Legality in the Second Circuit

Abstract

In his highly regarded treatise, The Limits of the Criminal Sanction, the late Professor Herbert Packer reminded us that "[t]he :first principle [of criminal law] is that conduct may not be treated as criminal unless it has been so defined by an authority having the institutional competence to do so before it has taken place." This is the principle of legality. According to Professor Packer, there is "all-but-universal compliance with it ... in this country." Apart from prohibitions against retroactivity, the two doctrines by which "the courts keep the principle of legality in good repair"are the void-for-vagueness doctrine and the doctrine requiring strict construction of penal statutes. Each is a contiguous segment of the same spectrum.