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Overcriminalization

"Overcriminalization" describes the trends in America - and particulary in Congress - to use the criminal law to "solve" every problem, punish every mistake (instead of making proper use of civil penalties), and coerce Americans into conforming their behavior to satisfy social engineering objectives.

HR 6391: A bill to amend Title 18, United States Code, to prohibit public officials from engaging in undisclosed self-dealing.

Official Title

A bill to amend Title 18, United States Code, to prohibit public officials from engaging in undisclosed self-dealing.

Analysis

This bill parallels S. 3854 with a few significant differences. The 23-year-old federal “honest services” fraud statute, 18 U.S.C. § 1346, makes it a federal crime to engage in a “scheme or artifice to defraud another of the intangible right of honest services.” The maximum term of incarceration for whatever conduct is deemed to violate this uncommonly broad prohibition has been set at 20 years (30 years if the violation “affects” any financial institution). In June 2010, the Supreme Court held that the language of the “honest services” fraud statute is unconstitutionally vague and limited its reach to acts involving bribery or kickbacks. In that ruling, the Court rejected the government’s suggestion that it construe § 1346 to include officials or employees who take actions that incidentally further their own financial interests. Attempting to reverse this holding, H.R. 6391 would punish any public official who is involved in a “scheme or artifice . . . to engage in undisclosed self-dealing” under the provisions of § 1346. By applying exclusively to public officials, the bill has a slightly narrower reach than S. 3854, which applies to officers and directors of publicly-traded corporations and private charities, as well as public officials. Much like the statute that the Supreme Court just struck down, however, the mental state (mens rea or “criminal intent”) that the government would have to prove is essentially undefined. Moreover, H.R. 6391 contains an uncommonly broad definitions of “undisclosed self-dealing” which includes, for example, “benefiting or furthering a financial interest” of specified persons or businesses. While nominally narrower in scope than S. 3854, H.R. 6391’s formulation remains improperly broad and still subjects violators to a potential prison term of up to 20 years (30 years if the violation “affects” a financial institution).

Legislation Details
SPONSOR

Weiner (D - NY)

STATUS:

12/20/2010: Referred to the Subcommittee on Crime, Terrorism, and Homeland Security
09/29/2010: Referred to House Judiciary Committee
09/29/2010: Introduced in House