This afternoon, the Supreme Court will hear oral argument in Skilling v. U.S. Most media coverage so far seems to be focusing on former Enron CEO Jeffrey Skilling’s request for an entirely new trial based on claims that the District Court where he was convicted failed to ensure an impartial jury when they refused to transfer the trial out of Houston.
While every American’s Sixth Amendment right to an impartial jury is important, many limited government conservatives (and civil libertarian liberals) are much more concerned with the fate of Skilling’s other challenge … to the 1988 “honest services fraud” statute, which states: “For the purposes of this chapter, the term, scheme or artifice to defraud includes a scheme or artifice to deprive another of the intangible right of honest services.” What could possibly be wrong with that?
The problem is that the statute then fails to provide any guidance as to what an “intangible right of honest services” is or how to tell when someone has been deprived of that right. This allows prosecutors to terrorize Americans with prosecutions for acts they had no idea were crimes.
For example, prosecutors nabbed one Wisconsin state civil servant for failing to follow every detail of the state’s arcane administrative rules on procurement. The convicted civil servant’s crime? She awarded the contract to the lowest bidder which prosecutors argued made her supervisors look better and thus increased her job security. In other words, she was convicted of saving the taxpayers money!
And prosecution are not limited to the public sector. The Wall Street Journal notes:
In the mid-1990’s, federal prosecutors in Texas successfully brought a charge against three men’s-basketball coaches at Baylor University, a private school, for scheming to obtain credits and scholarships for players, in violation of National Collegiate Athletic Association rules. Baylor, the court found, was deprived of honest services.
Everybody, civil servants and private citizens, has a moral obligation to be honest. But the government has no business giving prosecutors a blank check to punish dishonesty criminally whenever they see fit. The “honest services fraud” statute is just one more example of the Overcriminalization of our country. There are now over 4,450 federal criminal penalties on the books and Congress seems to want use criminal law to “solve” every problem in the nation. No wonder 56% of Americans tell CNN they think the federal government has become so large and powerful that it poses an immediate threat to the rights and freedoms of ordinary citizens.
Hopefully the power of the federal government to send Americans to jail for trivial conduct will start being rolled back today.