Return to Rule of Law Initiative
"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.
S 3854: Honest Services Restoration Act
A bill to expand the definition of scheme or artifice with respect to wire and mail fraud.
The 23-year-od 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 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. The Court rejected the government’s suggestion that it construe § 1346 to include officials or employees who take action to further their own financial interests. This bill would subject to the prohibition and penalties of § 1346 any public official or any officer or director of any publicly-traded corporation or private charity who is involved in a “scheme or artifice . . . to engage in undisclosed . . . self-dealing.” The mental state (mens rea or “criminal intent”) that the government would have to prove is essentially undefined. Like the overbroad statute that the Supreme Court struck down, the uncommonly broad definitions of “undisclosed self-dealing” in this bill include, for example, “furthering the financial interest of . . . a person . . . or organization from whom the public official has received a thing of value.” The maximum penalty for violations would still be 20 years imprisonment ( or 30 years if the violation “affects” any financial institution).
Leahy (D - VT)
09/28/2010: Referred to Senate Judiciary Committee
09/28/2010: Introduced in Senate