Criminalizing the Denial of Honest Services after Skilling
38 Pages Posted: 11 Sep 2010 Last revised: 22 Mar 2011
Date Written: September 10, 2010
The United States Supreme Court’s recent decision in Skilling v. United States is only the latest in a series of blows that the Court has dealt to the intangible rights theory of mail fraud (also known as honest services fraud). In Skilling, the Court considered the constitutionality of the so-called honest services statute, which criminalizes “scheme[s] or artifice[s][designed] to deprive another of the intangible right of honest services,” and narrowed its scope considerably by limiting the application of the statute to schemes to defraud involving bribes or kickbacks. The Court rejected the notion that the statute applies to undisclosed self-dealing by a public official or private employee and called on Congress to “speak more clearly” if it desired the statute “to go further.”
To address criminal conduct that would no longer be penalized following the Court’s drastic narrowing of the honest services statute, this Article provides recommendations concerning what the new honest services statute, which Congress would enact to replace the current, eviscerated statute, should look like. The considerations advanced in the Article aim to ensure that the new statute avoids potential federalism concerns, as well as the charges of vagueness that plagued the previous iterations of the honest services statute. Additionally, they provide a means of punishing truly criminal conduct that would otherwise fall outside the scope of the honest services statute (as it currently stands), the mail and wire fraud statutes, and 18 U.S.C. § 666.
The Article strives to provide an outline of what the new honest services statute, which Congress would enact to replace the current, eviscerated statute, should look like. In doing so, it first traces the development of the intangible rights theory from its inception until present day. Then, it analyzes the Court’s decision in Skilling. In light of Skilling, the Article examines the potential alternative means through which the government can pursue criminal conduct relating to the denial of honest services. Finally, the Article evaluates the cases that the new honest services fraud statute should address, provides recommendations for reform of the statute, and applies these recommendations to a recently proposed statute - the Honest Services Restoration Act.
Keywords: United States v. Skilling, Honest Services, Mail Fraud, Intangible Rights
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