"Honest efforts"

The National Law Journal

December 7, 2009

By Tony Mauro

 

The trio of [honest-services] cases, as well as [Supreme Court Justice Antontin] Scalia's pique, come at a time of increasing focus on “overcriminalization,” a concern that vague federal laws like the honest-services statute are being used as catchalls to criminalize behavior that may be distasteful or unethical, but not illegal. Laws like honest-services fraud, critics say, violate the due process requirement that the public be given fair notice of what conduct is legal or illegal.

“Justice Scalia says he looks at the text of things, and he must have looked at this and said, ‘what the hell does this mean?’” said Boston criminal defense lawyer Harvey Silverglate. “Scalia has put his finger on the pulse of a real problem here.”

Silverglate, a longtime civil liberties advocate, has written a new book on the problem, Three Felonies a Day, which suggests, with slight exaggeration, that average citizens in the course of an ordinary day probably do things that violate as many as three federal laws, broadly construed.

 

But, as Scalia’s strong words indicate, it’s not just liberals like Silverglate who are sounding the alarm. Silverglate was featured at an event at the conservative Heritage Foundation. There, he was welcomed by former Attorney General Edwin Meese III, who has also spoken out about overcriminalization. “I was amazed. I wrote some vicious things about him when he was attorney general, with good reason,” Silverglate said. ... (Read on at law.com)