The Wall Street Journal this weekend documented several sad features of the federal government’s proliferation of poorly written criminal laws, many of which leave it to prosecutors to pick and choose which Americans to prosecute as criminals. The Journal chronicles the stories of a half dozen Americans who became the targets of unprincipled, amorphous federal criminal laws. Heritage’s One Nation Under Arrest tells several more.
It is thus disturbing that Congress has recently and repeatedly been mounting efforts to shutter the few rays of light the U.S. Supreme Court has cast on the dreary landscape of federal criminal law. The federal courts almost always extend great deference to the criminal laws Congress enacts, no matter how ill-advised, ill-conceived, or ill-constructed they may be. Since 2000, the number of cases in which the Supreme Court has reaffirmed limits on the uncountable examples of unprincipled criminalization (among the tens of thousands of federal criminal offenses) has averaged less than one a year. It thus should give Members of Congress great pause to seek to overturn even one of these Supreme Court cases.
Yet, at the insistence of the Department of Justice, some Members of Congress are currently seeking to overturn three – unanimous – decisions by the Supreme Court that have placed a semblance of sane limits on three discrete areas of federal criminal law. Both the Justice Department and Members of Congress know very well that populist rhetoric can make unprincipled criminalization politically palatable. An American Bar Association task force reported, for example, that many new federal criminal laws “are passed not because federal prosecution of these crimes is necessary but because federal crime legislation . . . is thought to be politically popular.”
The attempt to overturn the three Supreme Court cases is thus being couched as a routine effort against “public corruption.” Hardly anyone has the political courage to stand in the way of ill-advised criminal-law legislation if it purports to be crafted to punish real crimes by crooked politicians.
But these public corruption reform packages actually include a smorgasbord of unjustified new criminalization. Included in most such packages is a vast expansion of the scope of two of the most notoriously broad criminal offenses in American law: the federal mail fraud and wire fraud statutes. This change alone would, as a unanimous Supreme Court put it, accomplish a “sweeping expansion of federal criminal jurisdiction . . . [over] a wide range of conduct traditionally regulated by state and local authorities.”
Unfortunately, even conservative stalwarts who should know better are promoting this sweeping expansion of the federal government’s jurisdiction. One of these proposals is co-sponsored by Senator John Cornyn of Texas, and the companion bill is sponsored by Representative Jim Sensenbrenner of Wisconsin.
In Cleveland v. United States (2000), the Supreme Court rejected an attempt by federal prosecutors to extend the mail fraud statute to deceptive schemes to obtain something other than “money or property.” In a similar manner, Congress’s current proposals would extend the mail and wire fraud statutes beyond “money or property” to “anything of value.” It is entirely inappropriate to use such amorphous, highly malleable language in criminal law. According to the Constitution, one of the primary purposes of criminal law is to provide Americans fair notice of what they ought to do, and ought not do, in order to avoid criminal punishment.
While the existing language, “money or property,” refers to items that are generally tangible and familiar to all, what falls into the category of “anything of value” is highly subjective and anything but obvious. In the Cleveland case, federal prosecutors were trying to apply the mail fraud statute to a state-issued license. This illustrates that the proposed change would make it a federal crime – punishable by up to 20 years in prison (and in some instance 30 years) – to submit an application with false information for a state fishing license or a license to sell anything. It would be an unprincipled intrusion into the law and interests of the 50 states. Further, the broad, amorphous term “anything of value” would grant prosecutors, judges, and juries an opportunity to decide – after the fact – whether the conduct of the person accused constitutes a federal crime.
Congress’s recent proposals would also overturn United States v. Sun-Diamond (1999) and eliminate the requirement in federal gratuities law that ensures that a gift does not become a crime unless something is expected (but not necessarily given or promised) in return. Justice Scalia, writing for a unanimous Court, held that the existing language of the gratuities statute does indeed include such a requirement. By eliminating it, any gift provided to a federal official without any desire for anything in return would be a federal crime. Even a community association’s award for public service that includes a monetary honorarium could land someone in federal prison.
The new law would make an exception only for those gifts that are expressly permitted by law, rule, or regulation. But this would be of little use to most Americans because, as Justice Scalia points out, gifts for public officials are governed by “an intricate web of regulations, both administrative and criminal.”
Finally, the proposals seek to overturn Skilling v. United States, in which the Court unanimously held that the federal law making it a crime punishable by up to 20 years in prison to “deprive another of the intangible right of honest services” is unconstitutionally vague. This conclusion, which comports with any common sense reading of the statute’s language, should have caused the Justice Department to focus on injustices done to anyone who had been convicted and punished under the law. Instead, the Justice Department is using it as a premise to expand federal criminal jurisdiction into the operations of every local, city, and state government in all 50 states.
The House Crime Subcommittee is holding a hearing today at which leading public corruption expert and attorney Timothy O’Toole will testify against these proposals. Members of Congress and the Justice Department would be well-advised to ensure that their criminal-law proposals – even those denominated as targeting “public corruption” – are written with precise, concrete language that protects those who had no intention of violating any law or doing anything wrongful.