Thursday, April 22, 2010
The Supreme Court issued its decision in United States v. Stevens invalidating a statute "to criminalize the commercial creation, sale, or possession of certain depictions of animal cruelty." This is not a white collar crime case, but the decision provides interesting language that may be relevant for the forthcoming trilogy of cases pertaining to "honest services." (see here and here) Professor Doug Berman over at the Sentencing Law & Policy Blog (here and here) discusses the decision and asks about the effect of this case on the pending Black and Skilling cases. He notes key language from the Court's decision - "We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly." A few other lines from the majority should also be noted -
- "The only thing standing between defendants who sell such depictions and five years in federal prison - other than the mercy of a prosecutor - is the statute's exceptions clause."
- "The government's assurance that it will apply section 48 far more restrictively than its language provides is pertinent only as an implicit acknowledgment of the potential constitutional problems with a more natural reading."
- "We 'will not rewrite a ...law to conform it to constitutional requirements,' ... for doing so would constitute a 'serious invasion of the legislative domain' ...and sharply diminish Congress's 'incentive to draft a narrowly tailored law in the first place.'"
- "To read section 48 as the Government desires requires rewriting, not just reinterpretation."
This decision sends a message that the Court is open to striking down statutes that are overbroad. Many contend that the honest services definition statute for mail fraud fits this bill. Some may claim that there is a difference in how one interprets overbreadth for purposes of the First Amendment (Stevens) versus overbreadth for purposes outside this context. But such a distinction should not be controlling. If we desire to put individuals on notice of what should be criminal then due process requires that the statute have clear language that is not subject to prosecutorial legislating.
One final point - Justice Alito is the sole dissenter in the Stevens decision. When it comes to the trilogy of cases on honest services perhaps he will be on the other side. The difference with Skilling is that Justice Alito's home-run question in the Skilling oral argument proved that there were no pre-McNally cases that presented a similar fact scenario (see here).