Reforming the Federal Criminal Code Within the Context of White Collar Crime

Frank C. Razzano

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In 2003, a Federalist Society study estimated that there were more than 4000 federal crimes scattered throughout the fifty titles of the U.S. Code. That number jumps to 10,000 if criminal enforcement of federal regulations is included. While the numbers are astounding, what is even more disturbing for members of a democratic society is the fact that the majority of these laws are vague and ambiguous. For example, there are more than 100 different types of mens rea in these statutes. Even the commonly used term “willfully” has many meanings in federal criminal law.
This Article illustrates this fatal flaw of American criminal law by analyzing two of the Department of Justice’s favorite tools for combatting white collar crime: the honest services fraud statute, 18 U.S.C. § 1346, and the securities fraud statute, 15 U.S.C. § 10(b). As shown below, these two statutes are so vague, ambiguous, and overly broad that even the U.S. Supreme Court has had difficulty figuring out what they mean—ultimately engaging in judicial legislation to add some measure of specificity to these hopelessly overbroad laws. As proud as we may be of our nine Supreme Court justices, they are not our elected representatives and should not be making up the law as they go along because that clearly is the task of Congress.
46 New Eng. L. Rev. On Remand 70 (2012)

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