them.”). 100 Hatch, 722 F.3d at 1200, 1208. See also United States v. Nelson, 277 F.3d 164, 178 (2d Cir. 2002) (“[T]he Thirteenth Amendment . . . extend[s] to protect the Jewish ‘race.’”). 101 For a discussion of state action, see infra notes 120–129. 102 United States v. Diggins, 36 F.4th 302, 306–07 (1st Cir.), cert. denied, 143 S. Ct. 383 (2022). Congressional Research Service 11 Components of Federal Criminal Law Amendment authority illustrate the importance of this distinction, as discussed in the examples below.103 Select Examples of the Thirteenth Amendment as a Jurisdictional Basis in Federal Criminal Statutes A number of hate crime statutes appear to be premised at least in part on Congress’s authority to enact legislation under the Thirteenth Amendment.104 For example, in United States v. Hatch, the Tenth Circuit rejected a challenge to Congress’s authority to enact 18 U.S.C. § 249(a)(1),105 which among other things prohibits violence motivated by racial bias.106 The Tenth Circuit focused on three “connected considerations” in concluding that § 249(a)(1) fit within Congress’s Thirteenth Amendment authority to eliminate badges and incidents of slavery.107 First, the court emphasized that § 249(a)(1) is “confined” to “aspects of race as understood in the 1860s when the Thirteenth Amendment was adopted,” namely race, color, religion, or national origin.108 The Tenth Circuit drew support for that conclusion in part from congressional findings buttressing the statute, such as one finding that “members of certain religious and national origin groups were [historically] . . . perceived to be distinct ‘races.’”109 Further, the court inferred additional support for this conclusion from the fact that “Congress placed non-racial classifications—gender, sexual orientation, gender identity, and disability,” which fall outside the scope of the Thirteenth Amendment, in a separate paragraph of § 249.110 Second, the court noted that Congress “did not seek to punish all violence against those who embody a trait that equates to ‘race,’” but “only those who act ‘because of the [victim’s] actual or perceived race.’”111 According to the court, this limitation “further confines the statute’s reach.”112 Third, the court, surveying the historical relationship between violence and slavery, held that “Congress could rationally conclude that physically attacking a person of a particular race because of animus toward or a desire to assert superiority over that race is a badge or incident of slavery.”113 Other courts have employed similar reasoning to reach the same conclusion with respect to § 249(a)(1)114 and other federal hate crime 103 See infra “Select Examples of the Thirteenth Amendment as a Jurisdictional Basis in Federal Criminal Statutes.” 104 See, e.g., Church Arson Prevention Act of 1996, Pub. L. No. 104–155, § 2, 110 Stat 1392 (codified at 18 U.S.C. § 247) (“Congress has authority, pursuant to section 2 of the 13th amendment to the Constitution, to make actions of private citizens motivated by race, color, or ethnicity that interfere with the ability of citizens to hold or use religious property without fear of attack, violations of Federal criminal law.”); Cannon, 750 F.3d at 498 (“[Section] 249(a)(1) rests solely on Congress’s authority under § 2 of the Thirteenth Amendment.”); Hatch, 722 F.3d at 1196 (“The portion of the Hate Crimes Act under which Hatch was charged and convicted—18 U.S.C. § 249(a)(1)—is a lawful exercise of the powers granted to Congress by Section 2 of the Thirteenth Amendment.”). 105 722 F.3d at 1206. 106 18 U.S.C. § 249. 107 Hatch, 722 F.3d at 1202, 1205. 108 Id. at 1205. 109 Id. (quoting 18 U.S.C. § 249 note (reprinting Pub. L. No. 111–84, § 4702(8))). 110 Id. (noting that Congress’s placed nonracial classifications in a paragraph that “explicitly linked those classifications to the Commerce Clause or Congress’s power over federal territories”). 111 Id. at 1206 (quoting 18 U.S.C. § 249(a)(1)). 112 Id. 113 Id. 114 United States v. Metcalf, 881 F.3d 641, 645 (8th Cir. 2018) (citing Hatch with approval and concluding that with § 249(a)(1), “Congress rationally determined that racially motivated violence constitutes a badge and incident of slavery”); United States v. Cannon, 750 F.3d 492, 502 (5th Cir. 2014) (reviewing congressional findings supporting § 249, observing that “racially motivated violence was essential to the enslavement of African–Americans and was (continued...) Congressional Research Service 12 Components of Federal Criminal Law statutes.115 For instance, the Second Circuit held that § 245(b)(2)(B) “falls comfortably” within Congress’s Thirteenth Amendment power to determine the badges and incidents of slavery since it prohibits racially motivated violence, which has a “long and intimate historical association with slavery and its cognate institutions.”116 The Fourteenth Amendment In relevant part, the Fourteenth Amendment provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”117 Section Five of the Fourteenth Amendment grants Congress the power to “enforce, by appropriate legislation, the provisions of this article.”118 There are two important limits to Congress’s Section Five power.119 First, the Supreme Court has indicated that “the Fourteenth Amendment, by its very terms, prohibits only state action.”120 Accordingly, Congress’s power to enact legislation under Section 5 is limited to legislation addressed at remedying state action.121 State action may come in a number of forms122 Perhaps most relevant to the criminal law context, the state action requirement may be satisfied where an individual acts under color of law.123 Generally, an individual’s actions are under color of law if widely employed after the Civil War in an attempt to return African–Americans to a position of de facto enslavement,” and holding that in “light of these facts, we cannot say that Congress was irrational in determining that racially motivated violence is a badge or incident of slavery”); United States v. Earnest, 536 F. Supp. 3d 688, 717 (S.D. Cal. 2021) (citing Hatch with approval, reviewing congressional findings, and joining “the other courts in concluding that Congress rationally determined racially motivated violence is a badge and incident of slavery, and translated that determination into the HCPA pursuant to its powers under Section 2 of the Thirteenth Amendment”). 115 See, e.g., United States v. Allen, 341 F.3d 870, 884 (9th Cir. 2003) (collecting cases holding that “the enactment of § 245(b)(2)(B) was a constitutional exercise of Congress’s authority under the Thirteenth Amendment” and agreeing); United States v. Nelson, 277 F.3d 164, 178, n.14 (2d Cir. 2002) (“Congress’[s] power to enforce the Thirteenth Amendment by enacting § 241 . . . is clear and undisputed.”). 116 Nelson, 277 F.3d at 189–90. 117 U.S. CONST. amend. XIV, § 1. 118 Id. § 5. 119 For more information on Section Five of the Fourteenth Amendment see Hickey, supra note 17 at 17–22. 120 United States v. Morrison, 529 U.S. 598, 621 (2000). Compare Civil Rights Cases, 109 U.S. 3, 11 (1883) (rejecting the power of Congress to regulate private conduct under the Fourteenth Amendment and concluding that the Amendment governs only State action), with United States v. Guest, 383 U.S. 745, 782 (1966) (Brennan, J., concurring) (“A majority of the members of the Court expresses the view today that [Section 5 of the Fourteenth Amendment] empowers Congress to enact laws punishing all conspiracies to interfere with the exercise of Fourteenth Amendment rights, whether or not state officers or others acting under the color of state law are implicated in the conspiracy.”) (footnote omitted). For an examination of the development of the Court’s Fourteenth Amendment precedent, see generally Morrison, 529 U.S. at 620–27. 121 Morrison, 529 U.S. at 621–22; see generally Cong. Rsch. Serv., Amdt14.S5.2 Who Congress May Regulate, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/amdt14-S5-2/ALDE_00000851/ (last visited Sept. 9, 2024). 122 For example, official state conduct, such as the enactment of legislation, qualifies. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 493, 495 (1954), supplemented by 349 U.S. 294 (1955) (holding that state-mandated school segregation violated the Fourteenth Amendment); see also RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW-SUBSTANCE & PROCEDURE § 16.1(a) (July 2024 Update) (“When a legislature, executive officer, or a court takes some official action against an individual, that action is subjected to review under the Constitution, for the official act of any governmental agency is direct governmental action and therefore subject to the restraints of the Constitution.”). 123 See Lugar v. Edmondson Oil Co., 457 U.S. 922, 929 (1982) (explaining that in the context of civil lawsuits brought against state officials pursuant to a federal statute, “the statutory requirement of action ‘under color of state law’ and the ‘state action’ requirement of the Fourteenth Amendment are identical.”). Congressional Research Service 13 Components of Federal Criminal Law their conduct involves “[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.”124 Typically, individuals acting under color of law will be government employees or officials.125 There are also some instances in which the conduct of private individuals or entities may be attributed to the state itself,126 although determining whether that is the case is a “necessarily fact-bound inquiry.”127 The Supreme Court has said128 that there must be a “‘close nexus between the State and the challenged action’ [so] that seemingly private behavior ‘may be fairly treated as that of the State itself.’”129 Second, there is a significant distinction between Congress legislating to remedy actual constitutional violations and Congress legislating to regulate conduct that may not be forbidden by the substantive scope of the Fourteenth Amendment. Section Five enforcement authority does not grant Congress the “power to decree the substance of the Fourteenth Amendment.”130 Rather, Section Five authorizes it to enact laws to “remedy or prevent unconstitutional actions.”131 In other words, Congress may use Section Five to enforce the rights guaranteed by the Fourteenth Amendment; however, it may not alter the substantive scope of the rights themselves.132 The Supreme Court has acknowledged that the line between laws that remedy unconstitutional actions and laws that make a substantive change to the Fourteenth Amendment is “not easy to discern,”133 but ordinarily legislation is remedial under Section Five of the Fourteenth Amendment when there is “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”134 Relevant factors in determining whether Fourteenth Amendment legislation is congruent and proportional include (1) the scope of the constitutional right at issue in the legislation; (2) whether Congress has identified a historical pattern of the states violating 124 Screws v. United States, 325 U.S. 91, 109 (1945) (plurality opinion) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). 125 See infra note 149 and accompanying text. Federal courts have held that some criminal laws that encompass conduct committed under color of law can apply to federal officials and employees as well as state ones. See Screws, 325 U.S. at 108 (explaining in context of federal criminal law prohibiting deprivation of civil rights under color of law that one “who acts under ‘color’ of law may be a federal officer or a state officer” and “may act under ‘color’ of federal law or of state law”); United States v. Otherson, 637 F.2d 1276, 1278 (9th Cir. 1980) (similar). As a general matter, Congress has much greater leeway to regulate the conduct of federal officials and employees than it does with state officials and employees. See CRS Report R46530, Police Reform and the 116th Congress: Selected Legal Issues, by April J. Anderson, Joanna R. Lampe, and Whitney K. Novak, at 1 (2020) (describing Congress’s “plenary authority to regulate federal law enforcement officers and agencies”). 126 Burton v. Wilmington Parking Auth., 365 U.S. 715, 716 (1961) (holding that state action occurred within the context of the Fourteenth Amendment when a private coffee shop refused to serve an African American customer, and that coffee shop was situated in a government-run parking garage, and a lessee of a government authority). 127 Lugar, 457 U.S. at 939. 128 The Court has used several different tests to determine whether a private entity qualifies as a state actor. See Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 809 (2019) (collecting caselaw and describing tests). 129 Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)); see also Hickey, supra note 17 at 17–18 (surveying caselaw on determining whether there is sufficiently close nexus between state and private individual to amount to state action for Fourteenth Amendment purposes). 130 City of Boerne v. Flores, 521 U.S. 507, 519 (1997). 131 Id. at 519. 132 Id. (observing Congress has been given “the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation”). 133 Id. 134 Id. at 520; RICH, supra note 95, at § 35:84 (“In City of Boerne v. Flores, the Supreme Court distinguished between the remedial and substantive scope of the Fourteenth Amendment, ruling that Congress had power to determine the former, but not the latter.” (footnote omitted)). Congressional Research Service 14 Components of Federal Criminal Law the particular right; and (3) whether the right at issue and the purported violations are “so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.”135 The congruence and proportionality requirement does not apply when legislation enforces actual violations of the Fourteenth Amendment—for example, where those violations must be proven and vindicated in court.136 One example of this type of enforcement legislation is 18 U.S.C. § 242—criminalizing deprivation of constitutional rights under color of law137—discussed in more detail below.138 Select Examples of the Fourteenth Amendment as a Jurisdictional Basis in Federal Criminal Statutes As with the Thirteenth Amendment, hate crime laws are one area where Congress has appeared to invoke its authority under Section Five of the Fourteenth Amendment (sometimes in conjunction with other sources of authority).139 Case law examining the limits of Congress’s Fourteenth Amendment power in the context of these statutes is scarce, however.140 Federal courts have 135 Hickey, supra note 17 at 19 (collecting cases and quoting Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 86 (2000)). 136 Hickey, supra note 17 at 21; see also United States v. Georgia, 546 U.S. 151, 158–59 (2006) (discussing congressional authority to legislate to enforce actual violations of the Fourteenth Amendment). 137 Section 242 refers to “rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” 18 U.S.C. § 242. The Supreme Court has construed that language as limited to the “deprivation of a constitutional right” where that right “has been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them.” United States v. Lanier, 520 U.S. 259, 267, 271–72 (1997) (quoting Screws v. United States, 325 U.S. 91, 104 (1945) (plurality opinion)). In practice, according to one observer, “[t]he vast majority of cases under Section 242 have involved deprivation of the Fourteenth Amendment right to due process of law.” ZACHARY J. WOLFE, HATE CRIMES LAW, § 6:18 (2024). 138 See infra “Select Examples of the Fourteenth Amendment as a Jurisdictional Basis in Federal Criminal Statutes.” 139 See, e.g., Screws, 325 U.S. at 98 (explaining that predecessor to § 242 “was enacted to enforce the Fourteenth Amendment”); CRS Legal Sidebar LSB10495, Federal Police Oversight: Criminal Civil Rights Violations Under 18 U.S.C. § 242, by Joanna R. Lampe, at 1 (2020) (discussing origins of § 242); S. REP. NO. 90-721, at 6–8 (1967) (discussing sources of constitutional authority for § 245); see also United States v. Price, 383 U.S. 787, 805 (1966) (“We cannot doubt that the purpose and effect of § 241 was to reach assaults upon rights under the entire Constitution, including the Thirteenth, Fourteenth and Fifteenth Amendments, and not merely under part of it.”). 140 But see, e.g., United States v. Glover, 672 F. Supp. 3d 1072, 1081 (D. Or. 2023) (“The Court concludes that [18 U.S.C.] § 242 was a constitutional exercise of Congress’s § 5 enforcement power.”); United States v. Cooney, 217 F. Supp. 417, 419 (D. Colo. 1963) (similar). As of July 22, 2024, targeted searches yielded little relevant material on this issue. For example, with respect to 18 U.S.C. § 245 these searches entailed searching within results on Westlaw of federal cases citing to § 245 for the following terms and connector searches: TI(United States) AND (245 /p fourteenth /p congress); TI(United States) AND (245 /p fourteenth /p enact!); TI(United States) AND (245 /p fourteenth /p legislat!). Equivalent searches were conducted for 247, 249 and 42 U.S.C. § 3631. For 18 U.S.C. §§ 241 and 242—where there is a larger body of caselaw in general—equivalent searches were conducted of reported federal cases only. When discussing the substantive scope of § 241, which criminalizes conspiracies against civil rights, the Supreme Court in United States v. Price held that the provision protected against violations of Fourteenth Amendment rights, although there was no state action issue in that case, which involved the indictments of several municipal police officers in connection with official actions. 383 U.S. at 790, 799–800, 804; see also United States v. Guest, 383 U.S. 745, 755–56 (1966) (cautioning that the Fourteenth Amendment reaches only state action, but determining that there were sufficient state action allegations in § 241 indictment at issue). Before the Supreme Court’s opinion in Morrison, which expressly restricted the Fourteenth Amendment to state action, supra note 120 and accompanying text, the Eighth Circuit had concluded in United States v. Bledsoe that hate crime statutes reaching private action could be premised at least in part on the Fourteenth Amendment.728 F.2d 1094, 1097 (8th Cir. 1984) (examining the Thirteenth and Fourteenth Amendments as sources of authority for § 245). Post(continued...) Congressional Research Service 15 Components of Federal Criminal Law sometimes declined to address Fourteenth Amendment challenges to hate crime statutes and have instead resolved them under other constitutional provisions such as the Thirteenth Amendment.141 The government has also sometimes declined to rely on the Fourteenth Amendment in defending federal hate crime statutes against constitutional challenges, seemingly due to the difficulty of satisfying the state action requirement with respect to conduct undertaken by private individuals.142 One exception is 18 U.S.C. § 242,143 which some federal courts have described as grounded in Congress’s Section Five power.144 The provision, which can be traced back to the Reconstruction Era,145 criminalizes the willful deprivation of federally protected rights under color of law.146 In general terms, an action is taken “under color of law” when it involves the misuse of power by an individual “clothed” with legal authority,147 a requirement that may often overlap with the concept of state action.148 In practice, those acting under color of law for § 242 purposes are Morrison, in an unreported order, one federal district court interpreted Bledsoe and noted that the Eighth Circuit had also separately grounded its holding in that case on the Thirteenth Amendment, which can reach private action. United States v. Maybee, No. 11-30006, 2011 WL 2784446, at *4 (W.D. Ark. July 15, 2011), aff’d, 687 F.3d 1026 (8th Cir. 2012). There are also a number of federal cases declining to extend City of Boerne’s congruence and proportionality requirement to the Thirteenth Amendment in the context of federal hate crime statutes. See, e.g., United States v. Hougen, 76 F.4th 805, 815 (9th Cir. 2023), cert. denied, 144 S. Ct. 1121 (2024), and cert. denied, 144 S. Ct. 1121 (2024) (collecting cases); United States v. Diggins, 36 F.4th 302 (1st Cir.), cert. denied, 143 S. Ct. 383 (2022). 141 See, e.g., United States v. Sandstrom, 594 F.3d 634, 660 (8th Cir. 2010) (“Because we hold that § 245 is a valid exercise of Congress’s power under the Thirteenth Amendment, we need not address the remaining constitutional challenges to § 245.”); see also United States v. Beebe, 807 F. Supp. 2d 1045, 1059 (D.N.M. 2011) (resolving constitutional challenge to 18 U.S.C. § 249(a)(1) on Thirteenth Amendment grounds and therefore not reaching defendant’s Fourteenth Amendment challenge to the provision), aff'd sub nom. United States v. Hatch, 722 F.3d 1193 (10th Cir. 2013); United States v. Furrow, 125 F. Supp. 2d 1178, 1180 (C.D. Cal. 2000) (declining to discuss Fourteenth Amendment challenge to § 245 and instead resolving challenge with respect to commerce power). To illustrate, in United States v. Lane, the Tenth Circuit examined the jurisdictional basis for § 245(b)(2)(C), which criminalizes violently interfering with a person because of a protected characteristic such as race and because of that person’s enjoyment of certain employment or labor-related rights. 883 F.2d 1484, 1487 (10th Cir. 1989). The defendants argued that Congress enacted the provision solely under its Fourteenth Amendment authority, but the government instead defended the provision as based on the Commerce Clause. Id. The Court agreed with the government and therefore did not decide whether § 245(b)(2)(C) was also rooted in the Fourteenth Amendment, an issue it found “less clear” based on legislative history. Id. at 1492. 142 See, e.g., United States v. Nelson, 277 F.3d 164, 174 (2d Cir. 2002) (acknowledging that the government declined to pursue argument under the Fourteenth Amendment and speculating on its reasoning). 143 Section 242 has been used by prosecutors to charge individuals with bias-motivated crimes, although its reach is not limited to that context. See Berris, supra note 92, at 18. 144 See, e.g., United States v. Glover, 672 F. Supp. 3d 1072, 1081 (D. Or. 2023) (“The Court concludes that [18 U.S.C.] § 242 was a constitutional exercise of Congress’s § 5 enforcement power.”); United States v. Cooney, 217 F. Supp. 417, 419 (D. Colo. 1963) (Similar). 145 Berris, supra note 92, at 18. For a discussion of additional caselaw interpreting this requirement, see Berris, supra note 92, at 18–19. 146 18 U.S.C. § 242. 147 United States v. Classic, 313 U.S. 299, 326 (1941). 148 One federal appellate court has treated the Fourteenth Amendment state action requirement and the “under color of law” requirement of § 242 as “coextensive.” United States v. Davis, 971 F.3d 524, 529 n.2 (5th Cir. 2020). For example, in one case the Fifth Circuit rejected an appeal from defendants convicted under 18 U.S.C. §§ 241 and 242. United States v. Causey, 185 F.3d 407, 416 (5th Cir. 1999). Although § 241 lacks an “under color of law” requirement, the Fifth Circuit had previously interpreted it to require proof of state action. Id. at 413. The Fifth Circuit treated that requirement similarly to the “under color of law” requirement of § 242 and analyzed the convictions under both statutes through the lens of whether the defendants had acted under color of law. Id. at 413–16. Congressional Research Service 16 Components of Federal Criminal Law typically law enforcement officers and corrections personnel,149 but can also include other public officials and potentially private persons when acting in conjunction with government personnel.150 The Fifteenth Amendment The Fifteenth Amendment provides that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”151 Section Two of the Fifteenth Amendment grants Congress the “power to enforce this article by appropriate legislation.”152 Much of the jurisprudence on the scope of Congress’s Section Two authority involves broad voting rights legislation focused on state policies such as the use of literacy tests as a limitation on voting eligibility.153 There, the Supreme Court has said that “Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting,”154 although the Court has subsequently recognized additional limitations.155 There is some indication that Congress has invoked the Fifteenth Amendment as at least a partial jurisdictional basis for some federal criminal provisions as discussed below,156 but a dearth of caselaw examining the constitutionality of these laws in the context of the Fifteenth Amendment means that it is difficult to ascertain the exact contours of Congress’s Section Two authority in the criminal law arena.157 One limitation appears certain: the Fifteenth Amendment has traditionally been limited to state action.158 Accordingly, a law prohibiting interference by 149 Cf. Statutes Enforced by the Criminal Section, U.S. DEP’T OF JUST. (Aug. 15, 2023), https://www.justice.gov/crt/statutes-enforced-criminal-section (“Those prosecuted under the statute typically include police officers, sheriff’s deputies, and prison guards.”). 150 Berris, supra note 92, at 19–20. 151 U.S. CONST. amend. XV, § 1. 152 Id. § 2. Other provisions of the Constitution authorize Congress to protect primary and general elections for federal positions, including through criminal laws. See, e.g., United States v. Classic, 313 U.S. 299, 320 (1941) (holding that the necessary and proper clause—in conjunction with Article I, Section 4, of the Constitution authorizing Congress to enact laws governing the “manner of holding elections”—made permissible the enactment of a federal criminal law securing certain voting rights as well as its application in context of interference by individuals with a primary election); see also, generally RICH, supra note 95, at § 35:78 (“[I]t has been settled that Congress has complete constitutional power to provide civil and criminal remedies when a person is unlawfully denied the right to vote in federal elections, including primaries.”). 153 See generally Cong. Rsch. Serv., Amdt14.S2.2 Federal Remedial Legislation, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/amdt15-S2-2/ALDE_00013501/#ALDF_00025012 (last visited Sept. 9, 2024). 154 South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966). 155 See Shelby Cnty., Ala. v. Holder, 570 U.S. 529, 553 (2013) (holding in the context of the Fifteenth Amendment that “Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions”). For more information on this topic, see generally CRS Legal Sidebar LSB10954, Recent Developments in the Rights of Private Individuals to Enforce Section 2 of the Voting Rights Act, by L. Paige Whitaker (2024); CRS Legal Sidebar LSB11002, Allen v. Milligan: Supreme Court Holds That Alabama Redistricting Map Likely Violated Section 2 of the Voting Rights Act, by L. Paige Whitaker (2023); CRS Testimony TE10033, History and Enforcement of the Voting Rights Act of 1965, by L. Paige Whitaker (2019). 156 See infra “Select Examples of the Fifteenth Amendment as a Jurisdictional Basis.” 157 See, e.g., United States v. Sandstrom, 594 F.3d 634, 659–60 (8th Cir. 2010) (declining to consider whether Congress exceeded its authority under the Fifteenth Amendment to enact 18 U.S.C. § 245 and instead resolving the dispute on Thirteenth Amendment grounds). 158 See, e.g., James v. Bowman, 190 U.S. 127, 139 (1903) (“These authorities show that a statute which purports to punish purely individual action cannot be sustained as an appropriate exercise of the power conferred by the 15th (continued...) Congressional Research Service 17 Components of Federal Criminal Law government actors with voting would be state action and be valid under the Fifteenth Amendment.159 As discussed above, private conduct may also be considered state action for purposes of the Fifteenth Amendment in certain circumstances.160 For example, the Supreme Court has found state action present in the “exercise by a private entity of powers traditionally exclusively reserved to the State.”161 One such power recognized by the Court includes the administration of elections.162 In Terry v. Adams, a three-Justice plurality of the Supreme Court ruled that the exclusion of African Americans from a primary election violated the Fifteenth Amendment, although the primary was unofficial, unregulated by state government, and run by a “self-governing voluntary club.”163 According to the plurality, the primary contravened the Fifteenth Amendment because it was still integral to the elective process and the outcome of the general election.164 Select Examples of the Fifteenth Amendment as a Jurisdictional Basis in Federal Criminal Statutes Some federal caselaw suggests that various federal hate crime provisions may be grounded in part in the Fifteenth Amendment.165 For example, in a 1966 opinion, the Supreme Court examined the application of 18 U.S.C. § 241—a statute prohibiting conspiracies to interfere with civil rights166—to several Mississippi law enforcement officers in connection with the murders of three civil rights workers.167 Although decided on Fourteenth Amendment grounds, the Court seemed to view the statute as grounded at least partially in the Fifteenth Amendment, observing, “We cannot doubt that the purpose and effect of [§ 241] was to reach assaults upon rights under the entire Constitution, including the Thirteenth, Fourteenth and Fifteenth Amendments, and not Amendment upon Congress to prevent action by the state through some one or more of its official representatives.”); accord RICH, supra note 95, at § 12:20 (“The Fifteenth Amendment was, by traditional construction, limited to state action.”). 159 See United States v. Raines, 362 U.S. 17, 25 (1960) (“[W]hatever precisely may be the reach of the Fifteenth Amendment, it is enough to say that the conduct charged—discrimination by state officials, within the course of their official duties, against the voting rights of United States citizens, on grounds of race or color—is certainly, as ‘state action’ and the clearest form of it, subject to the ban of that Amendment, and that legislation designed to deal with such discrimination is ‘appropriate legislation’ under it.”). In one opinion stemming from a hate crime prosecution, the Court recounted the 1870 remarks of Sen. Pool regarding the enactment of what is now 18 U.S.C. § 241 (prohibiting conspiracies against civil rights). United States v. Price, 383 U.S. 787, 805 (1966). The Court explained that Sen. Pool viewed the purpose of § 241 as punishing violations of the Fourteenth and Fifteenth Amendments, including by individuals. Id. In that case, the Court approved of the application of § 241 in the prosecution of several law enforcement officers, although it resolved the issue on Fourteenth Amendment grounds. Id. 160 See Terry v. Adams, 345 U.S. 461, 462–63 (1953) (plurality opinion). 161 Jackson v. Metro Edison Co., 419 U.S. 345, 352 (1974). 162 See id. (citing Nixon v. Condon, 286 U.S. 73 (1932)). 163 Id. at 463, 470. 164 Id. at 469 (discussing how private primary relates to official primary and general election overseen by government). 165 See, e.g., United States v. Comstock, 560 U.S. 126, 136 (2010) (citing Ex parte Yarbrough, 110 U.S. 651 (1884)); see also United States v. Otherson, 637 F.2d 1276, 1280 (9th Cir. 1980) (chronicling historical relationship between § 242 and the Fifteenth Amendment); United States v. Boone, 110 F. Supp. 3d 909, 916–17 (S.D. Iowa 2015) (describing origins of § 242 and its relationship to the Fifteenth Amendment); United States v. Solomon, 419 F. Supp. 358, 368 (D. Md. 1976) (explaining that “[p]ursuant to its power to regulate interstate commerce and to enforce, by appropriate legislation, the provisions of the thirteenth, fourteenth, and fifteenth amendments, Congress has enacted numerous enforcement schemes involving the Attorney General” and listing 18 U.S.C. § 242 as an example). 166 CRS In Focus IF12333, Hate Crimes: Key Federal Statutes, by Peter G. Berris, at 1 (2023). 167 Berris, supra note 92, at 18. Congressional Research Service 18 Components of Federal Criminal Law merely under part of it.”168 Some legislative history also suggests that Congress invoked its Fifteenth Amendment authority (along with other powers) to enact at least parts of 18 U.S.C. § 245.169 Among other things, § 245 prohibits interference with any person affording others an opportunity to vote without discrimination on account of race.170 That prohibition encompasses violations by state actors.171 These aspects of § 245 seem to track the contours of the Fifteenth Amendment in that the offense could cover interference with voting rights by a state actor motivated by racial animus. However, caselaw examining the Fifteenth Amendment in the context of § 245 is scarce—constitutional challenges to the statute tend to be resolved on other grounds than the Fifteenth Amendment.172 For instance, in one case involving a fatal racially motivated shooting, the defendants appealed their convictions under § 245 on the grounds that “Congress lacked the authority to enact it pursuant to its Commerce Clause powers, the Thirteenth Amendment, the Fourteenth Amendment, or the Fifteenth Amendment.”173 The Tenth Circuit upheld the convictions but resolved the challenge on Thirteenth Amendment grounds and did not reach the question of whether the statute could be viewed as grounded in the Fifteenth Amendment.174 Prohibited Conduct (Actus Reus) Another core component of a federal criminal law is an actus reus or “forbidden act”175—“[t]he wrongful deed that comprises the physical components of a crime.”176 Without an actus reus, a criminal law will almost certainly be held invalid.177 A number of considerations underlie this aspect of criminal law, including the difficulty of proving thoughts without physical manifestations and “the notion that the criminal law should not be so broadly defined to reach those who entertain criminal schemes but never let their thoughts govern their conduct.”178 168 United States v. Price, 383 U.S. 787, 805 (1966). 169 S. REP. NO. 90-721, at 6–8 (1967). 170 18 U.S.C. § 245(b)(4)(B). 171 Section 245 covers violations regardless of whether they were committed “under color of law.” Id. § 245(b). 172 As of July 22, 2024, a search on Westlaw of reported federal cases citing to 18 U.S.C. § 245 yields only two examples that reference the “Fifteenth Amendment” in the same paragraph as a citation to § 245. 173 United States v. Sandstrom, 594 F.3d 634, 659 (8th Cir. 2010). 174 Id. at 660. 175 United States v. Apfelbaum, 445 U.S. 115, 131 (1980) (“In the criminal law, both a culpable mens rea and a criminal actus reus are generally required for an offense to occur.”); see also MODEL PENAL CODE § 2.01 explanatory note at 213 (AM. L. INST. 1985) (calling requirement that “the guilt of the defendant be based upon conduct, and that the conduct include a voluntary act or an omission to perform an act” a “fundamental predicate for all criminal liability”). 176 Actus Reus, BLACK’S LAW DICTIONARY (12th ed. 2024); see also United States v. Gumbs, 283 F.3d 128, 132 n.3 (3d Cir. 2002) (same). 177 United States v. Zayac, 765 F.3d 112, 120 (2d Cir. 2014) (“Criminal liability ordinarily requires the ‘concurrence of an evil-meaning mind with an evildoing hand.’” (quoting Morissette v. United States, 342 U.S. 246, 251 (1952)); see also Apfelbaum, 445 U.S. at 131 (discussing requirement of mens rea and actus reus); United States v. Ayon-Brito, 981 F.3d 265, 270 (4th Cir. 2020) (“It has been long established ‘that criminal penalties may be inflicted only if the accused has committed some act, has engaged in some behavior, which society has an interest in preventing, or perhaps in historical common law terms, has committed some actus reus.’” (quoting United States v. Ayala, 35 F.3d 423, 426 (9th Cir. 1994))). 178 See LAFAVE, supra note 5, at § 6.1(b). Congressional Research Service 19 Components of Federal Criminal Law The terminology and formulations used to describe and characterize actus reus vary.179 This report uses the term prohibited conduct to capture the act or omission comprising a criminal offense, as well as other external circumstances and consequences that are elements of the offense.180 For example, if a statute criminalizes killing a federal official,181 this report would refer to the prohibited conduct as including the physical action taken (such as squeezing the trigger or thrusting the knife) as well as the victim’s status (being a federal official) and the result (death of the victim).182 The exact issues that will arise when identifying and describing prohibited conduct may vary based on subject matter. Federal criminal laws are often enacted in response to an issue of societal concern, which lawmakers conclude merits prosecution and punishment.183 For example, Congress enacted the mail fraud statute (18 U.S.C. § 1341) in the late 1800s at least in part to counteract the potential use of the mail for financial deceit targeting rural Americans. 184 Congressional concern about racially motivated violence prompted the enactment of hate crime statutes like 18 U.S.C. § 245 in the 1960s.185 Growing fears about the dangers of computer hacking motivated the creation of the Computer Fraud and Abuse Act in the 1980s.186 Identifying the underlying issue motivating a legislative effort may be relatively straightforward (e.g., fraud, racial violence, computer hacking), but translating the issue into specific conduct that is prohibited in a federal criminal statute potentially implicates a number of nuanced legal questions. As a hypothetical, consider the issue of fraud associated with fertility treatments.187 Legislation criminalizing fertility fraud could raise a number of legal and conceptual questions that inform the scope of the prohibited conduct. For instance, what does it mean to commit fertility fraud? Does fertility fraud refer to deceptive advertising or promises with respect to the outcomes of relevant medical services, the act of inseminating a patient with biological material other than that material consented to by the patient, the omission of relevant information to a patient, or 179 Compare, e.g., State v. Paule, 2024 UT 2, ¶ 29 2024 WL 371416 (Utah Feb. 1, 2024) (“Actus reus refers to the ‘physical components of a crime,’ which include ‘[t]he voluntary act or omission’ and ‘the attendant circumstances’ of a crime.” (quoting actus reus, BLACK’S LAW DICTIONARY (11th ed. 2019))), with, e.g., Cruz v. Blair, 255 Ariz. 335, 532 P.3d 327, 334 (2023) (“Thus, actus reus is the performance of conduct which can be either: (1) performance of a voluntary act, or (2) failure to perform a duty imposed by law which the person is physically capable of performing.”); see also see LAFAVE, supra note 5, at § 6.1(a) (discussing act requirement and different definitions of act). 180 This construction diverges somewhat from other models. See, e.g., MODEL PENAL CODE § 1.13(5) (AM. L. INST. 1985) (“‘conduct’ means an action or omission and its accompanying state of mind, or, where relevant, a series of acts and omissions”). This report breaks out mental state as a separate element below. See infra “Mental State.” 181 E.g., 18 U.S.C. § 351. 182 Rather than including them in the definition of “conduct,” other models would treat separately (1) the victim’s status as a federal official and (2) the killing. For such models, these would be a circumstance and a result, respectively—both elements of the offense. § 1.13. General Definitions., MODEL PENAL CODE § 1.13(9) (AM. L. INST. 1985) (defining “element of an offense”); but see LAFAVE, supra note 5, at § 6.1(a) (discussing some approaches that treat acts (or omissions), results, and circumstances as part of the prohibited conduct). 183 But see, e.g., note 1 and accompanying text (describing origin of the federal treason statute). 184 CRS Report R41930, Mail and Wire Fraud: A Brief Overview of Federal Criminal Law, by Charles Doyle, at 1 (2019). 185 Berris, supra note 92, at 21. 186 CRS Report R47557, Cybercrime and the Law: Primer on the Computer Fraud and Abuse Act and Related Statutes, by Peter G. Berris, at 3–4 (2023). 187 For a short primer on this topic, see generally CRS In Focus IF12168, Fertility Fraud: Federal Criminal Law Issues, by Peter G. Berris (2022). Congressional Research Service 20 Components of Federal Criminal Law something else?188 Can any person be responsible for a violation or only a certain subset of individuals, such as a donor or medical provider?189 Is there a jurisdictional basis for federal legislation, as discussed above?190 The answers to these questions may all shape the contours of the prohibited conduct in a fertility fraud bill. This section provides an overview of some of the legal considerations associated with translating a matter of societal concern into prohibited conduct in federal criminal legislation. Requirement of a Voluntary Act For a criminal law to be valid, the prohibited conduct must generally involve a voluntary act by the defendant,191 and in practice “[m]ost crimes are committed by [an] affirmative action rather 188 Two bills introduced in the 118th Congress illustrate some of the potential variety. For example, the Protecting Families from Fertility Fraud Act of 2023 would prohibit “misrepresent[ing] the nature or source of DNA used in assisted reproductive technology . . . or assisted insemination . . . .” H.R. 451, 118th Cong. (2023). In contrast, the Fighting Fertility Fraud Act of 2023 would criminalize “provid[ing] materially false or misleading information relating to assisted reproduction, including—(1) the human reproductive material provided or used for assisted reproduction; (2) the identifying information of the gamete provider including their name, birth date, or address at the time of gamete provision; or (3) a gamete provider’s medical history including any known physical and mental health illness, the social, genetic, family medical history of the gamete provider, or the gamete provider’s educational level, ethnicity, religious background.” H.R. 3710, 118th Cong. (2023). H.R. 3710 would also criminalize providing “(A) human reproductive material for assisted reproduction other than the selected human reproductive material for which patient gave consent in writing to use; or (B) a patient with human reproductive material in assisted reproduction without the gamete provider’s consent or in a manner or to an extent other than that to which the gamete provider consented to.” Id. 189 The two fertility fraud bills discussed above, see supra note 188, illustrate two different possibilities. The Protecting Families from Fertility Fraud Act of 2023 would apply to “whoever” engages in the prohibited conduct, H.R. 451, 118th Cong. (2023), whereas The Fighting Fertility Fraud Act of 2023 has one provision that would apply to a “person, health professional, or health facility” and one that would encompass only violations committed by “a health care professional or health facility.” H.R. 3710, 118th Cong. (2023). 190 See supra “Jurisdictional Basis.” The two fertility fraud bills discussed above, see supra note 188, each include sections that would limit their applicability to circumstances implicating commerce or the SMTJ. The Protecting Families from Fertility Fraud Act of 2023, H.R. 451, 118th Cong. (2023); The Fighting Fertility Fraud Act of 2023, H.R. 3710, 118th Cong. (2023). 191 See LAFAVE, supra note 5, at § 6.1 (“A bodily movement, to qualify as an act forming the basis of criminal liability, must be voluntary.”). For example, the Model Penal Code (discussed below) states that “[a] person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable.” MODEL PENAL CODE § 2.01(1) (AM. L. INST. 1985). Similar statements appear frequently in state jurisprudence. See, e.g., State v. Pena, 178 N.J. 297, 304 (2004) (describing as “bedrock” the “accepted requirements for criminal liability: proof of ‘a voluntary act and a culpable state of mind [are] the minimum conditions’ for imposing criminal liability.” (quoting State v. Sexton, 160 N.J. 93, 98 (1999))); State v. Armstard, 43,333 (La. App. 2 Cir. 8/13/08), 991 So. 2d 116, 123, writ denied, 2008-2440 (La. 1/16/09), 998 So. 2d 89 (“In order for there to be criminal conduct, even criminal negligence, there must be an act or failure to act, where ‘act’ refers to an external manifestation of will through voluntary muscular movement which produces consequences.”). Federal jurisprudence more typically refers broadly to the requirement of an actus reus to trigger criminal liability, without necessarily addressing the underlying need for a voluntary act. See, e.g., United States v. Apfelbaum, 445 U.S. 115, 131 (1980) (“In the criminal law, both a culpable mens rea and a criminal actus reus are generally required for an offense to occur.”); United States v. Ayon-Brito, 981 F.3d 265, 270 (4th Cir. 2020) (“It has been long established ‘that criminal penalties may be inflicted only if the accused has committed some act, has engaged in some behavior, which society has an interest in preventing, or perhaps in historical common law terms, has committed some actus reus.’” (quoting United States v. Ayala, 35 F.3d 423, 426 (9th Cir. 1994))); but c.f. Hill v. Murphy, 785 F.3d 242, 247 (7th Cir. 2015) (describing actus reus as “the guilty act” and explaining that an act is a “voluntary muscular contraction” (quoting O.W. HOLMES, JR., THE COMMON LAW 91 (1881)); United States v. Herrera Garcia, No. 23-CR-504 (JSR), 2024 WL 1667661, at *4 (S.D.N.Y. Apr. 18, 2024) (“[A] fundamental principle of criminal law: that a defendant is only guilty of a crime if a defendant commits an actus reus (a conscious, volitional act) with the requisite mens rea (a guilty mind).”). The voluntariness requirement reflects a judgment that “[t]he deterrent function of the criminal law would not be served by imposing sanctions for involuntary action, as such action cannot be deterred.” LAFAVE, supra note 5, at § 6.1(c). Congressional Research Service 21 Components of Federal Criminal Law than by [a] non-action.”192 Here the term act is generally construed fairly narrowly, although formulations vary.193 For example, one construction may be found in the influential Model Penal Code (MPC), a major work of legal scholarship first produced by the American Law Institute in 1962, which was intended to establish a comprehensive model statute that American jurisdictions could use to revise their criminal codes.194 The MPC defines an act as a “bodily movement whether voluntary or involuntary,”195 but involuntary acts may not create criminal liability under the MPC.196 Examples of involuntary acts under the MPC include “(a) a reflex or convulsion; (b) a bodily movement during unconsciousness or sleep; (c) conduct during hypnosis or resulting from hypnotic suggestion; (d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.”197 Omission and Possession There are at least two categories of offenses that satisfy the act requirement even though they do not necessarily involve an act (if act is narrowly defined to refer to a bodily movement). The first of these categories includes statutes imposing criminal liability for “an omission to act where there is a legal duty” to do so.198 The MPC, for example, defines an omission as a “failure to act.”199 To illustrate with a federal statute, 18 U.S.C. § 2258 imposes criminal liability for failure to report child abuse where mandated by law.200 The second category comprises statutes imposing criminal liability for possession.201 Possession, as one legal scholar has explained, “is not, strictly speaking, an act (bodily movement) or an omission to act.”202 Regardless, numerous federal statutes criminalize possession,203 and such statutes have been upheld by courts.204 192 See LAFAVE, supra note 5, at § 6.1(a) (“There are analytical difficulties in calling an omission an act, and thus it is better simply to acknowledge that either an act or an omission to act contrary to a legal duty suffices.”); id. at § 6.1(e) (“Though possession is not, strictly speaking, an act (bodily movement) or an omission to act, crimes based upon possession are generally upheld.”). 193 Id. at § 6.1(a). 194 See David M. Treiman, Recklessness and the Model Penal Code, 9 AM. J. CRIM. L. 281, 284–85 (1981) (describing MPC as “model for” reforming common-law mens rea principles reflected in statutes of the time). 195 MODEL PENAL CODE § 1.13(2) (AM. L. INST. 1985). 196 Id. § 2.01. 197 Id. 198 LAFAVE, supra note 5, at § 6.1. 199 MODEL PENAL CODE § 1.13(4) (AM. L. INST. 1985). 200 E.g., 18 U.S.C. § 2258. 201 See, e.g., United States v. Abdulle, 564 F.3d 119, 127 (2d Cir. 2009) (“The actus reus element for the possession charge required the government to then prove that Mohamed in fact possessed cathinone . . . .”); United States v. Planck, 493 F.3d 501, 505 (5th Cir. 2007) (“For the possession statute in issue, however, the actus reus is the possession of child pornography; the Government need only prove the defendant possessed the contraband at a single place and time to establish a single act of possession and, therefore, a single crime.”); United States v. Rodriguez, 961 F.2d 1089, 1092 (3d Cir. 1992) (“[T]he actus reus for this offense is possession . . . .”). 202 LAFAVE, supra note 5, at § 6.1(e). 203 See, e.g., 18 U.S.C. § 487 (criminalizing possession of counterfeit dies for coins); 18 U.S.C. § 931 (prohibiting possession of body armor by violent felons); 21 U.S.C. § 844 (covering possession of controlled substances). 204 See, e.g., Baender v. Barnett, 255 U.S. 224, 225 (1921) (rejecting challenge to statute criminalizing possession of counterfeit dies); accord LAFAVE, supra note 5, at § 6.1(e) (“[C]rimes based upon possession are generally upheld.”). Congressional Research Service 22 Components of Federal Criminal Law Status Offenses Status offenses comprise one category that may pose a particular issue with respect to the act requirement. As one legal scholar has explained, status offenses are crimes such as vagrancy, which are “often defined in such a way as to punish status (e.g., being a vagrant) rather than to punish specific action or omission to act.”205 On a number of occasions, examples of which follow, the Supreme Court has invalidated laws establishing status offenses. In its 1957 opinion in Lambert v. California,206 the Court reversed a conviction under an ordinance that made it “unlawful for ‘any convicted person’ to be or remain in Los Angeles for a period of more than five days without registering” and required “any person having a place of abode outside the city to register if he comes into the city on five occasions or more during a 30day period.”207 The Court explained that the law criminalized “conduct that is wholly passive— mere failure to register,” which it viewed as “unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed.”208 As a result, the Court held that the ordinance violated the defendant’s due process right to notice.209 Following Lambert, however, a number of mandatory registration laws have survived constitutional challenges.210 For instance, in examining an indictment for a violation of the federal Sex Offender Registration and Notification Act (SORNA), the Ninth Circuit agreed with the government that “Lambert is inapplicable because convicted sex offenders are generally subject to registration requirements in all fifty states, and [the defendant] was aware that he was obligated to register as a sex offender.”211 In a 1962 opinion in Robinson v. California,212 the Court reversed a conviction under a state law that criminalized addiction to narcotics without requiring any additional act by the defendant. According to the Court, the statute was distinguishable from “one which punishes a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration,” since it instead made “the ‘status’ of narcotic addiction a criminal offense, for which the offender may be prosecuted ‘at any time before he reforms.’”213 The Court held that the law, “which imprisons a person . . . afflicted [by narcotics addiction] as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment” in violation of the Eighth Amendment, as incorporated against the states through the Fourteenth Amendment.214 Status offenses can often be “reformulated and redrafted to conform to basic principles of criminal justice.”215 For instance, if a “statute that penalizes being an alcoholic or drug addict is impermissible,” a “statute that penalizes appearing in public in an intoxicated state” may be 205 LAFAVE, supra note 5, at § 6.1(d). 206 355 U.S. 225 (1957). 207 Id. at 226. 208 Id. at 228. 209 Id. at 228–30. 210 See CRS Report R42692, SORNA: A Legal Analysis of 18 U.S.C. § 2250 (Failure to Register as a Sex Offender), by Charles Doyle, at 24 (2021) (surveying cases). 211 United States v. Elkins, 683 F.3d 1039, 1049 (9th Cir. 2012). 212 370 U.S. 660 (1962). 213 Id. at 666. 214 Id. at 667–68. For a discussion of incorporation under the Fourteenth Amendment see generally Cong. Rsch. Serv., Amdt14.S1.4.3 Modern Doctrine on Selective Incorporation of Bill of Rights, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/amdt14-S1-4-3/ALDE_00013746/ (last visited Sept. 9, 2024). 215 LAFAVE, supra note 5, at § 6.1(d). Congressional Research Service 23 Components of Federal Criminal Law permissible.216 The Supreme Court’s 1968 opinion in Powell v. Texas217 illustrates this distinction. Powell stemmed from the conviction of a defendant under a state law making it a crime to “get drunk or be found in a state of intoxication in any public place, or at any private house except [a person’s] own.”218 The defendant argued that he had a compulsion to drink and that the law amounted to cruel and unusual punishment pursuant to Robinson.219 A four-Justice plurality of the Court disagreed and explained that the defendant was convicted “not for being a chronic alcoholic, but for being in public while drunk on a particular occasion.”220 In other words, the plurality concluded that the law did not seek “to punish a mere status” as the law at issue in Robinson did, but instead punished a voluntary act, being in public while intoxicated.221 In a concurring opinion, Justice White said that the result would have been different if the public intoxication were an unavoidable result of chronic alcoholism.222 For example, according to Justice White, the Eighth Amendment would prohibit criminalizing public intoxication for chronic alcoholics who are homeless because “they have no place else to go and no place else to be when they are drinking.”223 Four dissenting Justices would have agreed with that conclusion.224 The primary point of departure between Justice White and the dissenting Justices was over the record in Powell—Justice White agreed with the ultimate result in Powell because “nothing in the record indicates that [the defendant] could not have done his drinking in private or that he was so inebriated at the time that he had lost control of his movements and wandered into the public street.”225 The dissenting Justices concluded, however, that the “appellant is a ‘chronic alcoholic’ who, according to the trier of fact, cannot resist the ‘constant excessive consumption of alcohol’ and does not appear in public by his own volition but under a compulsion’ which is part of his condition.”226Another example of the distinction between an impermissible status offense and a seemingly permissible conduct-based offense may be found in 8 U.S.C. § 1326, which in relevant part provides that “any alien who (1) has been arrested and deported or excluded and deported, and thereafter (2) enters, attempts to enter, or is at any time found in, the United States . . . [without the consent of the Attorney General] shall be fined . . . or imprisoned . . . or both.”227 Some federal appellate courts have rejected the argument that “the ‘found in’ provision of § 1326 impermissibly punishes aliens for their ‘status’ of being found in the United States.”228 In United States v. Ayala, the Ninth Circuit distinguished § 1326 from the law at issue in Robinson, explaining that “[a] conviction under § 1326 for being ‘found in’ the United States necessarily 216 Id.; see also Powell v. State of Tex., 392 U.S. 514, 517 (1968) (plurality opinion). 217 Powell, 392 U.S. at 517. 218 Id. (quoting Vernon's Ann. Texas Penal Code, Art. 477 (1952)). 219 Id. at 532. 220 Id. 221 Id. 222 Id. at 551–52 (1968) (White, J., concurring). 223 Id. 224 Id. at 570 (Fortas, J., dissenting). 225 Id. at 553 (1968) (White, J., concurring). 226 Id. at 570 (Fortas, J., dissenting). 227 United States v. Ayala, 35 F.3d 423, 424 (9th Cir. 1994) (quoting 8 U.S.C. § 1326). For more information on § 1326, see generally CRS In Focus IF11410, Immigration-Related Criminal Offenses, by Kelsey Y. Santamaria (2023). 228 Ayala, 35 F.3d at 425–26; accord United States v. Tovias-Marroquin, 218 F.3d 455, 457 (5th Cir. 2000). Congressional Research Service 24 Components of Federal Criminal Law requires that a defendant commit an act: he must re-enter the United States without permission within five years after being deported.”229 Federal appellate courts had split on the issue of whether the Robinson and Powell distinction between impermissible status offenses and permissible conduct-based offenses allowed “criminalizing conduct that is an unavoidable consequence of one’s status.”230 In the 2024 opinion City of Grants Pass v. Johnson, the Supreme Court examined this issue in the context of a municipal ordinance criminalizing sleeping or camping in public.231 In a divided opinion, the Ninth Circuit concluded that the ordinance constituted cruel and unusual punishment, citing to Powell’s concurrence and dissent for the proposition that “a person cannot be prosecuted for involuntary conduct if it is an unavoidable consequence of one’s status.”232 The Ninth Circuit observed that this would be the inevitable outcome for some of the involuntary homeless population in Grants Pass, which exceeded the available shelter space in the jurisdiction.233 The Supreme Court disagreed, concluding that the camping ordinance was not a status offense of the type barred in Robinson (which lacked a mental state or act requirement), because the ordinance in Grants Pass required “actions like ‘occupy[ing] a campsite’ on public property ‘for the purpose of maintaining a temporary place to live.’”234 The Court likened the facts of Grants Pass to those of Powell and relied on the Powell plurality’s distinction between laws criminalizing status and those criminalizing acts, even if on some level those acts may be an involuntary result of the underlying status.235 Although the Court did not reconsider Robinson, it reiterated that the Cruel and Unusual Punishments Clause of the Eighth Amendment focuses on the method or kind of punishment a government may impose, rather than on the question of what a government may criminalize.236 Additional analysis of Grants Pass and its broader implications for status offenses and homelessness laws may be found in other CRS products.237 Inchoate Offenses The prohibited conduct in a federal criminal statute need not be completed conduct (e.g., causing bodily injury to another)238 but can also include attempt (e.g., intending to cause bodily injury to 229 Ayala, 35 F.3d at 426; accord Tovias-Marroquin, 218 F.3d at 457; see also United States v. Ayon-Brito, 981 F.3d 265, 270 (4th Cir. 2020) (“In short, the conduct element of a § 1326 violation is ‘entry’ (or ‘attempted entry’), not ‘found.’”). 230 CRS Legal Sidebar LSB11203, The Eighth Amendment and Homelessness: Supreme Court Upholds Camping Ordinances in City of Grants Pass v. Johnson, by Whitney K. Novak and Dave S. Sidhu, at 1 (2024). 231 City of Grants Pass, Oregon v. Johnson, 144 S. Ct. 2202, 2213 (2024). 232 Johnson v. City of Grants Pass, 72 F.4th 868, 893 (9th Cir. 2023), cert. granted sub nom. City of Grants Pass, Oregon v. Johnson, 144 S. Ct. 679 (2024), and rev'd and remanded sub nom. City of Grants Pass, Oregon v. Johnson, 144 S. Ct. 2202 (2024). 233 Id. at 894. 234 Grants Pass, 144 S. Ct. at 2216–18. 235 Id. at 2220 (“This case is no different from Powell. Just as there, the plaintiffs here seek to expand Robinson’s ‘small intrusion ‘into the substantive criminal law.’ Just as there, the plaintiffs here seek to extend its rule beyond laws addressing ‘mere status’ to laws addressing actions that, even if undertaken with the requisite mens rea, might ‘in some sense’ qualify as ‘involuntary.’ And just as Powell could find nothing in the Eighth Amendment permitting that course, neither can we.”). 236 Id. at 2215. 237 See generally Novak and Sidhu, supra note 230. 238 E.g., 18 U.S.C. § 249(a)(1). Congressional Research Service 25 Components of Federal Criminal Law another and taking a substantial step to do so),239 conspiracy (e.g., agreement between two or more persons to cause bodily injury to another),240 and solicitation (e.g., inducing someone else to cause bodily injury to another).241 Attempt, conspiracy, and solicitation are sometimes described as inchoate offenses, a term that refers to “[a] step toward the commission of another crime, the step in itself being serious enough to merit punishment.”242 The act requirement generally does not pose an issue for inchoate offenses, because the step itself involves an act.243 For example, attempt requires proof of an “overt act qualifying as a substantial step toward completion of his goal.”244 Similarly, conspiracy generally requires proof of “an agreement between two or more persons to pursue an unlawful objective.”245 The formation of such an agreement will “require more than just a thought—some manner of concurrence with the proposal is needed,”246 which could entail acts such as conversing247 with or sending letters to and from co-conspirators.248 Some federal conspiracy statutes additionally require proof of an overt act.249 Solicitation will generally necessitate communication that involves an act such as typing messages250 or speaking.251 In other words, although the ultimate goal of attempt, conspiracy, or solicitation may not necessarily result, each still “requires some activity beyond the mere entertainment of the intent.”252 Thoughts and Speech The conduct prohibited by a criminal law must be more than mere internal thoughts, which in and of themselves cannot be criminalized.253 In part, this is because thoughts are not an act that would 239 E.g., id. For an overview of federal attempt law, see generally CRS Report R42001, Attempt: An Overview of Federal Criminal Law, by Charles Doyle ( [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR48177. Public record. Not legal advice.