The Supreme Court on Broad Interpretations of Statutes and Prosecutorial Discretion

"[I]nsofar as the public fears arbitrary prosecution, it risks undermining necessary confidence in the criminal justice system."

|The Volokh Conspiracy |

From yesterday's Marinello v. U.S.:

[T]o rely upon prosecutorial discretion to narrow the otherwise wide-ranging scope of a criminal statute's highly abstract general statutory language places great power in the hands of the prosecutor. Doing so risks allowing "policemen, prosecutors, and juries to pursue their personal predilections," which could result in the nonuniform execution of that power across time and geographic location. And insofar as the public fears arbitrary prosecution, it risks undermining necessary confidence in the criminal justice system. That is one reason why we have said that we "cannot construe a criminal statute on the assumption that the Government will 'use it responsibly.' "

The background: Federal law makes it a crime to "corruptly … obstruct or impede, the due administration" of the Internal Revenue Code. The question before the court is whether this criminalized all actions that deliberately, and with a desire for illegal gain for someone (which is how "corruptly" has been read), make it harder for the government to assess and collect lawfully owed taxes, or was instead limited to attempts to obstruct a specific investigation (e.g., a pending audit). The defendant in this case was cheating on his taxes, but prosecuting him for that was made harder by his deliberately running an all-cash business and constantly shredding financial records; the court concluded that such practices were not themselves criminal under the statute.

Here's part of the Court's concern (in a seven-Justice opinion written by Justice Breyer):

A broad interpretation would also risk … lack of fair warning and related kinds of unfairness …. Interpreted broadly, the provision could apply to a person who pays a babysitter $41 per week in cash without withholding taxes, leaves a large cash tip in a restaurant, fails to keep donation receipts from every charity to which he or she contributes, or fails to provide every record to an accountant. Such an individual may sometimes believe that, in doing so, he is running the risk of having violated an IRS rule, but we sincerely doubt he would believe he is facing a potential felony prosecution for tax obstruction. Had Congress intended that outcome, it would have spoken with more clarity than it did in [the obstruction statute].

Justice Thomas, joined by Justice Alito, dissented, and responded to the above passages this way:

To be sure, [the law] is a sweeping obstruction statute. Congress may well have concluded that a broad statute was warranted because "our tax structure is based on a system of self-reporting" and "the Government depends upon the good faith and integrity of each potential taxpayer to disclose honestly all information relevant to tax liability."

The Court frets that the Omnibus Clause might apply to "a person who pays a babysitter $41 per week in cash without withholding taxes," "leaves a large cash tip in a restaurant," "fails to keep donation receipts from every charity," or "fails to provide every record to an accountant." Whether the Omnibus Clause would cover these hypotheticals—and whether the Government would waste its resources identifying and prosecuting them—is debatable. But what should not be debatable is that the statute covers Marinello, who systematically shredded documents and hid evidence about his company's earnings to avoid paying taxes even after warnings from his lawyer and accountant. It is not hard to find similar cases prosecuted under the Omnibus Clause. .

The Court, in its effort to exclude hypotheticals, has constructed an opening in the Omnibus Clause large enough that even the worst offenders can escape liability. In doing so, it failed to heed what this Court recognized in a similar case: "[T]he authority vested in tax collectors may be abused, as all power is subject to abuse. However, the solution is not to restrict that authority so as to undermine the efficacy of the federal tax system."

NEXT: She Was Caught Shoplifting When She Was 12. Why Is There a Warrant Out for Her Arrest 25 Years Later?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. The problem with the dissent is that their suggestion that Congress wanted such a wide berth violates the prohibition against general warrants.

    1. What?

      1. The government’s position in this case boils down to a belief that the tax code functions as a nationwide subpoena to keep and preserve records.

    2. Really disappointed with Thomas on this one.

      I get that he is saying that there is constitutional authority to collect taxes and the government should not be impeded in said collection.

      The reality is that just because the government has the authority to collect taxes, does not give the government endless power to criminalize behavior without proving that a person is not paying their taxes according to law.

      In other words, there are a million and one types of behavior that the government can say are behaviors to cheat on taxes but are actually not. Paying cash for everything or being paid cash for everything is not illegal. Not keeping records for cash transactions is not illegal.

  2. So how’s that taxation WITH representation working out for ya?

  3. Doing so risks allowing “policemen, prosecutors, and juries to pursue their personal predilections,” which could result in the nonuniform execution of that power across time and geographic location.

    It’s actually worse than that. Doing so allows prosecutors and the Executive branch to use the law to selectively pursue their political enemies. It also allows prosecutors to overcharge against defendants in an attempt to pressure them into admitting guilt. When almost everyone is potentially a criminal, then the criminal law becomes a tool of abuse in the hands of the prosecuting authority.

  4. Chief Justice Roberts put it well in United States v. Stevens, rejecting the government’s similar attempt to salvage an overbroad statute criminalizing visual depictions of animal cruelty from a first amendment challenge:

    Not to worry, the Government says: The Executive
    Branch construes ?48 to reach only “extreme” cruelty,
    Brief for United States 8, and it “neither has brought nor
    will bring a prosecution for anything less,”
    The Government hits this theme hard, invoking its
    prosecutorial discretion several times. But the First Amendment protects
    against the Government; it does not leave us at the mercy
    of noblesse oblige. We would not uphold an unconstitutional
    statute merely because the Government promised to
    use it responsibly.

    This prosecution is itself evidence of the danger in putting
    faith in government representations of prosecutorial
    restraint. When this legislation was enacted, the Executive
    Branch announced that it would interpret ?48 as
    covering only depictions “of wanton cruelty to animals
    designed to appeal to a prurient interest in sex.” No one
    suggests that the videos in this case fit that
    description. The Government’s assurance that it will
    apply ?48 far more restrictively than its language provides
    is pertinent only as an implicit acknowledgment of the
    potential constitutional problems with a more natural
    reading.

  5. We would not uphold an unconstitutional
    statute merely because the Government promised to
    use it responsibly.

    Thank you. I was going to bring up this exact quote.

  6. I’m surprised to find Alito and Thomas wrong, but they are. The rule of lenity obviously applies: criminal statutes should be construed narrowly. An ordinary person reading this would not think that it was a law against tax evasion. In fact, as Thomas and Alito read it, the jury could find that the defendant was completely honest about his taxes, he just obstructed tax administration by not keeping good records, because he wanted to save effort.

    This ruling is bad news for Mueller, isn’t it? His indictment against the 13 Russians used a broad conspiracy statute in a novel way. Did he use conspiracy against Manafort too? The spirit of the present case is that the Rule of Lenity is still good law, and federal prosecutors can’t use vague and broad statutes to punish minor offenses.

    1. “In fact, as Thomas and Alito read it, the jury could find that the defendant was completely honest about his taxes, he just obstructed tax administration by not keeping good records, because he wanted to save effort.”

      How would that qualify as corrupt under the definition apparently used for the statute?

      1. Because the government read it as an obligation to keep records up to their standards, and anything less was considered corrupt and evasive.

        In short, they believe the tax code functions as a nationwide subpoena to keep and preserve records.

        1. This is the same Government standards that constantly lead to scratched hard drives and recorded texts/emails saying to take the discussion in person, offline, personal email, or IM to avoid record keeping, right?

    2. If he did, it was only as a bargaining chip. Mnafort’s guilty plea was for lying to the FBI, about something that was arguably legal.

      1. Manafort pleaded guilty? Do you have insider information?

        1. No, apparently I’m getting the player’s mixed up.

  7. I very strongly agree that relying on the government to use a criminal statute “responsibly” is worse than foolish. I guess it saves the legislators time that they can use for fund-raising.

    [T]o rely upon prosecutorial discretion to narrow the otherwise wide-ranging scope of a criminal statute’s highly abstract general statutory language places great power in the hands of the prosecutor.

    True, but this is far from the whole source of too much prosecutorial power.

    Even if you avoid this you place great discretionary power in the hands of the prosecutor unless you require him to prosecute everything, and provide the funds to do so. No one is going to do that of course. It would be a nightmare. So Smith gets prosecuted, and Jones doesn’t, even though the facts of the two cases are the same. And of course that’s not the only kind of bad situation that can arise.

    1. I assume if an agency changes an interpretation in such a way that someone in jail would no longer be prosecuted, they get sprung?

    2. “I very strongly agree that relying on the government to use a criminal statute “responsibly” is worse than foolish. ”

      And yet you support agencies like the EPA and CFPB.

      1. Did you miss the part about criminal statute?

  8. So, is the court going to start narrowing the interpretation of the federal statute against lying to the FBI?

  9. I have some sympathy for the dissent. The better – more democratic – solution to ridiculously broad criminal statutes is to make sure the trial court checks in each case whether the prosecution is arbitrary, that is, whether the defendant had reasonable notice that their alleged act would land them where they did. (I.e. over and above the statute, if necessary.)

    Basically the idea is similar to what some of the Justices in the majority did in Furman v. Georgia. (Except as a due process point instead of cruel & unusual.)

    These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.

  10. “[we] cannot construe a criminal statute on the assumption that the Government will ‘use it responsibly.’ ”

    what flights of fancy would cause the court, or master scalia for that matter to imagine that the government would use a civil statute responsibly? one can only hope this line is augmented when they bansih chevron to the trash heap of history. just sayin’.

    and i don’t have so much of a problem with alito and thompson’s dissent as it goes not so much to the question of responsible government administration but responsible citizenship and the likelihood that Marinello was on notice of criminal liability. I would hope that were the issue solely cash dealing you wouldn’t see such a dissent but with regard to shredding records against advice of counsel of various sorts i think the option is maybe not to keep records as opposed to not to keep them. . . . .

    1. thomas goddamn it. when are you going to get correction on these friggin blog comment. do we all have to leave to leave as a market signal or might it sink in ahead of time.

  11. We all can be having madden mobile hack here for the coins online.

Please to post comments

Comments are closed.