Posts Tagged ‘criminal law’

Finished!

Tuesday, September 11th, 2012

I’ve been taking a break from posting here while cranking out the last installments of my guide to criminal law. The last one went up today (it touches on terrorism, but the fact that it was posted on 9/11 was the purest coincidence).

And just in time, too. Because the book can now be pre-ordered from the publisher.

You read that right. YOU CAN BUY THE BOOK! Yeeha!

Awesome book cover

Well, what are you waiting for? Stop reading this and go make my publisher happy.

On Overcriminalization: There’s nothing new under the sun

Monday, June 11th, 2012

As we’ve mentioned perhaps a dozen times by now, we do this illustrated guide to law in our rare moments of free time. (Latest post on self-defense law is here.) We make every effort to avoid citing case names or statutes in that guide, because they’re almost never necessary for an understanding of the actual concepts. We also try not to waste time on what the law used to be. It’s common for those who popularize specialized fields of knowledge to tell the story of how a given field has evolved, devoting the bulk of their writing to what people once thought, before getting to how things are right now — and we hate that. Cut to the chase, already!

But the next installment’s going to be about the sources of criminal law, and it would be sort of disingenuous to simply cut to the chase there (“elected officials pass statutes and ordinances, and agencies adopt regulations, now move along” — that’s not really the whole story, is it?). In this particular case, it seems necessary to at least summarize a history of how English and American criminal laws all came about. Because that history is still a big source of the criminal laws we deal with now — occasionally in weird ways.

It’s a fascinating history, and we’re barely going to touch on any of it in our comic. But the surprising thing is how rarely anyone has touched on it at all. The history of criminal procedures is extremely well-documented (and byzantine in its complexity); but if any of you are History majors looking for a topic for your senior thesis or a dissertation, we might just mention that the history of the laws defining crimes is far from exhausted, hint hint.

There are two or three halfway-intelligible histories out there, written during various centuries, and each author makes the same complaint that they’re writing in a vacuum. Each, however, refers heavily to Sir William Blackstone. So we were re-reading bits of his Of Public Wrongs this morning over our coffee (thank you Google Books!) when a thought started nagging in the back of our brain.

It was hard to pin down the idea, but then we had it: Overcriminalization. For a while now, people who pay attention to the law have complained that there are too many crimes, with irrationally high penalties, and that this leads not only to injustice but to the law itself losing its legitimacy. Lately, this idea has begun to gain traction among political types as well. People are starting to realize that, as we’ve written several times before, the problems come from a number of sources: vindictive laws being passed without much forethought in response to notorious one-off cases; progressive politicians outlawing more and more offensive behaviors; reactionary politicians ratcheting up the punishments for everything; and perhaps most insidious of all, unelected bureaucrats imposing criminal penalties on countless (and as yet uncounted) regulatory infractions. It’s so bad that nobody knows for sure what’s a crime and what isn’t, and especially in the federal system the penalties can far outweigh the severity of a given offense.

Why did reading Blackstone bring this to mind? Because apart from merely commenting on the state of the law in the mid-1700s, Blackstone was arguing for reform. He wanted a law that was more utilitarian, more deterrent than retaliatory, more enlightened — and above all, more simplified. He complained that the criminal law as it stood in his time was a tangle of writs and statutes, with new offenses being created all the time without anyone knowing about it. All the different sources of penal laws, and all the previously unknown offenses, were “a snare for the unwary.” The law had ratcheted up over the preceding centuries, so that the number of capital offenses was enormous, and severe punishments were prescribed for the pettiest offenses. All this led to judges refusing to impose the prescribed penalties, while at the same time leading to a growing contempt for criminal laws in general.

Yup, sure sounded familiar. Overcriminalization is something that just seems to … happen… in mature systems. In Blackstone’s time, it happened because of a rapidly-growing administrative role of government, because of officials trying to look tough on crime, because of vindictive one-off laws, because of not thinking things through, and because of simple intertia. Yup, totally familiar.

Still, whenever people start talking about overcriminalization, they don’t start throwing around old Blackstone quotes. Instead, they usually come out with an aphorism they ascribe to Tacitus: “The more numerous the laws, the more corrupt the government.” Which is unfortunate because (1) that phrasing implies a meaning that Tacitus did not intend; and (2) what the old boy really was saying was so much more apposite.

What was Tacitus saying in his Annals, Book III part 27? He’s talking about how the laws were getting out of hand in Ancient Rome:

Pulso Tarquinio adversum patrum factiones multa populus paravit tuendae libertatis et firmandae concordiae, creatique decemviri et accitis quae usquam egregia compositae duodecim tabulae, finis aequi iuris. nam secutae leges etsi aliquando in maleficos ex delicto, saepius tamen dissensione ordinum et apiscendi inlicitos honores aut pellendi claros viros aliaque ob prava per vim latae sunt. hinc Gracchi et Saturnini turbatores plebis nec minor largitor nomine senatus Drusus; corrupti spe aut inlusi per intercessionem socii. ac ne bello quidem Italico, mox civili omissum quin multa et diversa sciscerentur, donec L. Sulla dictator abolitis vel conversis prioribus, cum plura addidisset, otium eius rei haud in longum paravit, statim turbidis Lepidi rogationibus neque multo post tribunis reddita licentia quoquo vellent populum agitandi. iamque non modo in commune sed in singulos homines latae quaestiones, et corruptissima re publica plurimae leges.

Which my antique Church & Brodribb translation has as:

After Tarquin’s expulsion, the people, to check cabals among the Senators, devised many safeguards for freedom and for the establishment of unity. Decemvirs were appointed; everything specially admirable elsewhere was adopted, and the Twelve Tables drawn up, the last specimen of equitable legislation. For subsequent enactments, though occasionally directed against evildoers for some crime, were oftener carried by violence amid class dissensions, with a view to obtain honours not as yet conceded, or to banish distinguished citizens, or for other base ends. Hence the Gracchi and Saturnini, those popular agitators, and Drusus too, as flagrant a corrupter in the Senate’s name; hence, the bribing of our allies by alluring promises and the cheating them by tribunes vetoes. Even the Italian and then the Civil war did not pass without the enactment of many conflicting laws, till Lucius Sulla, the Dictator, by the repeal or alteration of past legislation and by many additions, gave us a brief lull in this process, to be instantly followed by the seditious proposals of Lepidus, and soon afterwards by the tribunes recovering their license to excite the people just as they chose. And now bills were passed, not only for national objects but for individual cases, and laws were most numerous when the commonwealth was most corrupt.

So he wasn’t saying “the more corrupt the government happens to be, the more laws there will be.” He was saying “there were ups and downs, but generally there was a strong correlation between how many criminal laws we had and how broken our government was at the time.” (The word “corrupt” having the older more general meaning of “debased, decayed, changed in bad ways” — the way we’d say “a corrupted hard drive” today — in addition to the more specific modern meaning of “venal, self-serving, bribe-taking etc.”)

And what Tacitus was saying in general was the same thing that Blackstone was saying: there were too many criminal laws, often conflicting, created not for the general need but in order to curry favor with the people, to react to one-off cases, etc. etc.

Yup, sure sounds familiar. Just like old Ecclesiastes said, “there’s nothing new under the sun.” (Or didn’t one of the Epicureans say that first? Or was it one of the older Vedas?)

-=-=-=-=-

Blackstone actually gives us some hope. For his proposed reforms actually were taken to heart — in the new United States, of all places. As the new states were formed, and began creating their laws practically from scratch, they were ideally suited to put these new progressive ideas in place. There was no hidebound tradition to adhere to, no entrenched bureaucracy to upend. Blackstone called for a stripped-down, principled criminal law, and American legal thinkers tried to make it so. Crime was (for the first time in history, really,) identified as an offense against the State, and not the more personal kind of moral offense or private conflict. Lawmakers and judges began to try to explicitly think through different levels of intent and culpability — not as thoroughly as would be done in the mid-20th Century, but still in significant ways. Deterrence replaced retaliation as the driving force of enlightened thought on punishment. These were not frontier hicks making the laws, but educated progressive thinkers well aware that they were creating something new, and trying to get it right the first time.

We don’t have a new nation to start from scratch again, but at least there is precedent for reform. England came around, too — if a bit more gradually. (We probably don’t want another Sulla, though.)

It’s happened before, it could happen again. There’s nothing new under the sun!

 

 

 

Exceeding Their Authority: When Bureaucrats Create New Crimes, Justice Suffers

Wednesday, December 14th, 2011

One of our bugbears here at The Criminal Lawyer is the excessive number of federal crimes — particularly those that are created by regulators rather than by elected legislators. We’re not alone in this concern, and over the past several months we’ve noticed what can only be called a growing movement for reform.

A particular concern of ours has been the fact that an astonishing number of federal crimes lack any mens rea component. In other words, one can face prison even though their act was perfectly innocent — there was no intent to break the law whatsoever.

Mens rea is an essential part of American criminal justice. We don’t punish people simply because the committed some act or other, or even just because they harmed someone. Even if that harm was grievous. No, before we punish someone, there has to have been some culpability on their part. And culpability is defined by their mental state when they committed the act. There is a spectrum ranging from intentional through accidental, and the closer one was to the intentional end, the more severely we punish them. (If you want to be pedantic about it, there are a couple of other spectra of mental state as well — one’s ability to tell right from wrong, and one’s level of depravity — imagine them as the Y- and Z-axes to the X-axis of mens rea, if you like. But only mens rea is a component of crime itself — the others apply as defenses and as sentencing concerns.)

When defining a crime, here’s how it’s supposed to work: You specify what act you are forbidding, and you specify the mental state required to make it criminal — so bad that it deserves punishment. For example, if you plot to kill your neighbor, and succeed in killing him, then you are going to be punished far more harshly than a careless teenager who kills a family of four when he mistakenly runs a red light. Your act was more intentional, and thus more evil, than that of the teenager. Even though he did far more harm, you are more culpable, and thus your act is more criminal. And a man who accidentally trips on the sidewalk, knocking a little old lady into an oncoming bus? His act isn’t criminal at all. It was purely accidental, and unlike the teen driver he did not deviate from the normal standard of care to any extent that society would punish.

It is true that, as American jurisprudence evolved, there did arise certain “strict liability” crimes that have no mens rea requirement. Things like statutory rape. But those are exceptions to the rule, in the first place. And in the second place, the lack of mens rea is not really applicable — it usually has to do with elements of the crime that your own mental state could not affect one way or the other. For example, in the case of statutory rape, the issue is not whether you knew the girl was under the age of consent, but whether you had sex with someone without their consent — and someone under the age of consent, as a matter of law, cannot have consented to have sex with you. Your mens rea has nothing to do with whether or not she consented. It does not matter whether you knew she was underage, what matters is that she was underage, and thus you had sex with someone without their consent.

But though there were strict liability crimes, they were exceedingly rare.

Until regulators got involved.

Bureaucracy has a way of growing, and of expanding its own authority. Give an agency power to regulate, say, the mouse-pad industry, and they will start writing rules and procedures based on how mouse pads are actually produced and sold. Then they will start writing rules based on how the bureaucrats think mouse pads ought to be produced and sold, perhaps involving idealistic notions or academic fads. Meanwhile, they’ll busily craft tons and tons of rules and procedures micromanaging every aspect of how the main regulations are to be complied with. The number of regulations out there that Americans are expected to follow are uncountable, and nobody knows what’s in all of them. It’s beyond the capacity of the human brain to know what all the rules are.

And all of these rules have the force of law. Even though no elected official ever enacted them. The regulations are imposed, not by elected representatives who speak for (and must answer to) the citizenry, but by unelected government employees answerable to nobody.

That’s all well and good, when (more…)

Too Many Federal Crimes, Too Many without Mens Rea — Do We Have a Movement Yet?

Wednesday, September 28th, 2011

We’ve posted several times about how there are just too many federal crimes, many created by regulatory fiat or otherwise without meaningful oversight by elected officials. About how a great many of them are apparently drafted by people with no understanding of how criminal law works and why. About how, as a result, there are an insane number of federal crimes (all felonies, of course) that penalize without any mens rea requirement at all. The most innocent accident, the most harmless and unintentional error, can make any honest and decent citizen a felon. (Sample posts here and here.)

We’re not the first to talk about it, by any means. We won’t be the last. But it’s starting to look like we’re reaching a tipping point — a critical mass of public awareness that might actually lead to … dare we say it … change?

Back in July, we cited a recent study that showed that, when a perception is firmly held by fewer than 10% of a population, it doesn’t really catch on. But for some reason, once the magical number of 10% is reached, the opinion spreads like wildfire. From obscurity, the idea suddenly becomes a majority view.

This 10% number pops up no matter what relevant population you’re looking at, no matter what social network. All that it takes to change the world is to have 10% of them be firmly committed, stubborn, and outspoken.

Over the rest of this summer, we’ve seen more and more references to this overcriminalization.  They’ve come mainly from the libertarian right and the defense bar, as one might expect, but it’s also been catching on in the mainstream press, left-leaning internet fora, and other places indicating that the idea is starting to take root in the general consciousness.

The last several days have seen a marked uptick in the topic. The New York Times cited it three days ago as a reason why people are taking pleas rather than going to trial. The Wall Street Journal has been doing a series on it, culminating yesterday in a long article on pretty much everything mentioned in the first paragraph of this post. And various bloggers and redditors and the like have been talking it up more than usual.

It’s starting to look less and less like a passionate few shouting in futile obscurity, and more and more like a movement.

Excellent. Let’s keep it up, shall we?

-=-=-=-=-

(Aside — If we were a Republican presidential candidate, we’d jump on this in a heartbeat. Not only would we be getting out in front of the movement, the better to be mistaken for a leader, but it would be a great way to repackage part of the platform. The present platform calling for less regulation comes off as a kind of “help out corporations at the expense of the people and the environment” thing. But make it a call for less regulation in the name of social justice — with plenty of anecdotal examples of real individuals who have been fucked by the fourth branch — and it becomes a populist battle cry. Just sayin’.)

The Ten-Percent Solution

Tuesday, July 26th, 2011

At the close of yesterday’s post, we talked a little about how we’re starting to see signs of opposition to the insane quantity of federal crimes.  More and more people are starting to see how bad it really is, we noted — perhaps enough some day soon to reach a tipping point that results in actual change.

It would have to be a big freaking tipping point, though, wouldn’t it?  Current attitudes are rapidly swelling the numbers of crimes, and the tide is only rising.  Idealists push for criminalization of unsavory attitudes (see hate crimes). Crusaders criminalize failure to keep up with the crusade du jour (EPA, anyone?).  Pencil-pushers criminalize failure to comply with arbitrary procedures (see any random page of the C.F.R.).  The public cries out for crimes named after children, to punish everyone for an outlier result.  And politicians ratchet up the penalties so they don’t look “soft on crime.”  Overcoming such a mass of societal attitudes is a daunting prospect.

As it happens, though, societal change may not be as impossible as all that.  Science Daily now reports on a study showing that, when just 10% of a population holds a firm belief, that belief will always be adopted by the majority of the society.

When the number of committed opinion holders is below ten percent, there is no visible progress in the spread of ideas.  It would literally take the amount of time comparable to the age of the universe for this size group to reach the majority.

But,

Once that number grows above ten percent, the idea (more…)

Too Many Crimes — Time for Change

Monday, July 25th, 2011

A few times, now, we’ve talked about how there are too many federal crimes, and how an enormous number of them are frankly unjust.  We’re just one of many voices crying out about this deep and dangerous problem.  The other day, the WSJ entered the conversation with a piece titled “Federal Offenses: As Criminal Laws Proliferate, More Are Ensnared.”  We’re not going to comment on the piece other than to say it’s well written, and worth reading.

It is certainly true that the number of federal crimes has risen rapidly in recent decades.  And it is beyond rational dispute that a growing number of these crimes are flatly unjust.

Far too many are created by regulatory bureaucrats, unbeholden to any voters, as tools for enforcement of their strictly civil rules (the proper methods of enforcement being fines and restrictions/denials of permit).  And by “far too many” we mean “all crimes created by regulatory agencies.”  Criminal law is not just some tool for rule enforcement; it is the singular means by which the awesome might of the state is brought to bear to punish those whose conduct is so bad that society demands that we take away the transgressor’s liberty, his property, his reputation, and sometimes even his life.  As an old bureau chief of ours used to say, “it is a big fucking hammer, not to be used lightly.”

Many of the federal crimes are unjust for that reason, because they do not punish conduct that society (through elected officials) requires punishment.  Far too many are also unjust because they lack any (more…)

Decent, law-abiding citizen? Go directly to jail.

Saturday, October 30th, 2010

 

Odds are, if you’re reading this, you’ve lived an admirable life.  You applied yourself in school, got a good job, and worked hard to be a valuable member of your community.  Through your own efforts, you’ve probably earned a position of respect and responsibility.  Maybe you run your own shop, or you’re a partner in a firm, or you’re a military officer.  Your ethics are beyond reproach.  You’re raising your kids to be loyal, kind and brave.  You, dear reader, are doing everything right.

And you, dear reader, can very easily find yourself in the defendant’s seat.  In the crosshairs of a federal or state prosecution.  Facing serious prison time.

For what?  For nothing, that’s what.  You yourself may have done nothing wrong, but our criminal law has devolved so far, so fast, that you can find yourself being prosecuted anyway.

The worst effects can be seen in federal law.  As the regulatory state has expanded, as the “nanny state” has expanded, as the role of the federal government has expanded, the nature of federal criminal law has changed dramatically.  Stuff that nobody in their right mind would consider “criminal” has nevertheless been made into a federal crime, not just by congressional statute, but by regulatory fiat.

Regulatory crimes are the worst, because agency regulations are never (more…)

The Suspense is Killing Us

Wednesday, June 2nd, 2010

300 supreme court

There are four Mondays left in June.  Four more days in which the Supreme Court is expected to announce its decisions in the 27 or so cases still out there this term.  That’s about one case per day from now till then.  We’re picturing the Justices pulling all-nighters, stacks of empty pizza boxes in the halls at 2 a.m. next to the burn bags (do they still use burn bags there?), and sleepy zombie-like clerks dropping in their tracks every now and then.

Some of those cases have to do with boring old civ pro or shipping or labor law.  But a whole bunch are about the cool stuff, criminal law.  Here are a few of the criminal cases we’re watching particularly closely:

Black v. United States
Weyrauch v. United States
Skilling v. United States

This trio of cases attack the “honest services” fraud law.  18 U.S.C. § 1346 was supposed to prevent political corruption, but Congress wrote it so sloppily that it’s become a catch-all crime for federal prosecutors.  Anyone can get charged with it, and nobody knows what it means.  The Court telegraphed its dislike of the statute during oral arguments of all (more…)

Grammar Schooled: Over-Zealous Feds Get an “F” in Adverbs

Monday, May 4th, 2009

social-security-card.png

In a sort-of unanimous opinion today, the Supreme Court reversed the conviction of a Mexican who’d tried to get a job by using counterfeit Social Security and Alien Registration cards along with a fake name and date of birth. He’d been convicted of aggravated identity theft, 18 U. S. C. §1028A(a)(1) — a federal crime for “knowingly” using “a means of identification of another person.”

There was no evidence that this guy, named Flores, knew that the Social Security cards (plural) or Alien Registration cards (yes, plural) he’d tried to use had actually belonged to anyone else. And in fact, they didn’t, as they were made-up counterfeits. The feds said it wasn’t necessary to prove that Flores knew it was someone else’s ID. All they needed to prove, they said, was that Flores knew that… well… that he was using a means of identification.

The trial court, for some reason, bought that argument. Flores then decided to forego a jury and let the judge decide the case. The judge found him guilty of aggravated identity theft. On appeal, the Eighth Circuit agreed with the trial judge’s ruling.

Writing for the Court today in Flores-Figueroa v. U.S., Justice Breyer gave the feds (and the trial judge, and the Circuit) an “F” in basic English grammar. The phrase “knowingly using someone else’s ID” has a simple plain meaning, which is that you knew it was someone else’s ID. Nobody in their right mind would expect the word “knowing” to only modify the verb “using.” Nobody with a third-grader’s grasp of English would think it did not modify the verb phrase “using someone else’s ID.” In fact, to read the sentence the way the feds wanted to would make no sense whatsoever.

The feds, for their part, could not present a single example of a statute being interpreted the way they wanted this one to be interpreted. Their arguments were just lame. And so all nine Justices agreed that this conviction needed to be reversed.

But not all nine could agree with the rest of Breyer’s reasoning. And neither can we. If Breyer had stopped right here, this would have been a great opinion. But he didn’t stop there. Instead, as pointed out by (still concurring) Justices Scalia, Thomas and Alito, he added some unnecessary extra bits of reasoning that only serve to weaken the Court’s opinion.

All three properly called him out for making a baseless statement that courts “ordinarily” read the mens rea of “knowingly” to apply to every element of the crime. Breyer said that there are certainly examples where “knowingly” does not apply to every element. For example, it’s illegal to knowingly transport someone under 18 years old across state lines for prostitution. But you didn’t have to know that the victim was under 18 to be convicted of this crime. The law doesn’t care whether you knew that element or not. All you had to do was know that you were transporting the victim across state lines for prostitution.

Scalia remained “agnostic” on whether courts “ordinarily” interpret laws this way. But Breyer seems to imply that courts should interpret laws this way, and Scalia cautioned against that firmly. “It is one thing to infer the common-law tradition of a mens rea requirement, where Congress has not addressed the mental element of a crime,” he said (a tip of the hat to one of Breyer’s own dissents last week). But “it is something else to expand a mens rea requirement that the statutory text has carefully limited.

Scalia also raised another good point, that Breyer shouldn’t have gone on about the legislative history here. “Relying on the statement of a single Member of Congress or an unvoted-upon (and for all we know unread) Committee Report to expand a statute beyond the limits its text suggests is always a dubious enterprise.” That is especially bad, he added, when doing so would criminalize acts that the text would otherwise permit.

* * * * *

It is clear that the feds improperly charged Flores with identity theft here. Although he clearly used a false identity, and absolutely tried to pass off counterfeit identification documents, it was equally clear that he had never stolen or used anyone else’s ID.

Why did the feds charge him with a crime he clearly hadn’t committed? It’s not as if they didn’t have other stuff to charge him with. Were they just not thinking? Did they just not understand what the law said in plain English? Did they just not care? Or were they intentionally trying to stick it to him?

Hmm… that’s a nice little mens rea question. Their reasons determine their culpability. Were they idiots (and therefore bad at their job, but not bad people), or were they abusing their power (and therefore bad prosecutors, and bad people)? What do you think?

Upcoming New Hate-Crime Law — Nothing Wrong With the Idea, But This One Has Problems

Friday, May 1st, 2009

hate-crime.png

The other day, by a vote of 249 (59%) to 175 (41%), the U.S. House of Representatives voted to expand the scope of federal “hate crimes” to include crimes against gay people, transgender people, the mentally disabled and the physically disabled. With strong support from the White House and from Senate democrats, we expect to soon see this become law without many changes.

We frankly don’t like hate crimes, but from a jurisprudence perspective there really isn’t any problem with them. More on that below. At the same time, however, this particular bill is problematic. More on that below, as well.

The bill, H.R. 1913 (text here), imposes up to 10 years in prison if you to commit violence because you thought someone was black or gay or whatever. (It also authorizes grants of up to $100,000 per year in federal money to the various state, local and tribal law enforcement agencies. The money is to go towards investigating and prosecuting hate crimes, and programs to reduce the occurrence of hate crimes.)

In the form passed by the house, the hate crimes portion of the law would now do the following:

1. With respect to:
Race,
Color,
Religion, and
National Origin

…A. In general.

………1) If you attempt to cause bodily injury to someone, or if you willfully cause such injury, AND

………2) If you did so with fire, a gun, a dangerous weapon, an explosive, or an incendiary, AND

………3) If you did so BECAUSE of the actual or perceived race/color/religion/national origin of the victim, THEN

………4) Your maximum sentence goes up to 10 years.

…B. If someone died or you tried to kill, or you kidnapped or tried to kidnap someone, or you also committed or tried to commit aggravated sexual abuse, THEN

………1) There is no maximum sentence, and you can get anything up to life in prison.

2. With respect to:
Religion (again),
National Origin (again),
Gender (I guess they’re referring to biological sex, as opposed to foreign grammar),
Sexual Orientation,
Gender Identity, and
Disability

…A. In general.

………1) The exact same stuff as above applies, but only if you acted under any of these circumstances:

…………..a) Either you or the victim crossed state lines or a national border.

…………..b) Either you or the victim used an instrument of interstate or foreign commerce.

…………..c) You used a weapon that had traveled in interstate or foreign commerce.

…………..d) Your conduct interferes with the victim’s economic activity.

…………..e) Your conduct otherwise affects interstate or foreign commerce.

Finally, to forestall the criticisms that hate crime laws infringe on First Amendment rights, the statute says it shall not be construed to prohibit any expressive conduct protected by the Constitution. Nor to prohibit any activities protected by the Constitution.

* * * * *

So, what does this mean?

Critics of hate crimes laws, like Rep. Lamar Smith (R-TX), say that such laws undermine the principal of equal justice for all. “Justice will now depend on the race, gender [gah!], sexual orientation, disability or other protected status of the victim,” Smith said during debate. “It will allow different penalties to be imposed for the same crime.” House Republican Leader John Boehner of Ohio said that this “places a higher value on some lives compared to others. That is unconstitutional, and that is wrong. All life was created equally, and all life should be defended equally.”

Such criticisms miss the point, a little bit.

As written, this law does not put greater value on a victim’s life because of their race, sex, religion, or what have you. The victim’s actual status has nothing to do with it. The law doesn’t care if the person actually was black or female or Methodist — it only cares whether the offender thought so.

The focus is not on the victim. It is on the offender’s state of mind. In other words, all this law does is insert a new form of mens rea into criminal jurisprudence.

Mens rea is the legal word for an offender’s state of mind, and is almost always a crucial element of a crime. A harmful act that was committed without the requisite mental state is not going to be a crime. For the most part, society doesn’t want to punish people when they weren’t trying to do something wrong, or when they weren’t breaching any duty to be careful.

The traditional mens rea have coalesced over time into a continuum that looks something like this:

…FAULTLESS. There is no culpability here. You weren’t doing anything wrong, or you can’t be held accountable for your actions. Society doesn’t want to punish you, because it would serve no purpose. It would be mere retaliation, and that’s just not civilized. (Don’t start thinking we’re too evolved, however — we do still have STRICT LIABILITY laws, like statutory rape and certain weapon and drug possession crimes, where society couldn’t care less whether you meant to do it, or even knew that you were doing it. So we still have some holdovers from the old “eye-for-an-eye” days of punishing even mere accidents.)

…NEGLIGENT. This is the lowest level of culpability. You were supposed to be careful, and you weren’t and now someone got hurt. You weren’t trying to do anything wrong, but you did anyway, and you ought not to have. Society wants to punish you for this, but only a little. We want to make sure people are careful when they’re supposed to be. Not paying enough attention while driving, then running over a pedestrian, is a crime of negligence.

…RECKLESS. This is punished somewhat more severely. You knew what you were doing might hurt someone, but you did it anyway. Society wants to punish you more for this, because you were just indifferent to the consequences of your actions. You were putting your own interests above those of the rest of us, and someone could have gotten hurt. Shooting a gun indiscriminately out a window is reckless. Driving so fast that you can’t safely react is reckless.

…KNOWING. This is even more severe. When you were reckless, you disregarded the mere chance that something bad might happen. But when you had a pretty good reason to believe that something bad would happen — even though it’s not what you were mainly trying to accomplish — then society wants to punish you much more. Let’s say you caught your spouse cheating on you, so that Saturday night you cut their brake lines. You’re trying to kill your spouse when they take their mother to church the next morning. The resulting accident kills your mother-in-law as well. You weren’t trying to kill her, but you knew she could die as well.

…PURPOSE. This is the most severe. You were actually trying to do it. Society punishes intent the most severely of all, as it’s the most culpable of the mental states. When you severed your spouse’s brake lines in the example above, you intended to kill your spouse.

There are other mens rea out there, which sort of come at this continuum from right angles. ATTEMPT is the big one. It’s a form of intent, of purpose, but it slips in between each of the standard categories. You were trying to commit a crime, but for whatever reason it failed. If you tried to shoot a gun randomly out the window, but it jammed, you’re guilty of an attempted crime of recklessness — you intended to commit a crime with a reckless state of mind. If you tried to purposely shoot someone, but the gun jammed, you’re guilty of attempted murder, attempting to commit a crime with an intentional state of mind. Attempts aren’t punished as severely, because the state of mind is not the only reason for enhanced punishment — the events themselves also play a part in determining culpability (a fact that some on the Supreme Court seem to have forgotten).

So all “hate crimes” laws like this one do is define a new mens rea. This one does not fall within the standard continuum, however. It does not care so much whether you were negligent, reckless, knowing or purposeful. It only cares what you believed to be true of the victim, and that you acted because of that belief.

This really doesn’t even come at the continuum from right angles. It’s wholly separate and apart. It’s a one-off. It’s not even on the same piece of paper. It’s a new kind of mens rea, because it has less to do with your mental state with respect to your actions, and more to do with the reasons why you’re committing them in the first place.

But does that make this new mens rea improper? Not really. It just so happens that, over the past couple hundred years, our national culture has gradually come to consider harmful — actually harmful to society — mistreating people based on attributes beyond their control. People can’t help what color they are, or where they were born, or what religion they were raised in, or what turns them on, or whether they have Down syndrome. Mistreating them because of such things is, to modern eyes, harmful to society.

Society punishes harm to itself by criminalizing it. So it’s a simple step to criminalize mistreating people because you thought they possessed certain attributes beyond their control. That belief, the reason for the criminal act, is just a new form of mens rea, and a harmless one at that.

* * * * *

However, just because we don’t have a problem the concept of this hate crime law, that doesn’t mean we think it is a good one. In fact, there are significant problems with it.

For example, there is a real vagueness with respect to religion and national origin. On the one hand, they’re the same as race, and don’t require additional circumstances. On the other hand, they are grouped in with the new categories requiring additional circumstances. It has to be one or the other, and this vagueness could make hate crimes based on religion and national origin void, under the Rule of Lenity.

Of course, the Commerce-Clause-related circumstances could make this merely a distinction without a difference. But if it there was no difference, then why did Congress go to the effort of writing those conditions for certain victims, but not for others? A savvy defense attorney might well argue that these particular hate crimes are unenforceable.

In addition to this unnecessary vagueness, the law is also overbroad.

Let’s back up. The policy underlying this (and pretty much any other American law against discriminatory behavior) is that we don’t want people being singled out for mistreatment for reasons they have no control over. Again, people can’t help what race they are, so it’s bad to mistreat them for it. It now seems pretty clear that people can’t help what their sexual proclivities happen to be, so it’s bad to mistreat them for that as well.

But there are sexual proclivities that society still wants to punish. There are those who can only get sexual gratification from acts involving children. For the most part, they can’t help this, which is why they usually cannot be rehabilitated. So we have two competing interests here: society’s desire to protect those who can’t help being the way they are, and society’s desire to protect children from sexual predation. It should be obvious to most who read this what the policy ought to be on this. But this law doesn’t go there.

So you could have a situation where a father catches a sexual predator making moves on his young child, and beats him severely with a metal baseball bat. The act was committed primarily because of what the victim was, and it was based on his sexual orientation, so now the father is facing prosecution for a hate crime in addition to the assault.

Or you could have a religion whose believers are sworn to kill all redheads on sight. You happen to be a redhead, and members of that religion just established a temple down the street from your house. You willfully torch the temple, and someone gets hurt. Now, in addition to the arson, you’re looking at a hate crime.

These are extreme examples, to be sure. It’s not something that’s likely to happen. It merely shows that the law is inartfully written, and that it is conceivable that it could therefore be applied in ways that were not contemplated by Congress. These merely illustrate that the law could serve to protect those whom the law does not wish to protect, and penalize those whom the law did not wish to penalize.

These examples also raise a policy question as to defenses. In the first, the father could raise a defense of temporary insanity to challenge the assault claim. In the second, the arson might be challenged with perhaps a Bush-doctrine preemptive self-defense.

But is there room for such defenses in this law, the way it’s written? Temporary insanity is a defense to mens rea. It posits that the necessary mental state did not exist, because circumstances were such that the offender could not have been thinking that way. But here, the temporary insanity would be proof that the necessary mens rea did exist. It’s the result of the knowledge that the victim was a sex offender, and tends to show that the violence was inflicted because of it.

* * * * *

In short, we don’t have a legal or constitutional problem with hate crime laws. They actually seem to be a natural extension of our criminal jurisprudence. But this one seems to have been passed without anyone actually reading it (not surprising, as it hardly spend any time in committee).

An administration and the same-party majority in Congress just want to push a law through, and so they will. And they will wind up passing a law that probably doesn’t mean what they wanted it to mean, and which might not stand up under scrutiny.

So what’s new?

Supreme Court Undoes Belton, Dramatically Limits Car Searches

Tuesday, April 21st, 2009

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In a stunning 5-4 decision, the Supreme Court today reversed its longstanding bright-line rule which had permitted warrantless car searches after an arrest, even when there was no concern for officer safety or the preservation of evidence. The case is Arizona v Gant.

Writing for the majority in this important decision, Justice Stevens held that the police may only search the passenger compartment of a vehicle, pursuant to the arrest of a recent occupant, if it is reasonable to believe that the arrested person might access the car while it’s being searched, or that the car contains evidence of the crime for which that person was arrested.

Interestingly, the votes were contrary to common stereotype. The majority, which limited police powers, included the two most right-wing justices in the popular mind, Scalia and Thomas. The minority, which would have expanded police powers, included two fairly liberal justices, Kennedy and Breyer.

Rodney Gant was arrested for driving with a suspended license. After he was arrested, the police handcuffed him and locked him in the back of their cruiser. Once he was secured, the police then searched his car and found a jacket on the back seat. In a pocket of that jacket, they found some cocaine.

The trial judge in Arizona denied the motion to suppress, saying that the police are allowed to conduct such a warrantless search of a car incident to arrest. The police had seen Gant driving without a license, so the search was incident to a lawful arrest, and that was enough for the trial court. The Supreme Court, after all, had ruled in New York v. Belton, 453 U.S. 454 (1981) that a warrantless vehicle search incident to lawful arrest was proper. At the suppression hearing, one of the officers explained that the search was done “because the law says we can do it.”

This is actually the common interpretation of Belton. It is widely regarded (and reviled) as a bright-line rule. Stevens pointed out in today’s opinion that it “has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.” He added that “the chorus that has called for us to revisit Belton includes courts, scholars, and Members of this Court who have questioned that decision’s clarity and its fidelity to Fourth Amendment principles.”

The bright line has seemed only brighter in the past decade, however, especially after Whren v. United States, 517 U.S. 806 (1996), which held that the police could seize evidence in plain view within a car even after an arrest for a mere traffic violation, regardless of whether there was an ulterior motive in making the traffic stop. So the trial court’s ruling was not a surprise.

Despite the common interpretation, Gant appealed, arguing that Belton shouldn’t be read so broadly as that. It shouldn’t permit a search of the car when the arrestee poses no present threat to the officers. And it shouldn’t permit a search of the car when there is no way it could contain evidence of the crime for which he’d been arrested. There was simply no exigency that satisfied the policy underlying the Belton rule.

The Arizona Supreme Court agreed, and reversed. The Arizona Supreme Court found that Belton only had to do with how much searching could go on during a vehicle search incident to arrest, and did not have to do with whether such a search was permissible once the scene was secure. The Supreme Court of the United States had explained its underlying policy back in Chimel v. California, 395 U.S. 752 (1969), saying that the reasons justifying warrantless search incident to arrest is for the safety of the officers, and for the preservation of destructible evidence. In this case, those justifications did not exist at the time of the search.

The State of Arizona filed cert, arguing that the bright-line rule of Belton permitted the search, and that the common interpretation is the right one.

Writing for the majority, Stevens said that the bright-line rule, though the common interpretation, is the wrong interpretation. He saw that this came about because of an inappropriate reliance on Brennan’s dissent in Belton. Brennan had felt that the Belton rule created a legal fiction that the interior of a car is always within the immediate control of an arrestee, even when that person is no longer near the car at the time of the search.

Stevens acknowledged that this reading leads to absurd outcomes, including searched “incident to arrest” after the arrestee had long since left the scene.

To avoid such absurdity, the Court rejected the bright-line interpretation, and held that the underlying Chimel policy only authorizes vehicle searches incident to arrest “when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.”

The Court added a second condition when such searches are permissible, derived not from Chimel but from Scalia’s concurring opinion in Thornton v. United States, 541 U.S. 615, 632 (2004). (Yet another example of a concurring or dissenting opinion later becoming law of the land.)

This second condition is when, based on the individual circumstances, it would be reasonable to believe there is evidence relevant to the particular crime for which the suspect was arrested.

The bright-line rule has clearly been demolished, and replaced with a case-by-case analysis of the facts.

Now bright-line rules aren’t necessarily a bad thing, in and of themselves. There is a tradeoff between the necessity to account for the vagaries of real life, and the necessity for an easily-understood rule that police can follow. Both considerations are necessary for the protection of individual liberties. If the line is too bright, then law enforcement can ignore common sense and violate rights just because they can. But if the rule is too convoluted, to take into account all the vagaries of real life, then law enforcement won’t understand it, and risks violating rights by accident (or on purpose).

Stevens came up with a rule here that we think is easy enough to understand. The police can conduct a warrantless vehicle search incident to arrest if:
(1) the arrestee can still reach into the passenger compartment, or
(2) there’s reason to believe that the car contains evidence relevant to the crime he was arrested for. That’s not going to cause any confusion. Police officers and trial judges won’t have a hard time applying it.

– – –

There has been a movement in American jurisprudence away from formalism and bright lines, toward balancing. Instead of emphasizing bright-line rules requiring warrants, or dispensing with the need, the courts have been leaning more towards whatever is reasonable under the particular circumstances. A judicial, backward-looking approach, rather than a legislative one.

This ruling clearly fits that trend.

Well, except for Scalia’s concurring opinion. This ruling is in large part a result of his Thornton concurrence, but his focus is still a legislative, forward-looking approach, at least with respect to the process of judicial interpretation. His first sentence begins: “to determine what is an ‘unreasonable’ search within the meaning of the Fourth Amendment, we look first to the historical practices the Framers sought to preserve…”

We find this concurrence to be almost as good a read as his dissents. He lays plain the absurdities of the bright-line rule, only hinted at by the majority opinion. He does acknowledge that the Founders weren’t thinking of this stuff at all. And he tears the dissent of fellow conservative Alito to shreds. But we’ll let you read it all for yourself.

For now, suffice it to say that a major case was decided today, and the ruling is a good one for defendants and law enforcement both.

First Attempt to Admit MRI Lie Detector Evidence in Court

Wednesday, March 18th, 2009

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In October, we reported that functional magnetic resonance imaging (better known as fMRI) is being touted as an honest-to-goodness lie detector. Unlike a polygraph, which required interpretation of physical bodily reactions, an fMRI looks at real-time brain activity to see if brain areas associated with lying are activated during any given answer.

The issue, of course, was whether such evidence would be admissible in court. Polygraphs aren’t admissible (except in New Mexico) because they’re more art than science. But fMRI is all science, and brain scans are already widely admissible at sentencing. They are now de rigeur in capital cases, and the Supreme Court based its ruling precluding execution of adolescents on brain scan evidence.

When we wrote about it, the issue was purely hypothetical. Nobody had yet tried to introduce such evidence in court. But now, a court in San Diego is going to have to decide that very issue.

The case is a child protection hearing. The defendant is a parent accused of committing sexual abuse. Defense counsel is seeking to introduce fMRI evidence for the purpose of proving that the defendant’s claims of innocence were not lies.

If admitted, this will be the first time fMRI evidence will be used in an American court.

The fMRI in this case was performed by a San Diego company with the somewhat uninspiring name “No Lie MRI.” The company’s name isn’t so much an issue, however, as the actual reliability of these tests on an individual basis.

Although general regions are known to be associated with lying, logic, decision making, etc., their specific location in each individual varies. So some baseline analysis would be required for any person, so that his brain activity during questioning can be compared to a valid exemplar of his own actual brain.

fMRI basically measures oxygen levels in the brain’s blood vessels. When a part of the brain is being used, that part of the brain gets more blood. Studies have indicated that, when someone lies, more blood is sent to the ventrolateral area of the prefrontal cortex.

Only a few studies have been done on how accurate fMRI is at identifying specific lies, though their figures range from 76% to 90% accuracy. (For more info, see Daniel Langleben’s paper Detection of Deception with fMRI: Are we there yet? Mr. Langleben owns the technology licensed by No Lie MRI.) Ed Vul of MIT’s Kanwisher Lab told Wired.com that it’s too easy to make fMRI data inaccurate, because a defendant who knows what he’s doing can game the procedure too easily.

Of course, the big challenge to the defense in this case will be establishing that fMRI lie detection is generally accepted within the relevant scientific community. As with any other novel scientific evidence, if the relevant community is defined narrowly enough, it can come in. The trick would be in determining how narrow the relevant scientific community is in this case. If it includes researchers like Mr. Vul, for example, the defense is going to have a hard time. Even Mr. Langelben, who owns the technology used here, is on record saying that not enough clinical testing has been done to establish how reliable it really is.

We predict that the evidence will not be admitted. Down the road, sure, this stuff will come in on both sides. But right now it’s too new. Courts just don’t go out on a limb for truly novel evidence like this.

And besides, they’re trying to admit it to prove the truth of the defendant’s own statement. The issue is not whether he was lying when he declared that he believed himself to be innocent, however. The issue is whether he committed the acts of which he is accused. Whether he thinks he did or not isn’t really the point. It might be relevant at the sentencing phase of a criminal trial, but not at the fact-finding phase here.

“Sexting” – Humiliating? How About Criminal?

Thursday, March 12th, 2009

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There has been a spate of news articles over the past week about a supposedly new teen trend called “sexting” — basically kids taking nude photos and sending them to each other’s cell phones and computers. The articles follow a Today Show interview with the mother of a girl who committed suicide last July after her photos started getting spread around. Most of the articles out there are of the “how do we protect our children from themselves” variety, but there is also a legal consideration. A lot of this activity could count as child porn, and could result in criminal prosecution.

Jesse Logan was a high school student in the Cincinnati area. Like plenty of teenage girls before her, she gave her boyfriend some nude photos. Unlike the Polaroids of previous generations, she sent them electronically, either by cell phone or by email.

Also unlike physical Polaroids, making copies of these photos would be free and easy. A potentially unlimited number could be sent off to others, just as she had sent them to her boyfriend. When they broke up, the ex-boyfriend sent copies to other high school girls. The photos spread around from cell phone to cell phone, and she started getting harassed at school. She became miserable, stopped going to school, and even went on a local TV station to tell her story.

Two months later, one of Jesse’s acquaintances committed suicide. She went to the funeral, then came home and hanged herself.

Hers is only the most tragic case making the news right now. But it happens all the time. There are reports that nearly half of all high school boys these days have seen nude photos of girls in their school. Some of those are spread by the girls’ boyfriends after a breakup, but most seem to have just been disseminated through normal teen chat.

If those ex-girlfriends were under 18 — and most of them probably were at the time, this being high school — then those photos are child porn. Distributing child porn, possessing it, and disseminating it to minors are all crimes that can get those high schoolers in serious trouble.

The consequences could be very severe. The ex-boyfriends and others who spread their photos could be charged with child porn, receive real jail sentences, and spend the rest of their lives as registered sex offenders.

Realistically, a teenage boy with a nude photo of his girlfriend isn’t likely to be charged with child porn. But someone who sends that photo to others, or posts it online, or otherwise spreads it around… that’s a whole ‘nother story.

It doesn’t even have to be intentional. Alan Grieco, a psychologist who treats Florida sex offenders, told Tampa Bay Online about a client who, when a young 20-year-old man, had dated a 17-year-old girl. He had a nude photo of her on his cell phone, which he did not share with anyone else. But after breaking up, his new girlfriend found the photo and sent it to the first girl’s parents. That young man was then charged with child pornography, and is going to spend the rest of his life living with that.

The kids who voluntarily send nude images of themselves aren’t thinking about how easy they will spread, how permanent such things are once they’re in the wide electronic world, and how much of an embarrassment they could be in the years ahead. That’s bad enough. But what’s worse is that the kids who receive, post and pass around these photos could be putting themselves in very hot water indeed.

Recession Creating More Work for Defense Attorneys — But Not More Criminals

Monday, March 9th, 2009

 

A couple of weeks ago, we were at a luncheon with some white-collar defense attorneys, listening to a presentation by the acting U.S. Attorney, Lev Dassin. Mr. Dassin let us know that, although he couldn’t spill any particulars, there are a number of ongoing investigations at the Southern District of New York right now, which he expected to provide a lot of work for us later this year.

He also confirmed our impression that there is a lot of political pressure right now, causing prosecutors and law enforcement to focus more assets on white-collar crime. Many see the current economic downturn as the result of Wall Street skullduggery, so law enforcement is being tasked with doing something about it.

Our biggest fear is that people who did nothing illegal may get caught up in the frenzy to blame people for the recession. A federal criminal investigation is a serious matter, and even people who did nothing wrong can wind up in prison because of how they behaved during the investigation.

Still, a lot of white-collar crime is now coming to light these days, because of the hurting economy. Ponzi schemes and other fraudulent investments are being caught out left and right, as investors start trying to pay bills by cashing out their accounts, only to discover that their money isn’t there.

Furthermore, PricewaterhouseCoopers today published a white paper, “Boom Time for White Collar Crime,” predicting that the economy will cause greater numbers of people to commit white-collar crimes, such as embezzlement and fraud.

PwC partner Andrew Gordon told GAAP web that “sales targets seem ever more out of reach, bonuses are under threat, and people’s reputations and livelihoods are at stake. Together, these can be powerful motives for individuals to cross the line.”

The white paper predicts an increase in specific types of fraud: data theft by criminal organizations, “rogue traders” in corporate finance departments, and fraudulent mis-reporting of business numbers to make companies appear better to investors. The paper also sees more Ponzi schemes and fraudulent investment schemes collapsing as investors try to cash out.

So criminals caused a bad economy which is causing more criminals? That sounds a little simplistic.

Of course, the economy didn’t go south because a few Wall Streeters went around defrauding investors. The economy tanked for a lot of reasons, but mostly because lenders stopped believing they’d get paid back. Institutions with the most leverage — financial institutions particularly — got their margins called and couldn’t get new credit, a deadly combination. No amount of government stimulus would change that, without a condition that capital infusions to lenders must turn into loans. The government didn’t make such conditions, so lenders just hoarded their cash to sit out the storm. The credit market, already dying, was pretty much killed. The U.S. Congress and the new Administration have since then acted fairly consistently to prevent lenders from regaining sufficient confidence to start lubricating the economy again. In modern economics, perception is everything — if you are perceived to have liquidity, even if you are at risk, you will have liquidity (see JPMorgan Chase this time last year), but if you are perceived to be at risk even though you aren’t, your liquidity dries up (see Bear Stearns this time last year). Once lenders start perceiving that they will get their money back, things will start picking up. This crisis of confidence was caused, not by white-collar criminals, but by Clinton-era directives to make mortgages to people who can’t pay them, by borrowers and lending agents who cashed in on the resulting laxness, and by an ever growing house of cards that was destined to collapse.

So the economy didn’t go south because of criminals. Similarly, a worse economy doesn’t necessarily translate into more crimes being committed. People who would steal in bad times would have stolen in good times, too. White-collar types aren’t exactly Jean Valjean, stealing a crust of bread so their families don’t starve. No, white-collar crime requires a combination of opportunity and character traits, neither of which correlate with economic pressures.

What is true, however, is that more white-collar prosecutions are going to happen because an under-informed public and its politicians are screaming for blood. Unfortunately, we do not believe that all prosecutors out there understand the complexities and realities of the financial world well enough to accurately sift the guilty from the merely unlucky. Some innocent people are going to get caught in this ever-widening net.

Scalia’s Right! Supremes “Quite Irresponsible to Let the Current Chaos Prevail”

Tuesday, February 24th, 2009

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18 U.S.C. § 1346 expands the definition of mail & wire fraud to include “a scheme or artifice to deprive another of the intangible right of honest services.” That’s short and sweet, but what does it mean?

The courts have been left to define the crime for themselves. Unfortunately, they differ wildly in what the theft of honest services means. The Fifth Circuit says it’s only a crime if the deprivation of services was also a crime under state law. The Seventh Circuit says the crime is when someone abuses their position for private gain. The Third Circuit says gain is irrelevant.

In general, they agree that employees and public officials have a duty to act only in the best interest of their employers and constituents. But there are lots of ways to act otherwise, and the courts seem to agree that not all of them ought to be criminalized. There is a spectrum of behavior, ranging from the socially acceptable to the abhorrent. Where the line ought to be drawn is undefined and uncertain.

So the Supreme Court finally had a chance to clear it all up, define what “honest services” means, and give straightforward guidance to the courts and to all the employees and officeholders out there. Sorich v. United States, No. 08-410 came to the Supremes on a cert petition, asking them to define the crime and settle the issue at last. That’s what the Supreme Court likes to do, after all — if the circuits can’t agree, it the Court’s job to define the correct approach.

Instead, the Supremes punted, and denied cert.

Scalia wrote an intense dissent, pointing out that this is precisely the kind of issue that the Court ought to resolve, that the split among the circuits is causing confusion in the law, and that real injustice is resulting. “It seems to me,” he wrote, “quite irresponsible to let the current chaos prevail.” We can’t help but agree.

“If the honest services theory… is taken seriously and carried to its logical conclusion,” Scalia pointed out that all kinds of actions would be criminal. Not all ought to be. “A state legislator’s decision to vote for a bill because he expects it will curry favor with a small minority essential to his reelection,” a perfectly normal and expected aspect of electoral politics, would be a federal crime. “A mayor’s attempt to use the prestige of his office to obtain a restaurant table without a reservation,” a perhaps obnoxious act, but one hardly worthy of punishment, would also be included. “Indeed, it would seemingly cover a salaried employee’s phoning in sick to go to a ball game.”

“What principle it is that separates the criminal breaches, conflicts and misstatements from the obnoxious but lawful ones, remains entirely unspecified.” Failing to define what the crime actually means invites unjust prosecutions by “headline-grabbing prosecutors.” Furthermore, nobody knows if their actions would be considered criminal or not, and “it is simply not fair to prosecute someone for a crime” that won’t be defined until the judge’s ruling that sends him to jail. “How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along?”

Scalia closed with an excellent dictum, quoting from another useful dissent — that of Hugo Black in Green v. United States, 365 U.S. 301, 309 (1961) — “Bad men, like good men, are entitled to be tried and sentenced in accordance with law.” It is truly unfortunate that the Supreme Court has passed on an excellent opportunity to ensure just that.