a. CONSTRUCTION OF FEDERAL CRIMES United States v. Kozminski100 demonstrates both the manner in which federal courts should construe federal criminal statutes and also the willingness of the Justice Department to stretch the coverage of federal criminal statutes when the defendant has done something "bad" which nevertheless is not actually covered by the language of the statute. In Kozminski the Supreme Court interpreted the term "involuntary servitude" in a federal, criminal civil rights statute enacted after the Civil War making slavery a criminal offense. Congress certainly was authorized to enact this statute in order to implement the Thirteenth Amendment's prohibition of slavery. The Justice Department, however, had stretched the statute to apply to general psychological coercion. The defendants in the case had used tactics (denial of pay, substandard living conditions, and isolation) that were certainly wrongful, but not necessarily criminal under federal law, to convince two mentally-impaired adults to believe they had no alternative but to work on the defendants' farm. The defendants' acts would have been prosecutable under state law and possibly under other federal laws. Nevertheless, the Justice Department tried unsuccessfully to persuade the Supreme Court to give a very broad reading to the term "involuntary servitude." In rejecting that attempt, the Court illustrated what a dangerous interpretation the federal prosecutors were seeking by noting such an interpretation would make criminal all kinds of non-criminal conduct: [T]he Government conceded at oral argument that under its interpretation [the statute] The Court rejected the Government's interpretation because it "would delegate to prosecutors and juries the inherently legislative task of determining what type of coercive activities are so morally reprehensible that they should be punished as crimes. It would also subject individuals to the risk of arbitrary or discriminatory prosecution and conviction. While the Court reversed the case, that did not erase the fact the defendants had been prosecuted under a law that did not apply to them. b. LIBERAL CONSTRUCTION Although the term "involuntary servitude" construed in Kozminski is not a common law term, it has a history connected with the abolition of the effects of slavery which provides some common sense constraints on attempts to expand the statute. Many federal criminal statutes, however, notably those referred to as "white collar" or "organized crime" statutes, use terminology which lacks historical or common sense meanings. Such terminology requires greater precision in definition and narrow construction in order to ensure fair notice of what is prohibited. Unfortunately, that has not been the practice. The sponsors of RICO recognized the impossibility of defining the term "organized crime" as well as the fact that any attempt to do so might impermissibly create a "status offense" (an offense for which no criminal act is required). 103 The Supreme Court has said that legislatures are barred by the Constitution from making it a crime to "be" a member of a group or organization.104 RICO therefore did not use the term "organized crime"; rather, it defined "racketeering activity" and "enterprise," term drawn from sociology. 1105 a In RICO, the potential for manipulation of language has been combined with an anti-corporate bias. At least some sociological terminology of RICO rests on theoretical conceptions drawn from leftist ideology. The creator of the critical term "enterprise" and the concept of "enterprise liability" in RICO has equated ordinary business executives with members of the Mafia.106 While federal prosecutors and 107 108 federal courts are oblivious to the origins of the concepts underpinning RICO, they have since about 1970 accepted the notion that pursuit of "white collar" and organized crime and corruption justifies liberal construction of criminal statutes.' RICO actually provides for liberal construction.' But even in statutes that do not provide liberal construction, federal courts have been more willing to loosely construe statutes, which target business practices. This willingness to construe liberally statutes aimed at "white collar" and organized crime seems related to the anti-corruptionethic described by Professor John Noonan. 109 110 The potential for abuse is probably most serious when a RICO charge is based on mail fraud. The mail fraud statute itself is broadly defined and uncertain in application. Federal courts have construed it expansively. Any act of fraud may constitute a federal offense if done in connection with the mails or telephone or telegraphy.' "I The term "fraud," moreover, is undefined in the federal statute and the jurisprudence basically disagrees as to what is required to establish criminal fraud." With respect to fraud in a RICO charge, a court may liberally construe a federal statute of uncertain definition, and incorporate a state misdemeanor as the criminal act of fraud An indictment for racketeering under RICO based on two acts of fraud communicated by mail or telephone may be far removed from organized crime activity; it also may lack the basic requirement of culpability due to uncertainty about the presence of a mens rea. 2. LIBERAL CONSTRUCTION VIOLATES SEPARATION OF POWERS Liberal construction violates the constitutional principle of separation of powers. As long ago explained by Chief Justice Marshall, the Constitution's principle of separation of powers requires the rule of strict construction in all federal crimes. The rule that penal laws are to be construed strictly is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime, and ordain its punishment. 113 When courts liberally construe criminal statutes without such direction, they are assuming the legislative function without any basis for doing so. Admittedly, a distinction between construing and defining crimes may be difficult to draw. As applied to federal "racketeering" and public corruption statutes, however, federal courts have clearly crossed the uncertain line between "construction" and "definition," as Professor Noonan has discussed. For almost two centuries it had been black letter law that there was no federal common law of crimes - that is, federal judges lacked the power to turn evils into crimes the way English judges had done; every act which counted as a federal crime had to be an act proscribed by Congress. To a substantial degree, broad federal statutes and judicial self-confidence had made the black letter rule a myth.... The judges' freedom to interpret the criminal law gave them in fact the power, if they chose to exercise it, of making new law of creating in effect a new federal common law of crime. With [United States v.] Kenney [462 F.2d 1205 (1972)] this judicial freedom was exercised in regard to bribery." 114 C. MAKING NON-CRIMINAL ACTS INTO CRIMES RETROACTIVELY However well intentioned, federal courts have violated long-standing limitations on their authority by expanding federal criminal statutes. Those limits stem from the early constitutional arguments against any federal common law of crimes; they expressed a distrust of the common law judicial power to create crimes in addition to the concern that federal criminal jurisdiction not encroach upon the states. 115 Then and ever since there has been a strong popular desire to constrain judges by preventing an expansive common-law process of interpretation." 1. THE FEDERAL COURTS ALLOW RETROACTIVITY The arguments about judicially-defined crimes have long raised the charge of ex post facto application of the law." Although Congress has not completely delegated to federal courts the power of defining crime, to the extent that Congress leaves a statute loosely worded, especially if it calls for broad construction, it effectively commits to the courts much of their law-defining powers. At least crimes defined by reference to common law terms limit the Court's interpretive discretion due to the body of jurisprudence which has fairly well fixed the meaning of the terms.' Thus, the federal murder statute adopts the traditional common law formulation tied to "malice aforethought."119 While the federal courts are able to exercise the common law function of further interpreting the crime prohibited, but not defined by Congress, that power -- if respected -- is restrained. By using words which have wellsettled meanings according to the substantive principles of the common law, the body of common law discourse serves as a restriction in the process of interpretation. 123 121 Judicial definition of criminal legislation raises the same kind of objection addressed by the Constitution's ex post facto prohibition, namely that newly "defined" crimes cannot be applied retroactively. 130 The federal courts, however, have not viewed definition of statutes through judicial construction as a violation of the ex post facto clause of the Constitution! Nevertheless, the Supreme Court has recognized that judicial definition of crime can violate due process if a new construction of a statute is in effect a retroactive application of a federal crime.122 In some sense, this objection is applicable to the interpretation of almost every criminal statute." The problem, however, is more pronounced in the interpretation of statutory offenses, both malum prohibitum crimes and mere regulatory offenses, which lack the fairly well-settled meaning of common law crimes." Given the preponderance of such statutes among federal criminal laws and the looseness of federal construction, the retroactive application of crimes necessarily results. To recognize the validity of constitutional challenges based on retroactivity would and should place substantial restrictions on federal criminal law 123 126 124 Challenges to loosely worded federal statutes on the grounds that they create retroactive or ex post facto violations or that they are vague or over broad have not succeeded because courts seem confident in their ability to do justice by interpreting the statute. The objection is not that Congress' passage of the law is ex post facto, but that its delegation of the definitional power to the courts produces that effect. Whatever authority Congress has to delegate its powers," the power to define crimes is different due to the problem of retroactive effect A separation-of-powersanalysis dictates that criminal statutes be distinguished from economic legislation. Nevertheless, the Court has been commingling interpretation of criminal statutes with other statutes enacted pursuant to the Commerce Clause." Economic legislation, including regulatory offenses or provisions for administrative crimes, may also raise certain separation of powers problems between Congress and administrative agencies.' The separation of powers concerns here addressed are those between Congress and the Courts. 2. THE JUSTIFICATION: THE NEED TO ROOT OUT CORRUPTION 128 127 Behind the federalism and the separation of powers issues, one looks for reasons why the federal courts and prosecutors would press the federalization of crimes. Professor Noonan's summary of the developments under RICO and other federal crimes explains how federal prosecutors and courts have taken it upon themselves to decide what does and does not amount to public corruption. In discussing ABSCAM1" and related "sting operations," he describes how public corruption cases have restructured political power: Reciprocity remained central to politics. Federal prosecutors would decide which reciprocities were criminal. Federal judges would decide if the prosecutors' distinctions should be upheld. Definers of what exchanges constituted bribery, these prosecutors and judges were unlikely to forego their new power. Employing means that would have been criminal if employed by private persons, the executive branch was in a position to supervise every government official in the country from traffic court clerks to senators. The judicial branch was in a position to approve or disapprove this supervision. Enforcers of the antibribery ethic by the criminal law, these prosecutors and judges had become the guardians of honest government, local, state, and national, in America. At the center of this supervisory system created by the Hobbs Act, the Travel Act, the Internal Revenue Code, the mail and wire fraud statutes, the conspiracy statute, and RICO, and "the federal common law" based on these acts, was the crime of bribery. A new stage in the use of the concept of the bribe had been reached. This epoch, which began about 1968, caused unprecedented pressure for the creation of a clear line between what could lead to disgrace and prison and the voluntary contributions that were the fuel of politics in a democracy.' 131 #130 132 The critical step in the prosecution of public corruption did not begin with Watergate, but rather, with efforts in the late 1960s started under the Nixon administration and continued under succeeding administrations. President Nixon presented himself as a "believer in decentralization" but, "under his administration, a combination of old laws, prosecutorial ingenuity, judicial imperialism, and new legislation... began an effective federalization of the law of bribery." An important step in this process was the expanded interpretation of the Hobbs Act133 to include bribery as well as extortion.' In addition to the reinterpretation of this Act, federal prosecutors also relied on a variety of federal laws, including the Travel Act, criminal laws on tax evasion, the mail fraud and wire fraud acts, conspiracy law "and, above all," RICO." With the aid of sympathetic interpretations of these statutes by federal judges, federal prosecutors established themselves as the protectors of public morality. 135 134 The argument that elected state officials cannot be trusted to prosecute local corruption certainly has some truth to it. It does not follow, however, that the situation requires the "independence" of federal prosecutors. According to the anti-corruption argument, if the federal prosecutors are not vigorous in their investigations of local officials, the people will be deprived of good government." 136 This argument for federal police powers assumes not only that federal law enforcement is better able to prosecute corruption, but also that criminal prosecution is preferable to other forms of attack on corruption, namely the democratic process. The anti-corruption argument for the federalization of crime is similar to the argument made for the Independent Counsel Statute. It has been argued that the Executive Branch of the federal government cannot be trusted to prosecute the corruption of its own. Again, that may be true. In both the state and federal situations, however, the solutions are not only constitutionally questionable, but may be worse than the original problem. In both cases, the proper solution is to be found in the democratic process, a vigilant free press, and the structure of the Constitution's limitation on powers. Conceding the existence of public corruption does not require acceptance of the proposition that the federal government has a direct role in protecting public morality, which is precisely what criminal law -- as opposed to the regulation of commerce -- does. The federalization of crime involves a shift of power from a multitude of locally elected officials, to an independent, centralized censor of public morality, staffed by career civil servants. While most of these federal civil servants are persons of integrity, dedication, and good intentions, it is naive to suppose that they are above politics, even if they are not involved in elected, partisan politics. To criticize the police power of federal officials does not mean to imply that state officials never abuse their own police powers. To hold both federal and state powers within their respective bounds is to reaffirm the federalism principle that freedom flourishes when power is diffused. IV. THE CONCLUSION: WHERE TO PLACE YOUR TRUST? 137 The federalization of crime presents great danger because it is a centralized power, the abuse of which has nationwide -- indeed, worldwide' consequences. State officials can and have abused their own police powers, but those abuses are subject to constitutional and practical checks. While similar protections should operate against the abuses of federal law enforcement, they do not operate in practice because Congress and the courts are joined in the abuse of federal criminal law State law enforcement operates under a number of restraints on its powers: 1) state law enforcement, unlike the federal, has all it can do to discharge its front-line responsibilities to investigate and prosecute all crimes within its jurisdiction; 2) state prosecutors are generally elected and therefore politically accountable in ways that federally-appointed United States' attorneys are not; 3) individual state law enforcement agents and agencies are constrained by much more limited resources than federal law enforcement; 4) a state's power and therefore its potential abuses are confined within its own boundaries; 5) even within those borders, state police and prosecutorial practices are subject to more aggressive federal court review than are the practices of federal law enforcement, due to the greater availability and frequent use of federal civil rights actions. The checks on federal law enforcement, on the other hand, are those of structural restraints on power through federalism and separation of powers. Within the Congress and between the Congress and the Executive branch, the normal institutional checks, which block or slow the passage of ill-conceived legislation, are not working as they should to prevent the federalization of criminal law. No member of Congress wants to be accused of favoring criminals. Thus, any legislation labeled "anti-criminal" stampedes the Congress, often at the initiation of the Executive branch, with little likelihood of being checked by the federal judiciary. This distortion of the Constitution's process enjoys popular support because the public naively assumes that it somehow has an effect in reducing crime. Instead of fighting crime, as this statement has tried to explain, much of federal criminal law places the innocent at risk and does so lawlessly under the Constitution. |