Michael Drebeen, a deputy solicitor general in the Obama administration, had a rough morning Dec. 8. He argued two Supreme Court cases back to back, defending a notoriously vague federal criminal statute — and the justices worked him over vigorously.
The 1988 law at issue aims at public corruption and corporate misconduct, but sweeps far too broadly, criminalizing schemes to “deprive another of the intangible right of honest services.”
If that language seems a little, well, intangible to you, you’re not alone. Hurling hypotheticals, the justices strained to find a limiting principle that could prevent the law from covering an employee reading a racing form on the clock (Justice Stephen Breyer) or calling in sick to go to a ballgame (Justice Antonin Scalia).
The high court’s struggle with the “honest services” statute points toward a larger issue: the burgeoning problem of overcriminalization.
The Founders viewed the criminal sanction as a last resort, reserved for serious offenses that were clearly defined so ordinary citizens would know whether they were violating the law. Yet in the past 40 years, an unholy alliance of big-business-hating liberals and tough-on-crime conservatives has made criminalization the first line of attack.
At one point Dec. 8, Breyer said, “I thought there was a principle that a citizen is supposed to be able to understand the criminal law.” Good luck with that.
There are now more than 4,000 federal crimes, spread out through some 27,000 pages of the U.S. Code. Years ago, analysts at the Congressional Research Service tried to count the number of separate offenses on the books, but gave up because they lacked the resources to get the job done. If teams of legal researchers can’t make sense of the federal criminal code, obviously ordinary citizens don’t stand a chance.
You can serve federal time for interstate transport of water hyacinths, trafficking in unlicensed dentures or misappropriating the likeness of Woodsy Owl and his associated slogan, “Give a hoot, don’t pollute.” Bills currently before Congress would send Americans to federal prison for eating horse meat or selling goods falsely labeled as “Native American.”
“Is that the system we have, that Congress can say, ‘Nobody shall do any bad things’?” an exasperated Scalia asked Drebeen. The system we have comes pretty close, unfortunately.
Dec. 8’s oral arguments suggest that the court is inclined to thin the overbroad federal criminal code by at least one law. Even Justice Sonia Sotomayor, a former prosecutor who is tough on white-collar crime, seemed to consider “honest services” fraud unconstitutionally vague.
But bringing sanity back to federal criminal law is too big a task for the court to handle alone. What’s needed is a comprehensive culling of the federal code.
In May 2001, Rep. Donald Manzullo, R-Ill., introduced a bill to create a commission to sunset unnecessary and constitutionally dubious federal crimes. That bill would have been a hard sell in any era, but the events of 9/11 ensured it wouldn’t get a proper hearing. This year, Sen. Jim Webb, D-Va., has had to fight to get a narrower criminal justice reform bill on the calendar.
Fighting overcriminalization is a hard sell, politically. No one wants to be tarred as “soft on crime.” But decades of reflexive criminalization have brought us vague laws, an impenetrable federal criminal code and a passel of headline-grabbing federal prosecutors who threaten the rule of law. Surely, fixing that is worth some political risk.
Criminal justice reform will be difficult — but most things worth doing are.
Examiner columnist Gene Healy is a vice president of the Cato Institute and author of “The Cult of the Presidency.”