(Commentary by Heritage’s Brian Walsh)

The Supreme Court yesterday decided not to consider an important case, Sorich v. U.S., on the meaning and scope of an exceedingly broad federal statute that has been used to prosecute a breathtaking range of conduct. Associate Justice Antonin Scalia again broke with the strict law-and-order stereotype often applied to conservative jurists by penning a trenchant dissent to the Court’s decision not to review the case. Scalia’s dissent also helps illustrate the dire need for federal criminal-law reform.

Two decades ago, the Court overturned judicial law-making by the lower federal courts, which had fabricated an extension to the already broad federal mail and wire fraud statutes. Under this judge-made extension, public officials at any level of government could be convicted of federal mail or wire fraud if they deprived their constituents of the “intangible right” to their government officials’ “honest services.”

The law was an open-ended invitation to federal prosecutors to bring charges against any official they considered dishonest. It failed to provide clear warning and guidance as to what conduct is and what conduct is not criminal under the statutes. Any such criminal law should be held invalid.

Even though the Court years ago overturned the lower federal courts’ “honest services” innovation, Members of Congress love to campaign as being “tough on crime.” Many apparently think that nothing is better to include in a stump speech than being able to say they voted to “end public corruption.” Congress thus promptly passed an “honest services” statute that reinstated this vague, open-ended law.

Both Scalia’s dissent and a recent Wall Street Journal report have pointed out that federal prosecutors have not limited their application of the “honest services” statute to allegedly corrupt government officials. Students who “schemed with their professors to turn in plagiarized work” have been prosecuted as have college coaches who violated the rules of the NCAA, a private association, and thus allegedly deprived their schools of the “intangible right” to their “honest services.”

Even without the “honest services” branch, the federal mail and wire fraud statutes are so broad that, as Heritage pointed out in a recent letter to Congress co-authored with the National Association of Criminal Defense Lawyers, law professors have called them “a charter of authority for courts to decide, retroactively, what forms of unfair or questionable conduct in commercial, public and even private life should be deemed criminal.”

The Court should not have rejected this case. How many Americans conduct themselves with perfect honesty in all professional situations at all times? Dishonesty is always wrongful, but the solution is not to give government a blank check to punish dishonesty criminally whenever prosecutors deems it to be worthy of prison time.

When the primary thing standing between Americans and prison time is the good graces of federal prosecutors, we no longer have the benefit of the rule of law. Our freedoms are subject to the whims of men.