This morning the Supreme Court issued its long awaited decision in the case of Jeffrey Skilling. The most important aspect of the case concerned the so‐​called “honest services” statute. That law has been an amorphous blob that federal prosecutors could suddenly invoke against almost anyone. All nine justices acknowledged the law had problems, but only three–Scalia, Thomas, and Kennedy–said the law was unconstitutionally vague. The other six justices bent over backwards to “save” the law from invalidation–they ruled that the law should be narrowly interpreted. Here is, I think, the most telling passage from the majority’s ruling:

“As to arbitrary prosecutions, we perceive no significant risk that the honest services statute, as we intrepret it today, will be stretched out of shape.”

Instead of strict rules and limits on government power, the Court is content to offer leeway to the prosecutors–some risk of arbitrary prosecutions is acceptable you see. 


The burden ought to be placed on the government–legislators and prosecutors ought to be able to justify every single case. Instead, this Court needs to be persuaded that a significant risk of abuse exists. Here is a passage from a Supreme Court case from years ago that gets it right:

“A criminal statute cannot rest upon an uncertain foundation. The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue. Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizen may act upon the one conception of its requirements and the courts upon another.”

The second issue in the case concerned Skilling’s right to an impartial jury trial. And it came as no surprise that the Court embraced a prosecutor‐​friendly view of the Sixth Amendment. Skilling argued that the climate in Houston following the collapse of Enron was so hostile that he should have been granted a change in venue. He’s right about that. The prosecution should be indifferent as to whether they present their incriminating evidence in Houston or another city. Instead, the Court shifts the burden to the accused and sniffs, “sorry, you have not clearly proven to us that you were prejudiced by biased jurors. If someone could prove beyond a reasonable doubt that they had a biased jury, well that would be another story.” 


Here’s a modest proposal: This summer each justice should represent some persons accused of crimes. 


For additional background, go here.