Congress Shouldn't Force Citizens to Fly Blind

Tuesday, the Senate Judiciary Committee will meet to consider a June Supreme Court decision that narrowed the scope of the so-called “honest services law,” which made it a crime punishable by up to 20 years in prison to deprive another of “the intangible right to honest services.” The Court limited the law to bribes and kickbacks because no one - including the prosecutors who sent people to jail for violating it - really understood what it meant.

But prosecutors like vague criminal statutes because such laws permit them to prosecute shady-seeming defendants without gathering clear evidence of a more specific crime. Assistant Attorney General Lanny A. Breuer, therefore, will likely ask the Senate to re-broaden the law in today’s hearing. Lawmakers should probably decline his request.

New technologies and exotic contracts make a modern prosecutor’s job difficult, and the men and women who bring society’s most sophisticated crooks to justice deserve sympathy and support. If they need additional resources to enforce clear laws against wrongful conduct, they should have them.

But no one ever said that maintaining the world’s fairest justice system was easy, and lawmakers should not compromise the oldest principle of justice in the criminal law: that every citizen has a right to know in advance what the laws require or forbid.

Indeed, the Senate should take note of another hearing held today by the House Judiciary’s crime subcommittee on the problem of overcriminalization: the proliferation of vague and ambiguous laws that can turn even the most conscientious citizen into a federal criminal. Retired Indy car racing legend Bobby Unser will tell House Members how his efforts to survive a blizzard in the Rockies turned him into a convict.

Unser was snowmobiling with a friend near his Colorado home when a sudden storm completely eliminated visibility in a “whiteout” that made navigation impossible. The two men struggled to return to their truck but quickly became lost. They kept moving in a straight line, not knowing their direction, in hopes of finding shelter. When one snowmobile broke down, the men abandoned it and continued on in the other one, ultimately spending the night in the storm.

Unser’s wilderness skills enabled both men to survive, although his friend was hospitalized for frostbite. When Unser later asked the National Forest Service to help him locate the broken snowmobile, they found it in a protected “wilderness area” and charged Unser with a crime for driving it there accidentally during the blizzard.

Unser argued at trial that he had no criminal intent, but the judge ruled that the law required none, and Unser became an accidental federal criminal.

Unser’s tale may seem unrelated to this morning’s debate in the Senate about the honest services statute, but it’s an apt metaphor for the whiteout conditions that vague laws create for regular people.

Consider Bruce Weyhrauch, an Alaska state legislator sentenced to prison under the honest services law for failing to disclose a potential conflict of interest. The thing is, none of the many state laws and ethics rules governing his conduct required such a disclosure. Weyhrauch followed every disclosure rule that applied to him only to have a new rule invented afterward by federal prosecutors under the vague rubric of “honest services.”

The honest services law applied to private employees as well as public officials, so until the Supreme Court reversed Weyhrauch’s conviction in June, no employee who scrupulously followed every workplace rule was safe from being deemed a criminal. Instead, employees had to guess what additional duties an imaginative court might impose.

The Senate should resist prosecutorial enthusiasm for one-size-fits-all statutes that leave citizens navigating blindly through the wilderness of legal compliance. Instead, they should define clearly and specifically the conduct for which they are prepared to deprive citizens of their liberty.

This piece originally appeared in Washington Examiner

This piece originally appeared in Washington Examiner