Unpublished Enactment Defense

Unpublished Enactment Defense

The first of the two doors in § 2.04(3) opens onto a situation in which the law itself was out of reach. Under § 2.04(3)(a), a belief that conduct does not legally constitute an offense is a defense when the statute or other enactment defining the offense "is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged."¹ Call this the unpublished enactment defense. Its text ties the defense to the status of the enactment that defines the offense, and it asks two things: what the actor knew, and what the government had done to make the law available. Every other belief a defendant may have held about legality stays under the baseline rule of § 2.02(9), which keeps knowledge of the law out of the elements of an offense.²

The reason for the defense is the fairness concern that also drives the void-for-vagueness and ex post facto doctrines. A vague statute fails to tell people what is forbidden, and a retroactive one punishes conduct that was lawful when it occurred. In each, the government is responsible for the defendant's inability to know that the conduct was proscribed.³ An enactment that has not been published or otherwise reasonably made available belongs in that family, because the state has made a rule and then withheld the means of learning it. The incentive argument for the baseline rule shows why the state's role matters here. Holmes defended the no-excuse principle on the ground that excusing ignorance would encourage people to stay ignorant where the lawmaker has decided they must know and obey.⁴ That argument assumes the law can be learned by anyone who looks. When the enactment has not been made available, looking would have turned up nothing, so excusing the defendant rewards no one for avoiding the law and the argument loses its footing.

The text carries two limits, and each has its own logic. The first is that the actor did not know of the enactment. Actual knowledge supplies notice whatever the state of publication, so a defendant who in fact knew the law cannot blame the government for keeping it hidden. The second is that the enactment had not been published or otherwise reasonably made available before the conduct. A defendant who did not know the law but could have found it, because it was accessible, is the person the baseline rule is built to reach, since the failure to learn traces to the defendant and not to the state. The two showings are joined by "and," so a defendant who proves only one has not met the section. Unfamiliarity with the statute, standing alone, proves only the first showing, which is why a bare claim that the statute never came to the defendant's attention is no defense.⁵ Requiring both keeps the defense from becoming a reward for not looking.

The Code's position departs from earlier decisions, which recognized no defense even where the enactment had not yet been made generally available to the public. The Code adopts the sounder view: a defendant who neither knew the enactment nor had a fair chance to learn it should not be convicted for violating it.⁶ That choice keeps the provision consistent with the rest of § 2.04(3), where the excuse always depends on the government's responsibility for the lack of notice. As with every defense arising under subsection (3), the defendant carries the burden of proving it by a preponderance of the evidence under § 2.04(4), a point taken up later in this chapter.⁷

The two subsections that follow work through this rule in turn. The first examines the conjunctive showing the defendant must make, and the second asks where publication gaps still occur in practice.

Unknown and Unavailable

Section 2.04(3)(a) sets two conditions side by side and joins them with the word "and." The defense applies when the statute or other enactment defining the offense "is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged."⁹ Each condition screens out a different kind of defendant. The first looks at the person and asks whether the actor actually knew of the enactment. The second looks at the government and asks whether it had published the enactment, or otherwise made it reasonably available, before the actor engaged in the conduct charged. Because the two are conjunctive, a defendant who satisfies only one of them has not satisfied the section, and the defense fails.

The knowledge condition follows from the reason the defense exists. The excuse is available because the government, acting through its official representatives, is responsible for the defendant's inability to know that the conduct was proscribed.¹⁰ An actor who in fact knew of the enactment cannot trace a lack of notice to the state, whatever the state of publication. A person who obtained an advance copy of an unprinted ordinance and read it before acting therefore has no claim, because the missing publication did not keep the law from that person. The availability condition rests on the same reasoning from the other side. When an enactment has been published or reasonably made available, an actor who did not know of it could have found it, and the failure to learn the law traces to the actor. A person engaged in a regulated activity is expected to keep informed about the rules governing it, so a dairy manufacturer cannot defend on ignorance of an available statute or regulation setting a minimum fat content for butter.¹¹ That duty to keep informed presupposes something to be found, and the second condition asks whether the government had put anything there to find.

The phrase "prior to the conduct alleged" fixes the inquiry at the moment the defendant acted, and that timing has consequences in both directions.¹² Publication that occurs after the conduct comes too late to supply the notice the defendant lacked when acting, so a later printing of the enactment does not erase the defense. An enactment that was already available at the moment of the conduct defeats the defense even if the defendant never looked at it. A bare claim that the statute had not come to the defendant's attention is therefore never enough, since it establishes only the first condition. The defendant must show more, such as that the conduct occurred very soon after the statute was enacted and before it was made generally available, or that the conduct occurred later but before the usual formalities of official publication had been fully complied with.¹³ Both showings are facts about what the government had or had not done by the day of the conduct, and neither depends on how diligent the defendant was.

Changing a single fact in that scenario removes one of the two conditions, and the defense falls with it. The pair of twins below each flip one variable.

The weakest answers on an exam stem usually stop after proving one condition, so the analysis is best run as a two-sided test applied to a fixed date.

The order of steps 2 and 3 does not matter, since either failure defeats the defense, but step 3 usually does the real work on exam facts. National and state statutes are almost always published and carry an effective date, so the availability condition is the one a defendant most often cannot meet. The next section explains where publication gaps still occur.

Where Publication Gaps Remain

The availability condition in § 2.04(3)(a) decides most claims under the section, so the practical question is which kinds of enactment leave it open. For national and state criminal statutes the answer is almost none. Every such enactment is published, and these laws normally carry an effective date, a delay between passage and binding force that gives the government time to print and distribute the text before anyone can be punished under it.¹⁵ A number of states go further and make publication a precondition of effectiveness.¹⁶ Because the delay is built into the lawmaking process, a person who acts after a statute takes effect could have found it, and the second condition of the defense fails. A defendant charged under a state or national statute who says the law was unavailable therefore seldom gets past the threshold.

The picture changes where lawmaking is informal. Local legislation, particularly in smaller communities, may never be printed or otherwise made generally available.¹⁷ A small council meets, votes, and records the result in its minutes, and nothing in that routine requires anyone to print, post, or index the ordinance. The Code reaches this situation because its text speaks of "the statute or other enactment defining the offense," language broad enough to cover an ordinance or a regulation as well as a law passed by a state legislature.¹⁸ Publication systems are strongest where a body meets and publishes as a matter of routine, and the extra words in the text extend the fair-notice protection to the places where that routine is weakest.

Administrative regulations raise the same problem for a different reason. Agencies make rules under delegated authority, and violating some of those rules carries criminal sanctions, so a person can be prosecuted under text that no legislature ever debated or printed.¹⁹ The federal system closes much of the gap, because substantive rules of general applicability must be published in the Federal Register, which means a federal regulation of that kind will ordinarily have been made reasonably available before the conduct.²⁰ Many states have not attempted a systematic publication and codification of their administrative regulations, and the traditional practice of filing them in a central state office has often left them poorly classified and hard to locate.²¹ A defendant prosecuted under a state regulation that was filed but never indexed or codified is therefore in a stronger position to show unavailability than one prosecuted under a federal rule printed in the Federal Register.

The effective-date cushion is customary but not guaranteed. In United States v. Casson, new burglary and robbery statutes for the District of Columbia took effect immediately upon the President's signing and were applied to conduct later that same day.²² That example shows only that immediate-effect enactments exist, which is the setting in which a gap between passage and availability can open even for a statute. It has also been argued that due process itself requires notice before a law takes effect, on the reasoning that if due process bars punishment or the operation of an injunction without prior notice, it should also require notice before the effective date of the very law on which a later adjudication rests.²³ The constitutional question returns at the end of this chapter, where the due process backstop is examined.

On an exam stem, students lose this issue in two directions: they assume every enactment is published and dismiss the defense outright, or they treat any publication gap as sufficient by itself. A gap satisfies only the availability condition, so the defendant must also show that the enactment was unknown before the conduct.²⁴ The sensible first move is to identify what kind of enactment defines the offense. A statute with an effective date points toward the prosecution, while an unprinted ordinance or an unindexed state regulation opens the defense. The remaining fact to check is whether anything in the stem shows the defendant knew of the enactment before acting.