Posted by Orin Kerr:
Justice Scalia Takes on Honest Services Fraud:
http://volokh.com/archives/archive_2009_02_22-2009_02_28.shtml#1235428800
Critics of the overcriminalization of federal law will cheer on
Justice Scalia's terrific dissent from denial of certiorari in
[1]Sorich v. United States today. Scalia explains why the "honest
services fraud" caselaw is such a mess, and urges the Court to take
the issue and construe the statute more narrowly. A taste:
[T]his Court has long recognized the�basic principle that a
criminal statute must give fair warning of the conduct that it
makes a crime.� Bouie v. City of Columbia, 378 U. S. 347, 350
(1964). There is a serious argument that §1346 is nothing more
than an invitation for federal courts to develop a common-law crime
of unethical conduct. But "the notion of a common-law crime is
utterly anathema today," Rogers v. Tennessee, 532 U. S. 451, 476
(2001) (SCALIA, J., dissenting), and for good reason. It is simply
not fair to prosecute someone for a crime that has not been defined
until the judicial decision 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?� Rybicki, supra, at 160 (Jacobs, J., dissenting).
. . .
It may be true that petitioners here, like the defendants in
other �honest services� cases, have acted improperly. But �[b]ad
men, like good men, are entitled to be tried and sentenced in
accordance with law.� Green v. United States, 365 U. S. 301, 309
(1961) (Black, J., dissenting). In light of the conflicts among the
Circuits; the longstanding confusion over the scope of the statute;
and the serious due process and federalism interests affected by
the ex-pansion of criminal liability that this case exemplifies, I
would grant the petition for certiorari and squarely confront both
the meaning and the constitutionality of §1346. Indeed, it seems
to me quite irresponsible to let the current chaos prevail.
Go, Nino, go. I hope this signals renewed interest in this statute
-- and more generally, in the need to construe criminal statutes
narrowly.
References
1. http://www.supremecourtus.gov/opinions/08pdf/08-410.pdf
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