See Herbert Wechsler, The Challenge of a Model Penal
Code, 65 Harv. L. Rev. 1097, 1098 (1952) ("Whatever view one
holds about the penal law, no one will question its importance in
society. This is the law on which men place their ultimate reliance
for protection against all the deepest injuries that human conduct
can inflict on individuals and institutions. By the same token,
penal law governs the strongest force that we permit official
agencies to bring to bear on individuals.").
cite just one recent benchmark, Louisiana State University law
professor John Baker, Jr., recently completed a Heritage Foundation
study to number the criminal offenses in the United States Code and
assess federal offenses' criminal-intent requirements. John S.
Baker, Jr., Revisiting the Explosive Growth of Federal Criminal
Law, Heritage Foundation LegalMemorandum No. 26, June 16,
2008. Baker's research showed that 17 of the 91 entirely new
criminal offenses that Congress added to the United States Code
from 2000 through 2007 included no criminal-intent requirement
whatsoever. Id. at 7.
See Model Penal Code § 2.02(1), (3), (4).
Cf. United States v. Flores-Figueroa, No. 08-108, 2008 WL
2855747 (Jul, 22, 2008) (petition for writ of certiorari) (asking
the Supreme Court to determine whether the "knowingly"
criminal-intent term in 18U.S.C. §1028A(a)(1) protects
Flores-Figueroa, who pleaded guilty to two immigration-related
offenses, from a two-year sentencing increase for "aggravated
identity theft" in the absence of evidence that he knew the Social
Security number he was using actually belonged to someone
United States v. Bass, 404 U.S. 336, 348 (1971) (quoting Judge
See United States v. Rodriguez, 128 S. Ct. 1783, 1800 (U.S.
2008) (Souter, J., dissenting).
U.S. Dep't of Justice, Federal Prosecution of Corporations,
Memorandum from Deputy Attorney General Eric Holder to All
Component Heads and United States Attorneys §§ II, VI.B.
(June 16, 1999) (on file with the Department of Justice)
(authorizing prosecutors to request waivers of attorney-client
privilege and encouraging them to factor companies' compliance with
such "requests" into indictment decisions).
Id. (directing prosecutors to make an apparently independent
pre-indictment determination of employees' criminal culpability and
to consider a management decision to provide Legalcounsel to such
"culpable" employees to be additional grounds for indicting the
See, e.g., United States v. Stein, 541 F.3d 130, 155-57 (2d
U.S. Department of Justice, U.S. Attorneys' Manual §§
9-28.710 (stating that "prosecutors should not ask for such waivers
and are instructed not to do so"), 9-28.720 ("Eligibility for
cooperation credit is not predicated upon the waiver of
attorney-client privilege or work product protection.").
The Securities and Exchange Commission issued a new Enforcement
Manual in October 2008 with language placing some limits on the
ability of SEC staff to engage in practices similar to those
formerly authorized by the Holder memorandum and its successors.
See SEC Enforcement Div., Enforcement Manual § 4.3
(Oct. 6, 2008), available at http://www.sec.gov/divisions/enforce
/enforcementmanual.pdf. But important loopholes undermine the
effectiveness of this limiting language.
See Floor Statement of Robert C. "Bobby" Scott, Chairman,
Subcommittee on Crime, Terrorism, and Homeland Security, House
Judiciary Committee, in Support of H.R. 3013, the "Attorney-Client
Privilege Protection Act," Sep. 27, 2008.
Julie R. O'Sullivan, The Federal Criminal "Code" Is a Disgrace:
Obstruction Statutes as Case Study, 96 J. Crim. L. &
Criminology 643, 643 (2006) (citations omitted).
See Chris Sullentrop, "The Right Has a Jailhouse
Conversion," N.Y. Times, Dec. 24, 2006 (quoting then-U.S. Senator
Barack Obama describing how some members of the Illinois state
legislature factored election-year politics into their decisions
about whether to increase criminal penalties).
See United States v. Morrison, 529 U.S. 598, 618 (2000).
Crim. Law Div., Am. Bar Ass'n, The Federalization of Criminal
Law 2 (1998). The ABA Task Force was composed of 17 academics,
former prosecutors, Justice Department officials who served in
Democrat and Republican Administrations, and Members of Congress of
both major parties. Its final report was unanimous.
Baker, supra note 3, at 1, 5.
John C. Coffee, Jr., Does "Unlawful" Mean "Criminal"?
Reflections on the Disappearing Tort/Crime Distinction in American
Law, 71 B.U. L. Rev. 193, 216 (1991).
United States v. Calandra, 414 U.S. 338, 343 (1974).
Former Secretary of Labor Raymond J. Donovan famously captured the
destructive effect of mere indictment when, after a jury acquitted
him and each of his co-defendants of charges based on the
government's tenuous theory of criminal culpability, he asked,
"Which office do I go to, to get my reputation back?" Selwyn Raab,
"Donovan Cleared of Fraud Charges by Jury in Bronx," N.Y. Times,
May 26, 1987, at A1.
See Arthur Andersen LLP v. United States, 544 U.S. 696, 698,
706-08 (2005). Despite the U.S. Supreme Court's reversal of the
firm's conviction, the 28,000 partners and employees of
international accounting giant Arthur Andersen lost their careers
and everything they had invested in the firm when federal
prosecutors destroyed it by indicting the firm on a
hyper-aggressive and fallacious Legaltheory of the entire firm's
criminal culpability for the allegedly wrongful conduct of a
handful of its employees.
Prosecutors and Legalscholars alike have acknowledged that the
saying in essence is correct that if a prosecutor were to ask
nicely, a grand jury would indict a ham sandwich. See "The
Supreme Court, 1991 Term: Independence of the Grand Jury," 106
Harv. L. Rev. 191, 199-200 (Nov. 1992) (unsigned article); Martin
S. Himeles, Jr., Op-Ed., "How to Indict a Ham Sandwich," Wash.
Times, Aug. 18, 1999.
See Paul Rosenzweig, "Time Is Now for Federal Grand Jury
Reform," The Heritage Foundation, Feb. 21, 2003.