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GREAT analysis over at volokh.com this is a SERIOUS problem. i see it all the time. it's one of the reasons why i am so suspicious of increasing ANY form of federal power and especially federal policing and regulatory power. analysis below by harvey silvergate. --- Last week, the Supreme Court heard two cases challenging the scope of so-called “honest services” fraud, a 28-word provision tacked onto the generic federal mail-and-wire fraud statute that makes it illegal to “deprive another of the intangible right of honest services.” If you’re asking what this statute means, you’re in august company: Justice Antonin Scalia asked the very same question during oral argument in Black v. U.S. (see pg. 45 of the transcript ). All told, eight of the nine justices expressed skepticism about the “honest services” law, focusing on the vagueness that prosecutors have exploited but defendants and civil libertarians have loathed. Most pointedly, perhaps, was Justice Stephen Breyer’s observation that almost any professional could inadvertently violate this statute. “here are 150 million workers in the United States. I think possibly 140 of them would flunk your test,” he told Deputy Solicitor General Michael R. Dreeben, who was attempting to posit arguable limiting principles.
Breyer’s observation goes to the heart of the phenomenon about which I’ve written in my book, Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, 2009). Because of the vague terminology increasingly used in the ever-expanding federal criminal code, combined with the erosion of intent as a requirement for conduct to be considered prosecutable, the average citizen can easily commit several felonies in any given day. (Interviewers have jostled me for what they deemed my wild overstatement, while I’ve tried to assure them that their own daily conduct probably produces three arguable felonies. Now I have one justice—and perhaps several more—on my side.) “Honest services” fraud is an instructive example of this trend, but the federal law books are cluttered with countless others. Creative interpretations of the Computer Fraud and Abuse Act, obstruction of justice statutes, and controversial Patriot Act provisions—to name a few—have turned honest citizens into federal defendants and even convicted felons.
What about “due process of law” guarantees provided under the Fifth Amendment and its ancillary “void for vagueness” doctrine, which protects citizens from being prosecuted with unclear laws that they cannot be expected to understand? This salutary doctrine was famously invoked during the Civil Rights Era, when state convictions were struck down because malleable statutes were selectively enforced against protesters. The Supreme Court recognized, in one case, that prohibiting protests “near” a courthouse gives government officials too much latitude in determining what is, and what is not, legal. Many such state convictions were voided by federal courts. But in the aftermath of the modern-day explosion of federal statutes and regulations covering almost every area of American life, these doctrines have not been applied with equal rigor. In a system that operates like this, more and more innocent conduct gets swept into the category of arguable crime—not by clear legislation, not by careful and honest court examination, but by assumption and acquiescence. This dangerous trend is exacerbated by the “win at all costs” mentality of the Justice Department. Colleagues are turned into stool pigeons as prosecutors offer deals for testimony that often bears little resemblance to the truth. (As my colleague Alan Dershowitz colorfully but all-too-accurately puts it, “prosecutors can pressure witnesses not only to sing, but also to compose.”) Faced with the prospect of a long prison sentence, enormous costs of defense counsel, and frequent threats to indict family members who are thus held hostage, defendants often choose, to parody an old cigarette commercial, to switch rather than fight.
That’s a big reason why, in 2006, 96% of all federal convictions were a result of guilty or no-contest pleas, according to Justice Department statistics. When these cases end in plea agreements, scant scrutiny is applied to the sometimes questionable prosecutorial tactics—tactics, incidentally, that are rarely understood, much less questioned, by a largely pliant news media that feeds on sensational prosecution claims. It’s important to keep in mind, too, that this problem is not the creation of any one political party. It’s a truly bipartisan beast, expanding rapidly since the mid-1980s. That’s when I, a criminal defense and civil liberties trial lawyer since 1967, noticed that more and more of my clients in federal criminal cases were being prosecuted for actions that neither I nor they instinctively viewed as criminal. In a few instances, their conduct was arguably borderline or otherwise ethically dubious, but it lacked the clear contours that would violate statutes and regulations with sufficient clarity to qualify for criminal prosecution. To my surprise (and chagrin), this trend has only increased with each successive changing of the Washington political guard. From Reagan to Obama, Congress has continued to pass indecipherable legislation, and federal prosecutors have continued to twist statutes in order to criminalize a broad array of conduct—including, quite often, conduct that is assuredly not in violation of state law but which suddenly becomes federal fraud. The bipartisan nature of this problem is at once disheartening and encouraging. Disheartening, in a sense, because it cannot be remedied by voting one party out of power. It seems to be rooted in the culture at Main Justice, a culture that persists from one attorney general to the next.
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