Washington's biggest crime problem: the federal government's ever-expanding criminal code is an affront to justice and the Constitution

Reason, April, 2004 by William L. Anderson, Candice E. Jackson

As the definition of RICO offenses makes clear, any truly wrongful acts covered by the law are already criminalized in other statutes. Not only are RICO violations derivative offenses, but so are many of the underlying crimes the law lists, such as mail fraud and money laundering. RICO adds nothing of substance of value to the federal criminal code, except as a weapon in the hands of investigators and prosecutors.

Derivative crime laws are designed to facilitate convictions, not to protect anyone. Consider the derivative crime of mail fraud, which involves using the malls to perpetrate a fraud. Since almost everyone mails letters, it's easy to satisfy part of the definition and make an indictment stick. If the defendant refuses to plead guilty, the government has to produce only the weakest circumstantial evidence to allow a jury to conclude that the defendant's letter was part of a scheme to defraud someone, and the defendant faces up to 20 years in prison--and potentially an additional 20 years for a RICO violation.

Most federal criminal laws are derivative because of constitutional constraints on the federal government. For example, Congress has no constitutional authority to make it a crime for one person to defraud another. But it does have the authority to regulate interstate commerce. In 1909, relying on a strained interpretation of that power, Congress passed a law that made it a crime to use the national mail system, even incidentally, to defraud someone.

In the 1916 case Badders v. United States, Supreme Court Justice Oliver Wendell Holmes brushed aside the lack of constitutional authority for this statute, upholding a man's conviction on seven counts of mail fraud (one for each letter) and his sentence of five years' imprisonment per count and a $7,000 fine. Writing for the majority, Holmes reasoned that Congress has the power to regulate (and criminalize) use of the malls even though Congress would have no constitutional authority to criminalize the underlying fraud. "Intent may make an otherwise innocent act criminal," wrote Holmes, "if it is a step in a plot." Citing Supreme Court cases upholding similar laws regulating the use of the mails, Holmes concluded, "Whatever the limits to its power, [Congress] may forbid any such acts done in furtherance of a scheme it regards as contrary to public policy, whether it can forbid the scheme or not."

The Supreme Court's reluctance to question the use of the Commerce Clause as a license to pass criminal laws has created a situation in which Congress has virtually plenary authority to criminalize whatever conduct it chooses. In the 1995 case United States v. Lopez, the Supreme Court ruled for the first time in 60 years that a federal criminal law exceeded Congress' authority under the Commerce Clause. The law in question, the Gun-Free School Zones Act, made it a federal crime to possess a gun in or near a school. But most lower courts have refused to apply that decision in subsequent cases. If the Supreme Court is serious about restoring federalism by imposing meaningful checks on congressional authority, it will have to speak to the issue again, and more forcefully.