Can someone be penalized for an "unlawful" act if no penalty is specified?

Question

If a US federal statute specifies that an act is unlawful without specifying a penalty, without using any of the words "misdemeanor," "felony," or "crime," and without invoking Title 18 CFR, can a penalty be imposed?

Asked another way, is there some provision of US law that provides for a blanket penalty that could apply in such a case in the absence of a specific penalty in the statute that makes the act unlawful? Alternatively, could a judge impose a penalty without a statutory basis (beyond the designation of the act as unlawful)?

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The specific statute that prompts this question is subsection 215(b) of the Immigration and Nationality Act, as amended, 8 USC 1185(b):

(b) Citizens

Except as otherwise provided by the President and subject to such limitations and exceptions as the President may authorize and prescribe, it shall be unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid United States passport.

Between 1978 and 1994, the last clause read "unless he bears a valid passport." Before 1978, the original version of section 215 was in force, which provided for a requirement to bear a valid passport only during times of war or national emergency when invoked by presidential proclamation. The section specified that willful violators would be subject upon conviction to a fine of up to $5000 and/or imprisonment for up to five years.

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Furthermore, this question was prompted by a comment discussion on my answer to a question at Travel: What is the penalty for US citizens entering/leaving the US on a foreign passport?, here in summarized form:

Q: I'm not facile with US federal law, but there are often provisions in State law that provide if act x is deemed criminal by the code and a penalty not specified, then the penalty will be y. So even though there's no penalty in 8 USC 1185(b), there may be a penalty specified by another section of the USC.

A: The section in question only makes the act "unlawful," however, not criminal. I am unaware of a default civil penalty.

Q: I acknowledge the difference between saying something is "unlawful" and saying it's a "crime." I don't know federal law; in that arena, however, the two terms may be construed the same. At random (I searched for "federal crime"), I pulled 21 USC 841(a). It begins "(a) Unlawful acts. Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally..." So it's not clear that use of the magic word "crime" is required.

A: Note how 841(b) provides explicit penalties for violations of subsection (a). The provision of penalties makes those unlawful acts criminal. The 1978 repeal of the penalties related to 8 USC 1185(b) meant that violations were no longer criminal. I've yet to encounter an analysis that holds otherwise, including in reported opinions. The magic word "crime" is not required, but if it is not mentioned then mention of "felony," "misdemeanor," "sentence," or "Title 18" will do. See 8 USC 1325 and 1326 for further examples.

Q: The conclusion in your second sentence might be true, but I don't know enough about federal practice to agree that there is a federal law distinction between "unlawful" and "criminal." Maybe there is. Absent a more sophisticated understanding of how the USC is drafted, or a section-by-section examination of the USC to demonstrate there are no USC sections that prescribe punishments for "unlawful acts," or a citation discussing the distinction, however, I can't (yet) agree.

Answer 1

There are some statutes that have a section that says "any violation of this action is punishable by . . . ." but the INA is not one of them. Generally speaking, the way it would be imposed would be:

(1) to deny entry on a departing commercial airplane flight or ship (which is enforced by the private enterprises involved pursuant to Transportation Department regulations that the private enterprises may be sanctioned for not obeying) and

(2) to set up presumptions about the reasonableness of, for example, laws requiring someone to have brought a passport to secure embassy access.

One of the reasons that no penalty is stated is because the constitutionality of this statute is doubtful. Geographical restrictions on travel in some cases have been upheld as constitutional with regard to specific countries and in war time, but are even then strictly construed. But, no case has upheld the restriction as applied to travel to a country to which geographical restrictions do not apply.

Likewise, I doubt that the provision denying entry to U.S. citizens without a passport, even during times of war, would be upheld today.

For example, 215(b) was given a narrow construction (disallowing criminal prosecutions when someone went to Cuba and returned via a third-country while holding a valid U.S. passport) in part out of concern for the constitutional right to travel. U.S. v. Laub, 385 U.S. 475, 481 (1967). See also See L. Tribe, AMERICAN CONSTITUTIONAL LAW § 15-15, at 957 n.22 (1978) (arguing that ‘the power approved in Zemel must be limited to the most extraordinary situations'). For background see, e.g. Right to Travel Abroad, 98 Harv. L. Rev. 184, 195 (1984) (student note published anonymously) and Thomas E. Laursen, Constitutional Protection of Foreign Travel, 81 Colum. L. Rev. 902 (1981).

The fundamental right of a citizen is to enter his own country so that he is not stateless with no place he can lawfully be, and that analysis has been developed more in the law now than it had been in 1967.

Alternatively, could a judge impose a penalty without a statutory basis (beyond the designation of the act as unlawful)?

Historically, some U.S. states provided this authority which was called the power to impose punishment for "common law crimes", and there are some that still do and there are others, such as Michigan that don't define key crimes that were crimes at common law, such as murder, other than in case law and simply set punishments by statute for these otherwise undefined crimes. As recently as 1947, a majority of U.S. states had at least some common law crimes. Many states codified their criminal laws in the wake of the Model Penal Code in the 1960s even though all states adapted it to their local needs and only a minority of states adopted a penal code close based upon it. The Model Penal Code made it easier to think of what had previous been an ill defined and massive legislative task into a more manageable and finite project for ambitious reformist legislators (an attitude and approach that was common in the U.S. in state legislatures in the late 1960s and early 1970s).

But, the federal judiciary has never had this authority (as formally determined by the U.S. Supreme Court in 1812, just 23 years after the current constitution was adopted), in part, because the federal government does not have plenary legislative authority on all matters and federal courts are likewise courts of limited jurisdiction (while all or almost all states have at least one court of general jurisdiction that can handle any matter that no other court has jurisdiction to handle).

From Wikipedia:

The notion that common law offenses could be enforced in federal courts was found to be unconstitutional by the U.S. Supreme Court in United States v. Hudson and Goodwin, 11 U.S. 32 (1812). Some have argued that they are inconsistent with the prohibition of ex post facto laws.

At the state level, the situation varies. Some states, such as New Jersey, have abolished common law crimes (see State v. Palendrano), while others have chosen to continue to recognize them. In some states, the elements of many crimes are defined mostly or entirely by common law, i.e., by prior judicial decisions. For instance, Michigan's penal code does not define the crime of murder: while the penalties for murder are laid out in statute, the actual elements of murder, and their meaning, is entirely set out in case law.

Answer 2

The reason the law you mentioned provides no penalty is that it's ideas are part of those of the Western Hemisphere Travel Initiative and there are further laws that address passports that do establish punishments. https://www.cbp.gov/travel/us-citizens/western-hemisphere-travel-initiative

The Western Hemisphere Travel Initiative mandates that all United States citizens and residents leaving the country present a valid U.S. passport to U.S. customs officials upon their return trip. https://traveltips.usatoday.com/passport-requirements-leaving-us-21007.html

The goal is to track who is coming into the U.S. ,and the government can question you or detain you long enough to verify that you are citizen when you re-enter the U.S.

If the person trying to enter is actually a citizen, likely, no further action will be taken, but if there were no laws about it, the government would not have the right to screen people and weed out those who do mean harm. See the answer provided by Mr. Jairam that quotes the law you quoted here: https://www.avvo.com/legal-answers/do-i-need-the-us-passport-to-leave-the-country--1971846.html

Also, see this answer in the Travel section of Stack Exchange that also quotes the law you did.

What is the maximum prescribed penalty for violating these rules?

• There is none. https://travel.stackexchange.com/questions/85389/what-is-the-penalty-for-us-citizens-entering-leaving-the-us-on-a-foreign-passpor

(Yes I know it's you. ;) )

After reading the comment that was not there when I began my original answer, I see you wanted a general overall view of whether a punishment can be levied in criminal law if the law does not specify a punishment.

The laws that do not offer a specific punishment are not criminal offenses. To be considered a criminal offense under federal law, the offense must be classified in one of the categories listed here: https://en.wikipedia.org/wiki/Classes_of_offenses_under_United_States_federal_law

In the federal courts you are charged by Indictment. That means that the case is presented to a grand jury and the grand jury decides if you can be charged. To present a case to the grand jury, the prosecution has to allege a violation of a specific criminal offense, so the prosecution is not allowed to present violations of other laws, like the one with no punishment you quoted. https://www.justice.gov/usao/justice-101/charging

Some states allow charging by Information, which means that the judge decides if there is enough information to charge you, but the judge is still only allowed to base his decision on whether you committed a specific offense.