Injustice is what we’re getting. The newspapers are starting to pick up on it lately, but it’s been building for a long time. People getting prosecuted for federal felonies, when all they did was unwittingly violate some obscure regulation, without any intent to break any law.

There seems to be a growing recognition that there’s a lot more law to deal with these days than there used to be. But when you say “more law,” what does your audience think you’re talking about? Are you addressing policy makers and the sociologists who influence their thought? If so, consider this:

Law is a quantitative variable. It increases and decreases, and one setting has more than another. It is possible to measure the quantity of law in many ways. A complaint to a legal official, for example, is more law than no complaint, whether it is a call to the police, a visit to a regulatory agency, or a lawsuit. Each is an increase in the quantity of law. So is the recognition of a complaint, whether this is simply an official record, an investigation, or a preliminary hearing of some kind. In criminal matters, an arrest is more law than no arrest, and so is a search or an interrogation. An indictment is more law than none, as is a prosecution, and a serious charge is more than a minor charge. Any initiation, invocation, or application of law increases its quantity, even when someone brings law against himself, as in a voluntary surrender, confession, or plea of guilty. Detention before trial is more law than release, a bail bond more than none, and a higher bail bond more than one that is lower. A trial or other hearing is itself an increase of law, and some outcomes are more law than others: A decision in behalf of the plaintiff is more law than a decision in behalf of the defendant, and conviction is more than acquittal. The more compensation awarded, the more law. And the same applies to the severity of punishment as defined in each setting: the greater a fine, the longer the prison term, the more pain, mutilation, humiliation, or deprivation inflicted, the more law….

And so on and so on, for another couple hundred pages, goes Donald Black’s “The Behavior of Law.” This is no minor piece of academic drivel — it is a seminal and highly influential book in the field of Sociology, hailed on its publication in 1976, required reading in our graduate course on Law and Society at U.Va. eleven years later, and with a new edition out just last year. Professor Black’s explanation of the law is now the basis of the school of Pure Sociology, which scholars use to explain pretty much any intense human interaction — ranging from the courtroom to artists and scientists, to the acts of terrorists and genocides.

It is no minor piece of drivel. It’s serious drivel. It screws up the way people think about law, making a very Babel of what should be basic, shared understanding. To the extent that sociologists affect public policy, confusion like this can only make things worse. And sociology is indeed important to law. It may or may not be a true -ology constrained by the scientific method, but pretty much all modern ideas of social improvement are deeply affected by it. Legislators may be motivated by re-election concerns, but sociological conclusions strongly inform what they see as the stance to take. Regulators are, if anything, much more influenced by sociological studies of what is or is not good for the public welfare. Sentencing commissions, juvenile justice, and diversion programs are almost entirely based on sociology.

It’s possible that we’re just nursing a grudge for having to endure a semester of it a gazillion years ago, but we doubt it. Pure Sociology isn’t itself a bad thing. It tries to explain why one criminal gets punished more severely than another for essentially the same act; why two groups of people are still fighting long after the initial conflict ended — and how third parties are likely to maneuver with respect to that conflict; why conflicts begin in the first place; why one becomes a predator while another becomes a peacemaker. Perfectly appropriate areas of human study. Furthermore, the factors that Pure Sociology takes into account are as commonsensical as they come: the strength or weakness of social ties, differences in status, the social structures within which the various actors exist, and the like. The general conclusions of Pure Sociology aren’t all that objectionable, either — that the fewer social ties between two people, the more likely government is to get involved, and the more severe its actions; that people tend to see people of high status as having gotten there through the exercise of free will, while people tend to see the most disadvantaged of us as victims of circumstances beyond their control; that the worst conflicts seem to happen between parties that, to an outside observer, appear to have more in common than otherwise.

But the core definitions are simply wrong. You do not get “more law” when someone is arrested as opposed to merely searched. You get more governmental intrusion. That is not the same thing as law. You do not get “more law” when the party bringing a case wins than when the defendant wins. You get more government authority to act against the defendant. That is not the same thing as law. In all the scenarios listed by Prof. Black, the amount of law is not changing. The things which the law permits to happen vary, not the amount of law itself. These and similar definitions are central to the school of Pure Sociology, from which all else is derived, and they are wrong.

This is not a minor quibble, harrumphing over a perfectly typical misappropriation of a word within the academic community. It is a failure to define some fundamental concepts, an understanding of which would be absolutely required before any of the higher explanations of human conflict can be attempted.

First of all, Law. Generally speaking, law is the rules by which a society lives. If life were a board game, law would be the sheet of instructions. In circumstance A, you can do either B or C, but you’re not allowed to do D unless E. But that’s not exactly accurate. There are plenty of rules by which we live that do not count as law. Politeness, morality, custom, tradition — there are tons of rules that apply to us that, though they may perhaps even be more important or powerful than law, are not law. Law is different. It’s that subset of societal rules that are imposed by an authority, fixed, only changeable by official act of that authority, applicable to everyone unless their own exceptions say otherwise, and perhaps most critically they are enforceable by that authority. The nature of the authority itself doesn’t really matter — it could be religious or political, dictatorial or democratic. Neither does the source of the law matter — it could be imposed by a supernatural being and thus unchallengable by mere humans, it could be crafted by delegated experts or judges or tyrants, it could be legislated in and out of existence by popular vote. What matters is that there is some authority, that the authority defines particular rules for everyone to follow, and that the rules are enforced by that authority.

There are different kinds of law. Some law is statutory, created by legislators or rulers with legislative authority. When most people think of laws, they’re thinking of statutes. Some law is regulatory, created not by a legislative authority but by a governmental agency or ministry. Regulations are rules for dealing with that agency or ministry, or for otherwise statutory subjects that have been delegated to the agency’s rulemakers. Regulations typically affect people such as those receiving government funds or whose actions have significant effect on the general population. A third type of law, common law, is created by judicial decisions that try to clarify what the enforceable rules actually mean, including customs that are so strong and important as to merit enforcement. Finally, constitutions are the laws of how governments are to exist and operate, and what their general authority is and is not. (Some countries’ constitutions are more akin to legislation, but that just means they’re using the word wrong.) These kinds of law exist at almost every level of society, from local community rules to international law.

The law may have more or less effect on a given society, depending on how much it adheres to the rule of law. A society that gives greater precedence to familial, tribal or commercial ties than it gives to the law is going to behave differently than one where the law is expected to apply to everyone regardless. Feuding behavior is better understood in a context of the rule of law (or more particularly, its absence) than a sociologist’s context of simultaneous social distance and closeness. Ditto for criminal consequences, civil lawsuits and commercial transactions. A “hostile takeover” has a much different meaning on Wall Street than it does in a society where one’s contracts and property rights are only enforceable to the extent you’re bigger and stronger and better-armed and better-connected than your competitors. Apart from the rule of law, different societies vary in their acknowledgement of particular human rights, property rights, and even how enforceable law is seen to be. And some laws are more of an idealized vision of how a society sees itself, than an accurate codification of what is really acceptable. So law itself is going to have different weights and values in different societies.

Governmental intrusion is another concept that’s important to understand. It’s not the same thing as law. It is when an authority interferes with a person or another authority. When the police frisk you or eavesdrop on you or arrest you or incarcerate you, that is not the creation of more law but a governmental intrusion that is either permitted by existing law or not. When the federal government takes over a state function, supersedes a local prosecution, or dictates a county’s educational policy on pain of a funding cut, that is not the creation of more law but a governmental intrusion on another government that is either permitted by existing law or not. Governmental intrusions are a critical variable in studies of human conflicts and interaction, and they must be understood for what they are. They are not law, but acts subject to the law.

Governmental enforcement is another important concept. Enforcement is a big part of what makes law Law, but it is not law. When a plaintiff wins a case, the government now empowers him to collect his compensation from the defendant, using the state’s courts and sheriffs to do so if necessary. That does not create more law, but more authority for enforcement. When two parties enter into a binding contract, as opposed to a less-binding agreement, there is not more law but instead authority for the government to enforce the agreement. When a defendant is convicted of a crime, that does not create more law but rather authority to enforce the law by imposing punishment.

Punishment is also different from law. Punishment is a severe form of governmental intrusion depriving a citizen or subject of life, liberty or property, or inflicting pain or distress, as a consequence for violating certain laws. Not just any laws, but those laws deemed so necessary for public safety and security and decency that violation requires just such extreme measures — either to dissuade that person or others from doing the same, to remove the threat from society, to otherwise make the criminal less likely to reoffend, or to satisfy a visceral desire for vengeance. Imposing more punishment does not create more law, but is instead a function of the application of existing law to individual circumstances.

It is important to understand why government intrusion, enforcement and punishment vary from circumstance to circumstance. But to do so, one must understand what they are. Lumping them together is not useful, and further lumping them in with the concept of law is epistemologically counterproductive.

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Separating these and other important concepts would, however, be very useful to the practitioner of Pure Sociology. Social distance, for example, plays an enormous role in the creation of law, its applicability or exception, and its outcomes. But it plays out in different ways.

In more traditional, localized and homogenous societies, law and the rules of conflict resolution are more likely to come from custom, moral authority, or religious belief. They aren’t likely to be codified in any particular way. Kinship and personal relations are much more important in how the rules are applied, or whether they apply at all.

But as societies grow larger, more structured, more heterogenous and complex — with more interactions, kinds of conflict, and opportunities for conflict — there is a greater need for fixed general laws, explicit formal rules, and a rule of law making them applicable to everyone equally. As society becomes more complex, it creates a greater demand for law. As human interactions become more likely to involve people unconnected by kinship or loyalty, the demand grows for clear systems of conflict resolution and enforcement.

Interactions between individuals within a tribal society are going to have different variables and outcomes than those of a large post-industrial society. To accurately predict what people and institutions will do, these differences must be understood. The same goes for international relations — the citizens of a post-industrial nation are going to perceive a conflict differently than members of a more traditional society, and they are going to perceive different potential solutions, dramatically affecting what the outcome will be. To understand an internal genocide, borderless terrorism or a full-on war, one must understand how the particular peoples perceive the rules by which they must live.

It can be hard to do, of course, because people generally don’t understand their own rules very clearly. They may have a sense of what’s right and wrong, what’s done and not done, but they may not be able to explain the philosophical principles on which those conclusions are founded. Real conflict resolution requires serious drilling down to the core principles underlying the competing positions, to either find common principles on which to base a solution, or to make plain the hidden causes of the conflict and thus enable the crafting of a workable resolution. Sociologists and philosophers can do real good here.

The same goes for the crafting of criminal laws, sentencing policies and rehabilitative programs — sociologists with a real understanding of not only what is going on but why, and what solutions are most likely to get the desired result, can be a source of great justice in the world.

But only if they are careful in their study. They cannot measure the myriad normative values, formal rules, and patterns of interpersonal and governmental interaction, unless they can first name what they are measuring. If you’re lumping everything into the same bucket, you’re not going to do anyone any favors.

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?

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(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’.)

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 mens rea requirement (almost all regulatory offenses fall into this category, btw).  For the non-lawyers out there, mens rea is the mental state one had when committing an offense.  It is the factor that changes the severity of one’s offense.  A firm principle that evolved in our Anglo-American jurisprudence is that the state should not punish someone for something that was only an accident.  There has to be some culpability.  There is no culpability for conduct that was purely accidental.  There is slight culpability (and therefore only slight punishment, if any) for conduct that was merely negligent, i.e., you should have known better even if you didn’t.  There is more culpability, and more punishment, when you knew what you were doing, or knew what might happen but didn’t care.  And the greatest culpability and most severe punishment is reserved for those who intended to commit the offense.  That’s mens rea.  Crimes that do not have a mens rea element are called “strict liability” crimes — the state doesn’t care if you made an honest mistake, or if you were deceived, or if it was the purest accident.  All the state cares about is whether you committed act X under conditions Y.

Strict liability crimes are as unjust as they come.  They don’t deter anything, because you can’t deter conduct that is mistaken or accidental.  They don’t rehabilitate anyone, because strict liability offenders didn’t have any criminal tendency needing to be rehabilitated in the first place.  They don’t remove threats from our streets, because offenders are unfortunates, not predators.  And society doesn’t call for retribution in such cases, because there’s no culpability deserving of retaliatory harm.  There is simply no just basis for strict liability crimes.  Yet they make up a huge proportion of federal crimes, particularly those which are not enacted by Congress.

The number of federal crimes has been rising dramatically for some years now.  And nobody knows how many there are, now.  Many have tried and failed to count them all, including the government itself.  Wags repeat the line that each of us commits three felonies a day — but who can say when even the enforcers don’t know what they’re enforcing.  How just is it for crimes to exist — which the offenders are responsible for and expected to be aware of, as ignorance of the law is no defense — when the government itself can’t keep track of them?

As Cornelius Tacitus wrote in his Annals, corruptissima re publica plurimae leges – ”the more corrupt the state, the more numerous the laws.”  ”Corrupt” here meaning not so much “criminal” as “dysfunctional.”

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What’s going on here?  A lot of it is a reflection of the growing power of the federal government, and its intrusion into more and more of what people do.  It’s been a slow process, and so we’ve all sort of gotten used to it.  But like a frog slowly being boiled to death, the harm is no less real just because it wasn’t noticed.

In the United States, the government serves a fairly limited purpose.  Its job is to do those things we all want done, but can’t or won’t do on our own.  Local governments do things that individuals and families can’t do as readily for themselves, like policing and filling potholes and schooling the kids.  State governments do things that local governments can’t do so well on their own or in concert, like road construction, legislation, forestry, corporations, and generalized regulation.  The federal government is really only supposed to do things that the states can’t do themselves, such as national defense, treaties, regulation of trade, interstate transportation, and the like.  (Where conservatives, libertarians and liberals differ in this country is mainly where to draw the lines — what things government should and should not be doing.)

What we’ve been seeing for a couple of generations now is a centralization of a lot of state and local functions in the federal government, particularly in the growth of the power and scope of regulatory agencies, but also in the willingness of Congress to legislate just about anything.  Some of this came about because the 10th Amendment reservation of powers to the States was hijacked by the foul racism that had to be overcome by the Civil Rights movement, so that the very concept became tainted in some people’s minds.  That’s more of an issue for older generations, though.  For those not yet at retirement age, what’s more important is that the federal government came to be seen as the place to be, the place where things actually get done.  Since about the mid-60s, state and local government has steadily dwindled in the general consciousness, except when some hot-button issue like gay marriage reminds people that the states are really where it’s at.  Except for those rare occasions, it has just become natural for people to look to the federal government, and not their local governments, for solutions.

And so we get a lot of federal criminal laws that duplicate state laws.  The same conduct can be prosecuted by one’s state, and by the feds.  They are certainly different sovereigns, and each can safely prosecute you separately without violating double jeopardy.  But if the states are already dealing with certain conduct by criminalizing it, what possible reason can the feds have for also criminalizing it?  To our mind, at least, it is an improper usurpation of power.  If the states can deal with it, the feds should let them do so and stay out of the way.

And so we also get a lot of federal agencies passing regulations and rules that cover more and more of what we do.  And they are increasingly being enforced by strict-liability criminal provisions.  As a result, the number of non-violent federal crimes has skyrocketed since the Clinton administration.  People go to prison for violating rules, even when no harm was done.  People go to prison for complying with the rules, but not completing the paperwork properly.  A cursory review of the various agencies’ annual reports can read like a horror show.

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Law enforcement has an interest in reducing the excessive federal criminalization.  It reminds us of a story from Chinese history.  Some soldiers got stuck in a bog on their way to a general muster.  The following conversation ensued: “What is the penalty for being late?” “Death.” “What is the penalty for desertion?” “Death.” “Well, we’re late.”

When everything is a violation of the law, the people lose respect for the law.  Lawlessness becomes more likely, not less.

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So what can be done?

The problem has taken a couple of generations to build.  And it’s only been accelerating.  A quick fix is not likely (saving, perhaps, the election of a president willing to rein in the administrative agencies in the executive branch, and willing to restrict what the DOJ does and does not enforce — we’re not holding our breath).

But now we’re starting to see signs of opposition.  It’s small, now, and the voices are scattered.  But we’re hearing more and more voices, lately.  If more voices join in, calling for the undoing of this excessive federal criminalization, perhaps soon we’ll achieve critical mass.  Enough to call it a movement.  Maybe even enough to get results.

For those who have bothered to read this far, here is a delightful example of how easy it is to reach critical mass and create a movement:

It’s rare that we agree with a NY Times editorial.  Yesterday, we came close.  In a blurb titled “Recidivism’s High Cost and a Way to Cut It,” the editors said one solution to the high cost of imprisoning repeat offenders would be to adopt what Oregon’s doing, in letting its parole officers use programs and other alternatives to jail for lesser violations.

Ooh, so close.

Two problems: One, most of those who return to prison aren’t coming back on a parole violation, they’re going in because they got convicted of a whole new crime.  Yes, far too many parolees get put back in for non-criminal stuff like failing to abide by arbitrary and asshole-ish conditions imposed by dickhead parole officers.  But this doesn’t account for much of the actual recidivism numbers.  So dealing with this isn’t going to make too big a dent in the repeat prison population.

Two, the people making the decision are still going to be the same parole boards, parole officers, and parole magistrates who are acting like assholes and dickheads in the first place.  (These are obscure legal terms of art, perhaps obscure to those who do not practice criminal law.  To any non-lawyers reading this, we believe the common expression would be something akin to “unthinking, tyrannical bullies.”)  The problem people are the ones who are so jaded by dealing with scumbag after scumbag that they are incapable of recognizing a deserving parolee when they see one; or they are so stupid that they are incapable of reasoned discretion and cling to rote practices like a drowning man clutching a lifeline; or they are such villains that they derive satisfaction from fucking people over; or they are so righteous that they believe they are doing the right thing in fucking people over.  Whichever variety you’re dealing with, they either abuse their discretion or fail to use their discretion in the first place.  So giving them more discretion isn’t going to solve anything.

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So okay, the NYT oversimplified, missed the real point, and offered a useless suggestion.  Who cares, that’s what they always do.  But this is The Criminal Lawyer, you’re saying to yourself.  What do we suggest?

The biggest problem is really out of the hands of the criminal justice system.  It’s people who are not deterred from committing additional crimes, and who are not rehabilitated by prison.  In other words, almost everyone who commits that second crime.

The vast majority of people who pass through the criminal justice system never come back.  Depending on the study, the number is something like 83% of people who get arrested for one thing or another never get arrested for anything again as long as they live.  It doesn’t matter whether it’s for smoking a joint on a park bench, or for a senseless murder.  The first time is the last time.  The fact of a prison sentence, and the length of a prison sentence, have absolutely nothing to do with why such people never offend again.  Do your own regression analysis, if you wish.  Incarceration is not a meaningful variable, and has absolutely nothing to do with why people do not reoffend.

Society does not get any general deterrence from any particular prison sentence.  Firstly, nobody knows about it.  It’s not as if the hundreds of sentences handed down every day in NYC alone are remotely known to the general population.  General deterrence comes not from specific sentences, but from a general perception that prison is something that happens to people who commit a crime.

Specific deterrence is irrelevant, because whether a person reoffends or not has nothing to do with the severity of the sentence imposed.  If you’ve got someone who’s in the 17% who keep coming back, you can keep upping the sentence each time he returns, and it’s not going to deter him from doing it again.

And anyone who thinks that prison actually rehabilitates people is invited to rejoin the rest of us in the real world.  You’re really missing out, come on back now.

None of this means that people cannot be rehabilitated.  On the contrary, there are proven methods of rehabilitation.  None of them involve prison, except perhaps as a threat to ensure compliance with the rehabilitation program.  Drug courts, personal interventions, religious transformations, programs that teach people how to actually live like a normal person and get a job and be responsible (and happier as a result), all of these things have been proven to work for certain kinds of people.  Everyone’s different, so there’s no one-size-fits-all solution, but for lots of people there really is a fix.  And prison isn’t it.

That’s because many re-offenders only do so because of their situation.  Maybe they commit crimes to feed a drug or gambling addiction, and they’ll stop if they can get on top of it.  Maybe they commit crimes because of a mental illness that can be treated.  Maybe they grew up and live in a community where their crimes are encouraged or enabled.  Maybe they just never learned the basics of life that would enable them to live a law-abiding one.  All of these things are fixable.

It must be recognized, however, that some people cannot be rehabilitated.  There really are thugs out there.  Those who, though they are human beings, are so damaged that they are incapable of being human.  Not psychotic, merely psychopaths.  Society’s rules just don’t apply.  Your life has no value to them.  They’ll commit crime because it’s what they want to do.  They are not deterred, except by fear for their own self.  They are not rehabilitated, ever.  For these people — and only for these people — prison makes sense.  To the extent they fear it, they are deterred from doing what they otherwise would freely choose to do.  (The rest of us are well-socialized enough to merely think about it, but never do it.)  At the very least, it keeps them off the street and prevents them from threatening the rest of us.

So for most people, no prison is required to get the outcome society wants (except perhaps as a threat for those who might not otherwise do what is necessary to rehabilitate).  And for the very small number for whom prison is necessary, the sentencing terms our laws now apply are irrelevant.  Rather than basing a prison term on the kind of crime committed, the term should instead be based on how long that person needs to be kept off the streets.  Depending on the person, it might be for months, or it might be for life.

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As a civilized society, we don’t like to admit it, but it’s a fact that some element of punishment is sheer retaliation.  You did something bad, so now something bad is going to happen to you.  Forget all the philosophical purposes of punishment like deterrence, rehabilitation, removal — even good old “eye for an eye” proportionate retribution.  We’re talking about simple retaliation here.  And it would be foolish to deny its existence.  In fact, as a sentencing factor, it accounts for most disparities in individual sentencing.

So perhaps it ought to be taken into account more openly.  More fairness in sentencing, and less unnecessary imprisonment, might result.

For example, we’ve represented clients for whom jail is really no big deal.  It’s not a social stigma, and can even be a source of standing.  They didn’t have the kinds of lives that would be destroyed by spending months or years behind bars.  We’ve even been told point-blank by some clients that they look on a middling piece of imprisonment as a kind of vacation — they get some time away from the stresses of the real world, they don’t have to do anything, everything’s taken care of for them, and when they come out they can reset and maybe even the problems they left behind have gone away in the meantime.

On the other hand, we represent a fair number of clients for whom even the briefest stint in jail is practically a life-ender.  Everything they’ve worked and striven for in their lives is over.  The social and professional stigma is complete, and unredeemable.  Their lives, as they know them, are over.  This is not an exaggeration.  It is a simple statement of fact.  Not only they suffer, but their innocent families, employees, and communities suffer hugely as well.

So depending on the individual, the amount of retaliation inherent in a given sentence is going to vary dramatically.  A 6-month prison sentence that would be a laughable joke for one person would be disastrous and soul-crushing for another.

Judges like to say “I’m not the one putting him in prison; you did it to yourself.”  And similarly to the families, employees and others, they say it’s the defendant and not the judge who’s doing it to them.  But that’s absurd.  Beyond absurd, it’s an unthinking self-rationalization that’s little more than a lie.  Judges with the discretion to impose something else are obviously the only ones deciding to impose prison instead.  So it’s not absurd to say that judges do a disservice to society when they put someone in jail for whom the retaliatory effect is disproportionate to the harm done.

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By now, it should be obvious what the criminal justice system can do to reduce repeat prison stays.  It can’t do anything about those who’d never offend again.  It can’t change the way people are reared (or more accurately, not reared) so that they are more likely to re-offend.  It can’t do anything about the economic and social pressures in certain communities that increase the chances (or virtually guarantee) re-offense.  But the system can create individualized programs that are suited to rehabilitate this particular offender.  And for those who must be removed, it can create individualized sentences that take into account the threat that this particular person poses to the rest of us.

The most significant change to our system, therefore, is to do away with mandatory sentencing.  Remove all mandatory minimum sentences.  Get rid of them.  (Sorry, Justice Thomas, but everyone else on the Court really is right to want to move in this direction.  The old-time sentences that varied based on the characteristics of the individual defendant and the individual offense may have been unpredictable, but to the extent they were unfair this is not what made them so.)

Mandatory minimums are the single greatest cause of unnecessary prison stays.  The vast majority of people in prison simply don’t need to be there, but the law requires it, so they’re there.  The law requires it because elected politicians like to look “tough on crime,” and so they impose such minimums and then ratchet them up over time.

But sentencing courts should be given the power to hear reasons why this particular defendant is one of those for whom prison is pointless, if not counterproductive.  And they should be given the discretion to sentence accordingly.

That’s really it.  Simple, no?

So everyone from the Washington Post to Fark is reporting gleefully about the recent acquittal of a Northern Virginia man charged with failing to stop for a school bus picking up kids.  The defense attorney is getting kudos for pointing out that the law, when rewritten 40 years ago, omitted the word “at.”  The resulting language, agreed the judge, only criminalizes a driver who fails to stop a school bus that was stopped.  Absurd, but Virginia doesn’t let judges add words to statutes by interpretation, even if they’re absurd.

So far, so good.  We’re all in favor of forcing the government to do its job properly before being able to impose a criminal punishment.  And one of our pet peeves is poorly-drafted statutes and regulations, many of which seem to have been written by junior high dropouts.  Passing a stopped school bus is incredibly dangerous and richly deserving of criminalization, but we have no problem with someone getting off on a technicality of bad drafting.  A poorly or vaguely drafted statute does not provide the notice of criminal liability that is a basic element of Due Process, and the state shouldn’t be allowed to punish someone for violating it. (See “Honest Services.”)

But on actually reading the statute, we have to say the judge screwed up.  Here’s what it says:

A person is guilty of reckless driving who fails to stop, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children.

The error here is not the omission of the word “at” after the word “stop.”  It’s the inclusion of a gratuitous comma after the word “direction” — a comma which is artless, but nonetheless does not change the meaning of the sentence.

Here’s the sentence with the “at” included:

A person is guilty of reckless driving who fails to stop at, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children.

That reads even worse.  That’s where the “at” was before amendment.  (But the statute also had a lot of other language as well that was deleted or replaced.  It read fine before it was amended.)

Here’s the sentence with the gratuitous comma removed:

A person is guilty of reckless driving who fails to stop, when approaching from any direction any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children.

This makes perfect grammatical sense.  It’s still artlessly written, but it scans.  You’re guilty if there’s a bus stopped to pick up or drop off kids, and you don’t stop, no matter whether you’re coming from behind or ahead or the side.

As written, it still says that.  The extra comma (a bane of ancient legal writing) doesn’t change the meaning one way or the other.

Speaking as a card-carrying Grammar Nazi, the judge was simply wrong to think it meant you’re guilty if you fail to stop a school bus you approached.  The same misreading could be used to say you’re guilty if you fail to stop your own car for the purpose of taking on or discharging children.  The Commonwealth cannot appeal from an acquittal, so this case is over, but the defense really was in the wrong here.

How would we have written it?  To convey the same meaning, we’d probably draft something like this:

A person is guilty of reckless driving if he fails to come to a full stop a safe distance away from a school bus that is stopped on any road for the purpose of taking on or discharging children, regardless of the direction in which he is traveling.

Or some such.

Anyway.  Kudos to the defense lawyer — it’s still a perfectly valid victory, and in a way it’s nice to have a foolish judicial decision in the defense’s favor for a change.  But it’s a good thing that driver didn’t hit a kid.  His actions still count as reckless under any definition of the word.

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 drafted by people with a background in criminal law.  But Congress passes a lot of statutes that happen to contain criminal provisions, none of which actually get reviewed by anyone who knows diddly about it.

And they keep ratcheting up.  Elected officials who want to look “tough on crime” love to be able to point to new criminal laws or penalties they enacted.  More liberal types are just as bad, if not worse, believe it or not.  In our lifetime, the Left has discovered that criminal law is an amazing tool to accomplish the social control that Americans won’t let them achieve through other means.  Both conservatives and liberals are at fault.  And they’re both hypocrites, at the same time.  Conservatives, ostensibly opposed to intrusive overreaching government, intrude and overreach in order to seem tough on crime.  Liberals, ostensibly champions of civil rights, trample those rights in order to advance their regulatory agenda.  Mutual opponents, both sides of the aisle nevertheless unwittingly cooperate to screw us all.

As a result, there are now so many federal crimes that literally nobody knows how many there are.  There is not a single person in the world who knows how many things are crimes under the myriad federal statutes and regulations.  The federal government itself can only estimate the number of criminal provisions currently in force.  The latest estimate — and again, it’s only an official guess — is that there are somewhere around 4,500 crimes in the statutes, and roughly 300,000 regulatory provisions with criminal penalties.  Over the past decade, Congress alone has been adding more than 50 new criminal statutes each year.

Have you read all 4,500 statutes and 300,000 regulations?  Do you know what actions can land you in prison?  Destroy your life?  Take away your reputation, your living, your liberty, and everything you’ve ever striven for?

No?  Well, too damn bad.  Ignorance of the law is no excuse.

-=-=-=-=-

But wait, you say.  Sure, nobody’s read all the laws out there, or even knows how many there are.  But it shouldn’t be too hard to figure out what kinds of things are criminal.  One of the astounding beauties of our Anglo-American jurisprudence is the fact that we don’t punish accidents.  We don’t subject people to criminal punishment even for simple negligence.  We only punish people who were being bad.

There are two things required for something to be so bad, in our culture, that it needs to be punished.  First, there must be a bad act — someone must be harmed.  This is usually a variant of lying, cheating, stealing, or injuring.  Stuff that’s none of the above is probably not a crime.  Second, there must be a culpable mental state — it can’t have been purely accidental or negligent.  You had to have been naughty.  Either you were trying to do it on purpose, or you knew (or should have known) that it was probably going to happen.

That’s it.  That’s all there really is to it.  There are arguable exceptions like call-girl prostitution (victimless, so no bad act), or statutory rape (honest mistake as to age is no defense), but precisely because they are so exceptional, everyone knows about them and is at least on notice.

The problem is that the people writing the laws — especially the agency regulations — are, with all respect, completely ignorant.  More specifically, they are perfectly ignorant of the basic principles underlying our criminal law.  They don’t know why one thing is punishable as a crime and another thing remains firmly in civil law, or if either law even ought to speak to it.  They have zero comprehension of why act X is punishable and act Y is not, or why act Z is punishable but not as much.

If any regulation-writers happen to be reading this, here’s how it works:  Punishment is reserved for those who personally committed a bad act, and did so with a culpable mental state.  For any given act, the severity of the punishment increases with the culpability of the actor’s mental state.  Someone who did X and fully intended X to happen gets punished the most.  Someone who didn’t intend X to happen, but knew it would happen if he did Y, gets punished a bit less.  Someone who expected that X probably would happen, though they didn’t know for sure, and it wasn’t their intent, gets punished a bit less.  We say that people acting with these mental states are acting … wait for it … “intentionally,” “knowingly” or “recklessly.”

People writing the various statutes and regulations, however, completely fail to use any consistent set of terms to describe what counts as a punishable act.  This leads to tremendous confusion among even professional lawyers and judges who have to interpret what these crimes are.

Even worse, however, they typically just leave out the mental state altogether.  In the regulatory world, an astounding number of crimes are crimes of “strict liability.”  That means, even if you acted perfectly innocently — if you had no intent, knowledge or even the slightest reason to suspect that X might happen — you are nevertheless guilty of a federal crime, facing federal prison, if X happens to occur.

(And if it’s a federal crime, it’s probably a federal felony.  There are an astonishingly small number of misdemeanors in federal law, none of which seem to apply to real people.  But that’s a topic for a whole nother post.)

In addition to most regulatory crimes being “strict liability” offenses, we also have a concept of “managerial” or “enterprise” liability, where you can be liable for the action of someone else.  Even if you had no idea they were doing it.  Even if you’d done everything in your power to prevent it from happening in the first place.  The feds do not care how careful you were to prevent it.  It happened.  You’re getting prosecuted.

You did everything right.  And it doesn’t matter.  They don’t care.  You’re looking at federal prison.

-=-=-=-=-

So, without Americans even realizing it, we’ve gone from a principled jurisprudence of malum in se crime, to an unpredictable regulatory fiat of malum prohibitum.  In other words, stuff is no longer criminal because it’s wrong, but because some bureaucrat says it’s a crime.

That, combined with the growth of “managerial” liability despite the best controls to prevent rules from being broken, and the failure of rule-makers to comprehend the concept of mens rea, has led to a truly unjust state of affairs.

We are witnessing the end of the distinction between torts and crimes.  We are witnessing the end of the distinction between crimes and mere failure to comply with a rule.

Elected officials are at fault — many of them lawyers who ought to know better — for failing to even read the crap they vote for, and for trying to look tough on crime instead of trying to ensure justice.  They just delegate all that to the discretion of the prosecutor.

Regulatory bureaucrats are at fault, for failing to understand what the hell they’re doing, and for trying to enforce compliance with their countless little rules with the biggest fucking hammer in the government’s toolbox.  They just delegate all the necessary interpretation and responsibility to the discretion of the prosecutor.

And prosecutors are at fault, because all these stupid crimes are (by definition) easier to prosecute.  They don’t have to prove mens rea.  They don’t have to prove any of the stuff that they’d ordinarily have to prove in order to have a person found liable for a criminal act.  All they have to prove is that X happened.  Easy peasy.  And ambiguously-written laws?  The DOJ has never met an ambiguous law it didn’t like.

So they abandon their discretion.  They take that easy case.  A few may truly be so stupid or deluded as to believe that they’re doing God’s work in sending you to prison for failing to put the right mailing label on that package, or for being the poor sap with a managerial position when one of your employees disobeyed your directives and did something stupid.  But most aren’t that stupid, really.  They’re just lazy.  They elect not to exercise their discretion.  And failing to exercise that discretion is, as a matter of law, an abuse of that discretion.  So they’re committing prosecutorial misconduct in so doing.

So it’s, uh, kind of a mistake for the politicians and bureaucrats to be delegating justice to the discretion of the prosecutors.  Nevertheless, that’s what’s going on.

-=-=-=-=-

So what needs to change?  Remarkably little.

First, there needs to be a standard language — not unlike the Model Penal Code — so there is some uniformity among all the criminal statutes and regulations out there.  The huge variety of terms being used to define any given mens rea and actus reus is so non-uniform that nobody can really be on notice of what they mean.  (Sounds like a Due Process violation, if you ask us.)

Second, nothing should be criminalized without the say-so of elected officials.  Unelected bureaucrats should not have the power of creating crimes, exposing us all to the worst penalties our government can impose.  If it’s important enough to subject someone to criminal punishment, then it’s important enough to require legislative action.  And (unlike now) the Judiciary Committee needs to actually read the criminal provisions and okay them.  Nobody reads these things now.  Seriously.

Third, prosecutors need to be held to their ethical requirements.  There is too much opportunity for their discretion to be abused, if only by disuse.  We criminal defense attorneys need to make these arguments firmly.

(And of course, a return to more conservative values of less government intrusion into private affairs would be nice, too.  But let’s try to keep things realistic.)

The Supreme Court is back in session on Monday, and we’re not ashamed to admit that we’re excited.  As always.  And they’re starting off the argument season with a bang — a critical issue on federal sentencing of gun crimes.  Can’t wait.

The case is actually two cases, Abbott v. U.S. and Gould v. U.S.  The issue is just what the heck 18 U.S.C. § 924(c) means.

§ 924(c) says, if you’re convicted of possessing a gun during a narcotics crime, you get a 5-year minimum sentence, to be served consecutively.  Unless, that is, “a greater minimum sentence is otherwise provided by this subsection or any other law.”

Such straightforward language, and yet capable of so many different interpretations.  Is it written to make sure that you get at least 5 years if you carried a gun during a drug crime?  Or is the point to make sure that you get at least an extra 5 years, added to the original sentence?

Does it mean that, if you’re already facing a mandatory minimum greater than 5 years for the gun, then § 924(c) doesn’t even apply?

Does it mean that, if you’re already facing a mandatory minimum greater than 5 years for any crime, not just the gun, then § 924(c) doesn’t apply?

Does it only protect you if there’s another law imposing a greater sentence specifically for your violation of § 924(c)?

This is where statutory construction gets hairy.  Poorly-drafted statutes are not trifles.  Lives and liberty are at stake.  Just as with the horrible “honest services” law the Court dealt with last term, this is an example of those crafting the laws being unclear and uninformed about the very area of law they are affecting.  They either didn’t think it through, or they didn’t make the point clearly enough.  And thousands of people suffer as a result.

We don’t know the stats, but we’d estimate that thousands of people every year get sentenced under this section.  How many are doing 5 years too many?

We can’t wait to see what the answer is going to be.

Now that we’re all immigration lawyers, we figured we’d better take a gander at the complaint filed yesterday by the feds, seeking to strike down Arizona’s new immigration law.  The feds say Arizona’s law is preempted by federal law and policy, and so must be struck down under the Supremacy Clause of the U.S. Constitution, art. VI, cl. 2.  (You can read the complaint for yourself here.  The text of the law can be found here.) 

After reading the complaint in its entirety, we have to say that it’s mostly stupid. 

The law was hotly criticized by the Obama administration even before it was enacted back in April, so it’s no surprise that this action was filed.  We’re surprised it took this long to do it.  And we’re even more surprised, given how long it took, that the feds did such a shoddy job of it.

In broad strokes, Arizona wants to deter illegal aliens from sticking around in Arizona.  To that end, among other things, the law:

• Tells Arizona police they have to verify someone’s lawful presence if, during an otherwise lawful stop, they have reasonable suspicion that the person might be here unlawfully.  §11-1051(B) [referred to as Section 2 in the complaint]. 
• Amends existing law, permitting police to make a warrantless arrest if the officer has probable cause to believe that a misdemeanor or felony has occurred, to add that the police can make a warrantless arrest on probable cause to believe the suspect committed an offense for which he could be deported.  §11-1051(E) [in Section 2 of the bill, but perplexingly referred to as Section 6 in the complaint]. 
• says Arizona citizens can sue for money damages if any Arizona state or local official or agency “adopts or implements a policy” of not enforcing federal immigration laws to the extent permitted by federal law.  §11-1051(G) [Section 2]. 
• makes it a crime of trespassing to be present in Arizona in violation of federal law.  §13-1509(A) [Section 3]. 
• amends existing state law against smuggling human beings (§13-2319 [Section 4]) to permit the police to stop a car they reasonably suspect to be in violation of both a traffic law and the already-existing law against smuggling.  
• prohibits illegal aliens from seeking work in the state.  §13-2928(C) [Section 5].
• makes it illegal for “a person who is in violation of a criminal offense” to transport or harbor illegal aliens.  §13-2929(A) [Section 5].

The general argument the feds make is deliciously ironic: Requiring compliance with federal law would conflict with federal law.  At first glance, it seems like everyone at the DOJ who approved this complaint skipped Logic 101, and listened instead to John Cleese’s logic monologue on the Holy Grail album.  But this is not really the stupid bit. 

Their argument is more along the lines of (1) the feds get to determine policy of how and when the feds enforce their own laws; (2) Arizona isn’t telling the feds what to do, but it’s going to be enforcing the same laws more thoroughly; so (3) Arizona is messing with the feds’ policy.  This is one of the stupid bits, because nowhere does Arizona tell the feds what to do or how to do it.

The Complaint commits some intellectual dishonesty, however, to make it seem so anyway.  They repeatedly misquote the Arizona law to say a citizen can sue “any” official or agency for failing to enforce the immigration law.  They make it sound like Arizona citizens could sue federal officials for failing to enforce federal law.  But that’s not at all what is said.  The Arizona law only permits a private cause of action against Arizona officialdom, for failure to enforce that particular section of Arizona law.  It is obvious that the DOJ knew what it was doing in trying to make it sound otherwise, and this lame attempt to deceive the court (and the media) is not what we’d have expected.

We also might point out to the feds that policy is different from law.  The Supremacy Clause only prohibits the states from conflicting with federal law.  There is nothing saying the states have to go along with the policies of whoever happens to be enforcing such law at any given time.  The whole stepping-on-our-policy-toes argument is pretty much irrelevant to this analysis.

The feds also complain that Arizona’s goal — attrition of illegal aliens — is only one of many other goals the feds have.  The feds are more focused on getting rid of criminal or terrorist aliens, and don’t really care so much about the rest, says the complaint.  So Arizona locking up the others would be contrary to federal policy and here we go again. 

Paragraph 36 alone makes any number of howlers here.  It says the Arizona law “attempts to second-guess federal policies and re-order federal priorities.”  It tries to “directly regulate immigration.”  It “disrupts the national enforcement regime.”  It attempts to “set state-specific immigration policy.”  It “legislates in an area constitutionally reserved to the federal government.”  It “conflicts with federal immigration laws.” 

We’re not particular fans of the Arizona law, but an honest observer would have to admit that it does none of those things.

-=-=-=-=-

The feds make the bizarre contention that Arizona is “supplanting the federal government’s immigration regime with its own.”  Really?  Where?  Nowhere does Arizona create additional barriers to immigration other than those already enacted in federal law.  Nowhere does Arizona reduce the federal barriers to immigration.  Arizona doesn’t restate or redefine the federal laws. Nowhere does the new law “establish the terms and conditions for entry and continued presence” or “regulate the status of aliens.” All the state did was refer to federal law as it already exists.  Arizona’s only saying that, if you violate federal law in Arizona, then it’s a violation of Arizona law, too.  If it’s not a violation of federal law, it can’t be a violation of the Arizona law.

It’s as if the feds are saying the Supremacy Clause means that, if the feds have outlawed certain conduct, the states cannot outlaw the same conduct.  Forget “as if” — that’s precisely what the feds are saying here.  And that’s nonsense.  Outlawing something the feds also outlaw is safe, legal and commonplace.

The complaint repeats several times that the Arizona law would force the feds to change their priorities and shift their focus away from criminals and terrorists.  The law doesn’t tell the feds what to do, however, or how to do it.  So what is the complaint on about?

It finally explains itself in Paragraph 44:  The number of police requests for verification of immigration status is going to increase.  The Department of Homeland Security will have to spend more time answering those requests.  That’s going to take resources away from stuff the feds think is more important.

The legal term for this argument is “horseshit.”  As in most states, Arizona police already had the discretion to seek such verification on a case-by-case basis.  It’s already part of DHS’s job to provide that verification.  The complaint’s argument is that any increase in demand for DHS’s services already being provided — doing more X when they’d rather be doing Y — would interfere with federal priorities, and “such interference with federal priorities, driven by state-imposed burdens on federal resources, constitutes a violation of the Supremacy Clause.”  Again, horseshit.

Also, it’s hard to imagine how even a sizeable burst in demand for such basic data would divert DHS agents from their field work or whatnot.  This is 2010, after all.  We may not have flying cars or interstellar tourism, but we sure as hell have mad database skillz.  Nigh-instantaneous searches of digital records is commonplace and cheap.  The complaint’s argument here just doesn’t jibe with reality.

-=-=-=-=-

To their credit, the feds did try to make a legitimate argument here.  The problem is, it appears to have been written by lawyers who have less than a passing acquaintance with criminal law or civil-rights law.  The Arizona law is a criminal law, not an immigration law, but the feds seem to have put their immigration people on the job.  Mistake.

The legitimate argument is that people are going to wind up getting detained when they haven’t violated the federal law, and they’re going to be stuck there because they don’t happen to be carrying proof of their lawful presence with them at the time.  No matter what legislative fixes they add to prevent it, the truth is that people are going to get hassled because they look Mexican.  There are valid civil-rights problems that could easily arise in the enforcement of the law. 

But that’s an issue with the enforcement of the law, not with the law itself.  And anyway, it has nothing to do with the Supremacy Clause.  Sorry.

-=-=-=-=-

The complaint keeps dishing out the stupid.  Starting on paragraph 57, it goes on about the bit letting cops make a warrantless arrest if they believe the suspect committed a deportable offense. 

The feds acknowledge that Arizona law already allowed cops to make a warrantless arrest on probable cause to believe that a misdemeanor or felony had occurred.  So the issue is whether there are any deportable offenses that aren’t misdemeanors or felonies. 

§13-601 describes only three classifications of offenses: felonies, misdemeanors and petty offenses.  A cursory review of the petty offenses in Arizona law turns up things like feeding wildlife, failure to appear, giving tobacco to a minor, and such.  There may be something Arizona calls a petty offense that could get you deported, but we haven’t found it. 

This bit, like the rest of the complaint, is much ado about nothing.  It doesn’t seem like Arizona has given its police any more power to make warrantless arrests than before.

The feds also go on about how this section “makes no exception for aliens whose removability has already been resolved by federal authorities.”  But it beggars reason to suspect that the feds have already vetted whether your crime should result in deportation before you have even been arrested for the crime in the first place.  If any of the DOJ lawyers who wrote the complaint are reading this, deportation tends to come after conviction, not before arrest.  Just saying.

-=-=-=-=-

We could go on, but it’s getting late, and we have actual work to do.  We happen to dislike the Arizona law, though it’s obvious that Arizona is in a tough position.  We don’t like the federal immigration laws any better.  They make as much sense as going in the other direction and just annexing Mexico and giving everyone there the vote.  (Actually, that makes more sense than current U.S. policy.  But then again, our stance on immigration is very close to “the more the merrier.”)

It was a foregone conclusion that the Obama administration was going to challenge this law.  They could have gone with an Equal Protection argument, but they didn’t.  Instead they went with the Supremacy Clause.  And that’s revealing.

It reveals that they didn’t think the civil rights issues were winners.  But more than that, it reveals that the administration thinks its policies to be supreme to those of the states.  That’s not what the Supremacy Clause deals with.  That only deals with actual laws, created by Congress, not policies adopted by a president.  It is an act of dangerous hubris for the administration to make these arguments.  A wise court will shut this case down, if only to protect the country from an increasingly powerful federal executive.

But also because it’s just stupid.

It looks like we spotted the trend.  Unfortunately.

Last week we noted that, when faced with an ambiguous statute, some on the Supreme Court are now willing to read new language into the statute, rather than toss it back to Congress to do it right.  And we wondered if that might be a harbinger of what was to come in the “honest services” cases of Black, Weyrach and Skilling.

Well, those cases came down this morning, and sure enough the majority decided to read in new language, rather than toss out the statute for being vague.

It’s great for the defendants, whose honest-services convictions got tossed.  But to get there the Court had to change the rules.  Now, judicial invention is a perfectly acceptable method of statutory interpretation… so long as the new language is what “everybody knows” the statute really meant to say.  And that’s bloody dangerous. 

-=-=-=-=-

We’ve been paying close attention to this issue (see other posts here, here, here and here), as have many others, because the feds love charging people with honest services fraud.  It’s so vague and open-ended, that it potentially criminalizes any activity that’s outside one’s job description.  That makes it a great catchall when you can’t prove something more substantive.  But it’s also not at all what Congress intended.

“Honest services” fraud was originally a judge-created law.  There wasn’t any statute criminalizing it, it just sort evolved via common law, accepted in all the Circuits.  But we don’t do common-law crimes in this country, for one thing, and the mail fraud statute didn’t say anything about intangible rights, so in 1987 the Supreme Court threw out the common-law version of honest services fraud.  If Congress wanted to criminalize it, then that was up to Congress.

The idea was pretty simple: If you had a position of trust, and you abused that position for private gain (say, by taking bribes or kickbacks), then you were depriving people of the services you ought to have been giving them had you been honest.  You were getting paid under the table to do your job wrong.  So in 1988 Congress came up with 18 U.S.C. § 1346.

But the language didn’t say anything about abusing a position of trust.  Instead, it just said that fraud included a scheme “to deprive another of the intangible right of honest services.”  And didn’t define what “the intangible right of honest services” meant.

And nobody knew what it meant.  That’s how prosecutors liked it, because real-life corruption charges are notoriously difficult to prove.  It’s hard to get solid evidence of bribery and kickbacks, especially when the only real evidence would have to come from the parties themselves.  But if the feds could skip all that and just charge a mail/wire fraud, based on this amorphous intangible thing nobody really understood, then they could prosecute all they want with just the barest modicum of evidence.  And so they did.

But now, in the Black, Weyrach and Skilling cases, the Supreme Court was asked to find the statute unconstitutionally vague.

Instead, however, the Court has decided to read the statute as if it had been written properly, instead of making Congress go back and do it right.

-=-=-=-=-

In Skilling v. U.S. (opinion here), the Court ruled that §1346 only covers bribery and kickbacks.  Since none of the defendants in Black, Weyrach and Skilling were charged with any bribery or kickbacks, these charges had to be dismissed.

But nowhere in the statute does it mention bribery or kickbacks.  And the feds have used it to prosecute any number of things that involved neither.  So clearly the feds, at least, understood it to mean more than just bribery and kickbacks.  And the Circuits that upheld such convictions understood it to mean more than that. 

Nevertheless, despite the fact that a lot of smart and reasonable people understood the statute to cover more than just bribery and kickbacks, the Court’s decision today says that everyone knows that’s what the statute meant.  Because everyone knows what Congress really meant to say, the statute’s not unconstitutionally vague.

Due process requires a penal statute to define the offense definitely enough so that ordinary people understand what’s prohibited, and so that it is not enforced arbitrarily.

The Court said ordinary people understand what’s prohibited — not in light of the way it’s actually enforced these days, which is unpredictable at best — but in light of the way the common-law doctrine had evolved prior to 1987. 

It’s obvious that Congress meant to embody that common-law doctrine, which dealt pretty much with bribery and extortion.  So if you interpret the statute to only encompass such acts, it’s not unconstitutionally vague.  Everyone knows you’re not supposed to do that stuff.

Seriously.  That’s the relevant portion of the opinion, in a nutshell.  “Yeah, it’s vague as written, but if it were written to say what Congress meant to say, then it’s not vague.  So we’ll interpret it as if it had been written properly.”

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Justice Ginsburg wrote the opinion.  Part III is the section that deals with this issue (it begins on page 34 of the opinion).  As to Part III, she was joined by Roberts, Stevens, Breyer, Alito and Sotomayor.

Scalia, joined by Thomas and Kennedy, said the Court should not have rewritten the statute, but should have found it unconstitutionally vague.  “In transforming the prohibition of ‘honest-services fraud’ into a prohibition of ‘bribery and kickbacks,’ [the Court] is wielding a power we long ago abjured: the power to define new federal crimes.  See United States v. Hudson, 7 Cranch 32, 34 (1812).”  A vague statute cannot be saved “by judicial construction that writes in specific criteria that its text does not contain, see United States v. Reese, 92 U.S. 214, 219-221 (1876).”

Once again, we agree wholeheartedly with Scalia.  His opinion delightfully picks apart the errors of the majority’s statutory interpretation.  Our favorite passage is this one:

Arriving at that conclusion requires not interpretation but invention.  The Court replaces a vague criminal standard that Congress adopted with a more narrow one (included within the vague one) that can pass constitutional muster.  I know of no precedent for such “paring down,” and it seems to me clearly beyond judicial power.

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Unfortunately, Scalia’s wrong.  There is precedent.  This Court is creating it as you’re reading this.  Last week’s Dolan decision was the start of a rule expressly permitting judicial invention as a method of statutory interpretation.  Today’s Skilling decision is a major adoption of that rule.

We wish it were otherwise, but it would be foolish to expect the Court to not apply that rule in future cases.

Still, it’s a good outcome.  Honest-services fraud is no longer a tool for lazy prosecution of cases that couldn’t otherwise be proven.  We just wish the Court had done it right, and thrown out the law entirely.