Congress and Obama: We Need More Innocent People in Prison

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by William L. Anderson: Lance
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This past year,
the U.S. Supreme Court struck down much of the "Honest Services
Fraud" law that federal prosecutors were using as the catch-all
for targeting whomever they wanted to have thrown into prison. As
I wrote two years ago, this
law was the ultimate prosecutorial weapon
for people who already
have an arsenal of injustice.

Well, just
when you thought it was safe to go back into the courtroom, the
Obama administration and the U.S. Senate want to tag team in order
to give federal prosecutors the power to send anyone they choose
to prison, no matter if the accused has committed a crime or not.
For readers who think I am exaggerating, think again. As I wrote
in 2009:

You might
not have robbed a bank or stolen anything, or engaged in any of
the 10,000 “crimes” that federal prosecutors have in their buffet
line, but I can guarantee that you are “guilty” of “honest services
fraud.” Have you ever taken a longer lunch break than what you
are supposed to do? Have you ever made a personal phone call at
work or done personal business on your employer’s computer? Have
you ever had a contract dispute with an employer or a client?
All of those things can be criminalized by an enterprising federal
prosecutor.

If you are
an attorney and have signed forms even though you have not read
every word in them (for example, the standard closing documents
for real estate), then you have committed “honest services fraud.”
The list goes on and on, but most likely by now you have the picture:
you are guilty even if you never are placed in the dock in federal
criminal court.

One would think
that with the USA housing a fourth of the world's prisoners and
the building of prisons being a boom industry, that someone in Washington
might be ashamed of this state of affairs. But, as the Wall
Street Journal has noted
, Obama and members of Congress
apparently believe that the prison jobs/slavery process must go
on:

Since the
Supreme Court limited the definition of “honest services” fraud
in last year’s landmark Skilling v. U.S., the Obama Administration
has been looking for a way to restore essentially unlimited prosecutorial
discretion to bring white-collar cases. Last fall Assistant Attorney
General Lanny Breuer told a Senate committee that Congress should
act to “remedy” the Court’s decision. Three bills moving through
the House and Senate would try to do so, expanding the reach of
prosecutors to go after unpopular politicians or businesses whom
they can’t pin with a real crime.

In Skilling,
the Supreme Court ruled that the honest services statute was “unconstitutionally
vague” and restricted its application to clear cases of bribery
or kickbacks. The new legal template of Senate bills sponsored
by Judiciary Chairman Patrick Leahy, the liberal Democrat, and
Illinois Republican Mark Kirk would end run that change, transforming
many state or local ethics violations into federal felonies any
time there is an allegation of undisclosed “self-dealing.” A related
House bill would expand the reach of mail- and wire-fraud statutes
and loosen the requirements for proving federal bribery.

In
other words, Obama and his Waco-covering henchman, Eric Holder,
along with a number of members of Congress from both parties, have
decided that the law that SCOTUS struck down was not vague enough
and now are pushing through a measure that literally will leave
no part of American life — and especially business life — that cannot
be criminalized. If the president and Congress want to help destroy
any hope of economic recovery, here it is.

I
had the following in my previous article, but it is worth including
again, for it refers to federal prosecutors 25 years ago, even before
they had the "tools" at their disposal that they have
now:

At the federal
prosecutor’s office in the Southern District of New York, the
staff, over beer and pretzels, used to play a darkly humorous
game. Junior and senior prosecutors would sit around, and someone
would name a random celebrity — say, Mother Theresa or John Lennon.

It would
then be up to the junior prosecutors to figure out a plausible
crime for which to indict him or her. The crimes were not usually
rape, murder, or other crimes you’d see on Law & Order
but rather the incredibly broad yet obscure crimes that populate
the U.S. Code like a kind of jurisprudential minefield: Crimes
like “false statements” (a felony, up to five years), “obstructing
the mails” (five years), or “false pretenses on the high seas”
(also five years). The trick and the skill lay in finding the
more obscure offenses that fit the character of the celebrity
and carried the toughest sentences. The result, however, was inevitable:
“prison time.”

When one thinks
of people with this kind of mentality having the ability to charge
whomever they want with whatever charge they want, then one can
imagine a totalitarian society. Even now, it is possible for prosecutors,
both state and federal, to trump up any charge they imagine, and
with the economy in the tank one can bet that wealthy people who
are unpopular are going to be in the prosecutorial crosshairs. Once
Congress vastly expands "honest services fraud" — and
I predict that this Congress, with its lethal combination of "law-and-order"
Republicans and "the productive rich are evil" Democrats,
will pass such legislation — there will be absolutely no
prohibitions on prosecutorial misconduct.

Liberty
is being besieged at every turn in the USA, as I have come to believe
that no one — no one — despises liberty more than the very Americans
who have benefitted most from it. Unfortunately, there will be no
constituency to argue against the expansion of the "honest
services fraud" statutes because, after all, no one wishes
to defend dishonesty. So, Congress will act, President Obama will
sign, Holder and his thousands of prosecutors will prosecute, innocent
people will go to prison, families, individuals, and businesses
will be destroyed, and most Americans will be clueless as to why
fewer and fewer people want to invest in anything tied to the Land
of the Free.

August
17, 2011

William
L. Anderson, Ph.D. [send him
mail
], teaches economics at Frostburg State University in Maryland,
and is an adjunct scholar of the Ludwig
von Mises Institute
. He
also is a consultant with American Economic Services. Visit
his blog.

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