180
Kennedy, J., dissenting
danger is more theoretical than practical. The structure of the criminal law, like the basic categories of human vice, has remained quite stable over the centuries. There have been a few genuine innovations recently; I have in mind, for example, antitrust or securities crimes which did not exist in 1825. But Congress has been the principal innovator in most of those areas, and I doubt that courts will confront many new "offence" candidates that are not already covered by the federal criminal law. Regardless, the approach outlined above would produce more predictable results than the majority's balancing test, and has the additional virtue of being more firmly grounded in the text and statutory history.
It also produces a clear answer in this case. Ms. Lewis's conduct is not just punishable under some federal criminal statute; it is punishable as murder under 18 U. S. C. § 1111. Louisiana's murder statutes are structured somewhat differently from their federal counterparts, but they are still unquestionably murder statutes. Because that "offence" is certainly "made punishable by any enactment of Congress," there is no gap for the ACA to fill. That remains true even if the common-law category at the appropriate level of generality is instead murder in the first degree. That "offence" is also defined and punished by the federal criminal law, although the prosecutors in this case apparently did not believe that they could establish its elements. Accordingly, I concur in the judgment, and in Part IV of the majority's opinion.
Justice Kennedy, dissenting.
As the majority recognizes, the touchstone for interpreting the Assimilative Crimes Act (ACA) is the intent of Congress. Ante, at 166. One of Congress' purposes in enacting the ACA was to fill gaps in federal criminal law. Ante, at 160. The majority fails to weigh, however, a second, countervailing policy behind the ACA: the value of federalism. The intent of Congress was to preserve state law
Page: Index Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 NextLast modified: October 4, 2007