1 See generally Mistretta v. United States, 488 U.S. 361 (1989).

2 Consult Vorenberg, J., “Decent Restraint of Prosecutorial Power”, (1981) 94 Harv. L.R. 1521CrossRefGoogle Scholar; Abrams, , “Internal Policy: Guiding the Exercise of Prosecutorial Discretion”, (1971) 19 UCLA L.R. 1Google Scholar.

3 We focus here on felony proceedings. Some 20 years ago, in a monograph, I examined the use of non-traditional proceedings, e.g. specialized courts or administrative proceedings, to deal with minor offenses. Abrams, , Administrative Process Alternatives to the Criminal Process (Law and Pub. Affairs Pub. Center for Admin. J., 1979)Google Scholar. The constitutional considerations, of course, may be quite different in cases involving the prosecution of serious crimes with heavy penalties. The instant paper may be viewed as a companion piece to that earlier treatment.

4 18 U.S.C.A. sec. 2332 (1991).

5 This administrative adjudication model seems to involve an administrative decision at the outset, not at the center of the criminal process. However, since the factor ruled upon in that procedure might as easily have been an element of the offense, this arrangement may be viewed as simply a technique for removing an element of the offense from judicial decision-making at the center of the process to administrative consideration at its outset. See discussion in text at pp. 4-6.

6 Kahan, D., “Is Chevron Relevant to Federal Criminal Law?”, (1996) 110 Harv. L.R. 469CrossRefGoogle Scholar. Two related articles are Kahan, D., “Three Conceptions of Federal Criminal Lawmaking”, (1997) 1 Buffalo Crim. L.R. 5CrossRefGoogle Scholar; and Kahan, D., “Lenity and Federal Common Law Crimes”, (1994) Supreme Court R. 345CrossRefGoogle Scholar.

7 Pub. L. No. 99-399, 100 Stat. 853 (1986).

8 The section was originally numbered 2331 and later renumbered. We use the 2332 designation throughout this paper.

9 H.R. Conf. Rep. No. 99-783, at 88 (1986), reprinted in 1986 U.S.C.C.A.N. 1926.

10 Ibid., at 87-88.

11 There are a few other provisions in the Federal Criminal Code that require approval of a high Justice Department official before a prosecution can be initiated, for example, 18 U.S.C. sec. 1073, but these are distinguishable since none of them require any fact determination or fact finding by the administrative official.

12 It has also been suggested that the provision is designed to establish jurisdiction. Consult Lowenfeld, A., “U.S. Enforcement Abroad: The Constitution and International Law”, (1989) 83 Am. J. Int'l L. 880, at 891CrossRefGoogle Scholar: “I must say, without any claim to expertise in criminal law, that making jurisdiction to prosecute depend upon the determination of the prosecutor strikes me as improper — and I think unconstitutional. This is not prosecutorial discretion in the manner we have become accustomed to …” Also consult Smith, B.T., “Assertion of Adjudicatory Jurisdiction by United States Courts Over International Terrorism Cases”, (1991, Oct.) Army Law 13Google Scholar; “Note: Extraterritorial Jurisdiction over Acts of Terrorism Committed Abroad: Omnibus Diplomatic Security and Antiterrorism Act of 1986”, (1987) 72 Cornell L.R. 599Google Scholar; Chabner, B., “Comment: The Omnibus Diplomatic Security and Antiterrorism Act of 1986: Prescribing and Enforcing United States Law against Terrorist Violence Overseas”, (1990) 37 UCLA L.R. 985Google Scholar. It might also be suggested that the approval requirement is designed to ensure that an official at the highest level with political sensitivity is involved in the determination to prosecute. That kind of goal could have been accomplished without requiring a fact determination by the Attorney General. See e.g., supra n. 11. In any event, even if that were the goal, assigning a fact determination role of this nature to the approving authority opens the door to all of the issues to be discussed in the text.

13 See Patterson v. New York, 432 U.S. 197 (1977).

14 See United States v. Moore, 571 F. 2d 76 (2d Cir.1978).

15 See Kungys v. United States, 485 U.S. 759 (1988).

16 See North v. Russell, 427 U.S. 328 (1976).

17 See Perez v. United States, 402 U.S. 146 (1971).

18 427 U.S. 328 (1976).

19 397 U.S. 358 (1970).

20 421 U.S. 684 (1975).

21 432 U.S. 197 (1977).

22 Jeffries, John C. and Stephan, Paul B., “Defenses, Presumptions, and Burden of Proof in the Criminal Law”, (1979) 88 Yale L.J. 1325CrossRefGoogle Scholar.

23 Ibid., at 1345.

24 See supra n. 12, where it is suggested that the factor to be considered by the Attorney General relates to jurisdiction. Would this mean that in the absence of a terrorist purpose, the crime described in 2332 would not constitutionally be subject to prosecution under U.S. law?

25 Underwood, Barbara D., “The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases”, (1977) 86 Yale L.J. 1299CrossRefGoogle Scholar.

26 Ibid., at 1343.

27 We will assume that a killing done for a terrorist purpose is a more heinous crime than one done, for example, in the course of a barroom brawl. Some might argue that a killing done for a political purpose is less heinous than those committed for some other reasons. No matter. Although on that view, the mens rea element tends to be mitigating rather than aggravating, it still would be relevant to culpability.

28 The most common element of a crime that may not bear on the culpability of the offense is one that involves proof of a jurisdictional basis for the prosecution. In the United States, many federal criminal statutes contain such an element, and it is not surprising to find in connection with such elements departures from the usual approach. For example, the federal criminal statute dealing with kidnapping establishes a statutory presumption with respect to proof of the jurisdictional element. See United States v. Moore, 571 F.2d76 (2d Cir. 1978). But as has been pointed out, in many contexts a jurisdictional element will also involve facts that bear on culpability. Although the terrorist purpose in 2332 helps to solidify the jurisdiction of the United States to prosecute the perpetrator under principles of International Law, as noted above, the presence or absence of the mens rea element also affects one's perception of the culpability of the offense.

29 119 S. Ct. 1707 (1999).

30 Ibid., at 1710.

31 See also Schad v. Arizona, 501 U.S. 624 (1991): “[H]istory and current practice are significant indicators of what we as a people regard as fundamentally fair and rational ways of defining criminal offenses …”.

32 See generally Amsterdam, Anthony G., “Note: The Void for Vagueness Doctrine in the Supreme Court”, (1960) 109 U. Pa. L. R. 67Google Scholar; Jeffries, John C., “Legality, Vagueness, and the Construction of Penal Statutes”, (1985) 71 Va. L.R. 189CrossRefGoogle Scholar; Batey, R., “Vagueness and the Construction of Criminal Statutes — Balancing Acts”, (1997) 5 Va. J. Soc. Policy & L. 1Google Scholar.

33 Consult generally Kahan, D., “Lenity and Federal Common Law Crimes”, (1994) Supreme Court Review 345Google Scholar.

34 467 U.S. 837 (1984).

35 Ibid., at 844.

36 Consult generally Abrams, supra n. 2.

37 See, e.g., Brogan v. United States, 118 U.S. 805 (1998).

38 28 U.S.C. sec. 991 (1994).

39 488 U.S. 361 (1989),

40 Ibid., at 372 (quoting in part J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406 (1928)).

41 See, e.g., Wright, R.F., “The United States Sentencing Commission as an Administrative Agency”, (Nov. Dec. 1991) 4 Federal Sentencing Rptr. 134CrossRefGoogle Scholar; Wright, , “Sentencers, Bureaucrats, and the Administrative Law Perspective on the Federal Sentencing Commission”, (1991) 79 Cal. L.R. 1CrossRefGoogle Scholar.

42 21 U.S.C. sec. 811 (1994).

43 Ibid., at (c )(1)-(c )(2).

44 Ibid., at (a)(1).

45 Ibid., at (b).

46 United States v. Davis, 564 F. 2d 840 (9th Cir. 1977); United States v. Pastor, 557 F. 2d 930 (2d Cir. 1977).

47 There are other regulatory areas that have become major areas of criminal enforcement where there is rule-making authority in the enforcement agency and where the same type of observations can be made — for example, the Internal Revenue Service rule-making authority and criminal tax enforcement.

48 Consult generally Hamilton, M.A., “Representation and Nondelegation: Back to Basics”, (1999) 20 Cardozo L.R. 807Google Scholar.

49 321 U.S. 414 (1944).

50 Ibid., at 444.

51 Ibid., at 480.

52 481 U.S. 828 (1987)

53 Ibid., at 839, supra n. 15: “… the result of an administrative proceeding may not be used as a conclusive element of a criminal offense where the judicial review that legitimated such a practice in the first instance has effectively been denied”. For another interpretation of Yakus, see Justice Powell concurring in Adamo Wrecking Co. v. United States, 434 U.S. 275, 289-290 (1978): “If the constitutional validity of sec. 307(b) of the Clean Air Act had been raised by the petitioner, I think it would have merited serious consideration … The Act … is similar to the preclusion provisions of the Emergency Price Control Act before the Court in Yakus, and petitioner may have thought the decision in that case effectively foreclosed a due process challenge in the present case. Although I express no considered judgment, I think Yakus is at least arguably distinguishable. The statute there came before the Court during World War II, and it can be viewed as a valid exercise of the war powers of Congress …”.

54 Yakus, of course, dealt with a challenge to the validity of the regulation which could encompass any of several different types of issues including, for example, whether the regulation was authorized under a proper interpretation of the governing statute. Under the model, we are assuming the agency's interpretation of the governing statute involves a question of law. Under the model, were the agency's interpretation treated as binding on the court, it would seem to be the virtual equivalent of the Yakus issue.

55 D. Kahan appears to contemplate that the interpretations of law of the administrative agency would be set forth in the form of rules. Kahan, supra n. 6, at n. 241

56 458 U.S. 50 (1982).

57 Ibid., at 70, n. 24.

58 447 U.S. 667 (1980).

59 Ibid., at 681 (1980).

60 See also Commodity Futures Trading Commission v. Schor, 478 U.S. 833 (1986).

61 We believe that this image continues to be the dominant view of the process even though the great majority of prosecutions are completed by a guilty plea (before a judge) and without a trial. Of course, if the image persists despite the reality of a small number of trials, it might be suggested that it could also survive the intrusion of administrative agencies. The trials that do take place, however, help to perpetuate the image. If these were to involve administrative process as well as judicial process, the purity of the judicial image could begin to be compromised.

62 We should mention at this point that the application of the Chevron doctrine in the criminal arena has been one part of scholarly debate about that doctrine. However, most of the scholars who have discussed the criminal enforcement applications of the doctrine have focused on the above-mentioned systems of administrative regulation that use criminal enforcement as a remedy. Consult Greenberg, S.N., “Who Says It's a Crime? Chevron Deference to Agency Interpretations of Regulatory Statutes That Create Criminal Liability”, (1996) 58 U. Pitts. L.R. 1Google Scholar. Professor D. Kahan is the exception insofar as he has argued for the extension of the Chevron approach and the use of administrative agency interpretations of statutes in the basic felony criminal process.

63 We recognize, of course that the public reaction to the trial of a renowned person that is broadcast on television may condition attitudes toward the criminal process more directly than the addition of an administrative agency to judicial process.

64 See Neuborne, , “The Myth of Parity”, (1977) 90 Harv. L.R. 1105CrossRefGoogle Scholar discussing, for other purposes, the qualities of federal judges and suggesting that federal judgeships are more prestigious than similar state positions.

65 Of course, other factors may also be at work. The current prevalence of criminal drug trials on the calendars of federal courts may also make the federal bench less attractive than it once was.

66 Professor D. Kahan, in a footnote does recognize the possibility of creating a new agency to exercise the projected interpretative authority. Kahan, supra n. 6, at n. 189. The creation of a new agency would, of course, involve other kinds of costs.