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INTRODUCTION
The authors thank Rachel Barkow, Pam Karlan, Daryl Levinson, Jerry Lynch, J.J.
Prescott, and Carol Streiker for helpful comments on earlier drafts.
583
1. The quote appears in a host of sources; for recent examples on three continents,
see Anniversaries, Times (London), Jan. 17, 2003, at 38; Avoiding Taxes Is as American as
Apple Pie, Balt. Sun, July 4, 2004, at 5D; Mati Wagner, Gov't Takes Aim at Black Market,
Jerusalem Post, Dec. 19, 2003, at 13.
2. For the best accounts of Capone's exploits and the government's surprising means
of putting a stop to them, see generally Laurence Bergreen, Capone: The Man and the
Era (1994); John Kobler, Capone: The Life and World of Al Capone (1971). Even in
1931, there were precedents for Capone's prosecution. A bootlegger named Manley
Sullivan took his case to the Supreme Court, which decided in 1927 that the privilege
against self-incrimination did not entitle him to decline to file an income tax return on the
ground that all his income was from illegal sources. United States v. Sullivan, 274 U.S. 259,
263-64 (1927) ("It would be an extreme if not an extravagant application of the Fifth
Amendment to say that it authorized a man to refuse to state the amount of his income
because it had been made in crime."). Closer to home, Al's brother Ralph was convicted
in 1929 on tax charges. Bergreen, supra, at 363-65.
3. The leading case addressing this argument is Wayte v. United States, 470 U.S. 598
(1985). Wayte is not exactly a pretext case, though it's close. The defendant, along with
674,000 other young men, had illegally failed to register for the draft. But he had done
something else: Repeatedly, the defendant wrote the Justice Department letters
announcing that he would never register and daring them to prosecute him. See id. at 601
n.2, 604. Eventually, they obliged-whereupon the defendant claimed he was being
prosecuted for writing the letters, not for failing to register. Id. at 603-04. The Supreme
Court rejected the argument. Id. at 607-14.
4. Again, in doctrinal terms the leading case is Wayte. See supra note 3. More
conventional pretext claims appear in, for example, United States v. Sacco, 428 F.2d 264,
271-72 (9th Cir. 1970), where the defendant claimed his prosecution for violating the
alien registration statute was motivated by his organized crime associations. See also
United States v. Trent, 718 F. Supp. 39, 39 (D. Or. 1989) (defendant claimed his drug
prosecution was motivated by his gang associations); People v. Mantel, 388 N.Y.S.2d 565,
566 (1976) (defendant charged with building code violations claimed government had
singled out proprietors of "sex shops"); 4 Wayne R. LaFave et al., Criminal Procedure
? 13.4(c) (1999) (discussing pretextual prosecution and deferential "rational relationship"
standard applied by the courts).
6. The leading articles in this vein are Dan M. Kahan, The Secret Ambition of
Deterrence, 113 Harv. L. Rev. 413 (1999), and Dan M. Kahan, Social Influence, Social
Meaning, and Deterrence, 83 Va. L. Rev. 349 (1997). For an interesting discussion of the
implications of work such as Kahan's for criminal law scholarship, see Bernard E.
Harcourt, After the "Social Meaning Turn": Implications for Research Design and
Methods of Proof in Contemporary Criminal Law Policy Analysis, 34 Law & Soc'y Rev. 179,
186-97 (2000). For a sharply critical analysis of this literature and of Kahan's work in
particular, see Robert Weisberg, Norms and Criminal Law, and the Norms of Criminal Law
Scholarship, 93 J. Crim. L. & Criminology 467, 470 (2003).
7. For a more extended discussion of this point, see William J. Stuntz, The
Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 520-23 (2001) [hereinafter
Stuntz, Pathological Politics].
8. Richard Posner's book tells the story well. See Richard A. Posner, An Affair of
State: The Investigation, Impeachment, and Trial of President Clinton 16-31 (1999).
9. See Constance L. Hays, Martha Stewart Indicted by U.S. on Obstruction, N.Y.
Times, June 5, 2003, at Al.
10. Clinton was investigated and impeached for a combination of perjury and
obstruction ofjustice. Stewart was convicted of violating the federal false statements statute
and obstruction of justice.
11. On Clinton, see, for example, James B. Stewart, Blood Sport: The President and
His Adversaries 41-179 (1996). Although Stewart's account was written well before the
Lewinsky story broke, it captures the fervor of the people trying to take Clinton down.
According to the conservative press, a similar fervor gripped the federal officials who
pursued Martha Stewart. See Holman W. Jenkins, Jr., Editorial, Justice Tries to Give
Herself a Black Eye, Wall St. J., Jan. 28, 2004, at A17 (noting that federal prosecutors
What is it about these cases that attracts so much criticism? Take the
four listed characteristics in turn. First, law enforcers found evidence of a
minor crime while looking for evidence of a major one. Michelin travel
guides label some destinations "worth a trip"; others only "worth a de-
tour."12 People who work in prosecutors' offices and police agencies
often draw a similar line. The list of crimes worth ginning up an investi-
gation is fairly small; the number of crimes worth pursuing if discovered
in the course of some other investigation is a good deal larger. This
sounds fishy: If the minor crime wasn't worth initiating an investigation,
why is it worth enforcing at all? Yet there is not necessarily anything unto-
ward about enforcing some crimes in this way. "Detour" investigations
are cheaper and likely to have a higher success rate than freestanding
investigations. And by definition, detours involve suspects who may well
be guilty of other crimes, so the risk of injustice is lower than in freestand-
ing investigations: Whatever the odds were that Capone was innocent of
the tax charge, the odds that he was both innocent of that charge and
innocent of the crimes that first prompted his investigation must have
been vanishingly small. Not a bad formula for enforcing marginal but
necessary criminal prohibitions.
Which leads to the second feature of pretext cases. Plainly, tax eva-
sion, perjury, false statements, and obstruction of justice-the crimes
prosecuted in the Capone and Stewart cases and the crimes for which Bill
Clinton was impeached-cannot be enforced across the board. Budget
constraints do not allow for widespread enforcement. Were it otherwise,
tens of thousands of civil lawsuits each year would produce perjury prose-
cutions (Clinton is far from the only civil litigant who shaded the truth in
a deposition), and tax cheats would fill the federal prisons. Equally
plainly, such crimes should not be left entirely unenforced. As much dis-
honesty as our tax and litigation systems have now, they would surely have
a good deal more if neither litigants nor lawyers feared criminal sanctions
for their lies.
pursued Stewart because her "tabloid notoriety" ensured that "multiple parties [found]
careerist value in picking on her"); Paul Craig Roberts, Editorial, Judicial System Casualty,
Wash. Times, Mar. 12, 2004, at A21 (describing indictment, trial, and conviction of Stewart
as "Kafkaesque" and "political persecution"); Alan Reynolds, Obstructing Injustice: The
Stewart Chase, Nat'l Rev. Online, June 24, 2003, at http://www.nationalreview.com/
comment/comment-reynolds062403.asp (on file with the Columbia Law Review)
(maintaining that charging Stewart with making false statements seemed "more like a
desperate way for her original accusers to save face than a serious effort to protect any real
people from any real crimes"); cf. Joan MacLeod Heminway, Save Martha Stewart?:
Observations About Equal Justice in U.S. Insider Trading Regulation, 12 Tex. J. Women 8&
L. 247, 251 (2003) (suggesting that Stewart might have been singled out because she is "a
very visible and controversial female public figure with political interests adverse to those
of the Bush administration").
12. See, e.g., Michelin Travel Publications, The Green Guide to Sicily 2 (2d ed. 2001).
19. Tom Wolfe, The Bonfire of the Vanities 491 (1987). Concern for Great White
Defendants might seem strange in a system whose prison population is as heavily African
American as is ours. But in truth it isn't strange at all: In a world where there aren't many
rich white defendants, nailing one for a high-profile violent crime is likely to be a real
coup.
20. Gordon, supra note 17, at 672.
21. Id. at 672-73.
29. "The law, in its majestic equality, forbids the rich as well
under bridges, to beg in the streets, and to steal bread." Anatole Fr
(Winifred Stephens trans., 1927) (1894).
30. Notice the irony. Conventional application of rule-of-law a
the other way: Capone was held to a different and more exacting s
the population, and he was punished much more severely than ordin
time, or of our time, for that matter. Yet failing to punish Capone,
the average tax cheat who gets away with his crime, would have sen
mobsters are above the law. That is a disastrous signal for any legal
31. The risk is even greater when criminal law is let loose on s
e.g., Richard Gid Powers, Broken: The Troubled Past and Uncerta
62-70 (2004) (discussing the prosecution of champion boxer Jack J
the Mann Act). Powers notes that:
Parkin [Johnson's prosecutor] admitted that while Johnson the "
have been unfairly singled out for prosecution, "it was his misfo
foremost example of the evil in permitting the intermarriage of w
There are very few cases like People v. Kail.35 As part of a police
crackdown on prostitution, officers in Champaign, Illinois were in-
structed to arrest suspected prostitutes for anything and everything in the
criminal code and local ordinances. Kail was a prostitute in Champaign.
She was arrested for riding a bicycle without a bell, in violation of a local
criminal ordinance. A search incident to arrest turned up some drugs,
for which Kail was later convicted. The Kail court overturned the convic-
tion, on the legally dubious ground that the arrest violated the Equal
Protection Clause.36 A spirited dissent cited and quoted Mantel.37
Based on the conventional debate about pretextual prosecutions, the
combination of Mantel and Kail is close to ideal. Mantel establishes that
... he has violated the law. Now it is his function to teach others the law must be
respected."
Id. at 69. Johnson's case is a particularly chilling example of the underside of celebrity
prosecution and the high cost of overcriminalization.
32. 388 N.Y.S.2d 565 (1976).
33. See id. at 566-69.
34. The key case is United States v. Armstrong, 517 U.S. 456 (1996), which holds that
in order to obtain discovery, the complaining defendant must point to similarly situated
persons who could have been prosecuted but were not. How many such persons the
claimant need identify is unclear, but the number is probably substantial. To prevail, th
defendant must also show that the prosecutorial policy was motivated by a discriminator
purpose. Id. at 463-71. Successful claims are almost impossible to find. For an excellen
analysis of the problem-written nearly a decade before Armstrong, but still on point-se
generally Steven Allen Reiss, Prosecutorial Intent in Constitutional Criminal Procedure,
135 U. Pa. L. Rev. 1365 (1987).
35. 501 N.E.2d 979 (Ill. 1986).
36. Id. at 980-82.
37. Id. at 982-83 (Green, J., dissenting).
44. Starr's successor ultimately issued a report finding the available evidence
"insufficient to prove to a jury beyond a reasonable doubt that either President or Mr
Clinton knowingly participated in any criminal conduct..,. or knew of such conduct." S
Robert W. Ray, Independent Counsel, 1 Final Report of the Independent Counsel In
Madison Guaranty Savings & Loan Association 155 (Jan. 5, 2001).
The analogy is not apt. Even during the Mob's heyday, the press and
public could obtain good information on the makeup and conduct of the
leading families, without regard to any criminal litigation. And there
were independent measures of the most serious crimes those families
committed-including homicide.46 Criminal prosecution and conviction
were not necessary to tell the public that Capone's organization existed,
who belonged to it, or how much of a threat it was. In that setting, prose-
cutions for bagging too many migratory birds may have been socially
costless. Not so with respect to terrorism, where accurate information is
very hard to come by and independent measures may not exist. In this
context, prosecutions for spitting on sidewalks may prove very costly
indeed.
This fact should seem puzzling. State and federal codes alike con-
tain long lists of crimes like tax evasion, perjury, obstruction of justice,
and the excessive hunting of migratory birds.47 Local district attorneys
45. Attorney General John Ashcroft, Prepared Remarks for the U.S. Mayors
Conference (Oct. 25, 2001), available at http://www.usdoj.gov/ag/speeches/2001/agcrisis
remarksl0_25.htm (on file with the Columbia Law Review).
46. See Fed. Bureau of Investigation, U.S. Dep't of Justice, Uniform Crime Reports
(UCR): Crime in the United States, available at http://www.fbi.gov/ucr/ucr.htm (on file
with the Columbia Law Review). For excellent discussions of the UCR's history and
significance, see generally Lawrence Rosen, The Creation of the Uniform Crime Report:
The Role of Social Science, 19 Soc. Sci. Hist. 215 (1995); Michael D. Maltz, Bureau of
Justice Statistics, U.S. Dep't of Justice, Bridging Gaps in Police Crime Data (Sept. 1999),
available at http://www.ojp.usdoj.gov/bjs/pub/pdf/bgpcd.pdf (on file with the Columbia
Law Review). With respect to homicide data in particular, it is worth noting that the two
leading histories of crime in America both treat the UCR's homicide statistics as reliable.
See Roger Lane, Murder in America: A History 242 (1997); Eric H. Monkkonen, Murder
in New York City 10-11, 185 (2001).
47. On the federal code, see, e.g., Am. Bar Ass'n, Report on the Federalization of
Criminal Law 91 appx. C (1998). On state codes, see, for example, Stuntz, Pathological
Politics, supra note 7, at 512-18.
A. Local Prosecutions
48. See, e.g., Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 382 (2d Cir.
1973).
49. On the significance of this point for plea bargaining, see William J. Stuntz, Plea
Bargaining and Criminal Law's Disappearing Shadow, 117 Harv. L. Rev. 2548, 2563-64,
2567-68 (2004) [hereinafter Stuntz, Criminal Law's Shadow].
50. Bureau of Justice Statistics, U.S. Dep't of Justice, Prosecutors in State Courts-
1990, at 2 (1992).
The number of prosecutors has increased substantially during this time-but not
substantially enough to catch up with the huge docket increases of the 1980s. See Carol J.
DeFrances, Bureau of Justice Statistics, U.S. Dep't of Justice, Prosecutors in State Courts,
2001, at 2 (2002) [hereinafter DeFrances, Prosecutors 2001] (putting number of
prosecutors at 27,000, up from 20,000 in 1990).
53. The exceptions are not so rare in New York; the Manhattan District Attorney's
office has both a history of pursuing white-collar crime and some expertise at that
enterprise. Even in that office, however, the pressure to bring winning cases (especially
when the cases occupy so much time and energy) limits the white-collar docket
significantly. And the commitment of incumbent DA Robert Morgenthau to white-collar
Darrel W. Stephens, Measuring What Matters, in Nat'l Inst. of Justice, NCJ No. 170610,
Measuring What Matters: Proceedings from the Policing Research Institute Meetings 55,
56 (Robert H. Langworthy, ed., 1999), available at http://ncjrs.org/pdffilesl/ 170610-2.pdf
(on file with the Columbia Law Review) [hereinafter Measuring What Matters]. This is not
to say that UCR data offers a satisfactory method of judging police performance or even of
measuring a community's perception of crime. See George Kelling, Measuring What
Matters: A New Way of Thinking About Crime and Public Order, in Measuring What
Matters, supra, at 27, 27; John J. Dilulio, Jr., Rethinking the Criminal Justice System:
Toward a New Paradigm, in Performance Measures for the Criminal Justice System,
Princeton University Study Group 1 (Bureau of Justice Statistics ed., 1993).
59. For an example of district attorneys' strong interest in the public's perception, see
William Glaberson, Caught Between the Law and the Written Word, N.Y. Times, July 9,
2004, at B4 (discussing 2004 civil suit by ADA demoted and later fired for calling Brooklyn
"the best place to be a homicide prosecutor" because it had "more dead bodies per square
inch than anyplace else").
60. In 2001, chief prosecutors were elected in all jurisdictions except Alaska,
Connecticut, New Jersey, and the District of Columbia. DeFrances, Prosecutors 2001,
supra note 52, at 2.
61. The movement for community prosecution has only heightened this trend. See
Catherine M. Coles, Community Prosecution, Problem Solving, and Public Accountability:
The Evolving Strategy of the American Prosecutor 28-29 (John F. Kennedy Sch. of Gov't,
Harvard Univ., Working Paper No. 00-02-04, 2000), available at http://www.ksg.harvard.
edu/criminaljustice/publications/communityprosecution.pdf (on file with the Columbia
Law Review) [hereinafter Coles, Community Prosecution].
62. We are quite aware that the results of a single high-profile case can loom larger in
the minds of the electorate in a district attorney race than an office's overall performance.
See Alan Abrahamson, Garcetti Is Named Winner over Lynch, L.A. Times, Nov. 22, 1996,
63. See Coles, Community Prosecution, supra note 61, at 10 (noting that under the
"felony case processor strategy" that has dominated large offices, prosecutors focus on core
violent crimes and major thefts, and their "operational goal becomes maximizing the
felony conviction rate"). Note: the felony conviction rate, not the conviction rate.
Along similar lines, James Eisenstein and Herbert Jacob long ago noted the following
working rule in local prosecutors' offices: "The charges on which [defendants] are
convicted must be about as near to the original charges as is customary." James Eisenstein
& Herbert Jacob, Felony Justice: An Organizational Analysis for Criminal Courts 47
(1977). The baseline assumption is conformity with the original charge; deviation from
that baseline requires somejustification. The usual original charge is the offense of arrest,
which is ordinarily fixed by the police, not by the prosecutor's office.
64. See generally Symposium, Why Is Crime Decreasing?, 88 J. Crim. L. &
Criminology 1173 (1998) ("Taken together, [the symposium] articles make clear that
there is no single cause or explanation for the recent decline in crime ....").
65. See Stuntz, Criminal Law's Shadow, supra note 49, at 2563-64.
66. See Stephens, supra note 58, at 57 ("One useful aspect [of the UCR] is that it
provides a relatively simple method of classifying criminal incidents that are brought to the
attention of the police by the public. Even with the limitations, it provides a common
language that most people, police officers and citizens alike, can understand.").
67. For the classic treatment, see generally Herman Goldstein, Problem-Oriented
Policing (1990).
68. For two contrasting views of this style of police work, compare George L. Kelling &
Catherine M. Coles, Fixing Broken Windows: Restoring Order and Reducing Crime in
Our Communities (1996), with Bernard E. Harcourt, Illusion of Order: The False Promise
B. Federal Prosecutions
These patterns are pretty much absent from the federal system. Fed-
eral prosecutors do not have primary responsibility for crime control in
their jurisdictions. Consequently, their dockets include only a small num-
ber of politically mandatory crimes-the equivalent of FBI index crimes
in a local DA's office. Federal criminal law gives U.S. Attorneys and their
79. In fiscal year 2000, 96% of federal felony convictions were by guilty plea. 2002
Sourcebook, supra note 52, at 416 tbl.5.17. The comparable figure in state cases was 95%.
Id. at 448 tbl.5.46.
80. The plea rate for murder and nonnegligent manslaughter was only 58%. Id. at
448 tbl.5.46. Though the 2002 Sourcebook figures (based on a study of seventy-five counties)
show a very low acquittal rate in murder cases, id. at 455 tbl.5.57, the rate historically has
been relatively high. The 2000 Sourcebook found that 5% of murder defendants were tried
and acquitted, compared to 1% of felony defendants overall. Bureau of Justice Statistics,
U.S. Dep't of Justice, Sourcebook of Criminal Justice Statistics-2000, at 463 tbl.5.53
(2001). The 1990 Sourcebook found that nearly one-third of murder cases that went to trial
ended in an acquittal-roughly double the acquittal rate for felony trials in general. See
Bureau of Justice Statistics, U.S. Dep't of Justice, Sourcebook of Criminal Justice
Statistics-1990, at 526 tbl.5.51 (1991).
81. A study of seventy-five counties showed 97% of felony drug convictions were by
guilty plea. 2002 Sourcebook, supra note 52, at 455 tbl.5.57. The plea rate for property
offenses was 96%. Id. Only 90% of convictions for violent crimes were by guilty plea. Id.
82. The rise of these local agencies, especially district attorneys' offices, has been a
surprisingly neglected topic. For the best treatment to date, see generally George Fisher,
Plea Bargaining's Triumph: A History of Plea Bargaining in America (2003).
83. See generally Adam H. Kurland, First Principles of American Federalism and the
Nature of Federal Criminal Jurisdiction, 45 Emory L.J. 1 (1996) (discussing history of
federal criminal law and federal criminal jurisdiction). For a striking early example of
federal reluctance, see United States v. Bevans, 16 U.S. (3 Wheat.) 336 (1818). The
defendant, William Bevans, was a Marine "acting as sentry" on board the U.S.S.
Independence, which was then anchored in Boston Harbor. Bevans murdered a cook's
mate on board the ship. In an opinion by ChiefJustice John Marshall, the Supreme Court
overturned his federal conviction, explaining that while Congress could have passed a
murder statute specifically covering federal warships, it had not yet done so. Consequently,
the matter was left to Massachusetts's exclusive jurisdiction. Id. at 391.
99. See, e.g., Paul Bond, FBI Pumps Up Warning Volume in Get-Tough Policy on
Pirating, Chi. Sun-Times, Feb. 21, 2004, at 30; Jeff Leeds, FBI Logo to Grace Music CDs,
L.A. Times, Jan. 16, 2004, at C10.
100. E.g., Justin Fenton, FBI Seizes Computer of UM Student in Raid: Search at
Fraternity House Part of Vast Piracy Sweep, Balt. Sun, Apr. 24, 2004, at lB.
101. See Richman, Federal Criminal Law, supra note 87, at 765-66 & n.40 (describing
how the Justice Department and FBI used existing statutes when they made white-collar
crime a priority in the mid-1970s).
102. Id. at 781.
103. See H.R. Rep. No. 100-1088, at 18-20 (1988) (criticizing Justice Department for
insufficient zeal in prosecuting fraud cases arising out of the savings and loan crisis); Henry
N. Pontell & Kitty Calavita, The Savings and Loan Industry, in Beyond the Law: Crime in
Complex Organizations (18 Crime & Just.) 203 (Michael Tonry & Albert J. Reiss eds.,
1993) (arguing that crime and fraud played a major role in the savings and loan crisis).
104. See Corporate Fraud Task Force, First Year Report to the President 2.2 (July 22,
2003), available at http://www.usdoj.gov/dag/cftf/firstyearreport.pdf (on file with the
Columbia Law Review) (recounting corporate fraud prosecutions in 2002-2003); see also
Corporate Task Force, Second Year Report to the President 3.2-3.15 (July 20, 2004),
113. See Office of the Attorney Gen., U.S. Dep't ofJustice, FY 2003 Performance and
Accountability Report, Pt. 2, Strategic Goal Two: Enforce Federal Criminal Laws (Jan.
2004), available at http://www.usdoj.gov/ag/annualreports/ar2003/pdf/p2sg2.pdf (on
file with the Columbia Law Review).
114. See generally Richman, Prosecutors and Their Agents, supra note 56 (describing
dynamics of interaction between federal prosecutors and federal enforcement agents).
115. See 18 U.S.C. ? 1001 (2000) (criminalizing false statements on any matter within
the jurisdiction of a federal agency).
Anyone who reads a fair number of federal indictments has seen this
phenomenon in action. While these indictments are not quite exercises
in Law French, their operative charging language often seems thoroughly
divorced from the worst aspects of the alleged conduct. If the strained
language of federal law does not clearly announce why someone deserves
to go to prison, the temptation for prosecutors to pick the most accom-
modating statute, to care less about what is being charged than about
whether a conviction can be obtained, becomes even greater.
In such a system, Capone-style tactics are the rule, not the exception.
Local criminal law enforcement is primarily a "what" enterprise; the goal
is to go after particular classes of conduct. Federal law enforcement is
more a "who" enterprise: The goal is to nail given (always shifting) clas-
ses of offenders. That wouldn't work locally, because local officials would
be punished for ignoring the "what." For federal officials, no equivalent
system of accountability exists.
127. See R. Jeffrey Smith, State Dept. Concedes Errors in Terror Data, Wash. Post,
June 10, 2004, at A17; U.S. Dep't of State, Patterns of Global Terrorism 2003 (rev. June 22,
2004), available at http://www.state.gov/s/ct/rls/pgtrpt/2003/33771.htm (on file with
the Columbia Law Review).
128. See Richman, Right Fight, supra note 91, at 7 (describing the federal
government's need for state and local assistance in the fight against terrorism).
129. See Office of the Inspector Gen., U.S. Dep't of Justice, Audit Rep. No. 03-37,
Federal Bureau of Investigation Casework and Human Resource Allocation (Sept. 2003),
available at http://www.usdoj.gov/oig/audit/FBI/0337/final.pdf (on file with the
Columbia Law Review); Office of the Inspector Gen., U.S. Dep't ofJustice, Audit Report No
04-39, The Internal Effects of the Federal Bureau of Investigation's Reprioritization (Sept.
2004), available at http://www.usdoj.gov/oig/audit/FBI/0439/final.pdf (on file with the
Columbia Law Review); U.S. Gen. Accounting Office, No. GAO-04-578T, FBI
Transformation: FBI Continues to Make Progress in Its Effort to Transform and Address
Priorities 20-33 (Mar. 23, 2004), available at http://www.gao.gov/new.items/d04578t.pdf
(on file with the Columbia Law Review) [hereinafter GAO, FBI Transformation].
130. Gail Gibson, Al-Qaida Battle Likened to Mob Fight: Officials Say Strategy Used
Against Mafia Could Work on Terrorists, Balt. Sun, Oct. 29, 2001, at 6A; Kevin Sack,
Chasing Terrorists or Fears?, L.A. Times, Oct. 24, 2004, at Al.
131. See USA PATRIOT Act ?? 803, 805, 810, 18 U.S.C. ?? 2339, 2339A, 2339B (Supp.
II 2003).
132. See United States v. Afshari, No. 02-50355, 2004 U.S. App. LEXIS 26430 (9th Cir.
Dec. 20, 2004) (upholding indictment charging material support in form of charitable
contributions); Humanitarian Law Project v. U.S. Dep't of Justice, 352 F.3d 382, 404-05
(9th Cir. 2003) (addressing vagueness of prohibition of material support in the form of
"training" and "personnel"), vacated en banc by Nos. 02-55082, 02-55083, 2004 US App.
LEXIS 26530 (9th Cir. Dec. 21, 2004); David Cole, The New McCarthyism: Repeating
History in the War on Terrorism, 38 Harv. C.R.-C.L. L. Rev. 1, 11 (2003) (suggesting that
the statute may violate the "guilt by association" principle and that "the distinction between
association and material support is illusory").
133. 9/11 Commission, Staff Statement No. 1, Entry of the 9/11 Hijackers into the
United States 2 (Jan. 26, 2004), available at http://www.9-11commission.gov/staff
statements/staff_statement_l.pdf (on file with the Columbia Law Review).
134. John Mintz & Douglas Farah, Small Scams Probed for Terror Ties: Muslim, Arab
Stores Monitored as Part of Post-Sept. 11 Inquiry, Wash. Post, Aug. 12, 2002, at Al.
135. On its website, the Transactional Records Access Clearinghouse ("TRAC")
identifies itself as "a data gathering, data research and data distribution organization
associated with Syracuse University." TRAC, About Us, at http://trac.syr.edu/aboutTRAC
general.html (last visited Oct. 21, 2004) (on file with the Columbia Law Review); see Amy
Jeter, Finding That Federal Data Online, Am. Journalism Rev., Sept. 1998, available at
http://www.ajr.org/Article.asp?id=3449 (on file with the Columbia Law Review).
136. Mark Fazlollah & Peter Nicholas, U.S. Overstates Arrests in Terrorism, Phila.
Inquirer, Dec. 16, 2001, at Al; see also Mark Fazlollah & Peter Nicholas, Justice
Department Inflates Terror Conviction Statistics, Pittsburgh Post-Gazette, Dec. 16, 2001, at
Al0.
137. U.S. Gen. Accounting Office, No. GAO-03-266, Justice Department: Better
Management Oversight and Internal Controls Needed to Ensure Accuracy of Terrorism-
Related Statistics 6 (Jan. 2003), available at http://www.gao.gov/new.items/d03266.pdf
(on file with the Columbia Law Review).
138. Id. at 14.
139. Alexander Gourevitch, Body Count: How John Ashcroft's Inflated Terrorism
Statistics Undermine the War on Terrorism, Wash. Monthly, June 2003, at 37, 39.
140. Fiscal Year 2004 Appropriations for the Justice Department: Hearing Before the
Subcomm. on Commerce, Justice, State & Judiciary of the House Comm. on
Appropriations, Mar. 6, 2003, (colloquy between Attorney General Ashcroft and Rep. Jose
Serrano), LEXIS, FDCH Political Transcript.
The issue reared its head again in December 2003, when TRAC-
whose efforts to ascertain federal enforcement patterns have created
quite a stir in a system accustomed to vague federal claims of "priori-
ties"-issued another analysis of departmental data. Looking at terrorist
or antiterrorist referrals since September 30, 2001, this one found that
only 879 people had been convicted, and only 373 of those were sen-
tenced to prison, most for quite short terms. TRAC noted:
[L]ooking at several more of the small number of "terrorism"
cases that resulted in sentences of five or more years, it is clear
that as defined by the government terrorism covers a lot more
than an attempt to blow up an airplane. If properly imple-
mented, this broader definition of terrorism may be a useful way
for the government and the public to understand what is being
done and not done in this sensitive area. If improperly used,
however, the mis-labeling of cases could undermine the legiti-
macy of government efforts by turning the "terrorist" label into
a convenient method to justify government actions sought for
other purposes. If that happens, it also could undermine the
effort of the courts to treat defendants in a fair and just way and
make judging the effectiveness of the government extremely
difficult.143
The Justice Department did not even wait for the formal release date
of the TRAC report for its chief spokesman, Mark Corallo, to fire back.
As Corallo explained:
TRAC's methodology and analysis simply is not compatible
with the reality of the Justice Department's efforts to prevent
terror in the 21st century. In fact, the TRAC study ignores the
value of early disruption of potential terrorist acts by proactive
prosecution of terrorism-related targets on less serious charges.
144. Press Release, Dep't of Justice, Statement of Mark Corallo, Director of Public
Affairs, Regarding TRAC Study (Dec. 7, 2003), available at http://www.usdoj.gov/opa/pr/
2003/December/03_opa_670.htm (on file with the Columbia Law Review).
145. See Statement of Patrick J. Fitzgerald, U.S. Attorney, N.D. Ill., Before the
National Comm. on Terrorist Attacks upon the United States, Al Qaeda Panel 3, 6 (June
16, 2004), available at http://www.9-1 lcommission.gov/hearings/hearingl2/pfitzgerald_
statement.pdf (on file with the Columbia Law Review) ("The al Qaeda network is ...
effective because it has great patience ... and al Qaeda's cell structure may often provide
that the first evidence of a criminal intent may be the terrorist attack itself.").
146. United States v. Rahman, 189 F.3d 88 (2d Cir. 1999).
149. Transformation of the FBI Following 9/11: Hearing Before the Subcomm. on
Commerce, Justice, State & Judiciary of the House Comm. on Appropriations, June 3,
2004, (testimony of John Pistole, Executive Asst. Director for Counterterrorism, FBI)
LEXIS, Federal News Service Transcript; see also FBI Oversight, Terrorism, and Other
Topics: Hearing Before the S. Comm. on Judiciary, May 20, 2004, (testimony of Robert
Mueller, Director, FBI), LEXIS, Federal News Service Transcript ("We're not doing as
many bank robberies. We're not doing the smaller white-collar criminal cases, the bank
embezzlements under a couple of hundred thousand.").
150. The Transformation of the FBI: Hearing Before the Subcomm. on Commerce,
Justice, State & Judiciary of the S. Comm on Appropriations, Mar. 23, 2004, (testimony of
FBI Director Robert Mueller under questioning by Sen. Judd Gregg), LEXIS, Federal News
Service Transcript.
151. See GAO, FBI Transformation, supra note 129, at 29-31 (charting the
redirection of agents from other areas to counterterrorism). But see U.S. Gov't
Accountability Office, No. GAO-04-1036, FBI Transformation: Data Inconclusive on
Effects of Shift to Counterterrorism-Related Priorities on Traditional Criminal
Enforcement (Aug. 2004), available at http://www.gao.gov/new.items/d041036.pdf (
file with the Columbia Law Review) [hereinafter GAO, Data Inconclusive] (describing
"inconclusive" the data regarding "whether shifts in the priorities after September 11 hav
had an effect on overall federal efforts to combat drug crime").
152. Doug Donovan, DiBiagio Voices Frustration over Pace of Top Cases, Balt. Sun,
July 15, 2004, at 1A.
153. Id.; see also Doug Donovan & Laura Sullivan, Democrat Demands DiBiagio
Resign, Balt. Sun, July 16, 2004, at 1A; Eric Rich, Md. Prosecutor Accused of Playing
Politics, Wash. Post, July 16, 2004, at BI. In immediate response to the leaked email,
Deputy Attorney General James Comey, citing the need to protect "the credibility of this
Department, particularly in matters involving public corruption," ordered that no
corruption indictments go forward in Maryland without his personal approval. Doug
Donavan, DiBiagio Gets Formal Rebuke from His Boss, Balt. Sun, July 17, 2004, at 1A.
Citing "family" reasons, DiBiagio has since announced that he will not be seeking
reappointment as U.S Attorney in 2005. Stephanie Hanes, U.S. Attorney DiBiagio Resigns,
Balt. Sun, Dec. 4, 2004, at 1A.
154. See Marsha Shuler, FBI Plans Task Force in BR Area: Public Corruption
Targeted, Advocate (Baton Rouge, La.), May 11, 2004, at 1A (reporting that Republican
congressman running for Senate in Louisiana took credit for establishment of a six agent
FBI public corruption task force).
155. Project Safe Neighborhoods: America's Network Against Gun Violence:
Hearing Before the S. Comm. on the Judiciary, 108th Cong. (2003).
156. S. 1735, 108th Cong. (2004).
161. Press Release, U.S. Dep't of Justice, Justice Department Announces New Violent
Crime Reduction Initiative (June 24, 2004), available at http://www.usdoj.gov/opa/pr/
2004/June/04_ag_438.htm (on file with the Columbia Law Review); see Jonathan D. Silver,
City Takes Aim at Gun Crimes; Federal Partnership Expected to Result in Stiffer Sentences,
Pittsburgh Post-Gazette, July 12, 2004, at B4.
162. See Richman, Project Exile, supra note 96, at 401 (citing Democrats' concerns
that such programs would result in "fewer federal resources for Washington to deploy
against targets that only Washington had the means (and possibly the inclination) to
pursue").
163. The key provision is 18 U.S.C. ? 1346, which states simply: "For the purposes of
this chapter, the term 'scheme or artifice to defraud' includes a scheme or artifice to
171. See William H. Webster, Review of the Internal Revenue Service's Criminal
Investigation Division 11-17 (Apr. 1999), available at http://www.ustreas.gov/irs/ci/ci_
structure/webster_report.pdf (on file with the Columbia Law Review) (faulting I.R.S.
Criminal Investigation Division for giving insufficient attention to its primary mission of
promoting voluntary tax compliance and focusing too heavily on illegal source cases). In
the wake of the Webster review, the I.R.S. took measures to recenter its criminal efforts on
tax compliance. It remains to be seen whether the new focus on terrorist financing will
derail that effort. See Internal Revenue Service, FY 2004 Criminal Investigation Annual
Business Plan, available at http://www.irs.gov/compliance/enforcement/article/0,,id=
118127,00.html (on file with the Columbia Law Review) (noting Criminal Investigation
Division's efforts, since Sept. 11, 2001, against domestic and international terrorism).
172. See Stuntz, Criminal Law's Shadow, supra note 49, at 2563-64 ("For crimes at
the top of the severity scale, law defines both criminal liability and punishment ... ").
173. See Richman, Prosecutors and Their Agents, supra note 56, at 796 (noting how
separation of prosecutorial and investigative authority works to limit errors of
commission); see also C.F. Larry Heimann, Understanding the Challenger Disaster:
Organizational Structure and the Design of Reliable Systems, 87 Am. Pol. Sci. Rev. 421, 427
(1993) (noting that serial systems, which require approval of several components prior to
agency action, are less prone to errors than parallel systems).
174. To get a sense of the challenges of wholesale reform in this area, see Char
Wise, The Dynamics of Legislation: Leadership and Policy Change in the Congre
Process 21-24 (1991). See generally Symposium, Toward a New Federal Criminal C
Buff. Crim. L. Rev. 1 (1998).
175. 522 U.S. 398 (1998).
176. 29 U.S.C. ? 186 (2000).
177. Brogan, 522 U.S. at 409-10 (Ginsburg, J., concurring in thejudgment) (cita
omitted).
186. Cf. United States v. Rybicki, 354 F.3d 124, 132 (2d
(rejecting vagueness challenge to the federal "intangible ri
fraudulent scheme involved the payment of bribes to insuran
claims more favorably). Notice that Rybicki involved a private
For a classic example of public sector "intangible rights" mail
vagueness claim, see United States v. Margiotta, 688 F.2d
(Winter, J., dissenting). Oddly, federal judges seem especial
vagueness in prosecutions of state government officials. The Fif
concluded that "genuine difficulties of vagueness" would attend
it applied to conduct not already barred by state law-and r
case involving a corrupt state administrative law judge. See Un
F.3d 728, 735 (5th Cir. 1997) (en banc). Three dissenting judge
and barred mail fraud prosecutions of state officials altogeth
concerns. See id. at 736-47 (Jolly, J., dissenting). Judge Rag
pointed out why this marriage of vagueness doctrine and fede
state statutes use the same language as the federal "intangible ri
is unconstitutionally vague, the same holds true of the former.
n.3 (Raggi, J., concurring in the judgment) (citing state statu
187. That same tendency is reinforced by the "dueling d
federal criminal statutes: When the meaning of some term is
most references wins; policy arguments go by the boards. For a
the federal statute that deals with use of firearms to commit dr
United States, 524 U.S. 125, 127-32 (1998); id. at 139-44 (Gin
192. See United States v. Rayborn, 312 F.3d 229, 234 (6th C
jurisdiction in part because the church broadcast its service
States v. Lamont, 330 F.3d 1249, 1255 (9th Cir. 2003) (notin
would not give rise to federal jurisdiction, and posing the qu
"mega-churches" might lead to a different result).
193. See Rayborn, 312 F.3d at 234-35 (noting, in support of
some churchgoers may have crossed state lines); Terry, 2
concurring in the judgment) (concluding that interstate conta
Sunday school materials from another state were suffici
jurisdiction).
194. This is one of the facts cited in support of federal jurisdiction by the Sixth Circuit
in Rayborn, 312 F.3d at 235.
195. Not most, according to a Ninth Circuit panel. See Lamont, 330 F.3d at 1255
(noting that "the ordinary activities of a church do not affect interstate commerce, or
indeed commerce at all").
196. The Supreme Court understands this point, at least sometimes. See New York v.
United States, 505 U.S. 144, 169 (1992) (noting diminished accountability when citizens
cannot easily determine which level of government is responsible for a particular
regulatory decision).
197. See sources cited supra notes 91-92.
198. 514 U.S. 549 (1995).
CONCLUSION
Pretextual prosecutions like the one that nailed Al Capone are in-
deed a problem, but not for the reasons generally supposed. The troub-
ling part has little to do with fairness to defendants and much to do with
the challenge such tactics pose to the system's ability to police the po-
lice-to monitor the government's efforts to combat crime. Actually, the
problem is smaller than that: The federal government is where the worry
arises; political and other forces do a pretty good job of controlling local
police and prosecutors.
As to that smaller problem, there is reason to hope that things may
work out, if not optimally, at least tolerably well. The key is political ac-
countability. The federal law enforcement system will never have the ac-
countability of its local counterparts. Federal officials are appointed, not
elected. The issues on which their political masters rise and fall are usu-
ally not related to crime. And it is hard (though, as we have seen, not
impossible) for federal crimes to carry the same immediacy as a body in
the street or a battered victim. Even so, federal officials can be held to a
far greater degree of responsibility than they have faced for the past three
quarters of a century. Whatever its faults, one large and important virtue
of the War on Terror is that it makes that goal more achievable. Other
political forces are working in the same direction. The result may be,
over time, fewer Al Capones-and better federal law enforcement.
The biggest fly in the ointment has to do with substantive law. The
overexpansion of the federal criminal code and the current judicial ob-
session with the bounds of federal criminal jurisdiction, taken together,
invite pretextual enforcement. Federal crimes need narrowing, and fed-
eral jurisdiction needs broadening-two needs that seem at odds but ac-
tually reinforce one another. If both of those things happen in the years
to come, we may finally witness the emergence of something America has
never had: a functioning criminal justice system, with boundaries between
its various police and prosecutorial agencies drawn according to princi-
ples of political responsibility and comparative advantage. That would
help solve the pretext problem. It would also make American criminal
justice more democratic, and more just.