I wanted to make a short comment on the U.S. Supreme Court decision on Thursday that greatly restricts the ability of prosecutors to use something called the "honest services" statute in prosecuting public and private corruption. First, a little background from Friday’s Wall Street Journal:
"The concept of ‘honest services’ dates to a series of court decisions starting in the 1940s that interpreted fraud statutes to cover what judges considered intangible instances off corruption, such as a kick-back to a politician. The courts recognized that as a crime, even though the scheme might not have cost taxpayers any extra money.
In 1987, the Supreme Court ruled that the concept went beyond existing law. So the following year, Congress explicitly included the honest-services provision in the federal mail fraud statute."*
Here is the text of the honest services statute, as Congress passed it in 1988: "[T]he term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services." That’s it.
After the law was passed, prosecutors started to expand the use of the law, "using it as a catch-all charge against allegedly corrupt behavior …. That practice violates the Fifth Amendment guarantee that ‘no person shall be … deprived of life, liberty or property, without due process of law,’ the court found."**
Because the "honest services" statute, in its broadest reading, has been used in a number of Illinois corruption trials, the Chicago Tribune was upset about the decision. In fact, the title of its editorial on this decision in Friday’s paper was "Graft gets break". Here is part of the Tribune said:
"[I]n the future, it will be more difficult for prosecutors to bring some corruption cases now that the court has limited the so-called ‘honest services’ statute to fraud schemes involving bribery and kickbacks.
Over the past two decades, honest services fraud has applied widely to those who misuse their positions of public trust for private gain …. It was the very vagueness and malleability of the law that made it so useful to prosecutors …."
But what the Tribune sees as good in the statute is exactly what is wrong with it. "Vagueness and malleability" are not good things in a criminal statute. Criminal statutes are supposed to be clear. You have a right to know what you can be sent to jail for. That is what the Fifth Amendment is about. "Vagueness and malleability" are the opposite.
The Tribune goes on:
"After Thursday, though, federal prosecutors will have to base some cases on less pliable legal theories than the honest services fraud of yesterday — and develop more specific evidence to convince juries (and judges) that a crime has occurred."
Once again, criminal statutes are not supposed to be "pliable." You have a right to know what the law says and what you can do and what you cannot do. Criminal statutes that are "vague," "malleable" and "pliable" are what they use in countries without the rule of law. It’s what they have in Russia and China and other places without freedom. They are not something we should have in the United States.
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* Michael Rothfeld, "Enron Ruling Dims Prosecution Picture," The Wall Street Journal, June 25, 2010.
** Jess Bravin, "Court Backs Skilling Appeal," The Wall Street Journal, June 25, 2010. Six of the justices held, in effect, that the statute could only apply to kickbacks and bribery. The other three justices would have thrown out the statute entirely.
Update (6/27/10 12:30 am): Corrected a couple of the citations.
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