This post will conclude my time as a guest blogger here. Thank you so much to Frank Pasquale and all the others for allowing me to write in such fine company!
In Part 1 and Part 2, I discussed the early constitutional history and the Supreme Court’s jurisprudence on the topic of federal criminal law. In this post, I would like to explore the issue from the angle of IP and introduce the possibility that there may be constitutional concerns including due process problems with our current criminal sanctions for IP infringement.
In 2006, Prof. Margaret Lemos published a provocative paper in the Texas Law Review entitled “The Commerce Power and Criminal Punishment: Presumption of Constitutionality or Presumption of Innocence?”. In it she argued that Congress is able to circumvent the due process obligation that every fact that exposes an individual to criminal punishment be proved to a jury beyond a reasonable doubt. She wrote that recent Commerce Clause jurisprudence (which by 2006 meant everything including the Raich case, though the trend continued in Comstock and Kebodeaux) allows Congress to find the facts itself as a general matter rather than requiring each to be proven to a jury case-by-case. The Supreme Court has largely assumed that the connection between an individual’s conduct and interstate commerce can be decided the same way in civil as in criminal cases, and so the criminal Commerce Clause cases use the civil Commerce Clause cases as precedent with little distinction.
Margaret cited Raich as one of the paradigmatic examples of this because there was no evidence that the defendants in the case were using marijuana that entered interstate commerce, and much less was this established beyond a reasonable doubt. She also pointed out that when Congress incorporates an explicit statutory presumption of a certain fact, the courts will test whether this conforms to the presumption of innocence, but categorical prohibitions based on legislative findings are treated to the presumption of constitutionality, which is rather puzzling. Read More