Full opinion text
MERRITT, C.J., delivered the opinion of the Court for nine judges, in which KENNEDY, MARTIN, BOGGS, NORRIS, SUHRHEINRICH, and SILER, JJ., concurred in full and in which RYAN and BATCHELDER, JJ., concurred in Parts I and III. WELLFORD (pp. 1394-1397), and NELSON (pp. 1397-1399), JJ., delivered separate opinions concurring in part and dissenting in part, with Judge WELLFORD also concurring in Judge NELSON’s opinion. KEITH (pp. 1399-1400), JONES (pp. 1400-1403), and DAUGHTREY (pp. 1403-1414), JJ., delivered separate dissenting opinions, with Judges KEITH and MOORE concurring in Judge DAUGHTREY’s dissenting opinion. MERRITT, Chief Judge. I. The Question Presented This is a direct criminal appeal by a convicted Tennessee state judge. He raises a question of interpretation about 18 U.S.C. § 242, perhaps the most abstractly worded statute among the more than 700 crimes in the federal criminal code. Section 242 was adopted as a codification of prior law in 1874 during the period of Reconstruction in the aftermath of the Civil War. It criminalizes without any further definition the willful “deprivation of any rights ... protected by the Constitution” committed by any person under “color of any law.” That is the broad language we must interpret. The specific question before us is whether the sexual harassment and assault of state judicial employees and litigants by the judge violates this federal criminal statute. The statute, as applied in this case, does not specifically mention or contemplate sex crimes, and including sexual misconduct within its coverage stretches its meaning beyond its original purpose. Thus, the fundamental question before us is whether the statute — tied by its language simply to “constitutional rights”— should receive a fixed definition of criminal liability or should be interpreted as evolving or expanding over time to include the abridgement of new constitutional rights as they are recognized in our civil constitutional law. The courts have developed theories or ingredients of constitutional violations primarily in the civil context, and there is no developed law of constitutional crimes. Section 242 by its terms criminalizes violations of “constitutional rights” only in the abstract, not conduct which is described specifically by federal or state statute. The problem here is to articulate as nearly as possible a theory of constitutional crimes consistent both with constitutional rights declared in civil cases and also consistent with established canons of statutory construction of federal criminal laws. In Screws v. United States, the Supreme Court upheld the constitutionality of § 242 by one vote, with the majority unable to agree on a single rationale. 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). In a five-four decision, the Court narrowly rejected arguments, accepted by the dissenters, that the statute is too indefinite and vague to meet due process standards. These standards require federal criminal statutes to be written with sufficient definiteness to give notice of the criminal conduct for which a person may be punished in federal court. In a long line of cases before and after the Screws case, the Supreme Court has sought to apply a fundamental principle limiting the judicial power to extend criminal statutes by interpretation, a long-standing principle articulated in 1820 by Chief Justice John Marshall for a unanimous Court: The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself ... It is the legislature, not the court, which is to define a crime, and ordain its punishment_ It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated. United States v. Wiltberger, 18 U.S. 76, 93-94, 5 Wheat. 35, 43-44, 5 L.Ed. 37 (1820). This case stands for a number of fundamental propositions that form the basis of our criminal law, in addition to the principle of strict construction. No matter how outrageous a defendant’s actions may be, he has to be charged with the appropriate offense created by federal law. Courts may not create or extend criminal law by using a common-law process of interpretation. If Congress has not been clear about the type of conduct that it wishes to criminalize, courts should not hold a defendant criminally liable by creating a new federal crime. More recently, Justice Thurgood Marshall observed that reasons of federalism, as well as the necessity of public notice and fair warning, underlie this principle of interpretation: [Ujnless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance. Congress has traditionally been reluctant to define as a federal crime conduct readily denounced as criminal by the States. United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971). In this case, the defendant, a state Chancery Court judge from a rural county in West Tennessee, was indicted in eleven counts, three of which were felony counts. The three felony counts charged him with instances of willfully “coercing” a woman “to engage in sexual acts” with him which caused bodily injury (counts 6, 7 and 10). Eight of the counts were misdemeanor counts charging him with various types of “willful sexual assault” by “touching,” “grabbing the breasts and buttocks of’ or “exposing his genitals to” a woman. The three felony counts charging coercive sexual acts involved two women, and the other eight misdemeanor counts involved six other women. In each count, the constitutional deprivation is described in abstract terms as “the right not to be deprived of liberty without due process of law” under the Fourteenth Amendment. The government alleges that in each instance the defendant acted “under color of law” by using his official position as a Chancellor to engage in the “willful sexual assault.” The District Court overruled the defendant’s motion to dismiss the indictment for failure to state a crime under § 242. Seeking to naiTow the potential reach of the statute in sex crime cases, it charged the jury that “it is not ... every unjustified touching or grabbing” that constitutes a constitutional violation, only “physical abuse ... of a serious and substantial nature ... which is shocking to one’s conscious [sic]” (emphasis added). The jury convicted the defendant of two of the three felony counts and five of the eight misdemeanor counts, for which the District Court sentenced him to a total of twenty-five years imprisonment. He has appealed on numerous grounds, including the failure of the District Court to dismiss the indictment for failure to state a federal crime under § 242. After consideration of the legislative history of this statute, the case law, the long established tradition of judicial restraint in the extension of criminal statutes, and the lack of any notice to the public that this ambiguous criminal statute includes simple or sexual assault crimes within its coverage, we conclude that the sexual harassment and assault indictment brought under § 242 should have been dismissed by the District Court upon motion of the defendant. Thus the conviction and sentence of the defendant is reversed and the indictment dismissed. In asserting that sexual assault is a constitutional crime, the prosecution proposes that this substantive due process, sexual assault offense be defined as “interference with bodily integrity that shocks the conscience of the court and the jury.” The prosecution relies exclusively on this theory. It has neither articulated nor proposed the recognition of a gender-based crime for sexual assault involving discrimination against or oppression of women in violation of the Equal Protection Clause. Nor did the prosecution allege in the indictment, or attempt to prove as an element of the offense, that the state criminal process in Tennessee was incapable of enforcing its own criminal statutes prohibiting sexual assault, nor did the prosecution allege as an element of the § 242 offense that state law enforcement officials have laws, customs, policies or practices that discriminate against or oppress women as a class. There is no claim that state law enforcement officials and state prosecutors, judges or jurors are any less concerned about such crimes than their federal counterparts. Therefore, our opinion addresses only the substantive due process, “shock-the-conscience” crime alleged by the prosecution, not a crime based on equal protection, state-sanctioned abuse, or some other legal theory. II. The Legislative History of § 242 Section 242 is an unusual statute, perhaps unique in our legislative history. Scholars and judges frequently question how much emphasis or reliance one should attempt to put on “legislative intent” derived from studying legislative history. Although it is problematic to presume that any deliberative assembly comprised of many legislators will have one cohesive, coherent and decisive “intent” when it passes such an ambiguous statute, or that judges will be able to discern it, see Max Radin, Statutory Interpretation, 43 Haev.L.Rev. 863, 872 (1930), we continue to find it useful to examine the legislative history to confirm or exclude certain interpretations of a statute like the one now before us. Section 242 was adopted in 1874 as a part of a codification of federal statutes. It attempted to merge three previous sections that had been adopted as part of the 1866 and 1870 Civil Rights Acts and the 1871 Ku Klux Act. In 1909, the Congress added the word “willfully” to the statute. Those legislative acts created the basic language of the statute. It turns out that the broad language of the 1874 statute, and hence the present language of § 242, arose as a result of a misunderstanding or a confusion in codifying the 1866, 1870 and 1871 Acts. In 1870, Congress commissioned a one-volume compilation of all federal statutes because the sixteen disparate volumes then in existence were too cumbersome. It hired a codifier, Mr. Durant, to redraft and codify the laws of the United States. He decided to fuse the three statutes from 1866, 1870, and 1871 into one new statute that became § 242. Although in codifying the law he was charged with making no substantive changes, in fact, the one new statute that is now § 242 dramatically expanded criminal liability for civil rights violations if given a literal interpretation and created a new crime that had not previously existed. Congress adopted the new compilation of laws apparently without realizing that any substantive change had been made or that a new, undelineated set of evolving constitutional crimes might be implied from the statute in the future. On the floor of the House of Representatives, Congressman Lawrence read the three existing sections from the three earlier Acts into the record to illustrate that the new statute Durant proposed, which was to become § 242, changed nothing. But none of the three previous statutes criminalized deprivations of all constitutional rights made under color of law. The 1866 statute — which at the time of enactment was arguably unconstitutional because passed prior to the adoption of the Fourteenth Amendment— criminalized interference under color of law with certain enumerated rights, most notably, contract and property rights and equal protection of the laws. By 1870, the Fourteenth Amendment had been adopted, and Congress in the 1870 Civil Rights Act passed another statute under the authority of the new Amendment that performed the same basic function as the 1866 Act. Finally, Congressman Lawrence mistakenly cited — based on the fact that Durant had mistakenly included — a portion of the 1871 Ku Klux Act as the third predecessor criminal statute incorporated in the new condensed criminal statute. That statute provided only for a civil remedy for violations under color of law of any constitutional rights. It was the civil predecessor of § 1983. Durant in his codification continued civil liability for the violation of all constitutional rights — a rendition true to the 1871 Act — but he then created what is essentially a parallel criminal statute that covered violations of all constitutional and federal statutory rights under color of law. Previously, one could only be held criminally liable if one acted under color of law and violated contract, property or equal protection rights. But the new statute codified by Durant criminalized violations of all constitutional rights and all rights protected under federal statutory laws. In effect, the recodifieation grafted the much broader scope for civil liability onto the criminal statute. Congressman Lawrence explained that the compilation in the “civil rights” area might have resulted in some minor “misconstruction” and errors “bordering on [new] legislation,” but that the process was still “valuable in securing uniformity.” Congressman Lawrence’s remarks provide only the most oblique reference to the large expansion in the criminal law that the codification had in fact created: In the revision of seventeen volumes there will undoubtedly be not only erroneous punctuation but some omissions of provisions of laws in force; some misconstruction of statutes carried into the new phraseology adopted; some provisions of laws put down as in force which may have been repealed, and some other errors occur which will escape all the care, vigilance, and scrutiny that have been or can be given to the revision.... The plan adopted is to collate in one title of “civil rights” the statutes which declare them, which point out the remedies to be pursued, in the manner required in judiciary and procedure statutes; and to insert under the title of “crimes” and under the subdivision chapter of “crimes against the elective franchise and civil rights” the penal provisions of the civil rights acts. A reference to this will indicate the manner in which the purposes of the several civil-rights statutes have been translated into the compiler, and possibly may show verbal modifications bordering on legislation. [The Congressman then read from the Civil Rights Act of 1866 and 1870, the Fourteenth Amendment, and the 1871 Ku Klux Act, and continued:] Mr. Durant, in his Revision of General Laws, ... condenses into one the three criminal sections I have cited from the acts... , While the three acts contain each a criminal section differing in words each from the other, and each section covering some crimes perhaps not covered by either of the others, the one consolidated section of Durant is made applicable to the violations of rights alike in the three acts. It requires great care to compare and examine the effect of all this, and it is 'possible that the new consolidated section may operate differently from the three original sections in a very few cases. But the change, if any, cannot be objectionable, but is valuable as securing uniformity. 2 Cong.Ree. 827-28 (1874) (emphasis added). Contrary to the reference by Congressman Lawrence to possible “errors,” “misconstruction” and minor changes “bordering on legislation,” the Congressional leaders in both the House and the Senate flatly stated that the Durant codification would result in no changes to the laws. In the House, Congressman Poland, the manager of the bill, stated, “we purpose to present the law, when we have gone over it, as a reflex of existing statutes in force on the first day of this session [Dec. 1, 1873].” Likewise, on the Senate floor during the course of a very short discussion of the new codification, Senator Conkling attempted to assure his colleagues that the revision did not represent a change in the law, but added the caveat— which turns out to be an understatement— that he had “no expectation that this work is free from error.” 2 Cong.Ree. 4284 (1874). Accordingly, we can only conclude that, although members of Congress may have realized that in passing a large reeodification of the existing body of federal law they might unwittingly be changing something, they had no actual knowledge that they were expanding criminal liability to cover violations of rights beyond certain enumerated rights, primarily those of contract, property, and equal protection. Congress does not evidence in § 242 a deliberate intent to create an evolving criminal law which expands to include new constitutional rights as they become a part of our civil constitutional law. Certainly Congress evidences no intent to make sexual or simple assault a constitutional crime under § 242. Previously, Congress had provided liability for constitutional rights generally only by providing for civil liability. Since 1874, Congress has not addressed the scope of the rights to be covered by the abstract language of § 242. The Supreme Court has once in passing recognized that “[t]he substantial change thus effected [to § 242] was made with the customary stout assertions of the codifiers that they had merely clarified and reorganized without changing substance.” United States v. Price, 383 U.S. 787, 803, 86 S.Ct. 1152, 1161, 16 L.Ed.2d 267 (1966). This neglected and confused episode in the early history of civil rights legislation indicates that the 1874 Congress never deliberately intended to criminalize in § 242 the greatly expanded scope of modern-day constitutional rights even though the literal language of the statute — recodified from a previous civil statute by mistake — is open to that interpretation. Thus our reading of the legislative record does not support the extension of the abstract language of § 242 to cover all newly-created constitutional rights. Congress has deliberately provided only federal civil liability in such cases. III. ANALYSIS A. Case Law on Sexual Assault as a Constitutional Crime Government counsel in their briefs and at oral argument recognized that in order to sustain the indictment here they must more specifically define the theory behind the “constitutional right” that has been “deprived” under § 242. They recognize that it would not be sufficient simply to point to bad behavior by a state employee or official criminalized under state law. They also recognize that assault and battery and rape are state law crimes and that the Supreme Court has not held or implied that simple or sexual assault by state officials constitutes a constitutional tort under § 1983 or a constitutional crime under § 242. Counsel argue at an extremely high level of generality. They assert that the constitutional right at issue is one of substantive due process. Their constitutional argument is that “freedom from sexual assault” is a part of a general constitutional right against interference with “bodily integrity” in a way that “shocks the conscience.” They construct a constitutional right against sexual assault from language taken from two cases, Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), and Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Counsel, like our dissenting colleagues, do not cite a Supreme Court opinion enforcing such a right. Instead, counsel construct the right from language in Ingraham, in which the Court said that schools must afford rudimentary procedural due process to children before paddling them but that such punishment is not subject to the Eighth Amendment. 430 U.S. at 671, 97 S.Ct. at 1412. In dicta, the Court mentioned that the Due Process Clause protects a person from “unjustified intrusions on personal security.” Ingraham, 430 U.S. at 673, 97 S.Ct. at 1413. To bolster their constitutional theory, government counsel then cite several lower court decisions in civil cases decided under § 1983. These are civil cases which created a general constitutional right to be free from sexual harassment and coercion. All of these civil decisions, rather than pointing to precedent establishing the right, make assertions such as: “surely the Constitution protects a schoolchild from physical sexual abuse ... by a public schoolteacher,” Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 451 (5th Cir.1994) (en banc); or “the notion that individuals have a fundamental substantive due process right to bodily integrity is beyond debate,” Walton v. Alexander, 44 F.3d 1297, 1306 (5th Cir.1995) (Parker, J., concurring). These broad statements are not supported by precedent indicating that a general constitutional right to be free from sexual assault is part of a more abstract general right to “bodily integrity.” The prosecutors cite only one criminal case in which a lower court affirmed a § 242 conviction involving the deprivation of constitutional rights through sexual assault. In United States v. Davila, two border patrol officers conditioned entry into the United States upon receipt of sexual favors. 704 F.2d 749 (5th Cir.1983). In that case, the defendants did not challenge the extension of § 242 to sex crimes. The opinion addresses only evidentiary and other procedural issues. The Davila case does not decide or address the issue before us. In Cruzan v. Missouri Department of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990), and Planned Parenthood v. Casey, 505 U.S. 883, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), neither of which are cited by government counsel, the Court mentions “bodily integrity” as a significant value. Cruzan discussed bodily integrity in the context of an individual’s decision to terminate life support. Similarly, in Casey, the Court recognized that the right to an abortion was related to “bodily integrity.” Neither case dealt with an assault, and neither supports the Government’s contention that the state right to be free from rape and sexual assault and harassment has also been recognized by the Supreme Court generally as a component of an enforceable general constitutional right to “bodily integrity.” The fact that government counsel find it necessary to limit the general constitutional right of “freedom from sexual assault” to conduct that “shocks the conscience” illustrates the weakness of their constitutional theory. In line with this theory, the district court below instructed the jury to convict the defendant only if the sexual assaults in this case were so severe that they “shock the conscience” of the jury. Conditioning the right on whether the particular acts of a defendant “shock the conscience” leaves the definition of the crime up in the air. The “shocks the conscience” language comes from Rochin, a case holding that pumping a suspect’s stomach for drugs “shocked the conscience” and therefore violated his due process rights. 342 U.S. at 172, 72 S.Ct. at 209. But the Court intended the standard to be one of law, to be interpreted and applied by judges, not an element of a criminal offense. Id. at 170, 72 S.Ct. at 208. When a jury is asked to make a factual determination of whether a particular act “shocks the conscience,” the instruction requires them to make an essentially arbitrary judgment. “Shocks the conscience” is too indefinite to give notice of a crime. The language as applied in different cases will yield results that depend too heavily on factual particularity of an individual set of events and upon biases and opinions of individual jurors. Counsel for the defendant observes in his en banc brief that the consequences of adopting such an argument generally to extend § 242 to sex crimes leaves the statute open-ended: The Congressional intent to punish corruptions and distortions of a lawful state process by state officials will be displaced by a judicially-created rule of criminal liability, applicable to physical assaults committed by state officials which a particular jury finds “shocking.” Such a drastic expansion of this criminal statute is not only a judicial encroachment upon legislative authority, it is also an unwarranted encroachment of federal law enforcement authority into the ambit of state law enforcement. Further Supplement to Defendant’s En Bane Brief at 5, United States v. Lanier (No. 93-5608) (May 5, 1995). B. Canons of Interpretation of Criminal Statutes In Connally v. General Construction Co., the Court said that “the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties....” 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). This language from Connally follows the three general canons that govern judicial construction of criminal statutes set out 175 years ago by Chief Justice Marshall in United States v. Wiltberger, 18 U.S. 76, 93, 5 Wheat. 35, 43, 5 L.Ed. 37 (1820), quoted earlier: (1) the legislature, not the judiciary, is the primary lawmaking body in the field of federal criminal law and must give the courts something definite to construe; (2) the “rule of lenity” provides that ambiguous criminal statutes should be construed in favor of the defendant; (3) the corollary that criminal statutes are normally strictly construed by the courts. Chief Justice Marshall held that Congress has the sole responsibility to draft criminal statutes. It is the only branch of government with the authority to create new crimes. As he observed, “the power of punishment is vested in the legislature, not the judicial department. It is the legislature, not the court, which is to define a crime and ordain its punishment.” 18 U.S. at 93. This is an articulation of a basic principle of the separation of powers, as well as due process. The theory is that behavior should only be criminalized if the democratic will so ordains. Unelected judges do not have the authority to enact new criminal laws. The Supreme Court has explicitly asserted this principle on a number of occasions. In Bouie v. City of Columbia, the Court reversed a conviction sustained by the South Carolina Supreme Court. 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). The state courts had convicted protestors of a criminal trespass under a novel interpretation of a state trespass statute. The court decision had the effect of creating a new crime. In Bouie, the Supreme Court condemned the attempt to use a judicial construction to achieve an “ex post facto effect” and concluded that such an extension of a criminal statute violated Wiltberger. Id. at 362, 84 S.Ct. at 1707. See also Crandon v. United States, 494 U.S. 152, 158, 110 S.Ct. 997, 1002, 108 L.Ed.2d 132 (1990) (“legislatures, not courts, define criminal liability”). Similarly, turning assault and battery into a constitutional crime would violate the Wilt-berger-Bouie principle by judicially creating a new crime under § 242. To do so would subject the defendant to the “ex post facto effect” rejected in Bouie. In Wiltberger, Chief Justice Marshall also relied on the rule of lenity which mandates that in the case of an ambiguous criminal statute, the ambiguity should be resolved in favor of the defendant. The underlying reason for the rule is that the judiciary should not criminalize behavior that Congress may or may not have intended to prohibit by federal law, particularly when the conduct violates state law and comes within a traditional area of state police power. Of course, courts should not go to extreme lengths to characterize criminal statutes as ambiguous when they can be read as relatively well-defined. The courts should adopt a construction that gives a defendant the benefit of ambiguities, if any, but which also gives effect to the attempts of legislatures to address a particular problem. As Marshall wrote in 1820, “where there is no ambiguity in the words, there is no room for construction,” Wiltberger, 18 U.S. at 95-96. The final and most general principle enunciated in Wiltberger — that criminal statutes normally should be construed strictly— can be traced back to Hey don’s Cace, 76 Eng.Rep. 637 (1584), in which Chief Justice Coke referred to the principle to limit the reach of a broad statute. In Wiltberger, Chief Justice Marshall wrote that the rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals.... To determine that a case is within the intention of the statute, its language must authorize us to say so. 18 U.S. at 95-96. In addition, Chief Justice Marshall said in language equally applicable to the case before us: It would be dangerous, indeed, to carry the principle that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated. Id. at 96. Since Wiltberger, the Supreme Court, and the federal courts generally, have repeatedly reaffirmed this canon of construction. Commissioner v. Acker, 361 U.S. 87, 91, 80 S.Ct. 144, 147, 4 L.Ed.2d 127 (1959) (“The law is settled that ‘penal statutes are to be strictly construed.’”) (citations omitted). The Wilt-berger language is frequently quoted, see Moskal v. United States, 498 U.S. 103, 132, 111 S.Ct. 461, 477, 112 L.Ed.2d 449 (1990) (“The temptation to stretch the law to fit the evil is an ancient one, and it must be resisted.”) (Scalia, J., dissenting). A holding here that the defendant is criminally hable under federal law would succumb to the temptation that Chief Justice Marshall warned against. The law would be punishing the defendant for committing a series of repugnant acts that may be of “equal atrocity, or kindred character” with crimes punishable under the statute, but no language of the statute and no holding of the Supreme Court suggest that such behavior constitutes a federal constitutional crime. There has been no notice to the public of such a federal crime. To hold otherwise would violate the Rule of Law as it has developed in criminal eases from the time of Chief Justice Marshall. C. The Screws Case Interpreted Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), as the three dissenters (Justices Jackson, Frankfurter, and Roberts) in that case repeatedly pointed out, diverges in part from these well established canons of construction of criminal law: It was settled early in our history that prosecutions in the federal courts could not be founded on any undefined body of so-called common law. United States v. Hudson, 7 Cranch 32 [3 L.Ed. 259); United States v. Gooding, 12 Wheat. 460 [6 L.Ed. 693). Federal prosecutions must be founded on delineation by Congress of what is made criminal. To base federal prosecutions on the shifting and indeterminate decisions of courts is to sanction prosecutions for crimes based on definitions made by courts. This is tantamount to creating a new body of federal criminal common law. It cannot be too often emphasized that as basic a difference as any between our notions of law and those of legal systems not founded on Anglo-American conceptions of liberty is that crimes must be defined by the legislature. Id. at 152, 65 S.Ct. at 1059 (citation omitted). Although the majority sought to minimize the deviation from precedent, Screws is the only Supreme Court case in our legal history in which a majority of the Court seems willing to create a common law crime. (Justice Douglas wrote a plurality opinion in which Chief Justice Stone and Justices Black and Reed concurred while Justice Rutledge concurred separately.) In Screws, a Georgia sheriff and two other officers arrested a black man and brutally executed him without a trial or a hearing. The plurality opinion by Justice Douglas upheld the indictment under § 242 because they believed that (1) it fit within the specific original purpose of the act, i.e., “in origin it was an antidiscrimination measure (as its language indicated), framed to protect Negroes in their newly won rights,” id. at 98, 65 S.Ct. at 1034, and (2) the wrongful conduct fit within the specific original purpose of the right of procedural due process going back to the Magna Charta, i.e., that punishment may not be imposed prior to a trial: It is plain that basic to the concept of due process of law in a criminal ease is a trial — a trial in a court of law, not a “trial by ordeal.”_ Those who decide to take the law into their own hands and act as prosecutor, jury, judge, and executioner plainly act to deprive a prisoner of the trial which due process of law guarantees him. Id. at 106, 65 S.Ct. at 1038 (citation omitted). Throughout the opinion, the plurality refers to the wrong as racial discrimination in depriving the decedent of the classic constitutional “right to be tried by a court rather than by ordeal.” Id. at 107, 65 S.Ct. at 1038. In Screws, the plurality opinion expressly observed that the Court believed that it was pushed to the difficult choice between declaring § 242 unconstitutional and adopting a “saving construction” that would greatly narrow the statute to the deprivation of obvious, well-established and publicly known constitutional rights. (“Only if no construction can save the Act ... are we willing to reach that result.”) Id. at 100, 65 S.Ct. at 1035. Justice Douglas expressed the view that the plurality wanted to “save” the statute by limiting it to constitutional rights that any reasonable person should know about. The plurality called its construction a “narrow construction” that preserves the principle of strict construction of criminal statutes, and “so construed has a narrower range in all its applications than if it were interpreted in the manner urged by the government.” Id. at 105, 65 S.Ct. at 1037. This saving construction held that a criminal defendant could receive the required notice that a constitutional right existed (and therefore that its breach was a crime) from “the express terms of the Constitution or laws of the United States or by decisions interpreting them.” Id. at 104, 65 S.Ct. at 1037. It is this phrase, which includes rights enunciated by “decisions,” that makes Screws unique among criminal law precedents. It is clear, however, that the Screws exception to the Wiltberger-Connally-Bouie principles must be confined (1) to eases under § 242 in which the constitutional right “deprived” is specifically stated in the Constitution itself (e.g., unconstitutional searches or seizures) and understood by the literate public to be a well-settled constitutional right, and (2) to well-established procedural due process rights like the right to be tried before being punished by law enforcement officers. The right deprived in the instant ease — the right not to be assaulted — is a clear right under state law known to every reasonable person. The defendant certainly knew his conduct violated the law. But it is not publicly known or understood that this right rises to the level of a “constitutional right.” It has not been declared as such by the Supreme Court. It is not a right listed in the Constitution, nor is it a well-established right of procedural due process like the right to be tried before being punished. Lower court decisions are not sufficient to establish and make definite a particular constitutional crime so as to provide the constitutionally-required notice necessary to support an indictment under § 242. Only a decision of the Supreme Court establishing the constitutional crime under § 242 can provide such notice. To accept lower court authority would result routinely in making federal criminal liability under § 242 turn on new crimes recognized only by the circuit or district court where the defendant engaged in the conduct at issue. A crime recognized in the Sixth Circuit but not in the Eighth Circuit would mean that felonious conduct criminalized in Memphis would not be a federal crime across the river in Arkansas. Only a Supreme Court decision with nationwide application can identify and make specific a right that can result in § 242 liability. Although a rule permitting the Supreme Court to create a new crime obliquely in this way is an exception to the Wiltberger-Bouie canons, Screws does contain language that creates a narrow exception under § 242. Screws limits the reach of § 242 to cases in which the Supreme Court itself for the nation as a whole has made a particular constitutional right sufficiently clear that a violation of that right constitutes a crime as well as a civil wrong. Moreover, in both cases since Screws in which it has addressed the scope of § 242, the Supreme Court has cited one of its own precedents as clearly enunciating the constitutional right violated. See United States v. Price, 383 U.S. 787, 793, 86 S.Ct. 1152, 1156, 16 L.Ed.2d 267 (1966) (citing Screws); Williams v. United States, 341 U.S. 97, 101, 71 S.Ct. 576, 579, 95 L.Ed. 774 (1951) (citing Chambers v. Florida, 309 U.S. 227, 237, 60 S.Ct. 472, 477, 84 L.Ed. 716 (1940), and Brown v. Mississippi, 297 U.S. 278, 285-86, 56 S.Ct. 461, 464-65, 80 L.Ed. 682 (1936)). Screws does not extend § 242 to conduct not addressed in the statute, nor ever addressed by the Supreme Court. In Screws, the Supreme Court reasoned that only its own opinions could provide sufficient notice under § 242 to make “specific” the constitutional right in question. 325 U.S. at 104, 65 S.Ct. at 1036-37. As we interpret the “make specific” requirement, the Supreme Court must not only enunciate the existence of a right, it must also hold that the right applies to a factual situation fundamentally similar to the one at bar. If the Court enunciates a right, but leaves some doubt or ambiguity as to whether that right will apply to a particular factual situation, the right has not been “made specific” as is required under Screws and under traditional canons of construction of criminal statutes. The “make specific” standard is substantially higher than the “clearly established” standard used to judge qualified immunity in section 1983 civil cases. The Court normally reviews constitutional rights in the context of section 1983 cases. In those civil, constitutional tort cases, the parties accused of violating constitutional rights have the protection of the qualified immunity doctrine. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987) (the operation of qualified immunity “depends substantially upon the level of generality at which the relevant ‘legal rule’ is to be identified”). Government counsel do not admit the existence of such a “qualified immunity” defense in criminal cases. So interpreted, § 242 would mean that the criminal statute is much broader in scope than its civil counterpart. The government’s theory of § 242 criminal liability would visit long criminal sentences on defendants who could successfully defend a constitutional tort ease for damages on grounds that the federal constitutional law has not yet become “clearly established.” Criminal liability would be much easier to establish for the same wrong than civil liability. Civil law usually exacts less severe penalties, and consequently, the law allows for a more fluid interpretation in civil cases than in criminal cases. But here, according to the government, § 242 would be carried along on the currents of these civil law interpretations without the corresponding defenses allowed in civil damage cases. Furthermore, unlike other criminal statutes, § 242 criminalizes violations of abstract rights at an extremely high level of generality and not particular conduct that may be illegal under state law. As the Screws plurality noted, murder and assault committed under color of law may or may not violate § 242 depending on whether other factors are present that raise the conduct to the level of a constitutional deprivation. Screws, 325 U.S. at 108-09, 65 S.Ct. at 1039 (“The fact that a prisoner is assaulted, injured, or even murdered by state officials does not necessarily mean that he is deprived of any right protected or secured by the Constitution or laws of the United States.”). For example, in Screws, the murder had to constitute a “trial by ordeal” to rise to the level of a procedural due process violation. In this ease, we do not hold that simple or sexual assault may never violate § 242. For example, a sexual assault raising an equal protection gender discrimination claim may present an entirely different case. We only conclude that sexual assaults may not be prosecuted as violations of a constitutional substantive due process right to bodily integrity, the only theory presented by government counsel. In doing so, we construe Screws narrowly, as we normally construe criminal statutes. As counsel for defendant argues, permitting federal prosecutions for “conscience shocking” simple and sexual assaults committed by federal, state and local employees or officials places unparalleled, unprecedented discretion in the hands of federal law enforcement officers, prosecutors and judges. In the absence of any definition or limitations on the extent of the crime — and given that such prosecutions are useful political weapons — permitting such discretion is a particular risk for due process. Many public officials and employees have recently been accused of similar deviant conduct, but no other case has been prosecuted. Such an unprecedented, selective application of the statute in this case was possible only by giving the broadest possible construction to the most ambiguous of federal criminal statutes. The indictment in this case for a previously unknown, undeclared and undefined constitutional crime cannot be allowed to stand. Accordingly, the judgment of the court below is reversed and the Court is instructed to dismiss the indictment. . The evolution of the language of the statute is as follows. In 1874, the crime read: SEC. 5577. Every person who, under color of any law, statute, ordinance, regulation, or custom, subjects, or causes to be subjected, any inhabitant of any State or Territory to the deprivation of any rights, privileges, or immunities, secured or protected by the Constitution and laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color or race, than are prescribed for the punishment of citizens, shall be punished by a fine of not more than $1,000, or by imprisonment not more than one year, or by both. 2 Cong.Rec. 828 (1874). In 1909, it was amended to add the requirement of wilfulness. 43 Cong.Rec. 3599 (1909). In 1988, it was amended so that the penalty provision would contain: “and if bodily injury results shall be fined under this title or imprisoned not more than ten years, or both." 102 Stat. 4396 (1988). In 1994, after the indictment was returned in this case, § 242 (along with many other criminal statutes) was amended to add the death penalty and other enhanced penalty provisions. The statute now reads as follows (with the new part underlined): Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned for not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death. 18 U.S.C.A. § 242 (West 1969 & 1995 Supp.), 108 Stat. 1970-71, 2109, 2113, 2147 (1994). . The Act read as follows: That all persons bom in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race or color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State or Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of the person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding. Sec. 2. And be it further enacted, That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause or be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishments, pains or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fíne not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court. 2 Cong.Rec. 827 (1874) (citing 14 Stat. 27 (1866)) (emphasis added). . The relevant portions of the 1870 Act read by Congressman Lawrence were: Sec. 16. And be it further enacted, That all persons within the jurisdiction of the United States shall have the same right in every State or Territory of the United States to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.... Sec. 17. And be it further enacted, That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by the last preceding section of this act, or to different punishment, pains, or penalties on account of such person being an alien, or by reason of his color, or race, than is prescribed for the punishment of citizens, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding $1,000, or imprisonment not exceeding one year, or both, in the discretion of the court. Id. at 827-28 (citing 16 Stat. 144 (1870)) (emphasis added). .[S]ection 1 ... That any person who under color of any law ... of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall ... be liable to the party injured, in any action at law, suit in equity, or other proper proceeding for redress.... Id. at 828 (citing 17 Stat. 13 (1871)) (emphasis added). The Ku Klux Act provided for both civil and criminal liability. Section 1, however, was purely civil, and provided an action for individuals to get either damages or injunctions against those who deprived them of their civil rights. The criminal provision of the 1871 Act is Section 2, which is the predecessor of current § 241. The compiler mistakenly used language from the civil section of the 1871 Act and created a statute like the civil statute, tied simply to "constitutional rights” and not limited to any specific conduct. . Another portion of the Ku Klux Act of 1871 provided for criminal penalties for conspiracies to violate constitutional rights, and became the basis for the modem day 18 U.S.C. § 241. This act was directed primarily at the Ku Klux Klan, and did not include the requirement that the violation occur under color of law. It criminalizes a conspiracy in which "two or more persons go in disguise upon the [public] highway” to hinder the exercise of a constitutional right. 18 U.S.C. § 241 (1988). . This is a serious mistake. The section quoted from the 1871 Act was civil only, and it was the broad language of the civil statute that was adopted as § 242. . The following passages are excerpts of Congressman Poland’s statements to the House assuring other representatives that the recodification would not change the law. Mr. Wood: If the gentleman from Vermont would permit me, I would like to ask him a question. It is, whether there will he anything in this revision of the laws that we have not already in the Statutes at Large? Mr. Poland: Nothing; At least we do not intend there shall be. 2 Cong.Ree. 129 (1873). Later, Mr. Poland again made it clear that no substantive changes were intended: Mr. Poland: As I have already said, the commissioners have made some changes in the law, as they were authorized to do under the law. Mr. Durant [the compiler] was employed by the sub-committee of the House ... to go over this work and strike out everything in the nature of a change of the law. We purpose to present the law, when we have gone over it, as a reflex of existing statutes in force on the first day of this session [Dec. 1, 1873], 2 Cong.Ree. 648 (1874). . The dissenting opinions of Judges Wellford and Nelson also note the difficulty of applying this amorphous standard, but their solution is to concur in dismissing only the five misdemeanor counts. This solution is incommensurate with the problem because they fail to follow their own rationale by applying it to the two felony counts as well. They fail to recognize that the legislative choice in labelling sexual misconduct a misdemeanor instead of a felony provides no coherent principle for deciding whether conduct in question is a constitutional crime under § 242. . None of the dissenting opinions even mentions the basic point that unelected judges do not have the authority to enact new criminal laws or expand old ones to include new crimes. They do not recognize that each day at all levels of government, legislators, judges, administrators, prosecutors, police officers, school teachers and coaches, public health and hospital doctors, nurses and employees, military officers, tax collectors and many others interfere, sometimes unreasonably (often arguably maliciously and “shockingly”), with the property rights, personal liberty and bodily integrity of individuals in our society. The open-ended expansion of criminal liability under § 242 by our dissenting colleagues to include any sort of deprivation of a liberty or property interest, or bodily integrity, would presumably turn each such wrong by one of these millions of public actors into a federal constitutional crime. Any rational discussion of the issue must come to grips with this problem. . The Bouie opinion concludes as follows: We think it clear that the South Carolina Supreme Court, in applying its new construction of the statute to affirm these convictions, has deprived petitioners of rights guaranteed to them by the Due Process Clause. If South Carolina had applied to this case its new statute prohibiting the act of remaining on the premises of another after being asked to leave, the constitutional proscription of ex post facto laws would clearly invalidate the convictions. The Due Process Clause compels the same result here, where the State has sought to achieve precisely the same effect by judicial construction of the statute. While such a construction is of course valid for the future, it may not be applied retroactively, any more than a legislative enactment may be, to impose criminal penalties for conduct committed at a time when it was not fairly stated- to be criminal .... In the last analysis the case is controlled, we think, by the principle which Chief Justice Marshall stated for the Court in United States v. Wiltberger, 5 Wheat. 76, 96 [5 L.Ed. 37]: “The case must be a strong one indeed, which would justify a Court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest. To determine that a case is within the intention of a statute, its language must authorize us to say so. It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated....” The crime for which these petitioners stand convicted was "not enumerated in the statute” at the time of their conduct. It follows that they have been deprived of liberty and property without due process of law in contravention of the Fourteenth Amendment. 378 U.S. at 362-63, 84 S.Ct. at 1707. . For a discussion of the historical development of this canon, see Max Radin, A Short Way With Statutes, 56 Harv.L.Rev. 388, 389 (1942). . Our dissenting colleagues in their various opinions repeat the refrain that local prosecutors and law enforcement officials in West Tennessee are so corrupt that they would not prosecute a member of the Lanier family for sexual assault. For example, Judge Wellford states, "it was clear that Judge David W. Lanier was not going to be called into account for his misdeeds and judicial misconduct by local or county officials who had been beholden to the longstanding sway of the Lanier dynasly.” There is no factual basis in the record for such statements. There is no basis in the record for assuming anything other than that state and local officials cooperated in the investigation of the defendant in the normal way and then stepped aside when the federal prosecutor decided to take the case. . This appeal has produced five separate opinions, passionately and in some passages eloquently stated, in addition to the Court's opinion for nine judges. Allowing the defendant who is guilty of reprehensible conduct to go free is not a satisfying result, but it is the result required by longstanding principles of federalism, separation of judicial and legislative powers and the right to formal public notice when new crimes are enacted. It should be noted also that the defendant's conduct has not remained unnoticed. He has lost his robes, his income and his reputation. He was incarcerated for two years in federal prison pending appeal and will remain subject to prosecution in state court for many years to come. Tenn.Code Ann. §§ 39-13-502 through 506 (Supp.1995) defines the crimes of “Aggravated Rape,” "Rape,” "Aggravated Sexual Batteiy” and "Sexual Battery” and §§ 40-2-101 provides statute of limitations periods of 15, 8, 8 and 2 years respectively for these crimes.
WELLFORD, Circuit Judge, concurring in part and dissenting in part. To the extent that the majority has set aside the convictions of this state judge on five misdemeanor counts for sexual assault, without any resulting serious bodily injury to the victims, I concur in the result reached, although I do not agree with the majority decisions’s rationale. I do so in order that 18 U.S.C. § 242, a venerable criminal statute that was originally designed to protect the rights of those recently freed from the bonds of slavery, not be trivialized. It is simply better to recognize that immoral, abusive conduct of a state judge should not be prose-euted in federal court if that deplorable conduct amounts to nothing beyond a state misdemeanor offense. I dissent from the reversal of the convictions for the two felony offenses that I believe fall within the spirit and the meaning of 18 U.S.C. § 242. I agree with and adopt the separate dissenting opinion of Judge Daugh-trey in this regard. I recognize that this is a difficult case, the first of its kind in our court (fortunately), and perhaps the first of this type against a state judge in any federal court. Further, I do not concur in the majority’s condemnation of the prosecution for bringing the charges against a defendant who possessed great political and judicial power in his community and who abused that power shamelessly against those who came within the grasp of his authority. The fundamental question in this case is whether gross abuse of state authority and state law (and custom) by a state actor amounts to deprivation of rights protected by the Constitution and laws of the United States. This defendant and his family have occupied positions of power and political authority in Dyersburg, Dyer County, Tennessee, for several generations. It was clear that Judge David W. Lanier was not going to be called into account for his misdeeds and judicial misconduct by local or county officeholders who had been beholden to the longstanding sway of the Lanier dynasty. The bringing of this indictment and the pursuit of a trial against Lanier was not, however, a political maneuver, nor was it an effort to impose federal will and law upon an opponent. It was not in any sense a “useful political weapon,” but it was instituted to set a new precedent if Lanier were to be prosecuted at all. The felony offenses, of which David Lanier was determined to be guilty by a court and jury, was expressly found to be shocking to the conscience of the court. As stated by the majority, the two felony counts charged “coercive sexual acts,” which were found to be deprivations of liberty without due process of law by willful conduct of the defendant “using his official position as a [state] Chancellor.” The Supreme Court in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), as was rather grudgingly conceded by the majority, did uphold the constitutionality of 18 U.S.C. § 242 in the face of a challenge similar in many respects to that expressed by the majority and by the defendant himself. The objections expressed by Chief Judge Merritt are essentially that this statute was “too indefinite and too vague to meet due process standards.” The crime in Screws involved a major state felony offense which deprived the victim under color of law “of certain constitutional rights guaranteed to him.” Screws, 325 U.S. at 94, 65 S.Ct. at 1032. The defendant in Screws claimed, as does Lanier, that there was no noticed, determinable “standard of guilt” set out in 18 U.S.C. § 242. Id. at 95, 65 S.Ct. at 1032. Quoting Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595 (1942), however, the Court in Screws upheld a then novel application of § 242: The phrase [due process] formulates a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights. Its application is less a matter of rule. Asserted denial is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial. Id. (emphasis added