Whenever one has his fill of optimism and hopefulness for mankind, just stop by Crime & Consequences for good, hard slap in the face. Bill Otis does it again in his preview of the argument over honest services fraud, 18 USC 1346, as the Supremes prepare to hear the case of former Enron CEO, Jeffrey Skilling, this week.
It’s not that anyone speaks well of Skilling, and (as Otis notes) his conviction for honest services fraud is but one of the crimes of which he stands convicted, meaning that he’s unlikely to walk free regardless of the outcome of this case. But the Supremes have already made it abundantly clear, during the arguments in Conrad Black’s and Bruce Wehyrauch’s cases that the statute is so vague as to give no clue what’s conduct falls within its purview.
Otis proclaims that the big issue isn’t legal, but cultural. We are a culture of liars, cheaters, fraudsters and deceivers.
The subtext of the Court’s questioning in Black and Wehyrauch was that people can’t really know when they’re trying to pull a fast one that could get them in trouble with the law. But evidence in those cases and even more so in this one proves otherwise. Indeed, it illustrates the truth the government’s brief seems unwilling to speak, namely, that people know full well when they’re cheating. Employees by the million may well spend worktime messaging on Facebook or looking at the porn site or the betting odds.
But that such behavior is widespread scarcely shows, or even suggests, that it’s honest or that anyone thinks it’s honest. It is precisely because it’s known to be dishonest that the instantaneous mouseclick when the boss shows up at the door has become an American artform. Thus the Court’s real objection seems to be, not that the statute is too broad for people to know what is forbidden, but that the culture has come largely to accept this “slightly forbidden” behavior, and that a statute making it potentially a federal felony is not so much too vague as it is too sweeping and too harsh, given what in today’s world is accepted as grounds for getting docked a pay’s pay, or at worst getting fired, but by no means going to federal prison.
His first point, that we have lowered the bar of integrity, is hard to dispute. But do we really know it to be dishonest? Otis believes so, and that we are either lying to ourselves or to the government as we engage in ” ‘slightly forbidden’ behavior,” knowing that we are cheating but unprepared to accept that it’s wrong enough to warrant serious sanction.
Otis, on the other hand, rejects our cultural excuses. Cheating is cheating, and in his eyes, we all know it and deserve whatever we get. Unfortunately, he fears our weak Supreme Court to be a part of this diseased culture of cheaters.
Otis, on the other hand, rejects our cultural excuses. Cheating is cheating, and in his eyes, we all know it and deserve whatever we get. Unfortunately, he fears our weak Supreme Court to be a part of this diseased culture of cheaters.
That the Court is inclined to accept the culture of which it is a part is not exactly surprising. But at a deeper level, it’s ominous. That’s because the culture the Court is accepting is a culture of deceit. We are drowning in slick talk and slick dealing. It’s everywhere from “teaser” rates to liar loans to the razzle-dazzle fine print in your frequent flier statement, your car repair warranty and your credit card bill. Your e-mail is bulging with offers ranging from half-truth come-on’s to outright swindles. You can’t watch TV for 20 minutes without hearing some miraculous offer to “fix” your credit, all followed up by some fellow who races through the real terms in a voice so fast and low no human ear could understand it.
For Otis, it’s the “broken windows” theory of honesty. He, as is clear, has appointed himself as the arbiter of honesty, as well as the seer of our cultural intent. He knows what evil lurks in our hearts, and as you click on Youtube at work, he knows of the criminal lust in your heart.
Honesty is a cultural problem, and we have become too tolerant of deception, excused as mere puffery in our quest to make a quick buck or have an easy life. But the solution to banal dishonesty isn’t to criminalize our every dubious move and send everyone to prison. And while we would do better with a culture that admires, even rewards, integrity, it’s hardly so bad that we’re about to fall into the abyss.
It may bother Bill Otis far more that someone is “getting away with something” in some cubicle somewhere than that we have a vague law that presumes that we all know when we are cheating, and hence that we deserve whatever we get. Thankfully, it doesn’t appear that the Supreme Court is ready to hand the government a statute that would enable the prosecution and imprisonment of essentially anyone for failure to live up to Bill Otis’ standards.
Of course, Congress did pass it, and the President did sign it, so don’t think that Bill Otis’ nasty vision of Americans as criminals all can’t happen again.
The law is a moral teacher, and for good or ill the Supreme Court, its Constitutional limitations notwithstanding, has become our National Council of Elders. The Court probably knows that our society could use a lesson in the need for telling the truth. But even the most powerful instrument of law has little chance of rescuing respect for honesty from a culture that has so thoroughly marginalized it. The country most in need of an enforceable requirement for honest dealing in everyday life is the country least likely to achieve one.Lie, cheat and steal. When Harvey Silverglate wrote three felonies a day, he wasn’t just trying to scare us, but to warn us. That it’s too much even for the Supreme Court to have laws that leave it up to the sour-faced school marms like Bill Otis to provide our moral guidance upon pain of federal imprisonment says a lot.
Honesty is a cultural problem, and we have become too tolerant of deception, excused as mere puffery in our quest to make a quick buck or have an easy life. But the solution to banal dishonesty isn’t to criminalize our every dubious move and send everyone to prison. And while we would do better with a culture that admires, even rewards, integrity, it’s hardly so bad that we’re about to fall into the abyss.
It may bother Bill Otis far more that someone is “getting away with something” in some cubicle somewhere than that we have a vague law that presumes that we all know when we are cheating, and hence that we deserve whatever we get. Thankfully, it doesn’t appear that the Supreme Court is ready to hand the government a statute that would enable the prosecution and imprisonment of essentially anyone for failure to live up to Bill Otis’ standards.
Of course, Congress did pass it, and the President did sign it, so don’t think that Bill Otis’ nasty vision of Americans as criminals all can’t happen again.
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