Three Felonies a Day Page 4
It’s important to note that the judge’s interpretation of the law departed from centuries of English common law tradition, an evolving body of judge-made interpretive law with ancient roots, based on human experience and common sense. The common law tradition, with rare and narrow exceptions, does not punish those, like Morissette, who act with innocent intent. This approach to criminal law contains a vital moral component—our society punishes only those who intentionally rather than inadvertently violate the law.2
When the United States Court of Appeals for the Sixth Circuit heard Morissette’s appeal in 1951, it upheld his conviction by a 2-1 vote. By the judges’ stated logic, it was a “technicality” that Morissette, who they acknowledged made “no effort at concealment,” never intended to steal. When it comes to statutory crimes defined by Congress, the two-judge majority argued, intent or knowledge is irrelevant unless Congress appears to provide otherwise. Morissette wisely sought, and obtained, Supreme Court review.
In its unanimous opinion, the Supreme Court threw out the appellate court’s decision and, with it, Morissette’s conviction.3 Justice Robert H. Jackson discussed the historical role of intent in criminal cases and “the ancient requirement of a culpable state of mind” that must accompany a culpable act. To convict one of a crime, there must be “an evil-meaning mind with an evil-doing hand” (for the technically minded, the traditional common law notion of the combination of the actus reus and the mens rea).
Based on these centuries-old requirements, Justice Jackson concluded that the courts could not presume from Congress’s silence that it did away with the criminal intent requirement, as this “would conflict with the overriding presumption of innocence with which the law endows the accused.” Jackson noted that, had the jurors been allowed to consider Morissette’s state of mind, “[t]hey might have concluded that the heaps of spent casings left in the hinterland to rust away presented an appearance of unwanted and abandoned junk,” and from that they might “have refused to brand Morissette as a thief.”
Jackson and his fellow justices obviously recognized the importance of their having decided to review the Morissette case, an undertaking extended to a small minority of litigants who seek review by the high court. “This would have remained a profoundly insignificant case to all except its immediate parties,” Jackson noted in the Court’s opinion, “had it not been so tried and submitted to the jury as to raise questions both fundamental and far-reaching in federal criminal law.” And so this seemingly insignificant case had the potential to ensure the continued presence of fundamental principles of fairness and moral content in the federal criminal law. But how long would those positive developments last?
A few years before he wrote Morissette v. United States, Robert H. Jackson was serving as Franklin D. Roosevelt’s new attorney general. On April 1, 1940, Jackson assembled his cadre of chief federal prosecutors in Washington.4 He wanted to speak to them about a matter of grave concern—and it wasn’t the evils of crime or the need to use every crime-fighting tool to the fullest. Jackson’s subject, instead, was the untoward consequences of excessive prosecutorial zeal.
After explaining why a federal prosecutor must choose cases carefully and recognize that not every crime can be pursued, Jackson turned to the heart of his talk: “If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants.” Here one finds “the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.”
Jackson was no soft touch. He knew real crimes when he saw them. After serving as attorney general for less than two years, he would become a Supreme Court justice and serve as well as chief American war crimes prosecutor at Nuremberg. But Jackson also understood the proper limits of power and the dangerous human impulse to exert power over others. The federal law books, explained Jackson, are “filled with a great assortment of crimes,” and a prosecutor “stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.” Prosecutors can easily succumb to the temptation of first “picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.”
Today, in spite of Jackson’s warning, it is only a slight exaggeration to say that the average busy professional in this country wakes up in the morning, goes to work, comes home, takes care of personal and family obligations, and then goes to sleep, unaware that he or she likely committed several federal crimes that day. Why? The answer lies in the very nature of modern federal criminal laws, which have become not only exceedingly numerous (Jackson’s main fear at the time of his admonition to his prosecutors) and broad, but also, since Jackson’s day, impossibly vague. As the Morissette scenario indicated, federal criminal laws have become dangerously disconnected from the English common law tradition and its insistence on fair notice, so prosecutors can find some arguable federal crime to apply to just about any one of us, even for the most seemingly innocuous conduct (and since the mid-1980s have done so increasingly).
A study by the Federalist Society reported that, by the year 2007, the U.S. Code (listing all statutes enacted by Congress) contained more than 4,450 criminal offenses,5 up from 3,000 in 1980. Even this figure understates the challenge facing honest, law-abiding citizens. Since the New Deal era, Congress has delegated to various administrative agencies the task of writing the regulations that implement many congressional statutes. This has spawned thousands of additional pages of text that carry the same force as congressionally enacted statutes.6 The volume of federal crimes in recent decades has exploded well beyond the statute books and into the morass of the Code of Federal Regulations, handing federal prosecutors an additional trove of often vague and exceedingly complex and technical prohibitions, one degree removed from congressional authority, on which to hang their hapless targets.
This development may sound esoteric to some—until they find themselves at the wrong end of an FBI investigation into, or indictment for, practices they deem perfectly acceptable. It is then that citizens begin to understand the danger posed to civil liberties when our normal daily activities expose us to potential prosecution at the whim of a government official.
How these prosecutions work and what we can do about this perilous state of affairs is the subject of this book. The dangers spelled out here do not apply only to “white collar criminals,” state and local politicians, and myriad professionals, though their stories will predominate in the chapters that follow. No field of work nor social class is safe from this troubling form of executive branch overreaching and social control, and nothing less than the integrity of our constitutional democracy hangs in the balance. After all, when every citizen is vulnerable to prosecution and prison, then there is no effective counterweight to reign in government overreaching in every sphere. The hallowed notion of “a government of laws” becomes a cruel and cynical joke.
When I began practicing law in 1967, I hung out my shingle as a “criminal defense and civil liberties lawyer.” I linked the two practice areas because, during the turbulent ’60s, it seemed that defending people accused of crime often was an exercise in the defense of freedom of speech, freedom of religion, freedom of association, or procedural due process of law. Our firm’s typical cases involved what we called “the three D’s”: drugs, draft, and demonstrations. A few years later, a large number of gender discrimination cases were added to the mix, but much of our work remained focused on the three D’s.
I recognized that I made a good part of my living defending people who did very bad things (assault, robbery, murder, mayhem, larceny, and fraud, for example). Many committed the crimes charged while some did not. However, the charges against them entailed conduct that reasonable people, ordinary citizens and lawyers alike, would rightly regard as criminal, and the indictments were based on statutes that were readily understandable. One could argue that some actions should not be criminal, such as possession of marijuana, but the c
rimes charged were usually clearly defined.
Then, about fifteen years into my law practice, I noticed a shift in the federal courts. More and more of my clients (physicians, bankers, academics, scientists, investors, newspaper reporters, accountants, artists, and photographers [the “three D’s” had by then given way to a more diverse clientele]) were being investigated and prosecuted for conduct that neither they nor I instinctively viewed as criminal. As I prepared to defend against the charges, I could not rid myself of the unsettling notion that the federal criminal laws were becoming vaguer and harder to understand with the passage of time.
This chasm between federal and state law had in theory been established long ago, in 1812, when the Supreme Court ruled in a bribery case that federal crimes were entirely creatures of congressional statute and not successors to English common law.7 As a result, Congress in writing statutes, and the federal courts in interpreting them, do not have the full benefit of the common law’s wisdom and experience—with increasingly alarming consequences. As the Supreme Court said in 1985, “[W]hen assessing the reach of a federal criminal statute, we must pay close heed to language, legislative history, and purpose in order strictly to determine the scope of the conduct the enactment forbids.”8 This judicial exercise, often akin to reading tea leaves, has proven disastrous. The deceptively simple exercise of divining congressional purpose in enacting a statute involves, for one thing, a dubious assumption that Congress acts with a single, much less a simple, intent. In practice, it is rarely clear what that intent was, since much federal legislation is the result of compromises that often are meant to gloss over genuine and sharp differences. For this and perhaps other reasons as well, Congress has demonstrated a growing dysfunction in crafting legislation that can in fact be understood.
As the post-New Deal regulatory and national security state took deeper root during the mid-20th century, the gulf between the defendant-protective common law tradition practiced in the states and the more malleable and prosecution-friendly federal law grew. More and more, courts departed from Justice Jackson’s insistence on requiring proof of criminal intent to commit a crime, and instead subscribed to the belief that, if the nation is to be kept safe in an increasingly dangerous world, law violators must not be allowed to slip from the government’s net, even when the law’s prohibitions could not be understood with precision.
The danger posed by vague federal statutes was obvious to me, in part because I came of age during the era of anti-Jim Crow racial struggles in the American South. In what I now see is a historical irony, the threat back then appeared to be the abusive use of vague state breachof-the-peace laws to turn back the wave of civil rights demonstrations in the Deep South. The 1965 Supreme Court decision Cox v. Louisiana,9 decided while I was a law student, opened my eyes to just how much mischief can be done with vague wording of the law.
In that case, Reverend B. Elton Cox, leader of a group of civil rights demonstrators, was arrested in December 1961 for violating a 1950 Louisiana criminal statute that barred picketing “in or near” courthouses. Louisiana’s anti-picketing law was not a unique product of the segregated South. A similar federal statute to halt picketing of federal courthouses by Communist sympathizers went on the books during the Red Scare era, and even northern states—notably Massachusetts and Pennsylvania—enacted similar laws.
In Cox, what seemed outrageous was the manner in which Louisiana officials enforced the Louisiana anti-picketing statute. Reverend Cox had made a point of getting permission from city officials to lead the demonstration across the street from the courthouse. He then led a 2,000-strong demonstration objecting to the arrest of 23 civil rights protestors the previous day. The demonstrators sang and marched peacefully until a small group of white-only lunch counter segregationists gathered nearby. Tension between the two groups escalated. The police recklessly sprayed tear gas into Reverend Cox’s camp. The next day, the police arrested Cox for violating the anti-picketing law. He was sentenced to the maximum penalty of one year in jail and a $5,000 fine.
The Supreme Court summarily overturned Reverend Cox’s conviction, calling the conduct of city officials “an indefensible sort of entrapment.” The Court argued that the anti-picketing statute suffered from a “lack of specificity” in its mandate that demonstrations not take place “near” courthouses. Cox had received permission to lead a protest across the street—approximately 125 feet away. By telling Cox that he could lead the protest at that location but then arresting him, Louisiana officials violated his right to adequate notice and hence “due process of law.” Here, the vagueness of the statute had enabled the state to mislead the citizen into running afoul of the law. Cox dealt a serious blow to the government’s ability to pick and choose capriciously which citizens it will or will not prosecute and under what circumstances.
In other cases, however, the problem lay not with officials intentionally misleading citizens, but with the inherent vagueness of the statute itself. In a 1963 case, Edwards v. South Carolina,10 187 black high school and college students were convicted for “breach of the peace” during a peaceful demonstration against mistreatment of blacks. While the Supreme Court ruled the demonstration itself was protected by the First Amendment, it went further and deemed the statute unconstitutional because it was “so vague and indefinite” that it practically invited punishment of protected speech and protest. The Court noted that the Supreme Court of South Carolina defined the word “peace” as used in the statute as “tranquility.” “These petitioners,” said the U.S. Supreme Court, “were convicted of an offense so generalized as to be, in the words of the South Carolina Supreme Court, ‘not susceptible of exact definition.’”
Troublingly, the doctrines of misleading the citizen11 and “void for vagueness,”12 which federal courts have applied in numerous cases with regard to state statutes, especially where states have used vague statutes to violate the federal constitutional rights of political, religious and racial minorities, have not been applied consistently or with equal rigor in federal cases, despite the modern-era explosion of vague federal criminal statutes and mountains of turgid regulations. When the Supreme Court considered an Oklahoma law that made it a crime to pay laborers less than the prevailing wage in their locality, it decided that the law’s references to “locality” and “current rate of wages” left too much open to interpretation. That state law was unconstitutional, the Court determined, because its language was “so vague that men of common intelligence must necessarily guess at its meaning and differ as to” how best to comply with it.13 The dangers posed by vague laws, relatively rare in modern state criminal statutes, are greatly exacerbated in the current federal criminal code. Such federal statutes have been stretched by prosecutors, often with the connivance of the federal courts, to cover a vast array of activities neither clearly defined nor intuitively obvious as crimes, both in commerce and in daily life.
I also began to notice that, as these bodies of law expanded, federal prosecutors grew more inclined to bring criminal charges for deeds that, at most, constituted arguable (sometimes barely arguable) civil offenses. Thus, they raised reasonably contestable federal questions that a federal court, in a civil proceeding, should have been allowed to resolve. The citizen, if wrong, would have to pay a price measured in dollars; and once the clear meaning of the statute or regulation was established, the citizen would be expected to adhere to it, next time on penalty of criminal indictment and conviction. I naively assumed that the federal courts would, by and large, insist that citizens be charged with crimes only when there was adequate notice of what constituted the crime.
I had reason, at the start of this trend, to think that the federal courts would rein in prosecutors. Consider the plight of Dorothy Garber. She ran afoul of the federal tax code, widely viewed as a confusing mishmash of arcane, complex, and often conflicting rules and interpretations. As such, tax prosecutions traditionally were to be brought only where the regulation had been sufficiently clarified so that
the taxpayer could reasonably be said to have intentionally violated a known legal duty to pay taxes owed. The taxing authorities were supposed to exercise wise discretion in deciding whether to seek to collect a tax in a civil enforcement proceeding, or to seek to punish criminally a tax evader who should have known better.
Garber’s case reached the Florida federal courts in the late-1970s. This taxpayer was blessed (or perhaps, under the circumstances, cursed) with a rare trait: her body manufactured an extraordinarily valuable antibody used to make blood-typing serum. She frequently sold her antibodies to a pharmaceutical company by the process of plasmapharesis, i.e., the removal, treatment, and return of blood plasma from and to her circulation, a procedure that was both uncomfortable and potentially dangerous. She underwent plasmapharesis sometimes as often as six times a month and was handsomely paid for her trouble. In 1972, she earned a weekly salary of $200. In addition, she was provided a leased automobile and a $25,000 bonus. She earned a total of $87,200 that year and nearly as much in each of the two previous years.
Garber failed to report as income any of this money except her weekly $200 salary. Consequently, she was charged with criminal tax evasion. Her defense was intriguing, more a reflection of the conundrum of the federal tax code perhaps than of her alleged dishonesty. Examples of non-taxable transactions, some of which produce monetary gains, are found scattered throughout the tax code in various contexts. For example, if one owns some physical item, a “capital asset,” and sells that asset for one’s cost, however calculated, there is no taxable gain. If one is injured in an accident, compensation for pain and suffering is not taxable, in contrast to compensation for lost wages. These special categories of assets and of revenue, many of which get quite technical, often confound even the most experienced tax lawyers and accountants.