Supreme Court Justice Antonin Scalia lived a full life by many measures, and so it is difficult to call his death “tragic” in the traditional sense. However, his absence from the Supreme Court will almost certainly leave a hole not likely to be filled, regardless of whether the replacement appointment is made by a Democrat or a Republican. It will be very difficult to find a justice who would make as serious an effort as Scalia constantly made to enforce rights even when such enforcement produced results that some – especially what we call the “law and order” set – disliked.
Scalia’s impatience was particularly acute when dealing with a problem that is disturbingly common in federal criminal law: the plethora of statutes so vague and broad that no person of normal intelligence – or even superior intellect for that matter – can figure out where the line is being drawn between crime and business-as-usual. Scalia was the member of the court most disturbed when a citizen found himself convicted of violating a statute that gave no fair and clear guidance of the demanded standard of conduct.
Scalia was what we lawyers call an “originalist”—someone who believes that when the Constitution was written, its words, phrases, and concepts were meant to set out a blueprint for a society where government powers are limited, where citizens’ (and others’) rights and obligations are spelled out, and where those dictates are not lightly trampled upon in the absence of a hard-to-obtain amendment to the Constitution. Original meaning, in other words, does not change with the times in the absence of an amendment.
Scalia took literally and absolutely some constitutional commandments that other judges and justices try to skirt or re-define in order to achieve what they view as some overriding social or political goal. Scalia prioritized free speech rights, freedom from unreasonable searches and seizures, protection of the right to trial by jury (despite others’ repeated attempts to cut corners), and, importantly, the obligation of Congress and state legislatures to enact clearly-worded criminal statutes that gave fair warning of what actions (or inactions, for that matter) could land one in prison.
This notion – that all of us are entitled to have the clear guidance of the law in deciding what we should and should not do – is essential to liberty. Indeed, it curtails the power of the government to decide anew what is unlawful whenever prosecutors want to bring a case. The notion is not exactly new, having (in theory at least) been enshrined as one element of “Due Process of Law.” Due Process is a concept set forth in the original Bill of Rights that constricts the power of the federal government to infringe on an individuals’ rights. After the Civil War, the concept was written into the Fourteenth Amendment, applying it to state governments that might otherwise be tempted to interfere with the property or liberties of citizens without resort to fair processes.
However, one (among several) of the reasons that this nation has such a mammoth prison population is that Due Process is too often honored more in the breach than the observance. It is frightfully easy for the government, particularly the federal government with its many complex and vague criminal statutes, to throw any of us in prison once we become the target of an overly-ambitious or megalomaniacal federal prosecutor, as I pointed out in my 2009 book, Three Felonies a Day: How the Feds Target the Innocent.
Justice Scalia, more than any other member of the high court during his 30-year tenure, waged war with the government’s attempt to attack the liberty of citizens and others by brandishing laws that nobody really could comprehend. He understood, as few judges do, the extent of the day-to-day tyranny inflicted by any legal system where the laws are not clear as to what conduct can land a citizen in prison. In the 2011 Supreme Court case Sykes v. United States, Justice Scalia articulated this very concern. The majority determined that a particular crime – felony vehicle flight – constituted a “violent felony” under federal law; in practice, this ruling meant that the individual at the heart of the case was subject to a 15-year mandatory minimum prison sentence. Scalia dissented from the majority, arguing that the federal law in question was so vague in defining a “violent felony” that punishing Sykes under it was unconstitutional. He wrote, in part:
“We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty.”
In the area of white-collar criminal law, Scalia railed against the so-called crime of “honest services fraud,” and made clear his distaste for this catch-all provision employed in so many prosecutions of businessmen, not all of them important and wealthy enough to have the benefit of expensive legal counsel. (And, in truth, even expensive lawyers can’t understand what the “honest services fraud” statute covers.) In a partial concurrence in the Supreme Court case Skilling v. United States (2009), Scalia wrote: “In my view, [the honest services fraud statute] is vague, and therefore violates the Due Process clause of the Fifth Amendment.” Scalia later repeated this condemnation in his written concurrence in Black v. United States (2010). He simply did not believe in jailing people who could not be expected to understand what conduct would land them in jail.
The logical outgrowth of Scalia’s opposition to the use of vague statutes criminalizing certain business practices is that employing such tactics against politicians is equally unconstitutional, and perhaps even more dangerous. Indeed, if a prosecutor can charge a politician with a felony for engaging in what is, in reality, the “give and take” of ordinary political intercourse, then it is really the unelected federal prosecutors (and their henchmen in the FBI) who run the country. Massachusetts is quite familiar – too familiar – with federal efforts, most of them successful, to convict state politicians for engaging in perhaps unsavory, but not clearly illegal conduct.
Consider former Speaker of the Massachusetts House of Representatives Sal DiMasi. (DiMasi is currently critically ill but is still being held on a lengthy federal sentence for engaging in activities that are not clearly criminal. I wrote about the case here and here.) More recently, former probation commissioner John O’Brien is appealing his politically-tinged conviction for engaging in little more than quite ordinary patronage appointments. He and other similarly-situated former Probation Department employees whose appeals are now pending in the federal courts will sorely miss the insight and intellectual heft that Justice Scalia brought to the task of seeing through prosecutions under vague statutes.
Massachusetts political figures are not the only ones who will miss Scalia’s intolerance of Department of Justice infringement on individual rights. Shortly before Justice Scalia’s death, the high court agreed to review the conviction of former Virginia Governor Robert McDonnell, convicted under a number of vague federal statutes (including depriving the citizens of the governor’s “honest services”) for engaging in what most knowledgeable observers consider quite unremarkable and indeed common political activity. The high court, obviously with Scalia in favor, voted to review McDonnell’s conviction and prison sentence after receiving 11 friend-of-the-court briefs urging review, including one submitted by 60 former state attorneys general. The case has yet to be scheduled for oral argument; it will be decided, sadly, without Scalia’s intellectual leadership or his vote.
I personally am of the view that after taking several incremental steps, with Justice Scalia in the lead, to toss out convictions of state political figures who had not committed a clearly delineated crime, the high court was ready, once and for all, to invalidate the vague and broad federal statutes that for decades have allowed federal prosecutors to engage in a veritable reign of terror against state and even federal political figures – a reign that conveniently facilitates many prosecutors’ own career advancement. Without Scalia’s eloquence and leadership, the court will probably not administer the long-awaited coup de grace on the Department of Justice’s open season on law-abiding politicians. Politicians are not often the most popular folks on the block, but our social and political structures are in danger if we let federal prosecutors, enabled by federal judges, run roughshod over state politics.
Rebalancing politics and federal criminal law may have to await the next Antonin Scalia, and I would not make a wager that such a justice is likely any time soon. It takes a certain intellect, and a certain character and courage, to tell the Department of Justice that, like the fabled emperor, it is wearing no clothes.
Harvey Silverglate, who practices criminal defense and civil liberties law in Cambridge and Boston, is the author, most recently, of Three Felonies a Day: How the Feds Target the Innocent (Encounter Books 2009, updated 2nd edition 2011). He is currently at work on a sequel, tentatively titled Conviction Machine, which will focus on recommended legal reforms to prevent the conviction of the innocent. Thanks go to research assistant/paralegal Samantha Miller for assistance in preparing this piece.