The Corner

A Broad Coalition for Reform

The Heritage Foundation and the National Association of Criminal Defense Lawyers might seem to have little in the way of a common agenda. But when it comes to the issue of misusing the power of government, the two groups have had a meeting of the minds. In a new report, they found dozens of recently enacted laws were so vague that they lacked an adequate means of determining whether the accused had ever formed criminal intent. From the Associated Press coverage:

“It is a fundamental principle of criminal law that, before criminal punishment can be imposed, the government must prove both a guilty act and a guilty mind,” the groups said in the report.

Even when Congress includes a “guilty mind” provision in a law, “it is often so weak that it does not protect defendants from punishment for making honest mistakes,” or committing minor transgressions, the report said.

The Supreme Court is reviewing three cases involving prosecution under a federal fraud statute that Justice Antonin Scalia has described as a potent tool in the hands of “headline-grabbing prosecutors” in pursuit of behavior that may be unappealing or ethically questionable, but not necessarily criminal.

Scalia said the law is so vague it could be employed against a mayor for using political clout to get a good table at a restaurant or a salaried employee who phones in sick to go to a ballgame.

Heritage’s Ed Meese explains more about the problem here. By the way, while I tend to agree with the proposition that Congress and many state governments have enacted questionably vague criminal statutes in recent years, I’m concerned that any attempts to rewrite the federal anti-corruption law Scalia criticizes will hamper the prosecution of crooked politicians, of which there are distressingly many. There’s a needle to be threaded here, and I simply lack confidence in the legal tailoring skills of the political class.

John Hood is president of the John William Pope Foundation, a North Carolina-based grantmaker. His latest book is a novel, Mountain Folk (Defiance Press, 2021).


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