The upside of overbreadth

New York University Law Review

Volumn 83, Issue 5, 2008, Pages 1491-1564

  Buell, Samuel W ^a  

^a UNIVERSITY OF WASHINGTON   (United States)

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EID: 57049151923     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (426)

1. See HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 79-81 (1968) (analyzing legality concept within scope of modern criminal law).
2. See sources cited infra notes 15-16.
3. See, e.g., Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 STAN. L. REV. (forthcoming 2009) (manuscript at 8-15), available at http://ssrn.com/abstract-l 114172 (critiquing substantive federal criminal law as producing excessive leverage for prosecutors in plea bargaining).
4. See JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW § 3.01 (4th ed. 2006) (describing evolution of criminal law from judge-made common law to statutes);
5. cf. Stephen J. Schulhofer, Toward a Just and Rational Body of Substantive Criminal Law, 5 OHIO ST. J. CRIM. L. 367, 367 (2008) (describing necessary conditions for adequate precision, fairness, effectiveness, and administrability in criminal prohibition).
6. Of course, it will not always be easy in practice to distinguish evasion from deterrence. Those possessing small amounts of heroin will not self-identify as having been deterred by the dealing prohibition or having organized themselves to circumvent it. The overbreadth problem thus arises in both law design and enforcement.
7. See infra note 45 for discussion of the basic deterrence model.
8. The same is true if incapacitation-that is, a hundred-percent probability of sanction - is the state's goal.
9. See infra note 43 and accompanying text.
10. I hasten to add that the literature has not neglected this person when discussing him or her as a prisoner. Perhaps the literature's chief concern has been the production of too many such persons and the social and individual costs of that process. But the focus has principally been on a person who is a product of the legal process, rather than on a person whose behavior supplies a dynamic input to that process.
11. For examples, see infra notes 23-26 and accompanying text.
12. I thus mean to exclude from this inquiry situations in which it may be sufficient for society to rely on civil sanctions to achieve its objectives, or at least to rely first on civil sanctions to specify prohibited behaviors. Situations in which the civil sanction approach is not available include wrongs for which such sanctions do not deliver adequate desert, offenders whose relative insolvency makes such sanctions ineffective, and behaviors that adapt so well or so quickly that to specify wrongs "first" with civil liability is to specify them only with civil liability.
13. Although I do not worry as much as some others that active criminal enforcement in federal court undesirably tilts the balance of governance from state to federal systems, I do not mean to enter into that discussion in this Article. I highlight the federal criminal justice system largely for empirical reasons: Institutionally and legally, it is structured in ways that make the dynamics that interest me most salient.
14. By this assertion I mean only that political support for the criminal law shows no signs of collapsing, even though one might have expected the vastly overreaching scope that its critics have described eventually to destroy such support.
15. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW § 14.1 (7th ed. 2007) (describing agency cost phenomenon in terms of theory of firm, whereby managers to whom operation of firm is delegated by owners may stray from pursuing interests of firm's owners).
16. For an effort to develop a general rather than offense-specific theory of how contemporary law is overcriminalized, see generally DOUGLAS HUSAK, OVERCRIMINALIZATION: THE LIMITS OF THE CRIMINAL LAW (2008).
17. The voluminous literature concerning the overcriminalization and federalization of criminal law includes, among many sources: JAMES A. STRAZZELLA, AM. BAR ASS'N, THE FEDERALIZATION OF CRIMINAL LAW (1998);
18. John S. Baker, Jr., State Police Powers and the Federalization of Local Crime, 72 TEMP. L. REV. 673 (1999);
19. Sara Sun Beale, Federalizing Crime: Assessing the Impact on the Federal Courts, 543 ANNALS AM. ACAD. POL. & SOC SCI. 39 (1996);
20. Sara Sun Beale, Too Many and Yet Too Few: New Principles To Define the Proper Limits for Federal Criminal Jurisdiction, 46 HASTINGS L.J. 979 (1995);
21. Sara Sun Beale, What's Law Got To Do with It? The Political, Social, Psychological and Other Non-Legal Factors Influencing the Development of (Federal) Criminal Law, 1 BUFF. CRIM. L. REV. 23 (1997)
22. [hereinafter Beale, What's Law Got To Do with It?];
23. Kathleen F. Brickey, Criminal Mischief: The Federalization of American Criminal Law, 46 HASTINGS L.J. 1135 (1995);
24. Steven D. Clymer, Unequal Justice: The Federalization of Criminal Law, 70 S. CAL. L. REV. 643 (1997);
25. John C. Coffee, Jr., Does "Unlawful" Mean "Criminal"?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B.U. L. REV. 193 (1991);
26. Douglas Husak, Is the Criminal Law Important?, 1 OHIO ST. J. CRIM. L. 261 (2003);
27. Erik Luna, The Overcriminalization Phenomenon, 54 AM. U. L. REV. 703 (2005);
28. Julie R. O'Sullivan, The Federal Criminal "Code" Is a Disgrace: Obstruction Statutes as Case Study, 96 J. CRIM. L. & CRIMINOLOGY 643 (2006);
29. Paul H. Robinson & Michael T. Cahill, The Accelerating Degradation of American Criminal Codes, 56 HASTINGS L.J. 633 (2005);
30. Stephen F. Smith, Proportionality and Federalization, 91 VA. L. REV. 879 (2005);
31. William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505 (2001);
32. Franklin E. Zimring & Gordon Hawkins, Toward a Principled Basis for Federal Criminal Legislation, 543 ANNALS AM. ACAD. POL. & SOC. SCI. 15 (1996).
33. A precursor to much of this literature is Sanford H. Kadish, Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations, 30 U. CHI. L. REV. 423 (1963).
34. See Robinson & Cahill, supra note 16, at 635-44 (demonstrating "degradation" of state criminal codes by highlighting experience of Illinois).
35. As Darryl Brown shows in a study of criminal lawmaking at the state level, the over-criminalization story is more accurate about the federal system than state systems. See Darryl K. Brown, Democracy and Decriminalization, 86 TEX. L. REV. 223, 234-49 (2007) (providing examples of state decriminalization and state legislative refusals to enact new criminal statutes and arguing that breadth of state criminal codes was greater in early twentieth century).
36. This is a simplification of claims made in works such as Beale, What's Law Got To Do with It?, supra note 16, at 40-44
37. and Stuntz, supra note 16, at 529-68.
38. For studies of the sources and structure of this complex punitive culture, see generally DAVID GARLAND, THE CULTURE OF CONTROL (2001)
39. and JONATHAN SIMON, GOVERNING THROUGH CRIME (2007).
40. See Stuntz, supra note 16, at 533-39, 542-46 (describing incentives for prosecutors to lobby legislators and highlighting special case of federal prosecutors who desire broad liability rules that enable them to target high-profile cases).
41. See William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 YALE L.J. 1, 56 (1997) (describing incentives of legislatures to broaden criminal prohibitions in order to reduce litigation costs). Stuntz also notes that broad liability rules are often found in areas like white-collar crime and public corruption that involve offenders who tend to be well-off and thus expensive to prosecute.
42. Id. at 56-58, 66.
43. 18 U.S.C. § 2119 (2000).
44. 18 U.S.C. § 922(g)(8) (2000).
45. See, e.g., 7 U.S.C. § 6519(b) (2000) (establishing as felony making of false statement to certain government officials in sale or labeling of organic foods).
46. See, e.g., Stuntz, supra note 16, at 531-33 (describing actual and proposed federal prohibitions on carjacking, "white slave" trafficking, domestic violence, and hate crimes, all of which seek to regulate behavior already subject to state criminal law). Many of these forms of excess in criminal codes have a negligible impact on caseloads in the courts.
47. See HUSAK, supra note 15, at 35 ("[M]ost of these laws, however amusing, are rarely enforced and certainly cannot be blamed for causing the massive increase in punishment throughout the United States today.");
48. Brown, supra note 18, at 272-73 (observing in overview of state criminal systems that "most prosecutions occur under a fairly small set of statutes"). In 2000, approximately 25,000 persons were prosecuted in federal court for drug offenses, approximately 6000 for firearms offenses, approximately 4500 for fraud crimes, and approximately 2000 for offenses involving extortion, robbery, money laundering, and racketeering; only about 150 were prosecuted for carjacking, about 500 for uttering false statements in federal matters, and about 20 for interstate domestic violence-to take just three offenses often described as needlessly criminalized or inappropriately made subject to federal jurisdiction. These rough data were obtained using the search function available on the website of the Bureau of Justice Statistics, Federal Justice Statistics Resource Center, http://fjsrc.urban.org/index.cfm (last visited Sept. 6, 2008) (click on "U.S. Criminal Code" link on toolbar and input section numbers for those statutes most commonly used to prosecute various categories of offenses: 15 U.S.C. § 78j(b) (fraud); 18 U.S.C. §§ 922, 924 (firearms); 18 U.S.C. § 1001 (false statements); 18 U.S.C. §§ 1028-1031,1341-1348 (fraud); 18 U.S.C. § 1951 (robbery, extortion); 18 U.S.C. § 1952 (racketeering); 18 U.S.C. §§ 1956, 1957 (money laundering); 18 U.S.C. § 1959 (racketeering); 18 U.S.C. §§ 1961-1963 (racketeering); 18 U.S.C. § 2119 (carjacking); 18 U.S.C. §§ 2261, 2262 (domestic violence); 21 U.S.C. §§ 841, 846, 848, 960, 963 (drug offenses); and 26 U.S.C. §§ 5861, 5871 (firearms)).
49. Henry M. Hart, Jr., The Aims of the Criminal Law, 23 LAW & CONTEMP. PROBS. 401, 404 (1958);
50. Kadish, supra note 16, at 437.
51. See, e.g., Gerard E. Lynch, The Role of Criminal Law in Policing Corporate Misconduct, LAW & CONTEMP. PROBS., Summer 1997, at 23, 44-52 (discussing moral function of criminal punishment and applying stigma theory of criminal law to corporate misconduct).
52. Of course, it is not self-evident that a prohibition criminalizes "blameless" behavior in areas such as fraud or firearms offenses that shift along fluid boundaries of social condemnation and evolving norms. Even seemingly trivial regulatory offenses can turn out to have normative underpinnings. See generally Stuart P. Green, Why It's a Crime To Tear the Tag Off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses, 46 EMORY L.J. 1533 (1997) (developing normative defense of criminalizing some regulatory violations). If one were to assert that the correct baseline for appropriate criminal sanction is the " traditional" criminal law, one would have to confront the possibility that "traditional" substantive criminal law might never have existed in the narrower form imagined. See Brown, supra note 18, at 233-49 (analyzing evolution of early-twentieth-century and modern substantive criminal law and suggesting overall trend has been toward contraction of criminal law's scope);
53. cf. Adam H. Kurland, First Principles of American Federalism and the Nature of Federal Criminal Jurisdiction, 45 EMORY L.J. 1, 21-91 (19%) (mounting historical argument that Framers' conception of proper scope of federal criminal law was much broader than many modern accounts of original intent have contended).
54. See, e.g., United States v. Freed, 401 U.S. 601, 607-10 (1971) (holding that statute imposed strict liability for all possession of hand grenades without regard to scienter). Dan Kahan argues that broad criminal liability rules can be characterized by a "prudence of obfuscation" that is designed to induce uncertainty and restraint among persons who seek to pursue undesirable behaviors within the literal terms of legal rules. Dan M. Kahan, Ignorance of Law Is an Excuse-But Only for the Virtuous, 96 MICH. L. REV. 127, 129 (1997).
55. H.L.A. HART, THE CONCEPT OF LAW 128 (2d ed. 1994).
56. See Friedrich Waismann, Verifiability, in ESSAYS ON LOGIC AND LANGUAGE 117, 120-24 (Antony Flew ed., 1951) (explaining distinction between open texture due to limits of knowledge and vagueness due to limited precision of language);
57. see also FREDERICK SCHAUER, PLAYING BY THE RULES 31 (1991) ("The limits of time and understanding make it impossible to restrict our assessments of cause and effect, or our reports of empirical truth, to universally correct statements, and so we frequently employ generalizations that are only probabilistic");
58. Stuntz, supra note 16, at 547-48 (discussing example of fraud statute designed to be broad enough to capture subtle frauds but resulting in overbreadth because it also covers "only marginally bad actors").
59. See John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 VA. L. REV. 189, 195-201 (1985) (describing limited enforcement of legality-related doctrines);
60. Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 SUP. CT. REV. 345, 345-46 (stating that rule of lenity is enforced much less strongly than many might believe given principle's supposedly foundational quality).
61. For this purpose, the felon gun ban no longer seems like a useful example. If we narrowed the ban to certain kinds of felonies, would we need to worry that a dangerous person inclined to commit felonies would shift the form of her prior violations to avoid the reach of the ban? Not unless we were genuinely hard-core believers in the logic of deterrence. See Paul H. Robinson & John M. Darley, Does Criminal Law Deter? A Behavioural Science Investigation, 24 OXFORD J. LEGAL STUD. 173, 181, 197-204 (2004) (presenting theory and evidence critiquing claim that shape of substantive criminal liability rules affects individuals' decisions whether to violate law).
62. See Kahan, supra note 30, at 137-40 (describing similar scenario involving efforts to alter chemical composition of illegal substances in order to avoid drug regulations).
63. In his essential work on what he calls the "pathological politics" of overcriminalization, William Stuntz explains that if "a given crime is defined by elements ABC" and "A and B are easy to prove, but C is much harder," then for a legislature, "[c]riminalizing AB, with the understanding that prosecutors will determine for themselves whether C is satisfied, raises the odds of conviction and reduces enforcement costs." Stuntz, supra note 16, at 531.
64. A lawmaker might have the motivation for omitting element C that Stuntz blames for pathology in criminal law: acceding to efforts of executive branch actors to hoard power and to make those actors' jobs easier, for fear of otherwise appearing soft on crime. See id. at 548-49 (describing risk legislators face of being blamed for failing to provide prosecutors with adequate legal tools to pursue culpable actors). But sometimes element C might be dropped because C appears very hard or even impossible to prove when the legislator, a court interpreting the statute, or a prosecutor enforcing the statute considers how offenders could change their behavior to escape sanction if proof of C were required. The same effects on trial rates, plea bargaining, and expanding enforcement discretion follow, but for different reasons and with different implications.
65. This overbreadth in sanctioning - contrasted with overbreadth in criminalization - is at the root of arguments that the federalization of contemporary criminal law is a social ill. Leaving aside the abstract (and as yet unproven) claims that the federalization of criminal law endangers "our federalism," the gist of these claims has been that current federal criminal law makes a "federal case" - that is, an especially serious one - out of too many cases that are not at all serious. Generally speaking, it is much easier for the prosecutor to obtain a longer sentence in federal than in state court. Clymer, supra note 16, at 674-75;
66. Daniel Richman, The Past, Present, and Future of Violent Crime Federalism, 34 CRIME & JUST.: REV. RES. 377, 404-05 (Michael Tonry ed., 2006). But, as my doctrinal examples in Part II will show, some portion of what is called "overfederalization" is a byproduct of the state's competition with resourceful actors rather than the fruit of misguided judgments about which behaviors to subject to the most serious forms of criminal process.
67. Cf. Daniel C. Richman, Federal Criminal Law, Congressional Delegation, and Enforcement Discretion, 46 UCLA L. REV. 757, 801 (1999) ("While the political costs of narrowing the scope of substantive law appear to be prohibitive, the costs of proposals to restrict enforcer activities are not . . . .");
68. William J. Stuntz, The Political Constitution of Criminal Justice, 119 HARV. L. REV. 780, 796 (2006) (suggesting that legislators have been more apt to expand procedural protections than to limit substantive law because procedural protections benefit innocent persons as well as those whose conduct is close to borderline of liability).
69. Cf. Richard A. Bierschbach & Alex Stein, Mediating Rules in Criminal Law, 93 VA. L. REV. 1197, 1217-52 (2007) (examining interplay between evidentiary rules and substantive liability rules in criminal law in terms of net effects on deterrent and retributive objectives for punishment). Another reason the state might resort to altering liability rules would be limitations on its ability to regulate directly particular forms of sanction avoidance, such as noncreation of evidence or investment in litigation. See Jacob Nussim & Avraham Tabbach, (Non)Regulable Avoidance and the Perils of Punishment 8-9 (Bar-Ilan Univ. Pub. Law & Legal Theory, Working Paper No. 07-05, 2007), available at http://ssrn.com/abstract=979363 (describing these limits).
70. This is not the actual law. See, e.g., United States v. Williams, 20 F.3d 125,129 & n.2 (5th Cir. 1994) (quoting and discussing recommended reasonable doubt instruction published by Federal Judicial Center).
71. This is more or less the actual law. See, e.g., Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 626 (1989) (describing contours of Sixth Amendment right to spend money on one's counsel of choice).
72. William Stuntz similarly examines the interplay between law and exogenous forces by arguing that more robust doctrines of modern criminal procedure give defendants with resources tools to threaten costly litigation but do not afford equivalent leverage to poor defendants with resource constraints. Stuntz, supra note 22, at 56.
73. In his provocative work attacking the rationality of our current system of proof and procedure for criminal cases, Larry Laudan has suggested, among other things, that it might make sense to vary rules of proof and procedure according to the type of crime being prosecuted, specifically depending on the difficulty of securing convictions. Larry Laudan, The Social Contract and the Rules of Trial: Re-thinking Procedural Rules 42 (Feb. 25, 2008) (unpublished manuscript), available at http://ssrn.com/abstract-1075403. Regardless of whether Laudan is persuasive, my point is that politics favors customizing liability rules.
74. One might further argue that, at least when it comes to evaluating state action, we should care about effects, and not purposes. In other words, if social policy favors a broader prohibition, it is of no matter that a policymaker might have favored the broader prohibition for selfish or socially unwelcome reasons. See David Enoch, Intending, Foreseeing, and the State, 14 LEGAL THEORY (forthcoming 2008) (manuscript at 23-34), available at http://www.law.columbia.edu/null?exclusive=filemgr. download&file-id=13720 (raising doubts about viability of alleged moral distinction between intending and foreseeing result of one's actions, focusing on its viability as measure of state action).
75. In the basic economic model of behavior regulation, deterrence fails when b > p*s: An individual will choose to violate the law when her expected benefit from the violation (b) exceeds her expected sanction, defined as the legal sanction (s) discounted by the probability of its imposition (p). See CESARE BECCARIA, ON CRIMES AND PUNISHMENTS 46 (David Young ed., 1986) ("In order for a penalty to achieve its objective, all that is required is that the harm of the punishment should exceed the benefit resulting from the crime.");
76. Jeremy Bentham, Principles of Penal Law, in 1 THE WORKS OF JEREMY BENTHAM 365, 396 (John Bowring ed., 1843) ("If the apparent magnitude, or rather value of that pain be greater than the apparent magnitude or value of the pleasure or good he expects to be the consequence of the act, he will be absolutely prevented from performing it.");
77. Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169, 176-77 (1968) (claiming person will commit crime if its expected utility, including probability of punishment, exceeds utility of alternative activities). I omit a component that neoclassical modeling usually includes: the social cost of an offense as its net cost, accounting for both the offender's gain and society's loss. See, e.g., id. at 197 ("[T]he rich man's purchase [of a car] is equivalent to a 'theft' subsequently compensated by a 'fine' equal to the price of the car, while the poor man [who steals a car], in effect, goes to prison because he cannot pay this 'fine.' "). I am not persuaded as a normative matter that this kind of calculation is justified.
78. See Claire Finkelstein, The Inefficiency of Mens Rea, 88 CAL. L. REV. 895, 904 (2000) (arguing that deterrence of crime cannot be analyzed in purely economic terms without normative theory of which gains to offenders are legitimate versus illegitimate).
79. See, e.g., PANEL ON THE UNDERSTANDING AND CONTROL OF VIOLENT BEHAVIOR, NAT'L RESEARCH COUNCIL, UNDERSTANDING AND PREVENTING VIOLENCE 6 (Albert J. Reiss, Jr. & Jeffrey A. Roth eds., 1993).
80. Writing in 1968, Becker acknowledged this point but questioned whether the relation between the probability of sanction and the number of offenses had been adequately explained. See Becker, supra note 45, at 176.
81. See Christine Jolis, On Law Enforcement with Boundedly Rational Actors, in THE LAW AND ECONOMICS OF IRRATIONAL BEHAVIOR 268, 276-77 (Francesco Parisi & Vernon L. Smith eds., 2005) (explaining that availability bias suggests offenders will weigh salient cases of enforcement heavily in calculating probability of sanction);
82. A. Mitchell Polinsky & Steven Shavell, The Theory of Public Enforcement of Law, in 1 HANDBOOK OF LAW AND ECONOMICS 403, 439 (A. Mitchell Polinsky & Steven Shavell eds., 2006) (noting that individuals' knowledge about probability of sanctions may be incomplete or erroneous for variety of reasons);
83. see also Amitai Aviram, Bias Arbitrage, 64 WASH. & LEE L. REV. 789, 793-96 (2007) (exploring how lawmakers can exploit gaps between public perceptions of risk levels and true risk levels);
84. Robinson & Darley, supra note 34, at 185 (noting problem for deterrence theory that offenders tend to underestimate probability that they, rather than others, will be caught).
85. See BECCARIA, supra note 45, at 36-37 (arguing that closeness in time between punishment and crime will strengthen deterrent message of punishment);
86. Robinson & Darley, supra note 34, at 193-95 (arguing that psychological studies involving dogs demonstrate that rapidity of drop-off in effects of punishment due to passage of time between transgression and punishment is dramatic and that studies involving humans demonstrate that future events are heavily discounted).
87. See Rosa Ferrer, Breaking the Law When Others Do: A Model of Law Enforcement with Neighborhood Externalities 2 (Mar. 17, 2008) (unpublished manuscript), available at http://ssrn.com/abstract-958630 (discussing externality of congestion in enforcement and its effect on optimal enforcement policy);
88. see also Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. CHI. L. REV. 271 (2006) (explaining and critiquing hypothesis that punishing lowlevel disorder offenses reduces crime overall by counteracting perception that police are absent and probability of sanctioning is low).
89. For an attempt to develop a formal model of how individuals acquire perceptions of the probability of sanction from their environments, see Raaj K. Sah, Social Osmosis and Patterns of Crime, 99 J. POL. ECON. 1272 (1991).
90. For a critique of Becker and others for failing to account for how crime rates (denominators) affect probability of sanctioning, see Oren Bar-Gill & Alon Harel, Crime Rates and Expected Sanctions: The Economics of Deterrence Revisited, 30 J. LEGAL STUD. 485 (2001).
91. Becker famously argued that the most efficient means for enhancing deterrence is to increase the on-the-books sanction for an offense and to do so in the form of a fine rather than imprisonment. Becker, supra note 45, at 193-98;
92. see also A. Mitchell Polinsky & Steven Shavell, The Optimal Use of Fines and Imprisonment, 24 J. PUB. ECON. 89, 96-98 (1984) (explaining how offender wealth constrains maximal fine and how disutility imposed by imprisonment rises with wealth).
93. As Steven Shavell has explained, enforcement efforts such as policing can be general rather than specific, meaning that the state decides how much enforcement to pursue not according to the specific activity sanctioned, but rather according to all crimes or a class of crimes such as "street crime." See generally Steven Shavell, Specific Versus General Enforcement of Law, 99 J. POL. ECON. 1088 (1991).
94. Herbert Wechsler & Jerome Michael, A Rationale of the Law of Homicide (pt. 2), 37 COLUM. L. REV. 1261, 1265-66 (1937).
95. BECCARIA, supra note 45, at 14-16.
96. n for at least one conviction in n offenses, and this expression approaches unity as n becomes large."); cf. Jolls, supra note 47, at 279 (noting that prospect theory suggests that, in decision whether to violate law, offenders weigh first increment of penalty more heavily than equal, additional increments of penalty). The relevance of sanction probability is not its effect on this actor's calculation whether to violate (the actor is assumed to be nondeterrable) but its contribution to the social cost of imprisoning the actor: Incapacitation will be justified when the cost of imposing sanctions plus the cost of carrying them out are less than the social cost of the actor's future offenses across the period of incapacitation. Polinsky & Shavell, supra note 47, at 443;
97. Steven Shavell, A Model of Optimal Incapacitation, AM. ECON. REV., May 1987, at 107, 107-08 (Papers and Proceedings).
98. See, e.g., Bar-Gill & Harel, supra note 49, at 495 ("The policy maker has two policy variables at her disposal: the level of investment in law enforcement, x, and the legal sanction, l.").
99. Becker acknowledged this avenue of inquiry but did not pursue it. See Becker, supra note 45, at 195-% (noting that offenders with higher income have incentive to spend resources on offense planning, legal counsel, litigation, bribery, and other efforts to reduce probability of imprisonment).
100. Chris William Sanchirico, Detection Avoidance, 81 N.Y.U. L. REV. 1331 (2006). Examining how sanctioning regimes generate incentives for violators to commit second-order, obstructive violations leads Sanchirico to conclude that the state could become caught in a recursive spiral with violators: The state must increase sanctions at ever-higher orders to offset the manner in which sanctions at lower orders encourage offenders to engage in additional offenses, such as evidence destruction, designed to evade the imposition of sanctions.
101. Id. at 1367-69;
102. see also Arun S. Malik, Avoidance, Screening and Optimum Enforcement, 21 RAND J. ECON. 341, 343-44, 350-52 (1990) (treating individual's expenditures on avoiding detection as negative input to individual's expected utility from committing violation);
103. Alex Raskolnikov, Crime and Punishment in Taxation: Deceit, Deterrence, and the Self-Adjusting Penalty, 106 COLUM. L. REV. 569, 599-605 (2006) (arguing for offsetting evaders' efforts to reduce probability of sanctioning with device that would increase sanctions for evasive methods that are more difficult for tax auditors to detect);
104. Jacob Nussim & Avraham D. Tabbach, Deterrence and Avoidance 3, 25 (2005) (unpublished manuscript), available at http://ssrn.com/abstract= 844828 (noting that higher sanctions both increase marginal benefit of avoidance efforts and increase marginal cost of such efforts by increasing expected sanctions for avoidance).
105. Sanchirico, supra note 56, at 1363.
106. Indeed, enhancing sanctions for a particular offense based on obstructive conduct is not an available response if the offender's evasion move is to change her behavior to avoid liability in the first place.
107. Of course, one tool may be selected over another due to marginal costs. An ounce of wider liability rule may be chosen over an ounce of more policing because liability rules are cheaper by the ounce, even if policing yields more deterrence per ounce. See William J. Stuntz, Unequal Justice, 121 HARV. L. REV. 1969, 2025, 2029-34 (2008) (arguing that, as evaluated by criterion of racially neutral impact, federal government should address modern urban violence by devoting greater resources to state and local policing, rather than by enhancing scope and punitiveness of prohibitions, and contending that lack of federal aid has led to increased reliance on imprisonment over policing).
108. The product of many such moves in substantive and procedural law may be a system that strikes an acceptable balance on a net basis but that appears intellectually incoherent in many respects. Cf. LARRY LAUDAN, TRUTH, ERROR, AND CRIMINAL LAW: AN ESSAY IN LEGAL EPISTEMOLOGY (2006) (advancing severe critique of rationality of many evidentiary and procedural doctrines in American law of criminal justice).
109. See SCHAUER, supra note 32, at 49 (discussing how rules are "entrenched," meaning that their commitments do not give way when confronted with specific cases that show those commitments to be overbroad or underbroad).
110. Neal Katyal has shown that sanctioning efforts directed at one offense may lead to increases in other offenses, as offenders substitute away from the more severely or more frequently penalized crime. Neal Kumar Katyal, Deterrence's Difficulty, 95 MICH. L. REV. 2385, 2387 (1997). Individuals may respond to deterrence efforts not just by choosing to engage in alternative harmful activities but also by restructuring activities to counteract deterrence efforts. To return to the pit bull example, the hobbyists, in order to avoid punishment, have not substituted one kind of violation (ownership of innovative breeds) for another (pit bull ownership). Rather, they have reorganized their activity so that it cannot be punished as pit bull ownership, causing the state to reorganize its law so that the activity can be punished as ownership of aggressive dogs.
111. See, e.g., Beale, What's Law Got To Do with It?, supra note 16, at 32-44 (describing development of modern American "tough on crime" political culture and its connection to punitive legislation).
112. See, e.g., 28 U.S.C. § 530B (2000) (applying state bar disciplinary rules to government attorneys). This provision, the McDade Amendment, was named for a member of Congress who was subject to federal prosecution. See Fred C. Zacharias & Bruce A. Green, The Uniqueness of Federal Prosecutors, 88 GEO. L.J. 207, 208-15 (2000) (discussing legislative history of § 530B).
113. See generally Sara Sun Beale, The News Media's Influence on Criminal Justice Policy: How Market-Driven News Promotes Punitiveness, 48 WM. & MARY L. REV. 397 (2006).
114. Stuntz, supra note 16, at 533-35, 537-38.
115. See Stuntz, supra note 38, at 844 ("Senators and Representatives use criminal law and sentencing doctrine to send messages, not to define prohibited conduct and its deserts.").
116. But see Richman, supra note 38, at 789 ("Congress's influence on enforcement decisions is far greater than those whose criticism of its delegation has been based on the absence of legislative specificity have recognized.").
117. See Ronald F. Wright, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. PA. L. REV. 79, 100-16 (2005) (examining steep decline in trial acquittal rate in federal system). Daniel Richman has explained that federal criminal law enforcement is regulated, informally and loosely, by unwritten bargains under which the executive branch exercises restraint in order to avoid undesirable oversight proceedings, budgetary restrictions, appointments interference, and even amendment and curtailment of procedural rules.
118. Richman, supra note 38, at 789-805; see also Brown, supra note 18, at 257-58 (discussing use of budgetary controls to affect how prosecutors enforce criminal liability rules). Darryl Brown has shown that the simple political-economy story about criminal legislation also fails to capture the behavior of state legislators, who might be expected to be subject to the same incentives as members of Congress but who often refuse to expand the scope of substantive criminal law when presented with proposed legislation.
119. Id. at 245-49.
120. See, e.g., Dan M. Kahan, Is Chevron Relevant to Federal Criminal Law?, 110 HARV. L. REV. 469, 479-80 (1996) (describing prosecutorial power to set agenda by screening cases that enter criminal justice system);
121. Richman, supra note 38, at 763 (discussing "extraordinary degree of discretionary authority" provided to federal enforcers);
122. Ronald F. Wright & Rodney L. Engen, The Effects of Depth and Distance in a Criminal Code on Charging, Sentencing, and Prosecutor Power, 84 N.C. L. REV. 1935, 1936-37 (2006) (same).
123. See, e.g., United States v. Batchelder, 442 U.S. 114, 123-25 (1979) (declining to regulate prosecutor's selection of charges in initiating criminal case); Bordenkircher v. Hayes, 434 U.S. 357, 362-65 (1978) (declining to regulate use of threats of more severe punishment to induce plea bargains).
124. The less subject to legal controls and the more expansive is prosecutorial power, the less amenable such power seems to theoretical analysis. See Ronald Wright & Marc Miller, The Screening/Bargaining Tradeoff, 55 STAN. L. REV. 29, 55 (2002) ("Legal scholars rarely discuss the internal administration of justice agencies."). There has been some recent progress. See, e.g., Daniel Richman, Prosecutors and Their Agents, Agents and Their Prosecutors, 103 COLUM. L. REV. 749 (2003) (supplying in-depth analysis of incentives and relationships operating between law-enforcement agents and prosecutors);
125. Wright & Engen, supra note 69 (conducting empirical examination of relationship between depth of criminal code and prosecutorial charging practices);
126. Wright & Miller, supra, at 67-84 (conducting empirical examination of prosecutorial screening and plea bargaining practices).
127. E.g., Edward L. Glaeser et al, What Do Prosecutors Maximize? An Analysis of the Federalization of Drug Crimes, 2 AM. L. & ECON. REV. 259 (2000).
128. Stuntz, supra note 16, at 535-38.
129. Glaeser et al., supra note 72, at 262-66.
130. The wealth menu might also include fruits of corruption. See Keith N. Hylton & Vikramaditya Khanna, A Public Choice Theory of Criminal Procedure, 15 SUP. CT. ECON. REV. 61, 72-76 (2007) (arguing that criminal procedure law serves purpose of constraining rent-seeking by prosecutors, such as seeking "to benefit themselves by selling their power to enforce the criminal law to the highest bidder").
131. As Ronald Wright observes, the different components of this story sometimes point in contradictory directions: Prosecutors try too few cases to maximize leisure time but also try too many to generate marketable experience. Wright, supra note 68, at 95-96.
132. Stuntz, supra note 16, at 544.
133. See Donald A. Dripps, Overcriminalization, Discretion, Waiver: A Survey of Possible Exit Strategies, 109 PENN. ST. L. REV. 1155, 1156-61 (2005) (reiterating and summarizing common refrain in criminal law scholarship on relationship between broadening legal rules and plea bargaining);
134. Stuntz, supra note 16, at 519-20 (discussing the connection between broader laws and increased plea bargaining rates).
135. Wright, supra note 68, at 84-86. Another cost might be, as in the Al Capone scenario, the reduction in transparency and public oversight that results when prosecutors, free to choose from long lists of substantive offenses in overly redundant codes, charge violations that do not represent the true nature of the wrongdoing or the justifications for prosecution.
136. Daniel C. Richman & William J. Stuntz, Al Capone's Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 COLUM. L. REV. 583, 585-86, 608-18 (2005).
137. Daniel Richman has illustrated the inadequacy of a simple rational self-interest model of prosecutorial behavior in his exploration of the incentives and relationships operating between prosecutors and law-enforcement officers. Richman, supra note 71.
138. See Mark Kelman, On Democracy-Bashing: A Skeptical Look at the Theoretical and "Empirical" Practice of the Public Choice Movement, 74 VA. L. REV. 199, 219-20 (1988) (criticizing public choice theorists for misunderstanding and oversimplifying motivations of people who choose public service careers);
139. Richman, supra note 38, at 779 (arguing that self-interest model of prosecutor fails to consider ideological motivations that may draw prosecutor to job).
140. As far as I know, the only empirical study to address this point is Glaeser et al, supra note 72. The authors found significant positive relationships between drug offenders' wealth, education, whiteness, use of private counsel, and involvement in trafficking (as opposed to possession) and their likelihood of prosecution in federal, rather than in state, court. As the authors concede, their results plausibly support two hypotheses: Federal prosecutors prefer to select resource-rich and more sophisticated offenders either in order to generate more marketable trial experience and disseminate their reputations or because the superior legal and fiscal resources available in federal court make the imposition of sanction on such offenders more likely there than in state court, thus furthering social welfare.
141. Id. at 270 tbl.2, 273, 288.
142. But see Stephen J. Schulhofer, Criminal Justice Discretion as a Regulatory System, 17 J. LEGAL STUD. 43, 50-51 (1988) (suggesting that benefits to prosecutor of wealth-maximizing in various forms are more immediate and tangible than deterrence benefits of prosecution).
143. See, e.g., Barkow, supra note 3, at 14 (arguing that enormous power of federal prose-cutors over charging and plea bargaining effectively makes them judges in their own causes);
144. Brown, supra note 18, at 259-60 (worrying about risk of prosecutorial abuses in federal system given breadth of many substantive liability rules);
145. Stuntz, supra note 16, at 543 (arguing that federal prosecutorial powers give prosecutors greater opportunity to use office to enhance reputations and career prospects). State and federal prosecutors are very different legal actors.
146. See Richman & Stuntz, supra note 78, at 599-618.
147. State prosecutors are largely reactive and beholden to electoral politics. They generally deal with the cases that the police bring to them. The public expects them to process the great majority of cases that generate the reportable crime statistics within their jurisdictions. State prosecutors have the power to select charges and to decline to prosecute, of course, but they otherwise exercise relatively little influence over case initiation. Id. at 600-05.
148. Federal prosecutors are largely proactive and insulated from electoral politics. They are not expected or required to act on any particular categories of cases, except a few like major acts of espionage and terrorism, serious offenses on federal lands, and direct intrusions on federal government functions. Id. at 608-15;
149. see also Clymer, supra note 16, at 649, 652-54 (stating that there is little direction "to guide federal prosecutors in exercising their discretion to choose among offenders eligible for federal prosecution" and listing categories of cases that federal prosecutors may choose to prosecute). Because they do not face the same docket pressure as state prosecutors and because they enjoy access to the federal treasury, federal prosecutors both set their own agendas and have the time and the resources to engage cases at the earliest investigative stages. In an era of minor jurisdictional constraints on federal criminal law, the field over which they range is enormous.
150. John C. Jeffries, Jr. & John Gleeson, The Federalization of Organized Crime: Advantages of Federal Prosecution, 46 HASTINGS L.J. 1095, 1095-98 (1995).
151. See Wright & Miller, supra note 71, at 49, 54 (arguing that, however accurate, criticisms of prosecutorial discretion have missed potential benefits of case screening as regulatory device).
152. Roderick Hills worries that overly intrusive federal prosecution of local government corruption may undesirably skew systems of political accountability that are beneficial in a federal structure of government. Roderick M. Hills, Jr., Corruption and Federalism: (When) Do Federal Criminal Prosecutions Improve Non-federal Democracy?, 6 THEORETICAL INQUIRIES L. 113, 115 (2005);
153. see also FRANK ANECHIARICO & JAMES B. JACOBS, THE PURSUIT OF ABSOLUTE INTEGRITY: HOW CORRUPTION CONTROL MAKES GOVERNMENT INEFFECTIVE 174-85 (1996) (generally questioning whether criminal prosecution of government corruption increases net benefits of government to public). Hills's concern, however, is the extension into local governance of overly demanding norms about conflicts of interest, not the effective enforcement of prohibitions on core corruption.
154. Hills, supra, at 121-22, 128-29, 137-44. In any event, it is not the point of my example to argue for a particular position on how much corruption to criminalize.
155. See O'Sullivan, supra note 16, at 664.
156. For one federal prosecutor's description of how this process operates in the particular sphere of efforts against violent gangs, see Elizabeth Glazer, Thinking Strategically: How Federal Prosecutors Can Reduce Violent Crime, 26 FORDHAM URB. L.J. 573 (1999).
157. For an entertaining and illuminating memoir of another federal prosecutor's journey through this process, see JOHN KROGER, CONVICTIONS: A PROSECUTOR'S BATTLES AGAINST MAFIA KILLERS, DRUG KINGPINS, AND ENRON THIEVES (2008). The author is now a professor at Lewis & Clark Law School.
158. The courts frequently reiterate this point when they decline to adopt procedural rules permitting searching judicial review of charging and plea decisions and similar executive branch functions in criminal law. See, e.g., United States v. Armstrong, 517 U.S. 456, 464 (19%) (raising high hurdles to defendants seeking to obtain dismissal of indictments on grounds of selective prosecution, in part because judiciary is ill-equipped to review prosecutorial charging decisions);
159. see also Austin Sarat & Conor Clarke, Beyond Discretion: Prosecution, the Logic of Sovereignty, and the Limits of Law, 33 LAW & SOC. INQUIRY 387, 398 (2008) (describing courts' reluctance to review prosecutorial decisionmaking).
160. See, e.g., Stuntz, supra note 16, at 510 (arguing that judges "who alone are likely to opt for narrower liability rules rather than broader ones" are marginalized in development of criminal law).
161. But see Clymer, supra note 16, at 656-68 (describing and critiquing role of judges in broadening liability rules);
162. Smith, supra note 16, at 884 (same).
163. See, e.g., Stogner v. California, 539 U.S. 607, 610-21 (2003) (discussing Ex Post Facto Clause doctrine); Scheidler v. Nat'l Org. for Women, Inc., 537 U.S. 393, 409 (2003) (discussing rule of lenity); Kolender v. Lawson, 461 U.S. 352, 357-58 (1983) (discussing vagueness doctrine).
164. See Samuel W. Buell, Novel Criminal Fraud, 81 N.Y.U. L. REV. 1971, 1973 (2006) (characterizing fraud as common law crime);
165. Kahan, supra note 69, at 471-79 (describing federal criminal law as common law by judicial implementation of open-textured statutes);
166. O'Sullivan, supra note 16, at 667 (same);
167. see also United States v. Santos, 128 S. Ct. 2020, 2031 (2008) (Stevens, J., concurring) ("When Congress fails to define potentially ambiguous statutory terms, it effectively delegates to federal judges the task of filling gaps in a statute.").
168. See Jeffries, supra note 33, at 195-201;
169. cf. William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331, 344-45, 348 & tbls.4, 7 (1991) (documenting how Congress legislatively overrides Supreme Court decisions most often in criminal law and, there, almost always in favor of government's position - perhaps explaining in part why courts have infrequently struck down federal criminal statutes).
170. An exception to the overcriminalization literature's tendency to give short shrift to the judiciary's role is Smith, supra note 16, at 884
171. which asserts that federal judges are not "innocent bystanders" and "have been all too willing to construe federal crimes expansively . . . ." Smith finds it puzzling that the federal judiciary tends to interpret ambiguous statutes broadly, id. at 893
172. and he argues that the tendency can be corrected by persuading courts to adopt different interpretive strategies, id. at 930-49.
173. Smith describes a compulsion of federal courts to "view themselves as having an obligation to ensure that no morally blameworthy defendant ever slips through the federal cracks." Id. at 884.
174. He attributes this compulsion to the press of case-specific adjudication, in which judges must interpret statutes while confronting blameworthy offenders whom they cannot tolerate seeing escape punishment. Id. at 925. But if, as Smith suggests, judges can interpret statutes as broadly as necessary to punish blameworthy offenders but not further, then judges would not produce overbreadth.
175. See, e.g., Bryan v. United States, 524 U.S. 184, 193 (1998) (requiring proof of additional mens rea element under statute regulating dealing in firearms without proper license); Ratzlaf v. United States, 510 U.S. 135, 138 (1994) (requiring proof of additional mens rea element under statute regulating illegal currency deposits); Cheek v. United States, 498 U.S. 192, 201-03 (1991) (requiring proof of additional mens rea element in prosecution for criminal tax evasion).
176. See, e.g., Sharon L. Davies, The Jurisprudence of Willfulness: An Evolving Theory of Excusable Ignorance, 48 DUKE L.J. 341 (1998);
177. Joseph E. Kennedy, Making the Crime Fit the Punishment, 51 EMORY L.J. 753 (2002);
178. John Shepard Wiley Jr., Not Guilty by Reason of Blamelessness: Culpability in Federal Criminal Interpretation, 85 VA. L. REV. 1021 (1999).
179. The Court's last major ruling on the substantive crime of mail fraud was in 1987. McNally v. United States, 483 U.S. 350 (1987). More recently, the Court ruled on the peripheral question of whether a state license could be considered "property" for purposes of the mail fraud statute. Cleveland v. United States, 531 U.S. 12, 15 (2000). The Court has ruled on the RICO statute in the criminal context principally in two cases, United States v. Turkette, 452 U.S. 576 (1981), and Salinas v. United States, 522 U.S. 52 (1997).
180. Of course, the Court has interpreted the RICO statute numerous times in deciding issues relating to civil lawsuits under the statute. See, e.g., Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158 (2001);
181. Beck v. Prupis, 529 U.S. 494 (2000). In the securities fraud context, the Court's recent work has been exclusively in the realm of the private right of action for securities fraud. See, e.g., Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499 (2007).
182. See Stuntz, supra note 16, at 559-65 (illustrating how existing constitutional doctrines dealing with lenity and vagueness fail to limit breadth of substantive criminal law).
183. For recent examples of relevant methodologies and questions of interest in the analysis of federal judicial politics, see Lee Epstein et al., Ideological Drift Among Supreme Court Justices: Who, When, and How Important?, 101 NW. U. L. REV. 1483 (2007)
184. Nancy Staudt et al., On the Role of Ideological Homogeneity in Generating Consequential Constitutional Decisions, 10 U. PA. J. CONST. L. 361 (2008)
185. and William M. Landes & Richard A. Posner, Rational Judicial Behavior: A Statistical Study (Univ. of Chi. Law School, John M. Olin Law & Econ. Working Paper No. 404, 2008), available at http://ssrn.com/abstract-id=1126403.
186. Compare, for example, the records of Justices Scalia and Stevens on such matters. Compare Schmuck v. United States, 489 U.S. 705, 722-23 (1989) (Scalia, J., dissenting) (critiquing majority for failing to construe federal mail fraud statute more narrowly), with McNally v. United States, 483 U.S. 350, 362-66 (1987) (Stevens, J., dissenting) (critiquing majority for failing to construe federal mail fraud statute more broadly). It is well known that judicial concern about the expansion of federal criminal law is not limited to those on the ideological left.
187. See, e.g., William H. Rehnquist, The 1998 Year-End Report of the Federal Judiciary, THE THIRD BRANCH (Admin. Office of the U.S. Courts, Washington, D.C.), Jan. 1999, available at http://www.uscourts.gov/ttb/jan99ttb/januaryl999.html (advocating restriction of jurisdiction of federal courts over state crimes);
188. see also Cornell W. Clayton & J. Mitchell Pickerill, The Politics of Criminal Justice: How the New Right Regime Shaped the Rehnquist Court's Criminal Justice Jurisprudence, 94 GEO. L.J. 1385, 1409-10 (2006) (describing recent fissures on right over criminal justice between traditional advocates of punitive policies and libertarians who fear excessive government powers).
189. See Gerard E. Lynch, RICO: The Crime of Being a Criminal (pt. 1), 87 COLUM. L. REV. 661, 666 (1987) ("Even assuming that judges, unlike legislatures, are immune to the effects of public clamor to do something about crime (not necessarily an accurate assumption), the internal pressure on judges to affirm convictions for serious crimes must be enormous.").
190. Frederick Schauer worries that this judicial tendency - the susceptibility of case-specific adjudication to being skewed by the "availability heuristic"-is a deep flaw in the idea of relying on a common law process to develop legal rules. Frederick Schauer, Do Cases Make Bad Law?, 73 U. CHI. L. REV. 883, 890-901 (2006). Whether Schauer is correct is an empirical question, the answer to which would require considering, among other things, the relative ability of legislators to forecast accurately the contours of the mine run of cases a statute is intended to reach. Schauer worries that judges developing law through a common law process may make an additional mistake: All legal rules are unavoidably underinclusive and/or overinclusive, but judges are apt to think that any occasion of a law missing its intended mark is proof that the law is deficient. Judges thus may tend to over-adapt law through adjudication, causing it to reach a suboptimal state.
191. Id. at 907-08. If Schauer is correct in asserting that judges have a hard time knowing when to be genuinely concerned that a particular case falls outside the letter of a legal rule though within its spirit and intent, then we would need some criteria for determining whether a legal rule that misses its mark has seriously underperformed or merely inevitably fallen a bit short.
192. Of course, this assumes appellate judges tend to think that missing a future case of harm is more costly than including a future case that might be marginal. This assumption seems fair. In the former instance, a grave social harm might go unanswered; in the latter, someone might end up with too much punishment for doing something wrong but not seriously blameworthy.
193. Stuntz, supra note 59, at 2028-29.
194. Dennis Jacobs, the Chief Judge of the Second Circuit, recently lamented what he described as his colleagues' immodest determination to find solutions in law, no matter the complexity and expense of such solutions, for every pressing social problem that comes before them. Dennis Jacobs, The Secret Life of Judges, 75 FORDHAM L. REV. 2855, 2855-58 (2007).
195. See, e.g., PACKER, supra note 1, at 79-81 (describing rule-of-law values in criminal law).
196. Cf. Buell, supra note 91, at 2022-28 (arguing that in addition to being principle that restrains state, legality principle's requirement of notice can be understood as basis for individual fault, since persons who violate rules while on notice are persons who deliberately choose to do wrong).
197. HART, supra note 31, at 198.
198. William Edmundson calls this the principle of fairness. WILLIAM A. EDMUNDSON, THREE ANARCHICAL FALLACIES: AN ESSAY ON POLITICAL AUTHORITY 111 (1998).
199. See generally WHY PEOPLE PAY TAXES (Joel Slemrod ed., 1992) (examining relationship between voluntary tax compliance and enforcement);
200. Dan M. Kahan, The Logic of Reciprocity: Trust, Collective Action, and Law, 102 MICH. L. REV. 71 (2003) (describing "logic of reciprocity" in voluntary legal compliance and importance of promoting public trust to achieve desired regulatory outcomes).
201. JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE (2003).
202. Id. at 6-7, 11, 19-20, 170-77, 191-94.
203. Whitman traces this leveling impulse to the punishment theories of Beccaria artd his Enlightenment contemporaries. Id. at 42, 51-53.
204. Id. at 43-49.
205. See, e.g., RANDALL KENNEDY, RACE, CRIME, AND THE LAW 19 (1997) ("[T]he principal injury suffered by African-Americans in relation to criminal matters is not over-enforcement but underenforcement . . . .");
206. Alexandra Natapoff, Underenforcement, 75 FORDHAM L. REV. 1715, 1718 (2006) ("By failing to maintain an atmosphere of legality, law enforcement turns its back on victim classes twice: first, by denying them material protective resources, and second, by depriving them of a robust, responsive legal system.");
207. Richman & Stuntz, supra note 78, at 613 ("Th[e] extreme disjunction between federal jurisdiction and federal resources has bred a norm of radical underenforcement.");
208. see also Sarat & Clarke, supra note 88 (exploring prevalence and theoretical significance of prosecutorial power not to charge).
209. See, e.g., Kenneth G. Dau-Schmidt, An Economic Analysis of the Criminal Law as a Preference-Shaping Policy, 1990 DUKE L.J. 1, 14-22 (describing how criminal law can shape preferences of citizens through messages it sends).
210. See, e.g., GARLAND, supra note 20, at 102;
211. WHITMAN, supra note 110.
212. For an opposing view that current United States legal culture should be severely faulted, on Christian precepts, for its determination to redress all social ills, see David A. Skeel, Jr. & William J. Stuntz, Christianity and the (Modest) Rule of Law, 8 U. PA. J. CONST. L. 809, 809-19 (2006).
213. See sources cited supra note 16.
214. See supra notes 92-96 and accompanying text.
215. See In re Stansbury Poplar Place, Inc., 13 F.3d 122, 127 (4th Cir. 1993) (noting prestige of Second Circuit in commercial matters);
216. James Oakes, Personal Reflections on Learned Hand and the Second Circuit, 47 STAN. L. REV. 387, 387-88 (1995) (describing Second Circuit's development as prestigious court);
217. Frank Partnoy, The Shifting Contours of Global Derivatives Regulation, 22 U. PA. J. INT'L ECON. L. 421, 456 (2001) (describing Second Circuit as "leading court for business disputes").
218. Consider how the Second Circuit fares in one current measurement of federal judge ideology, the Judicial Common Space (JCS) score. A judge's JCS score is a function of the party affiliations and legislative records of the President and senators involved in the judge's appointment. See generally Lee Epstein et al., The Judicial Common Space, 23 J.L. ECON. & ORG. 303 (2007). The JCS data for the federal circuits is available at http://epstein.law.northwestern.edu/research/JCS.html. The JCS measure ranges from -1.0 (most liberal) to 1.0 (most conservative). Since 1988, the Second Circuit has been the most liberal of the federal circuits, with most others ranking on the conservative side of the JCS spectrum. Its median JCS score ranged from -0.34 to 0.15 during the years 1988 through 2006. This is the lowest score for all of the federal circuits during this period and, for many of those years, is the only median score that was below the ideologically neutral score of 0.0.
219. 18 U.S.C. §§ 1961-1963 (2000).
220. See infra notes 148-54 and accompanying text for a discussion of leading related statutes.
221. Lynch, supra note 100;
222. Gerard E. Lynch, RICO: The Crime of Being a Criminal (pts. 3 & 4), 87 COLUM. L. REV. 920 (1987).
223. Not only has Congress lodged no objection to the federal courts' broad interpretations of the statute, but it periodically adds offenses to RICO's laundry list of "racketeering acts" - for example, alien smuggling, under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, § 433, 110 Stat. 1214, 1274 (codified at 18 U.S.C. § 1961(1) (2000)) -strongly suggesting that Congress welcomes the statute's use outside the context of traditional organized crime. Lynch, supra note 100, at 713.
224. In its technical terms, the statute makes it a crime for anyone who is "employed by or associated with any enterprise" to "conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity." 18 U.S.C. § l%2(c) (2000). "Racketeering activity" is defined as any crime contained in a long list of state and federal offenses. Id. § 1961(1).
225. Id. § 1961(5).
226. Id. § 1961(4); United States v. Turkette, 452 U.S. 576, 589-91 (1981) (holding that term "enterprise" in RICO statute includes illegitimate enterprises).
227. 18 U.S.C. § l962(d) (2000); Salinas v. United States, 522 U.S. 52, 62-66 (1997) (holding that RICO conspiracy provision is violated as long as defendant agrees that some person will commit at least two racketeering acts).
228. 18 U.S.C. § 1959 (2000).
229. Id. § 1952.
230. See Neal Kumar Katyal, Conspiracy Theory, 112 YALE L.J. 1307, 1333-69 (2003) (illustrating how conspiracy doctrine seeks to make organization of criminal activity in group form less advantageous). Katyal finds that federal conspiracy law, in contrast with state law, has tended to adopt doctrinal permutations that are justified by the need to deal with the tendencies of group criminality to evade sanctions.
231. Id. at 1369. This finding is consistent with the federal criminal justice system's tendency to concentrate on sanction-resistant violators.
232. See Lynch, supra note 123, at 960 ("Respect for law is hardly fostered when the legal system myopically focuses on isolated, perhaps minor, offenses of individuals whose entire lives make plain their complete commitment to a career of organized lawbreaking.").
233. See United States v. Elliott, 571 F.2d 880, 884 (5th Cir. 1978) (asserting that RICO is designed to deal with situations "when groups of people, through division of labor, specialization, diversification, complexity of organization, and the accumulation of capital, turn crime into an ongoing business"). In his seminal study, Gerard Lynch maintained that RICO should be thought of as a novel, substantive criminal offense, not just a procedural innovation.
234. Lynch, supra note 123, at 938-40.
235. But the features of RICO that Lynch identi-fied as distinctive - its joinder, statute of limitations, double jeopardy, and sanctioning consequences - are, however dramatic in effects, procedural characteristics. By virtue of RICO's definition of "racketeering activity," any violation of the statute must be predicated on a defendant's violation of freestanding criminal prohibitions that mark out what is normatively wrongful about the defendant's conduct. Lynch maintained that, by requiring a finding of an "enterprise" and a "pattern" of racketeering activity, RICO requires jurors to reach a character judgment about the offender over time, a departure from the traditional transaction-based model of criminal adjudication. Id. at 944-45. Even if this is true, it represents an additional finding necessary for imposition of liability, not a substitute for finding that the defendant engaged in specific criminal violations.
236. United States v. Dhinsa, 243 F.3d 635, 643 (2d Cir. 2001).
237. United States v. Miller, 116 F.3d 641, 652-54 (2d Cir. 1997).
238. United States v. Nichols, 56 F.3d 403, 406 (2d Cir. 1995).
239. United States v. Friedman, 300 F.3d 111, 116 (2d Cir. 2002).
240. See Brief for Respondent-Appellee at 4-38, United States v. Brown, No. 99-1230, 2002 WL 34244994 (2d Cir. Apr. 26, 2002). I served as a prosecutor in this case.
241. See Brief for the Respondent-Appellee at 4-34, United States v. Mora, 152 F.3d 921 (2d Cir. 1998) (No. 96-1566), 1998 WL 398802. I served as a prosecutor in this case. The group's activities included detonating a grenade inside one grocery store, setting afire another grocery store that burned an elderly man alive, and opening fire with machine guns on a street corner, killing a young serviceman home on leave. Id. at 20-22, 29-30.
242. United States v. Turkette, 452 U.S. 576, 580-93 (1981); see also Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 166 (2001) (holding that individual defendant's closely held corporation can be treated as RICO enterprise even if defendant is sole proprietor); Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 257-60 (1994) (holding that organization need not have economic purpose to be treated as RICO enterprise);
243. Lynch, supra note 100, at 706 (stating that after Turkette, RICO makes it criminal "to be a gangster").
244. See, e.g., United States v. Stewart, 485 F.3d 666, 672-73 (2d Cir. 2007) (holding that members of "Patio Crew" gang constituted RICO enterprise because they sold drugs in particular area pursuant to rules of conduct); United States v. Jones, 455 F.3d 134,144-45 (2d Cir. 2006) (holding that drug-dealing group with layers of hierarchy and division of labor constituted RICO enterprise); United States v. Morales, 185 F.3d 74, 80-81 (2d Cir. 1999) (broadening RICO's reach by noting that criminal organization can continue to function as illegal RICO enterprise even after members are incarcerated); United States v. Coonan, 938 F.2d 1553, 1560 (2d Cir. 1991) (holding that "Westies" gang was RICO enterprise because members committed murder, loansharking, extortion, and drug dealing offenses in hierarchical manner).
245. E.g., H.J. Inc. v. N.W. Bell Tel. Co., 492 U.S. 229, 236-43 (1989).
246. Id. at 243.
247. See, e.g., United States v. Daidone, 471 F.3d 371, 376 (2d Cir. 2006) (holding that defendant's commission of two murders and loansharking offense while member of Luchese crime family satisfied pattern requirement); United States v. Aulicino, 44 F.3d 1102, 1114 (2d Cir. 1995) (holding that effort to commit series of kidnappings over fourteen-week period was sufficient to satisfy RICO's pattern requirement); United States v. Minicone, 960 F.2d 1099, 1108 (2d Cir. 1992) (holding that defendant's involvement in bookmaking offense and extortion offense satisfied pattern requirement because both offenses related to same criminal organization); United States v. Alkins, 925 F.2d 541, 552 (2d Cir. 1991) (holding pattern requirement satisfied where motor vehicle registration clerks processed multiple documents in exchange for bribes). But see United States v. Bruno, 383 F.3d 65, 85 (2d Cir. 2004) (holding that evidence was insufficient to establish that defendant's shootings of victims were related to organized-crime enterprise as opposed to personal matters relating to avoidance of loansharking debts); United States v. Long, 917 F.2d 691, 697-98 (2d Cir. 1990) (holding that RICO's pattern requirement was not satisfied by single crime plus subsequent effort to obstruct prosecution of that offense).
248. See 18 U.S.C. § 1962(c) (2000).
249. See Reves v. Ernst & Young, 507 U.S. 170, 177-85 (1993) (construing text to exclude those who do not "participate in the operation or management of the enterprise itself").
250. The Second Circuit issued a number of decisions on this point. See United States v. Zichettello, 208 F.3d 72, 98-100 (2d Cir. 2000) (holding that defendant may be convicted of conspiracy to violate RICO without any showing of management authority or participation in management of enterprise); United States v. Diaz, 176 F.3d 52, 92-93 (2d Cir. 1999) (holding that members of "Latin Kings" gang who killed informant at direction of gang leader, and independently decided to kill potential witness, satisfied Reves test
251. Comprehensive Crime Control Act of 1984, Pub. L. 98-473, tit. II, § 1002(a), 98 Stat. 1837, 2137 (1984) (codified as amended at 18 U.S.C. § 1959 (2000)); see also S. REP. NO. 98-225, at 304-05 (1984), as reprinted in 1984 U.S.C.C.A.N. 3182, 3483-84 (stating that statute was enacted to further strong federal interest in combating violence linked to organized criminal enterprises).
252. See United States v. Pimentel, 346 F.3d 285, 295-97 (2d Cir. 2003).
253. United States v. Concepcion, 983 F.2d 369, 380-82 (2d Cir. 1992).
254. Id. at 381 (holding that motive element is satisfied if "jury could properly infer that the defendant committed his violent crime because he knew it was expected of him by reason of his membership in the enterprise or that he committed it in furtherance of that membership").
255. See United States v. Rahman, 189 F.3d 88, 141-42 (2d Cir. 1999) (applying transferred intent doctrine); United States v. Mapp, 170 F.3d 328, 334-36 (2d Cir. 1999) (holding that prosecution under VCAR may be brought on felony-murder theory provided that motive for underlying felony satisfies statute's motive element).
256. See, e.g., United States v. Frampton, 382 F.3d 213, 220-22 (2d Cir. 2004) (affirming conviction under VCAR relating to defendant crack dealer's attempted murder to take over another crack dealer's enterprise);
257. Pimentel, 346 F.3d at 295-97 (affirming VCAR conviction for murder ordered by leader of "Netas" gang where victim was ejected gang member who was threatening members of group); United States v. Dhinsa, 243 F.3d 635, 672 (2d Cir. 2001) (affirming convictions for crimes charged under VCAR of owner of gas station chain for ordering murders of employees and associates who might have revealed pump-rigging scheme and other crimes); United States v. Feliciano, 223 F.3d 102, 113-14 (2d Cir. 2000) (holding that violent crimes associated with "Los Solidos" gang in Connecticut could be prosecuted under VCAR because gang distributed narcotics over period of years, satisfying requirement that enterprise be engaged in racketeering activity);
258. Rahman, 189 F.3d at 126-27 (holding that member of jihadist group could be prosecuted for killing rabbi because defendant increased his position in group by killing supporter of Israel); United States v. Diaz, 176 F.3d 52, 94-96 (2d Cir. 1999) (holding that persons associated with "Latin Kings" gang could be prosecuted for murders of potential witness and drug distributor who impinged on gang's turf); Mapp, 170 F.3d at 334-36 (holding that member of Brooklyn robbery gang could be prosecuted for killing patron in course of committing bank robbery); United States v. Malpeso, 115 F.3d 155, 163-64 (2d Cir. 1997) (affirming conviction relating to murder of unwitting bagel store clerk, where perpetrators entered store with intention of locating and shooting members of rival organized-crime group); United States v. Rosa, 11 F.3d 315, 324, 340-41 (2d Cir. 1993) (affirming murder conviction in prosecution relating to "Unknown Organization" heroin operation because defendant argued with look-out at drug spot before killing him and admitted dispute was about drug spot).
259. See United States v. Bruno, 383 F.3d 65, 84-85 (2d Cir. 2004) (concluding that government failed to support any theory on which organized-crime member's killing of victim could have been relevant to member's standing within group); United States v. Desena, 260 F.3d 150, 153, 155-56 (2d Cir. 2001) (reversing conviction of motorcycle-gang member who had committed arson after he had been ejected from gang); United States v. Ferguson, 246 F.3d 129, 134-37 (2d Cir. 2001) (affirming district court's reversal of VCAR conviction of defendant prosecuted with members of South Bronx "Power Rules" gang because defendant "was an outside hit man who did not belong to or seek to join Power Rules"); United States v. Polanco, 145 F.3d 536, 539-40 (2d Cir. 1998) (reversing conviction of defendant charged with committing murder for "Red Top Crew" drug organization because no evidence established that defendant was member of group); United States v. Thai, 29 F.3d 785, 817-19 (2d Cir. 1994) (reversing VCAR conviction because no evidence established that defendant's motive for bombing restaurant was other than "purely mercenary," as motive was unrelated to achieving or maintaining position in "Born to Kill" organization).
260. Smith, supra note 16, at 912-13.
261. Cf. 3 U.S. DEP'T OF JUSTICE, UNITED STATES ATTORNEYS' MANUAL § 9-110.101 (2d ed. Supp. 2008) (requiring approval for any indictment charging RICO violation). It may also be true that prosecutors have declined to charge some potential RICO prosecutions because the evidence was deemed insufficient to satisfy judicial interpretations of statutory requirements such as "relatedness and continuity" among racketeering acts.
262. Some important examples come from outside of the Second Circuit. See United States v. Cianci, 378 F.3d 71, 82-96 (1st Cir. 2004) (affirming conviction of former mayor of Providence, Rhode Island, for RICO conspiracy on basis of pattern of bribes accepted by members of his administration); United States v. Welch, 327 F.3d 1081, 1085, 1100, 1109 (10th Cir. 2003) (reversing dismissal of indictment charging organizers of 2002 Salt Lake City Olympic Games for violating 18 U.S.C. § 1952 (2000) by making tuition, travel, and other payments to members of International Olympic Committee).
263. See, e.g., United States v. Jones, 291 F. Supp. 2d 78, 85-93 (D. Conn. 2003) (entering judgment of acquittal after verdict in prosecution under VCAR in which defendant leader of violent narcotics-trafficking enterprise murdered victim for "disrespecting" defendant's girlfriend).
264. Smith, supra note 16, at 918 n.96.
265. 18 U.S.C. § 1962(c) (2000).
266. As Lynch explains, the breadth of the statute's language was in large part a result of conceptual difficulties that the drafters encountered in defining "organized crime." Lynch, supra note 100, at 685-88.
267. See Stuntz, supra note 59, at 2028-29 (arguing that federal statutes used against criminal organizations are broad because they provide leverage to develop witnesses needed to build such cases).
268. One might alternatively argue that RICO should be narrowed to constrain the unwanted costs it may impose through its civil liability provisions. See, e.g., Norman Abrams, A New Proposal for Limiting Private Civil RICO, 37 UCLA L. REV. 1, 4, 8 (1989) (proposing that government agency be given veto power over civil RICO lawsuits). A more fitting solution to this problem would be for Congress to decouple the elements of civil liability under RICO from the elements of criminal liability. It seems perverse to put the courts in the position of having to narrow a statute principally designed for organized-crime prosecutions just so that it does not afford too much leverage to plaintiffs suing corporations in civil disputes.
269. See supra notes 132-33 and accompanying text (describing incentives for criminal groups to organize hierarchically to evade sanction).
270. William Stuntz has explored the relative resources, risk tolerances, and exposure to law enforcement of drug distributors, dealers, and purchasers. William J. Stuntz, Race, Class, and Drugs, 98 COLUM. L. REV. 1795, 1808-09, 1812-13 (1998).
271. See 18 U.S.C. § 1956(a)(1)(B)(i) (2000). I have paraphrased the statute for clarity and simplicity.
272. See, e.g., United States v. Campbell, 977 F.2d 854, 856-59 (4th Cir. 1992) (reinstating jury's money-laundering conviction of North Carolina real estate agent for selling lake house to drug dealer who drove flashy car and paid with cash in grocery bag). Convictions of such persons often implicate the doctrine of willful ignorance. See infra note 265 and accompanying text.
273. See sources cited infra note 171.
274. Douglas Husak argues that money-laundering prohibitions are purely a case of over-criminalization because transacting the profits of illegal conduct is not a further wrong to profiting from illegal conduct. HUSAK, supra note 15, at 105. I disagree. Assuming a particular revenue-generating crime is wrongful, transacting its proceeds is a way of advancing the commission of that wrong, sometimes in an essential manner and sometimes in a manner that makes it more likely that the underlying wrong will succeed, go unpunished, or expand.
275. See 31 U.S.C. § 5313 (2000); 31 C.F.R. § 103.22(b)(1) (2007).
276. See Business Community's Compliance with Federal Money Laundering Statutes: Hearing Before the Subcomm. on Oversight of the H. Comm. on Ways & Means, 101st Cong. 178-90 (1990) [hereinafter Business Community's Compliance] (statement of John C. Keeney, Deputy Assistant Att'y Gen., Criminal Division, Department of Justice) (describing original purpose of money-laundering statute to restrict criminal activity by getting at those who financially facilitate such activity);
277. Money Laundering Operations and the Role of the Department of the Treasury: Hearing Before the Subcomm. on Oversight of the H. Comm. on Ways & Means, 99th Cong. 56-58 (1985) (statement of James Knapp, Deputy Assistant Att'y Gen., Criminal Division, Department of Justice) (urging passage of money-laundering legislation so that "emphasis will shift from investigating and prosecuting violations of currency reporting and recordkeeping statutes to attacking persons and institutions who knowingly 'launder' the profits of illicit enterprises"); PRESIDENT'S COMM'N ON ORGANIZED CRIME, THE CASH CONNECTION: ORGANIZED CRIME, FINANCIAL INSTITUTIONS, AND MONEY LAUNDERING 8 (1984) (urging legislative broadening of money-laundering statutes beyond existing reporting requirements because "the degree of sophistication and complexity in a laundering scheme is virtually infinite, and is limited only by the creative imagination and expertise of the criminal entrepreneurs who devise such schemes").
278. Money Laundering Control Act of 1986, Pub. L. No. 99-570, § 1354, 100 Stat. 3207, 3207-22 (codified as amended at 31 U.S.C. § 5324 (2000)).
279. Id. § 1352, 100 Stat, at 3207-18 to -21 (codified as amended at 18 U.S.C. § § 1956, 1957 (2000)).
280. See Business Community's Compliance, supra note 171, at 190-91 (statement of John C. Keeney, Deputy Assistant Att'y Gen., Criminal Division, Department of Justice), in which the following concern, among others, is described:In [one case] we saw the Los Angeles jewelry mart being used as the hub of an international narcotics conspiracy that laundered more than $1 billion in three years. The way the conspiracy operated was as follows: (1) Drug dealers delivered cash from cocaine sales to sham jewelry companies in New York City; (2) To make their businesses look real, the jewelry firms accepted regular shipments of fake gold bars from Latin America; (3) They shipped out boxes of cash, marked "gold scrap," to two businesses in the L.A. jewelry district that were controlled by the cartel; (4) The cash was counted, bundled and then deposited in L.A. banks, which were told it was from the sale of the supposed gold; (5) Money from L.A. accounts was transferred to the cartel's Manhattan bank accounts, then wired through Panama to South America to pay for coca and operating expenses; (6) Remaining profits were wired to secret accounts in European banks or sold through the parallel money exchange market in South America and returned to the United States where they are used to purchase luxury goods and services.
281. See also United States v. AU Funds on Deposit in Any Accounts Maintained at Merrill, Lynch, Pierce, Fenner & Smith, 801 F. Supp. 984, 987-89 (E.D.N.Y. 1992) (describing sophisticated money-laundering scheme of another international narcotics-trafficking organization). The effort to broaden antilaundering laws in response to the pursuit of money laundering continues.
282. See Combating Money Laundering: Hearing Before the Subcomm. on Criminal Justice, Drug Policy, and Human Resources of the H. Comm. on Government Reform, 106th Cong. 13-44 (2000) (statement of Mary Lee Warren, Deputy Assistant Att'y Gen., Criminal Division, Department of Justice) (urging passage of bill to expand money-laundering statutes to reach money-laundering activities beyond United States borders and explaining how traffickers have shifted laundering efforts abroad because of tightening prohibitions and bank controls in United States);
283. Money Laundering Crisis: Hearing Before the Subcomm. on Crime of the H. Comm. on the Judiciary, 106th Cong. 7-21 (2000) (statements of James K. Robinson, Assistant Att'y Gen., Criminal Division, Department of Justice, and Stefan D. Cassella, Assistant Chief, Asset Forfeiture and Money Laundering Section, Department of Justice) (urging same, for example, by giving detailed description of new transactional structure known as "Black Market Peso Exchange," designed to launder narcotics proceeds beyond reach of United States law).
284. See Mariano-Florentino Cuéllar, The Tenuous Relationship Between the Fight Against Money Laundering and the Disruption of Criminal Finance, 93 J. CRIM. L. & CRIMINOLOGY 311, 343-49 (2003) (describing path of judicial construction of money-laundering statutes).
285. 1?6 See United States v. Ness, 466 F.3d 79, 80-81 (2d Cir. 2006) (holding that § 1956 is violated when defendant merely transfers proceeds of narcotics sales back up distribution chain, as long as such transfers are characterized by secrecy), vacated, 128 S. Ct. 2900 (2008); United States v. Gotti, 459 F.3d 296, 334-38 (2d Cir. 2006) (holding that receipt of cash "tribute" payments by organized-crime supervisors violates statute when transfers of such payments are characterized by complexity and secrecy); United States v. Szur, 289 F.3d 200, 213-14 (2d Cir. 2002) (holding that "financial transaction" is sufficiently distinct from "specified unlawful activity" to support separate convictions for laundering and underlying offense, where proceeds of fraudulent sale of stock are transferred from one participant in fraud scheme to others); United States v. Moloney, 287 F.3d 236, 240-41 (2d Cir. 2002) (holding that meaning of "financial transaction" allows multiple transactions in single scheme to be charged as one violation); United States v. McCarthy, 271 F.3d 387, 394-96 (2d Cir. 2001) (holding that "financial transaction" is sufficiently distinct from "specified unlawful activity" if defendant embezzles funds by transferring them to account and then writes checks out of that account); United States v. Monaco, 194 F.3d 381, 385-87 (2d Cir. 1999) (holding that "proceeds of specified unlawful activity" can include criminal proceeds generated before adoption of money-laundering statute and transacted after its adoption); United States v. Maher, 108 F.3d 1513, 1525-28 (2d Cir. 1997) (holding that defendant involved in transaction designed to conceal source of funds need not have knowledge of type of criminal activity that generated funds); United States v. Leslie, 103 F.3d 1093, 1101-02 (2d Cir. 1997) (holding that handing check to someone in exchange for cash is "financial transaction," even if check is never deposited or cashed); United States v. Kinzler, 55 F.3d 70, 72-74 (2d Cir. 1995) (holding that effort to "conceal or disguise" material information about "proceeds" need not include effort to disguise identity of owner); United States v. Wydermyer, 51 F.3d 319, 326-27 (2d Cir. 1995) (holding that "financial transaction" includes physical carrying of cash outside United States); United States v. Piervinanzi, 23 F.3d 670, 677-83 (2d Cir. 1994) (holding that "financial transaction" and "specified unlawful activity" are sufficiently distinct to support separate convictions for laundering and underlying offense, where participants in bank fraud structure scheme so that funds are obtained through transfers to overseas accounts); United States v. Stavroulakis, 952 F.2d 686, 690-91 (2d Cir. 1992) (holding that § 1956's requirement of knowledge as to "specified unlawful activity" permits co-conspirators to have differing beliefs about criminal source of funds).
286. See United States v. Stephenson, 183 F.3d 110, 120-22 (2d Cir. 1999) (holding that if narcotics dealer purchases automobile with criminal proceeds in his own name, then there is no intent "to conceal or disguise" information about criminal proceeds); United States v. Napoli, 54 F.3d 63, 67-68 (2d Cir. 1995) (holding that, where bank fraud involves cashing bad checks, this "financial transaction" is not sufficiently independent of "specified unlawful activity" to satisfy § 1956); United States v. Holmes, 44 F.3d 1150, 1155-56 (2d Cir. 1995) (holding that defendant convicted on basis of engaging in single transaction with two of statute's prohibited purposes commits only one money-laundering violation).
287. United States v. Wynn, 61 F.3d 921, 922-25 (D.C. Cir. 1995).
288. United States v. Lovett, 964 F.2d 1029, 1031-36 (10th Cir. 1992).
289. United States v. Frigerio-Migiano, 254 F.3d 30, 31-33 (1st Cir. 2001). The court of appeals reversed the conviction in this case on the ground that the jury's verdict was not supported by sufficient evidence of the defendant's knowledge that his actions were part of a money-laundering operation, not on any question of how marginal the defendant's role may have been. See id. at 34-36.
290. United States v. Awada, 425 F.3d 522, 523-25 (8th Cir. 2005).
291. United States v. Cota, 953 F.2d 753, 755-57, 760-61 (2d Cir. 1992).
292. Take, for example, a governor of New York who may have tried to conceal his payments for the services of an illegal interstate prostitution service. See David Johnston & Stephen Labaton, The Reports That Drew Federal Eyes to Spitzer, N.Y. TIMES, Mar. 12, 2008, at B1.
293. See Cuéllar, supra note 175, at 405-18 (discussing data on severity of penalties for laundering and prosecutors' focus on predicate offenders). It must also be noted that the examination of appellate decisions for arguably unjustified prosecutions for money laundering underreports such cases by omitting prosecutions where the law's breadth induced guilty pleas, most of which render the cases untraceable by reported appellate decisions.
294. United States v. Santos, 128 S. Ct. 2020, 2024-25 (2008) (plurality opinion).
295. Id. at 2031-34 (Stevens, J., concurring).
296. Id. at 2035-45 (Alito, J., dissenting).
297. See Cuellar v. United States, 128 S. Ct. 1994, 2000-05 (2008) (narrowing, to some extent, money-laundering statute governing cross-border transportation of funds but rejecting even narrower interpretation urged by defendant and finding that mental-state requirement of purpose sufficiently limited reach of statute).
298. 18 U.S.C. § 1503 (2000); see also 18 U.S.C. § 1505 (2000) (using similar language in context of proceedings before departments, agencies, and committees); United States v. Schwartz, 924 F.2d 410, 422-23 (2d Cir. 1991) (construing broadly what counts as "proceeding" under § 1505).
299. United States v. Griffin, 589 F.2d 200, 206-07 (5th Cir. 1979) (quoting Anderson v. United States, 215 F.2d 84, 88 (6th Cir. 1954)).
300. United States v. Tackett, 113 F.3d 603, 607 (6th Cir. 1997).
301. 18 U.S.C. § 1512 (2000 & Supp. IV 2006).
302. 18 U.S.C. § 1519 (Supp. IV 2006).
303. E.g., United States v. Weiss, 491 F.2d 460, 464 (2d Cir. 1974); United States v. Siegel, 263 F.2d 530, 532 (2d Cir. 1959); Bosselman v. United States, 239 F. 82, 84 (2d Cir. 1917);
304. see also United States v. Jespersen, 65 F.3d 993, 998-1001 (2d Cir. 1995) (holding that it can be obstruction to produce falsified document even if production of document was required by subpoena).
305. E.g., United States v. Fasolino, 586 F.2d 939, 940-41 (2d Cir. 1978); United States v. Kahaner, 317 F.2d 459, 463-64 (2d Cir. 1963); United States v. Manton, 107 F.2d 834, 840-44 (2d Cir. 1939).
306. E.g., United States v. Bradwell, 388 F.2d 619, 620-21 (2d Cir. 1968); United States v. Kahn, 366 F.2d 259, 262 (2d Cir. 1966); United States v. Woodmansee, 354 F.2d 235, 235 (2d Cir. 1965); United States v. Potash, 118 F.2d 54, 56 (2d Cir. 1941).
307. E.g., United States v. Langella, 776 F.2d 1078, 1081 (2d Cir. 1985); United States v. Turcotte, 515 F.2d 145, 149-50 (2d Cir. 1975).
308. United States v. Polakoff, 121 F.2d 333, 334-35 (2d Cir. 1941).
309. United States v. Minkoff, 137 F.2d 402, 403-04 (2d Cir. 1943).
310. E.g., United States v. Kaplan, 490 F.3d 110, 116, 127 (2d Cir. 2007); United States v. LaFontaine, 210 F.3d 125, 128-29, 132-33 (2d Cir. 2000); United States v. Tocco, 135 F.3d 116, 127 (2d Cir. 1998); United States v. Johnson, 968 F.2d 208, 209-10, 215 (2d Cir. 1992); United States v. Coiro, 922 F.2d 1008, 1012-14 (2d Cir. 1991); United States v. Biaggi, 853 F.2d 89, 104-05 (2d Cir. 1988);
311. United States v. Capo, 791 F.2d 1054, 1060, 1069-70 (2d Cir. 1986), rev'd en banc on other grounds, 817 F.2d 947 (1987);
312. United States v. Rodolitz, 786 F.2d 77, 81-82 (2d Cir. 1986); United States v. Cioffi, 493 F.2d 1111, 1116-19 (2d Cir. 1974);
313. United States v. Knohl, 379 F.2d 427, 431 (2d Cir. 1967); United States v. Grunewald, 233 F.2d 556, 570-71 (2d Cir. 1956), rev'd on other grounds, 353 U.S. 391 (1957).
314. United States v. Gabriel, 125 F.3d 89, 102-05 (2d Cir. 1997), abrogated by Arthur Andersen LLP v. United States, 544 U.S. 696 (2005).
315. E.g., United States v. Cohn, 452 F.2d 881, 882-84 (2d Cir. 1971); United States v. Alo, 439 F.2d 751, 753-54 (2d Cir. 1971).
316. United States v. Barton, 647 F.2d 224, 239-41 (2d Cir. 1981).
317. United States v. Ardito, 782 F.2d 358, 359-62 (2d Cir. 1986).
318. United States v. Ruggiero, 934 F.2d 440, 442-46 (2d Cir. 1991).
319. United States v. Giovanelli, 464 F.3d 346, 350-51 (2d Cir. 2006).
320. The following are the nine meaningful limiting cases that are reported and citable: United States v. Bruno, 383 F.3d 65, 86-89 (2d Cir. 2004) (reversing convictions because prosecution did not satisfy element requiring defendant to have known and intended that false statements in interview would reach grand jury); United States v. Lopez, 372 F.3d 86, 91-92 (2d Cir. 2004) (holding that, for witness-tampering statute to apply, possibility of federal inquiry must be supported by facts and not mere hypothesis), vacated for reconsideration on other grounds, 544 U.S. 902 (2005); United States v. Schwarz, 283 F.3d 76, 102-03, 107-10 (2d Cir. 2002) (reversing convictions of New York City police officers in infamous brutality case involving victim Abner Louima because prosecution did not satisfy element requiring defendants to have known and intended that false statements in interviews would reach grand jury); United States v. Masterpol, 940 F.2d 760, 762-63 (2d Cir. 1991) (holding that witness-tampering statute, not "omnibus" clause of general obstruction statute, must be used to prosecute interference with witnesses prior to initiation of judicial proceedings); United States v. King, 762 F.2d 232, 236-38 (2d Cir. 1985) (holding that witness-tampering statute, as distinct from "omnibus" clause of general obstruction statute, does not cover noncoercive effort to persuade witness to lie), superseded by statute, Minor and Technical Criminal Law Amendments Act of 1988, 18 U.S.C. § 1512(b) (2000 & Supp. IV 2006); United States v. Moon, 718 F.2d 1210, 1236 (2d Cir. 1983) (holding that it is not obstruction of justice to produce false document that was covered by subpoena and was not falsified in course of responding to subpoena when evidence is insufficient to establish intent); United States v. Siegel, 717 F.2d 9, 20-21 (2d Cir. 1983) (finding that relationship between obstructive act and potential future legal proceeding cannot be too remote, as violator must have particular federal proceeding in mind); United States v. Bufalino, 285 F.2d 408, 414-16 (2d Cir. 1960) (finding evidence insufficient to establish conspiracy to obstruct justice in case of large group of attendees lying about purpose of infamous gathering on November 14, 1957, of many reputed mobsters at farm in Apalachin, New York); see also 18 U.S.C. § 1512(e) (2000 & Supp. IV 2006) (providing for affirmative defense to witness tampering if defendant's sole purpose was "to encourage, induce, or cause the other person to testify truthfully").
321. See Bosselman v. United States, 239 F. 82, 86 (2d Cir. 1917) ("[A]ny endeavor to impede and obstruct the due administration of justice ... is corrupt."). The Second Circuit has held that this mens rea formulation saves the statutes from the charge that they are unconstitutionally vague. United States v. Thompson, 76 F.3d 442, 452 (2d Cir. 1996).
322. Julie O'Sullivan argues that at least some of the federal decisions have gone further, implying that engaging in any behavior intentionally, while foreseeing that the act would have obstructive consequences, satisfies the statutes' mens rea requirements. O'Sullivan, supra note 16, at 688-89 & n.185.
323. See infra Part III.A.
324. United States v. Cintolo, 818 F.2d 980, 983-96 (1st Cir. 1987).
325. United States v. Cueto, 151 F.3d 620, 624-35 (7th Cir. 1998); see also United States v. Mintmire, 507 F.3d 1273, 1274-75, 1289-95 (11th Cir. 2007) (affirming conviction of attorney-promoter in stock-offering scheme for obstructing SEC investigation by coaching witnesses to withhold facts from SEC, in part to shield attorney's son from liability).
326. United States v. Quattrone, 441 F.3d 153, 165-66 (2d Cir. 2006). The court reversed Quattrone's conviction because the trial judge misstated the law in his instructions to the jury. Id. at 177-81.
327. The court nonetheless explained at length that the evidence was sufficient to establish that Quattrone criminally obstructed justice when he sent his email. Id. at 171-76.
328. Another problem is that the federal obstruction statutes contain plain old bad drafting: They are too often sloppy, redundant, and confusing. O'Sullivan, supra note 16, at 679-85.
329. At least, it is protected most of the time. See U.S. CONST. amends. VI, VII (guaranteeing right to jury trial in criminal and most civil cases).
330. United States v. Aguilar, 515 U.S. 593, 595-97, 600-01 (1995).
331. Arthur Andersen LLP v. United States, 544 U.S. 696, 698-701, 704-06 (2005).
332. The point is starkly presented by Congress's most recent intervention in obstruction law, 18 U.S.C. § 1519 (Supp. V 2006) - a component of the Sarbanes-Oxley legislation - which makes a felon of anyone who "knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States." The statute has been broadly applied to arguably impulsive, fleeting, or trivial acts by minor actors. See United States v. Lessner, 498 F.3d 185, 196-98 (3d Cir. 2007) (holding that statute was violated when woman threw calendar in trash while being led away from her desk for interview with investigators pursuing case of government contracting fraud); United States v. Wortman, 488 F.3d 752, 753-55 (7th Cir. 2007) (affirming conviction of woman who broke CD in half that contained child pornography at instruction of boyfriend who had learned he was under investigation for possession of such materials). Some consequences of overbroad obstruction laws easing the pursuit of "pretextual prosecutions" are explored in Richman & Stuntz, supra note 78.
333. See Kahan, supra note 69, at 493-94 (describing problem of "loopholing").
334. For example, the SEC frequently appends the following language to regulations defining safe harbors from general prohibitions that regulate the socially valuable process of capital formation: "This [safe harbor] is not available for any communication that, although in technical compliance with this section, is part of a plan or scheme to evade the requirements of [the Securities Act of 1933]." 17 C.F.R. § 230.168 preliminary note 1 (2007); see also Lawrence A. Cunningham, A Prescription To Retire the Rhetoric of 'Principles-Based Systems' in Corporate Law, Securities Regulation, and Accounting, 60 VAND. L. REV. 1411, 1430-33 (2007) (exploring how various regulatory systems combine use of rules and principles). The tax laws - the paradigmatic rule-based form of regulation - include principles, like the "form over substance" and "step transaction" doctrines, that authorize courts to impose liability ex post if an actor has structured conduct ex ante that complies in literal terms with the code but accomplishes ends equivalent to those barred by, and motivating, the rules.
335. See Steven A. Dean & Lawrence M. Solan, Tax Shelters and the Code: Navigating Between Text and Intent, 26 VA. TAX REV. 879, 882 (2007) ("[T]ax shelters are generally characterized as transactions that appear to comply in a literal manner with the Code, but which are designed to reach a tax result that Congress would not have intended.");
336. see also Alex Raskolnikov, Relational Tax Planning Under Risk-Based Rules, 156 U. PA. L. REV. 1181, 1205-07 (2008) (describing problem of taxpayers using nonbinding "relational" agreements as means of avoiding tax consequences of contractual arrangements);
337. David A. Weisbach, Formalism in the Tax Law, 66 U. CHI. L. REV. 860, 871 (1999) ("[Rules are] an easy target for tax planning .... To reduce this potential, rules must become more complex, and greater complexity creates additional opportunities for planning, and onward and onward. Standards are fuzzy at the borders, reducing this problem.").
338. The focus on mental state may also further an agenda of sanctioning only those who deserve to be sanctioned. See Buell, supra note 91, at 2022-36 (exploring how fraud law's focus on actor's "consciousness of wrongdoing" sorts commercial actors engaging in deception according to relative blameworthiness);
339. cf. Larry Alexander, Is Morality Like the Tax Code?, 95 MICH. L. REV. 1839, 1850 (1997)
340. (reviewing LEO KATZ, ILL-GOTTEN GAINS: EVASION, BLACKMAIL, FRAUD, AND KINDRED PUZZLES OF THE LAW (1996)) (arguing that nature and extent of actor's purpose in engaging in harmful behavior is central to assessment of moral blameworthiness).
341. I have borrowed the "loopholing" term and concept from Kahan, supra note 30, at 137-40. I may depart from Kahan where mens rea is concerned. Kahan argues that courts have to distinguish unwanted loopholing from permissible efforts to structure behavior around sanctioning regimes by deciding whether the actor was virtuous according to prevailing moral standards.
342. Id. at 140-42.
343. I am not persuaded that more conventional inquiry into mental state cannot identify blameworthy loopholers in many contexts, nor am I persuaded that having judges guesstimate prevailing moral standards can eliminate the problem of overbreadth in standards that are designed to prevent actors from engineering around rule-based regimes. For further discussion of how reference to mental states can refine overbroad liability rules, see infra Part III.A.
344. Another way to conceptualize this phenomenon is to say that a regulatory system chooses to shift from adjudicating conduct ex ante (the effect of rules) to adjudicating it ex post (the effect of standards). Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L.J. 557, 559-60 (1992).
345. Kaplow conceives of the choice between rules and standards as largely about efficiency: Rules are more costly to produce but are more efficient when the regulatory problem is likely to involve conduct that arises frequently and in similar form. Id. at 579-81.
346. Kaplow recognizes, but does not discuss, the relationship between efforts to avoid sanctioning and the legal system's choice between rules and standards. See id. at 618 ("[B]ecause laws of form are often designed to prevent fraud, which may be easier to commit if there are known rigid rules that a fraudulent actor can carefully circumvent, standards may be preferable in some contexts.");
347. see also Cunningham, supra note 220, at 1423 ("[R]ules can be blueprints for evading their underlying purposes. Bright lines and exceptions to exceptions facilitate strategic evasion, allowing artful dodging of the rule's spirit by literal compliance with its technical letter.").
348. This problem may be particularly acute in the tax context, given society's normative ambivalence about loopholing to avoid taxes. See Walter J. Blum, Motive, Intent, and Purpose in Federal Income Taxation, 34 U. CHI. L. REV. 485, 515 (1967) ("It clearly would be foolish to attempt to define tax avoidance as merely a more intense or pervasive version of tax minimization."). This might explain the Supreme Court's ruling that a tax protester, who had listened to an argument made at seminars that ordinary wages were not "income" within the meaning of the tax code and subsequently refused to pay taxes on his wages, was entitled to a jury instruction at his criminal trial for tax evasion that the government had to prove that he knew his conduct was unlawful (i.e., that ignorance of the law is a defense to tax evasion). Cheek v. United States, 498 U.S. 192, 195-96, 201-03 (1991).
349. A recent critical treatment of breadth in criminal and regulatory law is Skeel & Stuntz, supra note 116.
350. Skeel and Stuntz argue that rule-based regulation, "[r]ather than cultivating a sense of moral responsibility ... simply functions] as an obstacle course, a set of barriers around which corporate officers must maneuver." Id. at 836. Of course, the legal system often resorts to broad standards as a response to the problem that Skeel and Stuntz describe.
351. Buell, supra note 91, at 1972-75.
352. See, e.g., 18 U.S.C. § 1341 (2000) (making it criminal to "devise any scheme or artifice to defraud" and to use mails in furtherance of such scheme or artifice (emphasis added)); 17 C.F.R. § 240.10b-5 (2007) (prohibiting "any device, scheme, or artifice to defraud" and "any act... which operates or would operate as a fraud" in "connection with the purchase or sale" of securities (emphasis added)).
353. Some of this history is described in Buell, supra note 91, at 1987-2014.
354. See, e.g., United States v. Maze, 414 U.S. 395, 405-07 (1974) (Burger, C.J., dissenting) ("The criminal mail fraud statute must remain strong ... to cope with the new varieties of fraud that the ever-inventive American 'con artist' is sure to develop."); Weiss v. United States, 122 F.2d 675, 681 (5th Cir. 1941) ("The law does not define fraud; it needs no definition; it is as old as falsehood and as versable as human ingenuity."); McAleer v. Horsey, 35 Md. 439, 452 (1872) ("[A]s it is the very nature and essence of fraud to elude all laws in fact, without appearing to break them in form, a technical definition of fraud . . . would be in effect telling to the crafty precisely how to avoid the grasp of the law."); Letter from Lord Hardwicke to Lord Kames (June 30, 1759), in JOSEPH PARKES, A HISTORY OF THE COURT OF CHANCERY 501, 508 (1828) ("Fraud is infinite, and were a court of Equity ... to define strictly the species or evidence of it, the jurisdiction would be . . . perpetually eluded by new schemes, which the fertility of man's invention would contrive.").
355. The development of the substantive law of fraud has been highly expansive at least since 1601 when Lord Coke, reporting a case as the Queen's Attorney General and pressing for a broad interpretation of an Elizabethan statute targeting fraudulent conveyances, stated: "[B]ecause fraud and deceit abound in these days more than in former times, it was resolved in this case by the whole Court, that all statutes made against fraud should be liberally and beneficially expounded to suppress fraud." Twyne's Case, (1601) 76 Eng. Rep. 809, 815-16 (K.B.). In his report, Coke also said: "Quoeritur, ut crescent tot magna volumina legis? In promptu causa est, crescit in orbe dolus. " Id. at 815.
356. The phrase translates as: "If you ask why are there so many laws, the answer is that fraud ever increases on this earth." CHARLES ROSS, ELIZABETHAN LITERATURE AND THE LAW OF FRAUDULENT CONVEYANCE 105 (2003).
357. See Schmuck v. United States, 489 U.S. 705, 723 (1989) (Scalia, J., dissenting) ("[I]t is mail fraud, not mail and fraud, that incurs liability.").
358. See Durland v. United States, 161 U.S. 306, 313 (1896) ("[The mail fraud statute] includes everything designed to defraud by representations as to the past or present, or suggestions and promises as to the future. The significant fact is the intent and purpose.").
359. McNally v. United States, 483 U.S. 350, 356-60 (1987).
360. See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7603, 102 Stat. 4181, 4508 (1988) (codified at 18 U.S.C. § 1346 (2000)) (reversing result in McNally).
361. See, e.g., John C. Coffee, Jr., The Metastasis of Mail Fraud: The Continuing Story of the "Evolution" of a White-Collar Crime, 21 AM. CRIM. L. REV. 1 (1983) (suggesting "core premises" upon which mail fraud statute should be reformed);
362. John C. Coffee, Jr., Modern Mail Fraud: The Restoration of the Public/Private Distinction, 35 AM. CRIM. L. REV. 427 (1998) (developing and arguing for limiting principles to restrict reach of § 1346);
363. Geraldine Szott Moohr, Mail Fraud and the Intangible Rights Doctrine: Someone To Watch Over Us, 31 HARV. J. ON LEGIS. 153 (1994) (arguing that mail fraud statute's incorporation of intangible-rights doctrine raises constitutional concerns, including vagueness, and proposing alternative legislation).
364. 15 U.S.C. § 78j(b) (2000) (known as "section 10(b) of the '34 Act"); 17 C.F.R. § 240.10b-5 (2007) (known as "Rule 10b-5").
365. For cases developing insider-trading liability - a doctrine that neither § 10(b) of the '34 Act nor Rule 10b-5 explicitly create - see, for example, United States v. O'Hagan, 521 U.S. 642 (1997), Dirks v. SEC, 463 U.S. 646 (1983), and Chiarella v. United States, 445 U.S. 222 (1980).
366. See also Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 737 (1975) ("When we deal with private actions under Rule 10b-5, we deal with a judicial oak which has grown from little more than a legislative acorn."). The one significant area of narrowing has been the scope of persons who may be held liable for fraudulent behavior in a private lawsuit. See Stoneridge Inv. Partners v. Scientific-Atlanta, Inc., 128 S. Ct. 761 (2008) (declining to extend 10b-5 private right of action to reach third-party defendants who enter into supply contracts with public companies alleged to have committed accounting fraud); Cent. Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 177-78 (1994) (rejecting aiding-and-abetting liability under § 10(b)).
367. See JULIE R. O'SULLIVAN, FEDERAL WHITE COLLAR CRIME 593-605 (3d ed. 2007) (summarizing various methods of accounting fraud).
368. See, e.g., Complaint at 2-3, SEC v. Meridian Holdings, Inc., No. CV07-06335-DDP (CD. Cal. Sept. 28, 2007), available at http://www.sec.gov/litigation/complaints/2007/comp 20318.pdf (charging firm with securities fraud for more than doubling its stock price in short period by reporting large default judgment and interest on judgment as assets and income, though managers had no reasonable basis to believe judgment was collectible);
369. see also BETHANY MCLEAN & PETER ELKIND, THE SMARTEST GUYS IN THE ROOM: THE AMAZING RISE AND SCANDALOUS FALL OF ENRON (2003) (providing detailed account for lay reader of accounting maneuvers within Enron);
370. John R. Kroger, Enron, Fraud, and Securities Reform: An Enron Prosecutor's Perspective, 76 U. COLO. L. REV. 57, 69-82 (2005) (describing some technical aspects of Enron accounting fraud).
371. For an illuminating discussion of the problems that follow from formalist accounts of obligations in such areas as financial reporting and tax compliance, see William H. Simon, After Confidentiality: Rethinking the Professional Responsibilities of the Business Lawyer, 75 FORDHAM L. REV. 1453, 1455-64 (2006).
372. For a defense of the morality in formalism, see generally KATZ, supra note 221.
373. United States v. Simon, 425 F.2d 796, 805-06 (2d Cir. 1969).
374. id. at 806-07.
375. United States v. Ebbers, 458 F.3d 110, 125-26 (2d Cir. 2006).
376. United States v. Rigas, 490 F.3d 208, 220 (2d Cir. 2007).
377. 18 U.S.C. § 1346 (2000).
378. United States v. Handakas, 286 F.3d 92, 96 (2d Cir. 2002), overruled by United States v. Rybicki, 354 F.3d 124 (2d Cir. 2003) (en banc).
379. See Rybicki, 354 F.3d at 144 (finding defendant's conduct in Handakas "not within the scope of behavior proscribed by section 1346" and overruling "unnecessary constitutional ruling"). The Second Circuit held: [The statute prohibits] a scheme or artifice to use the mails or wires to enable an officer or employee of a private entity (or a person in a relationship that gives rise to a duty of loyalty comparable to that owed by employees to employers) purporting to act for and in the interests of his or her employer (or of the other person to whom the duty of loyalty is owed) secretly to act in his or her or the defendant's own interests instead, accompanied by a material misrepresentation made or omission of information disclosed to the employer or other person.
380. Id. at 146-47.
381. United States v. Margiotta, 688 F.2d 108, 121-26 (2d Cir. 1982). But see United States v. Murphy, 323 F.3d 102, 104-05 (3d Cir. 2003) (rejecting theory of Margiotta that nonpublic officials can owe duty of honest services to citizens absent state-law violation). The Second Circuit's attitude toward the mail fraud statute is shared by most, but not all, of the other circuits. For example, a recent Fifth Circuit ruling held that bankers who aided former executives of Enron in accounting fraud could not be charged for assisting the executives in depriving Enron shareholders of their right to honest services because, the court said, Enron led those executives to believe the company wanted them to inflate earnings. United States v. Brown, 459 F.3d 509, 521-22 (5th Cir. 2006). The ruling is anomalous, even when measured against that circuit's own prior decisions. See United States v. Brumley, 116 F.3d 728, 733-34 (5th Cir. 1997) (holding that breach of any duty specified under state law can give rise to charge of "honest services" fraud). Even in Brown, the court implied that there would have been little difficulty with a fraud theory had the government charged on a conventional theory of securities fraud rather than on a theory of "honest services" mail fraud. 459 F.3d at 522-23.
382. United States v. Wallach, 935 F.2d 445, 461-64 (2d Cir. 1991); see also United States v. Bronston, 658 F.2d 920, 922, 927 (2d Cir. 1981) (holding that, under some conditions, mail fraud charge can be based on fiduciary's concealment of conflict of interest from beneficiary). But see United States v. D'Amato, 39 F.3d 1249, 1257 (2d Cir. 1994) ("Mail fraud cannot be charged against a corporate agent who in good faith believes that his or her (otherwise legal) misleading or inaccurate conduct is in the corporation's best interests.").
383. United States v. Frost, 125 F.3d 346, 352-53 (6th Cir. 1997).
384. United States v. Gray, 96 F.3d 769, 771-72 (5th Cir. 1996).
385. Chief Judge Frank Easterbrook, while underestimating the difficulty of the problem, stated the point in a recent opinion in a mail fraud case: This prosecution, which led to the conviction and imprisonment of a civil servant for conduct that, as far as this record shows, was designed to pursue the public interest as the employee understood it, may well induce Congress to take another look at the wisdom of enacting ambulatory criminal prohibitions. Haziness designed to avoid loopholes through which bad persons can wriggle can impose high costs on people the statute was not designed to catch. United States v. Thompson, 484 F.3d 877, 884 (7th Cir. 2007) (emphasis added).
386. See Smith, supra note 16, at 930-51;
387. Stuntz, supra note 16, at 587-98, 600.
388. See, e.g., Barkow, supra note 3, at 42 (arguing that while efforts to increase legislative and public oversight over prosecutors "sound promising on paper, they cannot serve as a realistic check in today's political climate");
389. see also supra text accompanying notes 20-22.
390. See Kay L. Levine, The External Evolution of Criminal Law, 45 AM. CRIM. L. REV. 1039, 1046-57 (2008) (examining how legal actors and others can shape content of criminal law outside lawmaking process).
391. For current examples of contemporary scholarship that is seeking to better theorize prosecutorial power, see Barkow, supra note 3, Marc L. Miller & Ronald F. Wright, The Black Box, 94 IOWA L. REV. (forthcoming 2008), available at http://ssrn.com/abstract= 111 4172,
392. Richman, supra note 38,
393. and Richman, supra note 71.
394. The law of National Socialist Germany included the following chilling statute: Whoever commits an action which the law declares to be punishable or which is deserving of punishment according to the fundamental idea of a penal law and the sound perception of the people, shall be punished. If no determinate penal law is directly applicable to the action, it shall be punished according to the law, the basic idea of which fits it best. Lawrence Preuss, Punishment by Analogy in National Socialist Penal Law, 26 J. AM. INST. CRIM. L. & CRIMINOLOGY 847, 847 (1935-1936) (quoting Gesetz zur Änderung des Strafgesetzbuchs, June 28, 1935, RGBl. I at 839, art. 1);
395. cf. H.L.A. HART, PUNISHMENT AND RESPONSIBILITY 49 (1968) (arguing for importance of "excusing conditions" because only "choosing being" deserves punishment).
396. See Mitchell N. Berman, On the Moral Structure of White-Collar Crime, 5 OHIO ST. J. CRIM. L. 301, 326-27 (2007) (explaining that contours of criminal offense may depart from contours of underlying moral wrong it is designed to punish due to prudential needs of criminal justice system). It should be noted that overbreadth has consequences only if rules have the constitutive feature that Frederick Schauer calls entrenchment; that is, their general propositions do not give way when confronted with particulars that do not fit with their underlying justifications.
397. SCHAUER, supra note 32, at 49. This is true of criminal liability rules.
398. For a basic discussion of act, result, and attendant-circumstance elements in criminal law, see WAYNE R. LAFAVE, CRIMINAL LAW 10-12, 302-10, 324-25 (4th ed. 2003).
399. Cf. Stuntz, supra note 59, at 2036-39 (arguing that more vague rules of substantive criminal liability can produce fairer results in criminal enforcement because less precommitment in legal rules affords local actors, especially juries, more leeway to exercise leniency when facts of cases warrant it).
400. See, e.g., City of Chicago v. Morales, 527 U.S. 41, 55 (1999) (observing that facial-vagueness challenge to criminal law is much more viable if law has no mens rea requirement).
401. Note, however, that in some instances, overbreadth results from the expansion of a mens rea element. See supra text accompanying notes 208-10.
402. This is why the principle that "pure legal impossibility" is a defense in criminal law must have to do with controlling enforcement discretion rather than guaranteeing fair notice: A person who thought she was breaking the law but was not can hardly claim lack of notice. Buell, supra note 91, at 2027-28.
403. Darryl Brown has argued that federal courts have already been doing this - constraining criminal law's expansion with enhanced mens rea requirements - at least in areas in which less harmful behaviors have been criminalized. Brown, supra note 18, at 262-64.
404. Buell, supra note 91, at 1996-2014.
405. See United States v. Peterson, 101 F.3d 375, 381 (5th Cir. 1996) (explaining that reliance on advice of counsel, if it establishes "good faith," can negate element of specific intent in criminal fraud charge); cf. United States v. Leon, 468 U.S. 897, 920-22 (1984) (holding that exclusionary rule does not apply if officers executing faulty warrant believe in "good faith" that warrant is legally valid); In re Walt Disney Co. Derivative Litig., 906 A.2d 27, 63-67 (Del. 2006) (exploring forms of management conduct that constitute "bad faith" under Delaware law).
406. Willful blindness may be an exception, but the law usually blocks that dodge. See, e.g., United States v. Heredia, 429 F.3d 820, 828 (9th Cir. 2005) (finding it error to give willful ignorance instruction if defendant "actually suspected she might be involved in criminal activity, but the record does not show that she deliberately avoided confirming her suspicion in order to provide herself with a defense").
407. See Schulhofer, supra note 82, at 63 ("The problem is to find ways to give prosecutors a personal stake in the profits (deterrence benefits) that their efforts are expected to generate.... But there is no apparent way to offer 'profit sharing' of that kind to prosecutors.").
408. For in-depth treatments of the problem of institutional design and federal prosecutorial discretion, see Barkow, supra note 3,
409. and Gerard E. Lynch, Our Administrative System of Criminal Justice, 66 FORDHAM L. REV. 2117 (1998).
410. See supra Part I.D.
411. See Richard T. Boylan, What Do Prosecutors Maximize? Evidence from the Careers of U.S. Attorneys, 7 AM. L. & ECON. REV. 379 (2005) (finding that successful chief federal prosecutors tend to pursue cases eligible for more serious punishments).
412. See Wright, supra note 68, at 149 (finding from examination of data on federal plea and trial rates, along with criminal history data, that "[districts that process defendants who present more serious criminal histories also produce lower acquittal rates, suggesting that judges and prosecutors in these districts value quality over quantity and put extra effort into avoiding acquittals for these high-priority defendants");
413. J. Mark Ramseyer et al., Convictions Versus Conviction Rates: The Prosecutor's Choice 13 (Harvard John M. Olin Ctr. for Law, Econ., & Bus., Discussion Paper No. 611, 2008), available at http://ssrn. com/abstract-id=1108813 (discussing difficulty of trying to manage agency costs among prosecutors by monitoring their performance through poor proxy of conviction rate).
414. See Stigler, supra note 53, at 534-36 ("[I]t is much easier to make continuous marginal adjustments in a policy through the appropriations committee by varying the resources for its enforcement than it is to modify the statute.").
415. See Michael A. Simons, Prosecutorial Discretion and Prosecution Guidelines: A Case Study in Controlling Federalization, 75 N.Y.U. L. REV. 893, 936-63 (2000) (describing problem of overbreadth in federal child support-enforcement regime and advocating greater use of internal, written executive branch policies to limit use of federal criminal statutes to cases genuinely warranting federal sanction).
416. See Richman, supra note 38, at 789-805 (exploring variety of ways in which Congress constrains conduct of federal law-enforcement agencies in spite of very large grants of statutory authority).
417. Between 1990 and 2006, the number of federal prisoners more than tripled from 58,838 to 183,381. U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE tbl.6.13.2007 (Ann L. Pastore & Kathleen Maguire eds., 2008), http://www.albany.edu/sourcebook/pdf/t6132007.pdf. During the same period, the total number of federal prosecutors almost doubled, from about 3005 to about 5673.
418. Id. at tbl.1.79.2006, http://www.albany.edu/sourcebook/pdf/ t1792006.pdf. More enforcers produce more inmates, especially when enforcers' performance is evaluated through quantitative measures like caseload and conviction rates and when components of the bureaucracy are rewarded with more resources when they can claim to be overtaxed. Regrettably, there is evidence that trends in the Department of Justice toward large volumes of lower-level prosecutions are accelerating.
419. See Transactional Records Access Clearinghouse, Federal Enforcement Data Show Major Changes in How the Bush Administration Has Enforced the Law (2008), http://trac.syr.edu/tracreports/crim/184 (reporting that, since Fiscal Year 2000, white-collar criminal prosecutions are down 27 percent, official-corruption prosecutions are down fourteen percent, and organized-crime prosecutions are down 48 percent, while immigration prosecutions are up 127 percent).
420. See Gall v. United States, 128 S. Ct. 586, 594 (2007) (recognizing that "reasonableness" review of federal sentences on appeal cannot, without implicating constitutional constraints, be construed as requiring trial judges to impose particular sentences); United States v. Booker, 543 U.S. 220, 232-37 (2005) (holding that federal sentencing guidelines are unconstitutional if made binding on trial judges).
421. See U.S. SENTENCING GUIDELINES MANUAL § 5K2.0 (2007) (articulating appropriate and inappropriate grounds for imposing sentences that depart from ranges recommended by guidelines).
422. See, e.g., Stanton Wheeler, Adversarial Biography: Reflections on the Sentencing of Michael Milken, 3 FED. SENT'G REP. 167, 170 (1990) (discussing judge's emphasis on attempts to avoid detection in selecting harsh sentence for noteworthy white-collar offender).
423. This will be hard to achieve, I concede. Julie O'Sullivan worries that broad federal liability rules in the post-Booker world will likely lead to indefensibly disparate treatment of similarly situated offenders by sentencing judges and that code reform is more essential now than before. O'Sullivan, supra note 16, at 720-26.
424. See John Gleeson, Supervising Federal Capital Punishment: Why the Attorney General Should Defer When U.S. Attorneys Recommend Against the Death Penalty, 89 VA. L. REV. 1697, 1705-07 (2003) (discussing drug importation cases);
425. Jane L. McClellan & Jon M. Sands, Federal Sentencing Guidelines and the Policy Paradox of Early Disposition Programs: A Primer on "Fast-Track" Sentences, 38 ARIZ. ST. L.J. 517, 523 (2006) (discussing immigration cases).
426. See Douglas A. Berman, Tweaking Booker: Advisory Guidelines in the Federal System, 43 HOUS. L. REV. 341, 377-80 (2006) (discussing potentially useful role of sentencing commission in system of nonbinding guidelines).