In 1975, in a case involving food safety, the Supreme Court said that defining the outer limits of criminal liability could be left to the “common sense of prosecutors, the wise counsel of trial judges, and the ultimate judgment of juries “. United States vs. Park421 US 658, 669 (1975) (citing United States vs. Dotterweich, 320 U.S. 277, 285 (1943)). Such a desire to trust the “common sense” of a prosecutor is no longer the case today. In McDonnell v. United States579 US 550, 576 (2016), to take one example, the Supreme Court declined to interpret a key phrase affecting the definition of bribery extensively “assuming the government ‘will use [a criminal statute] responsibly” (quoting United States vs. Stevens559 US 460, 480 (2010)).
This concern about how laws can be used, or misused, by prosecutors was at the heart of the Supreme Court’s decision last quarter in Ruan v. United States, 142 S.Ct. 2370, 2380 (2022). Roan arose out of a federal criminal lawsuit against licensed physicians for overprescribing opioids and other addictive drugs in violation of Section 841 of the Controlled Substances Act. This law prohibits the distribution of controlled substances “[e]except as permitted. 21 USC §841.