An Honest Services Debate
This commentary employs a fictional debate to explore the issues raised by the Supreme Court’s decision in Skilling v. United States, 130 S. Ct. 2896 (2010), which dramatically cut back on “honest services” prosecutions under the mail and wire fraud statutes. In response to an earlier decision by the Supreme Court reading these statutes narrowly, Congress enacted 18 U.S.C. § 1346, which extends mail and wire fraud to schemes to deprive another of “the intangible right of honest services.” In 2009 the Supreme Court granted certiorari in three cases presenting questions concerning the “honest services” provision. One of the cases involved the indictment of state legislator who failed to disclose he was seeking employment from a large corporation while voting on legislation affecting the company. The other cases involved honest services convictions for deception and self dealing in the private sector by news magnate Conrad Black and former Enron CEO Jeffrey Skilling, whose false statements about the Enron’s financial situation propped up its stock price as it careened towards collapse.
The Court issued only one opinion on the merits, in Skilling. In an opinion written by Justice Ginsburg, six members of the Court rejected the claim that § 1346 is void for vagueness but construed the statute to be limited to bribes and kickbacks, which it found had comprised the “lion’s share” of the honest services prosecutions. The Court did not resolve – or even discuss – the other questions on which it had granted certiorari: whether a state law violation or economic harm or private gain were necessary elements (though bribery and kickbacks by their nature involve gain to the defendant). Justice Scalia (writing for himself and two other justices) wrote separately to argue that § 1346 is unconstitutionally vague.
I use the debate form to critique the Skilling opinion and explore a variety of issues raised by honest services prosecutions: (1) the federalism issues raised by the prosecution of state and local government officials, (2) the potential for overlap and conflict between broad conceptions of mail fraud and other federal and state regulatory systems, (3) the proper boundaries of criminal law and the problem of overcriminalization, and (4) the largely unregulated prosecutorial discretion that results from broadly drafted criminal statutes.
Remarkably, the Court failed to engage or even acknowledge those issues, except to the extent they were necessarily part of its assumption that absent a limiting interpretation § 1346 would have been unconstitutionally vague. Precisely because the Court did not engage these concerns, the Skilling opinion prompted me to explore other issues that are less often the focus of criminal law scholarship: the doctrine of constitutional avoidance, the standards governing facial versus as-applied challenges, the proper methodology for interpreting statutes, and institutional concerns regarding the federal judiciary and its relationship to the other branches of government. Although these issues have generally been seen as the province of scholars specializing in constitutional law, federal courts, legislation, and public choice theory, the debate concludes that they should be a more important role in criminal law scholarship.