Tag Archives: Overcriminalization

‘Honest services’ law expansion sought

While the U.S. Supreme Court has attempted to limit the application of vague “honest services” statutes, the Obama Administration is working to restore what the Wall Street Journal describes as “essentially unlimited prosecutorial discretion to bring white-collar cases.”

David Rittgers of the Cato Institute explains the meaning of this law: “The ‘honest services’ statute criminalizes ‘a scheme or artifice to deprive another of the intangible right of honest services.’ This criminalized an employee lying to his employer, and as Justice Scalia pointed out, ‘would seemingly cover a salaried employee’s phoning in sick to go to a ball game.’ Prosecutors were able to get those convicted up to five years in federal prison, a $250,000 fine, or both.”

On the impact of the laws, Rittgers writes: “As a practical matter, the law gave federal prosecutors the power to criminalize objectionable behavior, conflating the merely unethical with the intentionally criminal. Behavior that was not illegal under state law (particularly state ethics requirements for public officials) became illegal under federal law.”

In other words, the power of prosecutors was vast. While the Court rewrote the law, Rittgers contends that little has changed.

The Journal notes how the honest services laws amount to a large expansion of the criminal justice system, and is used as a method of back-door business regulation: “Among the multitude of federal, state and local laws, there is little human behavior, much less criminal activity, that remains outside the reach of the justice system. Federal white-collar criminal statutes have multiplied in recent years, often as a way to regulate business conduct.”

The vagueness of this law troubles Timothy Sandefur, an attorney at the Pacific Legal Foundation and Cato Institute Adjunct Scholar. In his article Get Rid of Vague Laws: They impede on individual rights and economic freedom, he explained the danger of vague laws: “There’s probably nothing more dangerous to individual rights than vaguely written laws. They give prosecutors and judges undue power to decide whether or not to punish conduct that people did not know was illegal at the time. Vagueness turns the law into a sword dangling over citizens’ heads — and because government officials can choose when and how to enforce their own interpretations of the law, vagueness gives them power to make their decisions from unfair or discriminatory motives.”

Sandefur notes that vagueness combined with proliferation of criminal laws gives government large power over citizens: “Combine vagueness with the ever expanding number of statutes and regulations affecting businesses and entrepreneurs on a daily basis and the result is a government bureaucracy with almost unlimited power to intimidate and blackmail citizens with the threat of prosecution — or to punish practically any conduct they choose to declare ‘illegal.'”

Sandefur explains this and more in an audio broadcast The Intangible Right of Honest Services.

The Journal piece also warns of the danger of vague laws: “Vague laws are invitations to legal mischief. In his recent dissent in Sykes v. U.S., Justice Antonin Scalia wrote that ‘We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws.'”

What is troubling are the efforts by the Obama Administration and some members of Congress to undo what limits the Court applied, and also their efforts to expand the power of prosecutors. An assistant U.S. attorney general told Congress that it needed to “remedy” the Court’s decision. The Journal also reports there are three bills in Congress that would “[expand] the reach of prosecutors to go after unpopular politicians or businesses whom they can’t pin with a real crime.”

An example is a bill introduced in the last Congress by Vermont Senator Patrick Leahy, titled “Honest Services Restoration Act.” In the current Congress, virtually identical legislation has been introduced under the title H.R. 1468: Honest Services Restoration Act. It was introduced by Representative Anthony Weiner of New York, who is no longer serving in Congress.

The Journal article is Return of ‘Honest Services’: Politicians try to restore prosecutorial powers that the Supreme Court killed (subscription required).

Criminal laws proliferate, at a cost to freedom

The proliferation of criminal laws and regulations with criminal penalties mean that the freedoms of Americans are increasingly at risk as prosecutors take advantage of expanded authority and reach of the federal justice system. Sometimes prosecutors don’t even need to show criminal intent in order to gain a conviction.

As reported in the recent Wall Street Journal article As Criminal Laws Proliferate, More Are Ensnared: “These factors are contributing to some unusual applications of justice. Father-and-son arrowhead lovers can’t argue they made an innocent mistake. A lobster importer is convicted in the U.S. for violating a Honduran law that the Honduran government disavowed. A Pennsylvanian who injured her husband’s lover doesn’t face state criminal charges — instead, she faces federal charges tied to an international arms-control treaty.”

Even though a person may be acquitted of criminal charges, the process of the trial may be punishment enough. Fighting charges may result in legal bills of hundreds of thousands of dollars.

The Journal piece includes the story of a U.S. man who imported lobsters from Honduras. That country had a statute specifying the minimum size of lobsters for export, and some of the lobsters exported — and accepted by the U.S. importer — were smaller than that size. The man was convicted of a U.S. law that requires U.S. citizens to follow other country’s fish and wildlife laws. During the appeal, Honduras filed a brief in support of the man saying it had canceled the undersized lobster law. Despite this, the conviction was upheld, and the man spent 69 months in prison.

The power of federal prosecutors, armed with an expansive federal criminal code and regulatory regime, is immense. At a recent Cato University lecture that I attended, Radley Balko said “If a prosecutor wants to get you for political reasons or personal reasons … he can find a way to get you. And even if he can’t put you in prison, he can ruin your life and ruin your finances.”

Balko, like the Journal article, described the large number of laws on the books that federal prosecutors may use — “tools in the toolbox,” Balko described. There are perhaps 4,500 crimes contained in our federal statutes, although several efforts to count them have resulted only in estimates, even after two years of counting.

Then, there are the regulations, which may number — again, counting is impossible — in the hundreds of thousands. Some of these carry criminal penalties. And as the saying goes, “Ignorance of the law is no defense.”

Balko described the federal sentencing model which allows judges to sentence defendants as through they were convicted of crimes for which they were acquitted, as long as they are convicted of some charges.

Some laws are good. Laws protect the property rights that are the basis of our freedoms and the free market exchange process that leads to prosperity. But as the Journal writes, “Some federal laws appear picayune. Unauthorized use of the Smokey Bear image could land an offender in prison. So can unauthorized use of the slogan ‘Give a Hoot, Don’t Pollute.'” We should note that these things are created by government, paid for by taxpayers, and ought to be available for free use. But not so for Smokey.

Another example of federal overreach is the charge of lying to investigators. Using this, sometimes defendants are convicted of a crime even though the government can’t obtain a conviction on the underlying charge, that is to say, the actual crime.

A notable case of this is that of Martha Stewart. As told by Ilana Mercer: “When it became apparent to U.S. Attorney David N. Kelley that he could not charge Ms. Stewart with insider trading, he used the unrehearsed interviews she had given law-enforcement officers — interviews not subject to Fifth Amendment protections — to charge her with conspiracy, obstruction of justice, and lying to investigators about a matter that was never a crime. This entrapment was easily facilitated under the unconstitutional Section 1001 of Title 18 in the United States Code. This makes it an offense to make “a materially false” statement to a federal official—even when one is not under oath. (It is perfectly acceptable, however, for said official to bait and bully a private citizen into fibbing.)”

Summarizing, Mercer wrote: “The entrapment of Ms. Stewart and Mr. Bacanovic conjures the ubiquitous scene in the movies where the suspect bolts and the cop gives chase. Cop hauls suspect in for questioning, only to discover he has the wrong man. ‘If you are innocent, why did you run?’ the detective demands. To which the suspect replies, ‘I was afraid.’ The cop has no choice but to release him. In truth-is-scarier-than-fiction America, however, Martha Stewart and Peter Bacanovic were not released. They were prosecuted and convicted for the ‘crime’ of … running.”

Mercer’s article is aptly titled Convicted for Fearing Conviction.

A recent example is that of baseball pitcher Roger Clemens, whom Balko said was “basically being accused of lying to a roomful of politicians.” The audience did not miss the intended irony.

It’s not only at the federal level that laws and regulations are growing. In Wichita we watch the city council struggle to produce a detailed set of regulations covering Halloween haunted house attractions, when it appears that these businesses haven’t had any problems that require regulation.

The Wichita City Council recently revoked the operating license of a bar because the owner had been convicted of a crime of moral turpitude. The owner had plead guilty to providing false statements to police involving a beating at his bar.

Sometimes laws exist just so the state can pile on another offense and add to jail time or fines. Kansas, like some other states, has a marijuana tax stamp law. As Kansas has no medical marijuana law, it appears that it is illegal for anyone to possess marijuana in the state. But should you decide to do so, the Department of Revenue requires you to obtain a tax stamp. Few actually purchase the stamps, so when people are charged with drug crimes, violation of the tax stamp law is just one more charge for prosecutors to add.

Do these laws work?

For all its lawmaking, government often doesn’t solve the problem it’s trying to prevent. Kansas, like many states, has passed a law against texting while driving. But as I reported last year in Texting bans haven’t worked, based on research performed by the Highway Loss Data Institute : “But the bans haven’t worked, and some states have experienced an increase in crashes. … The study does not claim that texting while driving is not dangerous. Rather, the realization by drivers that texting is illegal may be altering their behavior in a way that becomes even more dangerous than legal texting.”

Another example of laws that may or may not be accomplishing their goals are red light camera enforcement laws. While the Insurance Institute for Highway Safety says these laws save lives due to a reduction in certain type of accidents, they also cause an increase in other types of accidents. Furthermore, there is persuasive evidence that simply lengthening the time of yellow lights reduces the types of accidents the cameras are credited with reducing. Balko, writing for reason.com, notes this about longer yellow light times: “Somehow, that doesn’t seem as appealing a policy to city governments. Another reason we critics have impugned the motives of public officials is that several cities have been caught shortening yellow times at intersections after they’ve been outfitted with cameras. That would seem to be a pretty good indication of a government that values revenue more than safety.”

Laws named after dead people are another problem. Generally named for a sympathetic victim, these laws allow politicians to appear to be doing something.

A recent example is the versions of Caylee’s Law, named after the Florida toddler Caylee Anthony. Many people feel that her mother bears responsibility for her death, even though the mother was not convicted of that. So in response we have Caylee’s Law proposed in many states and at the federal level. The laws require rapid reporting to law enforcement offices of a missing or dead child.

In his lecture, Balko provided examples of how parents or caregivers could innocently fall afoul of such a law, and could be charged with a serious crime when in fact there is no culpability. As to the actual effectiveness of such laws, Balko concluded “Can you image a parent depraved enough to murder their own child is going to be dissuaded by a law that requires them to report the death of that child within an hour of having killed them? Nobody’s going to be dissuaded by this law. The law is not going to save a single child’s life. This is about vengeance. People are upset that Casey Anthony was released.”

Balko added that the problem with naming laws after sympathetic victims is that it shuts off debate. If anyone opposes Caylee’s Law, it will be charged that they are not outraged over her death, and they are not serious about protecting children. This, he said, is not a good way to have discussion and debate about public policy.

But the urge by politicians to be seen as “doing something” — even if what they do has more negative consequences than positive — is often the driving force behind laws, and also behind the cases of overzealous prosecutors.