When Everyone Is an Offender

Our enormous, often vague legal code gives prosecutors too much room for interpretation 



Like lust, vanity, and gluttony, greed is not illegal. We don't hand prosecutors lists of the seven deadly sins, or the Ten Commandments, and empower them to punish their choice of offenders. Still, with only a hint of concern, the New York Times Magazine dubs the S.E.C. "The Greed Police," in this week's tribute to the agency's aggressive use of vague, elastic, and "fuzzy," prohibitions on insider trading.

"The law on insider trading, which has developed over the years from judicial rulings and is not specifically found in a statute, is ambiguous enough to allow for a range of interpretations," Roger Lowenstein writes approvingly, with little apparent understanding of the abuses that flow from such legal ambiguities. S.E.C. Director of Enforcement Robert Khuzami "scoffs" at (unexplained) criticisms from defense attorneys that he is bringing "grey area" cases, and Lowenstein scoffs along with him.

They're scoffing at due process. It requires that laws clearly delineate the boundaries between legal and illegal behavior, providing us with notice of our potential criminal liabilities and denying prosecutors the arbitrary, ad hoc power to police our private and public lives. Prosecutors are supposed to enforce the law, not make it up as they go along. "(T)he genius of insider trading law... is its flexibility," Khuzami's predecessor says; but it's the sort of "genius" that led Richard Nixon to consider the law whatever he declared it to be, explaining that "when the president does it," (as opposed to you or I doing it), "that means it is not illegal." It's the "genius" of lawless autocracies.

It's the same genius partly underlying the "collapse" of the American justice system, William J. Stuntz explains in his new book; an excerpt on salon.com offers an incisive critique of the discretionary law enforcement that the Times Magazine celebrates. "Law enforcers -- state troopers and local cops... define the law on the street," Stuntz observes. In New York such abuses of discretion (only recently prohibited by the Police Commissioner) led to the illegal arrests of over 50,000 people last year (mostly minority males) for possessing small amounts of marijuana.

While police define the law on the streets, prosecutors define the law in court, or rather outside of court, coercing plea bargains with threats of the disproportionate prison sentences available under exccessively flexible statutes. On occasion, judges or juries push back. 

Nationally, the Supreme Court has narrowed the scope of the vague, open-ended honest services law that criminalized efforts "to deprive another of the intangible right of honest services." (This law was a popular, all purpose prosecutorial tool in public corruption and white collar cases; its scope is still uncertain and an issue in the federal conviction of former Massachusetts House Speaker Sal DiMasi.)

Locally, a Boston jury recently acquitted a former firefighter of mail fraud after he was caught engaging in bodybuilding while on disability leave. In response to an outcry over the acquittal of this apparently non-disabled defendant, jurors explained to the Boston Globe that while they considered him guilty of trying to defraud the pension system, "they did not accept that he was guilty of two counts of mail fraud, a federal crime that could have put the muscular 49-year-old behind bars for up to 20 years." He should have should have been charged in state court for simple fraud, jurors reportedly concluded.

But cases like this are unusual. The vast majority of criminal cases never reach juries, much less the Supreme Court, so there are few checks on federal prosecutors who abuse a vague, expansive criminal code. We might all be prosecuted for committing "three felonies a day," my friend Harvey Silverglate has written.

William Stuntz makes a similar point: "Too much law amounts to no law at all: when legal doctrine makes everyone an offender, the relevant offenses have no meaning independent of law enforcers' will. The formal rule of law leads to the functional rule of official discretion" -- in other words a system of men (and a minority of women,) not law. In this system, as Stuntz laments, laws exist merely to "provide a menu of options for police and prosecutors to use as they see fit."

The devastating effects of this discretionary, discriminatory application of criminal sanctions pervade American society, from local communities, especially African American communities victimized by drug trafficking and the war on drugs, to the national security state and an international war on terror that effectively suspend laws against domestic surveillance, torture, and summary, indefinite detentions. This is the same system of injustice that empowers the S.E.C. to act as the greed police. Greed is no virtue; but in a democracy, law enforcement unrestrained by law is the deadliest vice.