The Felton opinion has me intrigued. Much of my research in my day job involves petty offenses created by local governments. Recent studies of misdemeanor criminal justice systems in the civilian world have centered on an important thesis: they system is "lawless," in the sense that the substantive criminal law does not meaningfully constrain prosecutors or police. The offense elements are basically ignored. See, e.g., Issa Kohler-Hausmann, Misdemeanorland; A. Natapoff, Punishment Without Crime. One famous example in this literature is the offense of taking up more than one seat on the NYC subway. Kohler-Hausmann discovered that while the ordinance requires that the second seat be obstructed when someone else wants to use it, police were arresting and prosecutors were charging even in the absence of this offense-element. They could get away with this because the defendant, often unrepresented, would usually plead guilty to avoid the hassle of fighting the charge.
Felton is encouraging because it shows meaningful attention to the limits imposed by substantive criminal law--even for a petty offense. It reminds me of an Air Force case from a few months ago where the court vacated a conviction for disorderly conduct that was premised on a police officer's impression that the accused was a "smart aleck." The limits of substantive criminal law are enforced by the review for legal sufficiency. In this sense, legal sufficiency review is far more important than factual sufficiency review. It protects innocent conduct from punishment.
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