The arguments in Black and Weyhrauch moved back and forth over what specific “honest services” are demanded by the mail fraud amendment adopted by Congress 21 years ago.  Is the law violated if a worker reads the racing form after misleading the boss into thinking he was actually working? What about playing hookey to go to a ball game? Or telling the boss you liked his hat when you really didn’t?  More broadly, might the law be so vague that 100 million workers might be violating it without knowing it?

So, the Justices wondered, if “the average citizen” cannot know what the law outlaws, can the law be constitutional?

This formulation presents an interesting problem.  Honest services fraud, on its face, would cover swiping a pen from your employer just as well as some petty politician accepting a bribe, and any number of theoretical schemes in between, Worse still, it leaves the definition of what constitutes “honest services,” or how a business person or government official should make decisions in the ordinary course of performing their function, subject to the armchair quarterbacking of federal agents and prosecutors.  Can you imagine some 28 year old AUSA telling the purchasing officer of some multinational that he committed a federal offense by buying from his pal, who happens to represent a company that he knows and trusts, rather than the lowest bidder with no track record and inadequately financed?  It could happen.

The fact that prosecutors love this crime so much is usually a sign that it’s a very bad law.  And when Justice Scalia thinks so, it must be.

But what of the “average citizen” angle?  Certainly no average joe can figure out what honest services fraud means, but if that’s going to be a read standard, the truth is that people haven’t got a clue what conduct violates most federal offenses.  And many state offenses as well.  I supposed this “average citizen” is the guy standing next to the “reasonable person,” another beloved fiction in the law.  Yet no one knows who either of these fellas are.  We’ve never met them.

Most of the criminal law, and particularly federal crimes, fall outside the comprehension and experience of normal people.  They don’t grasp the details, the elements, the aggravating and mitigating factors.  They may have a general idea of right and wrong, but the specifics elude them.  And of course, it’s not like they check out the statutes before deciding to commit a crime, just to be sure. 

There have long been cries that all laws should be comprehensible by anyone with a high school education, but that’s be shown ad naseum to be a pipe dream.  So if laws routinely, and necessarily, are beyond the ken of the average citizen, what are the limitations?  How specific must a law be to pass constitutional muster?

It appears that the Supremes are poised (at least after the Skilling case is argued) to hold that honest services fraud is unconstitutional, and good riddance.  As we watch prosecutors employ their “imagination” to find ways to criminalize whatever they want to prosecute, the question presented is where to draw the line.  While rejecting honest services fraud is a good start, there remains about 4000 federal regulatory/criminal offenses left that are subject to abuse and misuse because of imaginative applications and vague language. 

Where does it stop?  It would be great if the Supreme Court would let us know.  And if it stops with the “average citizen,” then there are a whole lot of laws that need tossing.