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Al Capone's Revenge: An Essay on the Political Economy of Pretextual Prosecution
Author(s): Daniel C. Richman and William J. Stuntz

Source: Columbia Law Review , Mar., 2005, Vol. 105, No. 2 (Mar., 2005), pp. 583-640
Published by: Columbia Law Review Association, Inc.
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ESSAY
AL CAPONE'S REVENGE: AN ESSAY ON THE POLITICAL

ECONOMY OF PRETEXTUAL PROSECUTION
Daniel C. Richman * & William J. Stuntz **
Most analyses of pretextual prosecutions-cases in which prosecuto

target defendants based on suspicion of one crime but prosecute them
another, lesser crime-focus on the defendant's interest in fair treatme
Far too little attention is given to the strong social interest in non-pretex
prosecutions. Charging criminals with their "true" crimes makes crimi
law enforcement more transparent, and hence more politically accounta
It probably also facilitates deterrence. Meanwhile, prosecutorial strategie
the sort used to "get" Al Capone can create serious credibility problems.
Justice Department has struggled with those problems as it has used Capon
style strategies against suspected terrorists. That is no surprise: Pretext
charging is primarily a phenomenon of the federal criminal justice syst
where law enforcers are less politically accountable than in state justice
tems. The solution is to make the federal justice system more accountable.
variety offorces are pushing in that direction; federal courts could help sp
the process along with appropriate jurisdiction and statutory interpretat
doctrines. If those things happen, pretext cases will become less common,
the justice system will be healthier.
INTRODUCTION
In 1931, Al Capone was the leading mobster in Chicago. He had

violated the Volstead Act on a massive scale, bribed a large fraction of
Chicago officialdom, and murdered various criminal competitors. Be-
cause he was America's first celebrity criminal, all this was clear to much
of the nation, not just to Chicagoans. But his crimes were not easily
proved in court. So federal prosecutors charged Capone not with run-
ning illegal breweries or selling whiskey or even slaughtering rival mob-
sters, but with failure to pay his income taxes. Capone was incredulous.
When he heard about the tax charge, he reportedly called it "a lot of
bunk," adding: "The government can't collect legal taxes from illegal
* Professor, Fordham Law School.

** Professor, Harvard Law School.
The authors thank Rachel Barkow, Pam Karlan, Daryl Levinson, Jerry Lynch, J.J.
Prescott, and Carol Streiker for helpful comments on earlier drafts.
583

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584 COLUMBIA LAW REVIEW [Vol. 105:583
money."' Actually, it could. So he was convicted

federal penitentiary, where he died thirteen years l
Ever since, Al Capone has been the poster child f
cution. It is common in the United States and esp
federal justice system for law enforcers to go after
because they suspect him of one crime (or, as in
crimes) and then to charge and convict him of a
lated to and less severe than the first. That practice
dard debate, and the debate has a standard resolution. The defendant
claims the government is behaving arbitrarily, singling him out for differ-
ent treatment than that which others receive.3 "Pretext" is a dirty word; it
connotes something shady and underhanded. The government responds
that nonpayment of income taxes (or false statements, or mail fraud, or
whatever the charged offense) is a legitimate crime, something for which
any ordinary citizen might be prosecuted and punished if guilty. Surely
the Al Capones of the world should not be immune from punishment for
the small crimes they commit by virtue of their larger crimes. That gov-
ernment response almost always wins in court,4 and that resolution is gen-
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).

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2005] AL CAPONE'S REVENGE 585
erally tolerated in the academic literatu

tions are a widely accepted feature of o
they are widely, albeit not universally, un
ethically permissible.
Notice that this standard debate assum
legitimate interest in charging and convic
actually motivated his prosecution and
The argument against pretextual prose
one might call "truth in charging"-is base
ants' interests. Or so we generally assum
The assumption is wrong. There is a s
pretextual prosecution, and that interes
the "fairness to defendants" argument th
on this subject. Criminal charges are not
punishing criminal conduct. They are also
send signals to their superiors, includin
ultimately responsible. When a murdere
der rather than for tax evasion, voters le
An analogous issue arises with respect to prete

officer has probable cause to believe the defendan
wishes to investigate a drug crime. May the officer
to justify a search for drugs? The basic answer is
minor crimes, Atwater v. City of Lago Vista, 532
probable cause to believe that an individual has c
offense in his presence, he may, without violati
offender."), and searches incident to arrest ar
permissible. See United States v. Robinson, 41
subjective intent (i.e., the fact that the reason
justification) is irrelevant. See Whren v. United
an undiscerning reader would regard these cases a
motives can invalidate police conduct that is justi
believe that a violation of law has occurred."). Th
Iowa, 525 U.S. 113, 114 (1998), officers may not co
actually arresting the suspect-meaning that an
speeding, write out a ticket, then search the motor
go on his way. On the other hand, that scenario i
alteration: If the officer first says, '"You're under a
searches the car, she is home free. If no drugs are
changed my mind; you're free to go now." If drug
arrested on the drug charge.
5. The tolerance consists of a grudging silence;
rare. For a recent exception, see Harry Litman, P
(2004). The one area in the literature where pr
associated with racial profiling-even in the ab
motivation. For good discussions, see generally R
Law (1997) (criticizing influence of race in pret
Rights, and Remedies in Criminal Adjudication, 9
and criticizing failure of Constitution to preclu
pretextual highway stops); Richard H. McAdam
Discovering the Pitfalls of Armstrong, 73 Chi.-Ke

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their community and about the justice system: that

been committed in a particular way (if a crimin
volved, they may learn things about how the organ
kind of people comprise it); that the crime has be
lice and prosecution have done a good job of
against the killer, and so forth. If there is a legislat
the relevant law enforcement agencies, those same s
legislative overseers. When a prosecutor gets a con
ducing a guilty plea-for an unrelated lesser crim
motivated the investigation, the signals are mud
pear altogether. Sometimes, there are alternative so
Voters already knew who Capone was and what
crimes and most criminals, even famous ones, those
do not exist.
Another audience also gets a muddied signal: would-be criminals.

Instead of sending the message that running illegal breweries and bribing
local cops would lead to a term in a federal penitentiary, the Capone
prosecution sent a much more complicated and much less helpful mes-
sage: If you run a criminal enterprise, you should keep your name out of
the newspapers and at least pretend to pay your taxes.
In short, criminal litigation is not just a means of rationing criminal
punishment. It is also a source of productive signals and valuable infor-
mation. As a number of scholars have noted, criminal law has a "social
meaning"6-but the law's messages are filtered through prosecutors' liti-
gation choices, and those choices can change the message dramatically.7
In the case of most pretextual prosecutions, the change is for the worse.
Such prosecutions may lead criminals to underestimate the price of their
crimes; they may also make it harder for voters and legislative oversight
committees to trust the good information that comes from other, non-
pretextual criminal cases. To a much greater extent than the literature
has recognized, the political economy of criminal law enforcement de-
pends on a reasonably good match between the charges that motivate
prosecution and the charges that appear on defendants' rap sheets.
When crimes and charges do not coincide, no one can tell whether law
enforcers are doing their jobs. The justice system loses the credibility it
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].

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needs, and voters lose the trust they need

Individual agents and prosecutors pay onl
which is why they continue to follow
price is paid only over time-by crime vic
cies, and (not least) by the voting pub
smiling.
Interestingly, local police agencies and district attorneys' offices tend
to be a good deal more wary of paying that price than are federal agents
and prosecutors. They operate in a world in which (for the most part) it
is clear when a crime has occurred, what that crime is, and who (if any-
one) will be responsible for pursuing it. Federal prosecutors have not
had to live in such a world. Consequently, pretextual prosecutions are, at
least in part, a federalism problem. And they are becoming a terrorism
problem. The Justice Department, including the FBI and the many
United States Attorneys' offices, is chiefly responsible for fighting the do-
mestic portion of the War on Terror. And the Justice Department has
invoked Al Capone's name frequently in that war, as it prosecutes terror
suspects with any available criminal charge. Yet the strategy has left the
Justice Department in a quandary. It would like to detail its successes by
telling of the terrorists it has put away. But having never offered proof
that those it has charged with immigration-related and other such of-
fenses are really terrorists, the Justice Department lacks any external vali-
dation of its claimed success. Without any adjudication of a terrorist con-
nection, ipse dixit is not enough.
The solution is not to abandon pretextual charging in terrorism
cases; there may be no realistic alternative. But where there are alterna-
tives, the law should give prosecutors incentives to avoid strategic charg-
ing practices. That would make federal criminal justice both more trans-
parent and more politically accountable. It would also, over time, give
federal officials the public credibility they need as they fight the War on
Terror.
The balance of this Essay is organized as follows. Part I reviews the

conventional debate about pretextual prosecutions. By the terms of that
debate, this strategy is both sensible and fair. Part II then explores the
connection between pretextual prosecution and federalism-why it is
that local prosecutors seem to care more about the signals their cases
send than do their federal counterparts. One lesson of this discussion is
that the political economy of local criminal law enforcement is healthier
than is sometimes thought. Federal criminal law enforcement is the
problem; political constraints that rein in local prosecutors are much
weaker in the federal system. Part III turns to terrorism, where the costs
to the government of the Capone strategy have become both large and
salient in recent months. Part IV returns to federalism, and explores
some ways in which pretextual prosecution might be better controlled.
There is some reason to believe the system is already moving in produc-
tive directions. Federal courts could help that process along, with more

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sensible statutory interpretation doctrines in crimi

ing less attention to the fine points of jurisdictiona
a sensible criminal justice federalism is more likely
courts do not try to mandate it.
I. THE PRETEXT PROBLEM
Consider four characteristics of Capone's prosecution. First, the gov-

ernment came across evidence of a less serious crime while investigating
more serious crimes. Second, the crime charged-tax evasion-is of a
sort that requires some enforcement, but not much; the ratio of viola-
tions to prosecutions is bound to be high. Third, this lesser criminal
charge was easier to prove than the more serious offenses that initially
motivated the investigation. The fourth characteristic seems unrelated to
the others, though in practice it often appears in pretext cases: Capone
was a celebrity.
Capone's case did not prompt much public criticism, but other,
more recent examples of this strategy have drawn more negative reac-
tions. Think of Bill Clinton's impeachment and the investigation that led
to it, or Martha Stewart's prosecution and conviction for false statements
to federal investigators. Those cases also had the four characteristics just
described. Clinton's perjury and obstruction of justice were a detour
from a long-running investigation of ordinary white-collar fraud.8 Investi-
gators caught Stewart in the lies for which she was convicted while investi-
gating possible insider trading.9 Perjury, obstruction, and false state-
ments10 are all crimes that, like tax evasion, must be pursued
occasionally. But only occasionally: For all of these offenses, the ratio of
violations to prosecutions is very high. Likewise, these crimes are more
easily proved than the more complex white-collar crimes that initially mo-
tivated the Clinton and Stewart investigations. (Banking and securities
fraud cases rarely rest on evidence as strong as the famous blue dress.)
Like Capone before them, both Clinton and Stewart were nationally
known before they were the targets of criminal investigations, and their
fame seemed to play a large role in the process that led to their
prosecutions.11
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

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
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.
This in-between quality-not like homicide or armed robbery, yet

also unlike tearing the tag off a mattress or drawing counterfeit "Woodsy
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).

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
Owls"l"-means that enforcing laws like the ones l

paragraph requires a selection mechanism, some t
few cases where prosecution is appropriate from th
Random enforcement is a practical impossibility. It
tice, random investigation, and the large majority o
yield no charge. Unless we are to have massive inc
ment budgets, that level of inefficiency is intol
obviously attractive alternative is to enforce such c
tors find violations in the course of sniffing out
crimes. This too sounds fishy, as though the gove
bait-and-switch with criminal punishment. But the
unplanned-no one thought about Lewinsky when
tigation was gearing up, nor was Capone initially ta
tax liability. And again, the practice of prosecuting
primarily against defendants suspected of other,
tends to minimize the worst injustices.
The third key feature of pretext cases goes to
evasion was easier to prove than his liquor violations
one knew about the latter). Martha Stewart's lies
tablished than her (alleged) insider trading. And B
much more easily established with respect to per
the "detour" crimes-than with respect to the Wh
that had been Starr's primary focus. Of course, pro
ecutors are supposed to do. If there is a danger here
proved crimes were not serious enough to justify cr
that is so, then the government is substituting
"crime" for a harder-to-prove real one.
The risk is both real and important, but it should
The likelihood that a prosecutor will make too m
may be particularly great when the prosecutor ha
docket-an unfortunate characteristic of the old
model.14 Even there, the Clinton case suggests that
tion against the risk of criminal punishment based
calities. Not only did the Senate acquit; experienced
ing the House impeachment hearings that no factua
possibly yield a conviction-indeed, that no such c
13. These are the two most famously innocuous federal c

Owl" statute, see 18 U.S.C. ? 711a (2000) (banning manufactu
the character or of the associated slogan: "Give a Hoot, Don't
that sellers (note: not everyone) leave mattress tags intact stems
the United States Code and federal regulations. For a detailed a
rule, see Stuart P. Green, Why It's a Crime to Tear th
Overcriminalization and the Moral Content of Regulatory Off
1610-14 & n.264 (1997).
14. H. Geoffrey Moulton, Jr. & Daniel C. Richman, Of
Prosecutors: An Organizational Perspective, 5 Widener L. Sy

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
for prosecution.15 If that conclusion is

may be self-deterring: Prosecutors do not
not convict if given the chance. And in
fails, prosecutors may pay a steep price
damaged by his investigation of the Lewin
did himself no favors by hounding Mik
Bowl tickets from lobbyists-another in
that led to an acquittal.17 Starr's and Sm
odds of conviction and punishment on
than is usually thought. Meanwhile, the s
of overpunishment when the prosecutio
tence of the background crime: Again, i
investigators suspected the target of ot
those charged. That suspicion may hav
case-or in Stewart's (although surely n
ence of suspicion means something.
15. After exploring the various gradations of pe

"the false statements of which President Clinton is
the least culpable genre of this continuum of offe
for prosecution in the routine cases involving an
Perjury and Related Crimes: Hearing Before the
Cong. 85 (1998) (statement of Alan M. Dershowitz
Harvard Law School). In the same hearing, Jeff
independent counsel nor anyone else, to my know
where a defendant was prosecuted, let alone convic
proceeding." Id. at 97 (statement of Jeffrey Rose
Washington University Law School). If Dershowitz
no reason to believe otherwise, then either prosecut
juries are unwilling to convict on such charges.
Juries are not alone in their skepticism of infla
appellate courts may be as skeptical, or nearly s
skepticism in action, see United States v. Sun-D
(1999) (expressing worry that allowing charges to
"illegal gratuity statute" might result in criminal
16. The Gallup Organization commented that S
le[ft] the office as one of the most negatively e
in Gallup Poll annals. About two-thirds of Am
opinion of Starr earlier [in 1999], after the imp
same number said they disapproved of the job
Other measures taken during 1998 and early 19
American public distrusted both his motives an
Frank Newport, The Gallup Organization, Abs
Counsel Marked by Strongly Unfavorable Public O
gallup.com/content/default.asp?ci=35298cpg=1 (on
17. On Espy's acquittal, see Neil A. Lewis, Espy
in Cabinet, N.Y. Times, Dec. 3, 1998, at Al. For a s
see Robert W. Gordon, Imprudence and Partis
Lewinsky Affair, 68 Fordham L. Rev. 639, 672-73
counts precisely because they saw how fanatically im
Espy's small-scale sins into major felonies.").

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
Another risk is a good deal larger. Suppose Clin

incumbent President but an ex-Governor and po
from Arkansas. Suppose further that his likely s
victed of fraud in connection with Whitewater and
Guaranty Savings & Loan, would be very long: say,
eral prison. Now suppose the prosecution offered
Monica-related perjury and obstruction with very l
haps in exchange for helpful testimony against oth
those circumstances, a conviction for the "crim
Lewinsky affair seems quite possible, even likely-
on any jury's willingness to conclude that those crim
Notice, though, that this risk is not peculiar to pre
trary, it is present whenever (1) multiple crimi
charged-which they always can, with or without
(2) the difference between the potential sentence
count and the sentence available for lesser charge
it usually is, at least in federal cases. Liberal joinder
tencing guidelines pose that risk, not prosecutorial
The fourth feature of cases like Capone's, Clin
goes not to the crimes but to the targets. Other
killed rivals, and bought local politicians, but no on
law enforcement attention that Capone got. Not coi
mobster had Capone's national reputation.18 So
and Martha Stewart. Plainly, celebrity prosecution i
enon than pretextual prosecution. But the two phen
lap surprisingly often. Perhaps it is worth consider
This prosecutorial focus on celebrities sounds fish
of the phenomenon Tom Wolfe described in The
when he wrote of prosecutors' single-minded p
18. At least until Lucky Luciano rose to fame in the mid

promptly taken down by Manhattan District Attorney Tho
became America's first celebrity prosecutor. The Luciano case
in his mid-thirties and had held no higher public office, an in
In 1939, he led Franklin D. Roosevelt in nationwide polls. S
Thomas E. Dewey and His Times 189-206, 285-86 (1982).
The Capone pattern has held ever since. Frank Costello w
he testified before the Kefauver Commission in the spring o
Costello was convicted of tax evasion. Costello v. United State
Gotti offers a more contemporary example of the phenomeno
Accardo-the heir to much of Capone's organization-never sp
peacefully at age eighty-six in 1992. See Dale A. Oesterle, E
Prosecutions of the Business Scandals of 2002-03: On Sides
Clash with Donaldson over Turf, the Choice of Civil or Crimi
Tactic of Coerced Cooperation, 1 Ohio St. J. Crim. L. 443, 4
well to keep their names out of the papers. Those with more of
pay for their fame.

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
White Defendant."19 As Robert Gord

squarely at odds with the rule of law; it p
cally motivated prosecution."20 Gordon
I expect that most of us would have
audit of civil perjury, something like a
returns, in which the DA's office pulled
and then investigate plausible perjurers
deterrence. But when the DA singles ou
emplary punishment for behavior that
nor sanction or a pass, the object of the
tyr and the DA a villain.21
Monroe Freedman made a similar point
course of challenging grudge-based pro
Robert Kennedy's efforts to "get" union b
began by challenging the argument that,
if the individual is in fact guilty of the
charged, the motive of the prosecutor
tention overlooks the fact that there are few of us who have led
such unblemished lives as to prevent a determined prosecutor
from finding some basis for an indictment or an information.
Thus, to say that the prosecutor's motive is immaterial, is to jus-
tify making virtually every citizen the potential victim of arbitrary
discretion.23
Freedman went on to assert that prosecutors have an "ethical obligation"

not to abuse their power by bringing "prosecutions that are directed at
individuals rather than at crimes."24
One obvious response is that all prosecutions are directed at individ-

uals; we do not prosecute criminal conduct in the abstract. The question
cannot be whether to target individuals, but whether a particular crite-
rion is a legitimate ground for targeting. And on that score, celebrity
status resembles "worth a detour": Both are less problematic sorting de-
vices than first appears. Crimes like perjury, obstruction, and tax evasion
must be enforced only occasionally; more systematic enforcement is unaf-
fordable. If what happens in most cases-nothing-is the just result in all
cases, such crimes can never be punished. And if only a few such cases
can be brought, the best way to maximize the deterrent bang for the law
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.
22. Monroe H. Freedman, The Professional Responsibility of the Prosecutin

Attorney, 55 Geo. L.J. 1030 (1967).
23. Id. at 1034-35.
24. Id. at 1035.

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enforcement buck is to bring well-publicized cases.2

guarantee publicity than to pick defendants whose e
ered by every news outlet? When a high public o
involved, this calculus is reinforced by another. Onc
technically guilty of criminal dishonesty and the cr
investigators and to the public), law enforcers can s
Either truth matters and lies will be punished, or p
law.26 The second signal is, at the least, unattractiv
ment made by those who favored Clinton's impea
A version of that argument applies as well to hig
and rich celebrities who are sometimes investigat
High-end white-collar defendants like Michael Milke
became celebrities in part because they got more th
benefits of American prosperity. If legal protect
contract rights are of any value at all in a capitalist
fair to conclude that such people have gotten a ve
legal system. Holding them to a somewhat higher
than less prosperous souls seems a reasonable quid
claim that this approach violates the rule of law, m
(securities violations are an obvious example) are
class legislation, since only members of the relev
regulated transactions-the flip side of Anatole F
25. Cf. Mark E. Matthews, New IRS Publicity Strategy, U.S.

2001, at 15, available at http://www.usdoj.gov/usao/eousa/f
pdf (on file with the Columbia Law Review) (noting that since su
hear about tax evasion prosecutions, IRS must do better job o
efforts).
26. As Robert Gordon has argued, Starr could easily have avoided sending this
unpleasant signal without investigating the Lewinsky affair. See Gordon, supra note 17, at
648-50. Starr first learned of Clinton's affair with Lewinsky before Clinton was deposed in
the Paula Jones case. Had Starr quietly passed word to Clinton's lawyers that news of the
relationship was out, and that any perjury in the deposition would be taken seriously by the
independent counsel's office, the story might have played out very differently. Clinton
could have settled the Jones case then, or taken a default judgment and litigated
damages-an especially attractive move for him, as it is not obvious that there were
damages. There would have been no perjury or obstruction of justice to investigate.
27. There were a number of examples of this argument at the Clinton impeachment
hearings; the best (in our view) was the testimony of the holder of the Distinguished
Leadership Chair at the Naval Academy, who testified that, as Commander-in-Chief, the
President must be held to the highest possible standards of integrity in all he does. See
Consequences of Perjury and Related Crimes, supra note 15, at 76-78 (statement of Leon
A. Edney, Admiral, U.S. Navy (Ret.)).
28. This was the central insight of the early legal realists: Property and contract rights
are not neutral and natural, and a Hobbesian state of nature would have a very different
distribution of wealth than a modern capitalist legal order. For the classic argument, see
Robert L. Hale, Freedom Through Law: Public Control of Private Governing Power 3-12
(1952) (arguing that by assigning and enforcing legal rights of property and contract, the
law does not just protect existing rights but actually contributes to economic inequality).

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
about laws that ban sleeping under brid

world, a host of legal requirements gov
campaign contributions applies only to
office and not to those they represent. Is
jury and obstruction of justice, enforc
figures, really so different?
Celebrity mobsters raise fewer justice c
with the disparity between Capone's fate
criminals, the problem lies in the latter
famous criminals make ideal defendants f
enforced crimes. One of the best-known m
famous precisely for his ability to live ou
cuting such a man for cheating on his tax
about the importance of paying taxes, abo
not least, about the federal government
The bottom line seems clear enough. As
enforcing white-collar crimes like those
and Stewart cases, pretextual targeting
sonable. Some crimes must be enforced sp
forcing such crimes against defendants
serves investigative resources and redu
And enforcing such crimes against publ
terrent signal. At the same time, the wor
tion are self-deterring, since juries and ju
any reason and are reasonably likely to
cases.
While there is a basic unfairness in some pretext cases

example in our view, though Capone and Stewart are n
goes not to pretext but to the content of substantive cri
criminal law of dishonesty is too broad, Clintonian tr
sometimes lead to undeserved prison terms, with or with
The same is true if the rules that govern sentences giv
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

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
power to threaten more years in the penitentiary t

in order to extort guilty pleas to the sentences they
to deal with those dangers is to limit substantive law
ecutors' motives. If crimes are fairly defined and se
brated, the motives will take care of themselves.
This is essentially what courts have concluded.
tered litigation in Capone-like cases over the years,
ing various constitutional challenges to their prosec
exceptional cases, the challenges have failed. Tw
decisions capture the lay of the land. People v. Ma
for criminal violations of New York's building co
ran a Times Square sex shop. They claimed that pros
ing sex shops instead of enforcing the building c
The court treated the claim contemptuously, noting
etors were not exactly a "suspect class" for equal
There are a lot of cases like Mantel; claimants los
show (as the Mantel defendants could not) membe
class. The presumption of proper prosecutoria
irrebuttable.34
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).

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pretextual targeting is fine, constitutiona

the nominal charge is, well, nominal. Ta
not a problem, unless the charges are tran
The real problem is that Kail's insight is r
Second Circuit's approach in United States v
McFadden was stopped for riding his b
searched "incident to arrest" (though it seem
actually planned to arrest him for riding hi
gun-which, since McFadden had a prior fe
eral charge under the felon-in-possession
firmed his conviction.39 McFadden may app
that a criminal prosecution for the bicycl
different result. But probably not. The Su
regulated most aspects of criminal proced
constitutionalization of procedures used for
facts."40 That aggressiveness does not apply
tion and oversentencing, both of which
tackle directly. Serious constitutional limits
apart from the occasional "privacy" decision
speech angle,42 do not exist. Nor are ther
tures' ability to attach immodest sentences
With that large qualification, it appears t
right-if, but only if, the chief problem w
38. 238 F.3d 198 (2d Cir. 2001).

39. Id. at 199-204.
40. See Apprendi v. NewJersey, 530 U.S. 466, 490 (2000) (holding it unconstitutional
to remove from the jury any fact-other than fact of prior conviction-that increases
penalty "beyond the prescribed statutory maximum"); Blakely v. Washington, 124 S. Ct.
2531, 2536-37 (2004) (holding that the "statutory maximum" referred to in Apprendi "is
not the maximum sentence a judge may impose after additional facts, but the maximum
he may impose without any additional findings").
41. See Lawrence v. Texas, 539 U.S. 558, 578 (2003) (holding unconstitutional a state
law regulating private sexual conduct between members of the same sex, but not members
of the opposite sex); Roe v. Wade, 410 U.S. 113, 154 (1973) (holding that abortion is a
fundamental privacy right); Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965)
(invalidating state ban on contraceptives on ground of marital privacy). These cases are
not primarily about the scope of substantive criminal law; rather, their focus is on the
scope of sexual and reproductive freedom. It might have been otherwise: Griswold, which
gave birth to the relevant line of cases, seemed to signal judicial willingness to overturn
statutes that criminalize innocuous or widely tolerated behavior. For a brief exploration of
that road not taken, see William J. Stuntz, The Uneasy Relationship Between Criminal
Procedure and Criminal Justice, 107 Yale L.J. 1, 68-69 (1997).
42. See, e.g., Texas v. Johnson, 491 U.S. 397, 420 (1989) (conviction for flag
desecration held unconstitutional).
43. See Ewing v. California, 538 U.S. 11, 30-31 (2003) (affirming life sentence under
recidivist statute for theft of three golf clubs); Harmelin v. Michigan, 501 U.S. 957, 994-96
(1991) (affirming life sentence for possession of 672 grams of cocaine). For an excellent
discussion that contrasts these cases with the more stringent proportionality-style limits on
punitive damages, see generally Pamela S. Karlan, "Pricking the Lines": The Due Process
Clause, Punitive Damages, and Criminal Punishment, 88 Minn. L. Rev. 880 (2004).

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
the risk of convictions on trumped-up charges. But

serious problems. The public had a strong interes
Bill Clinton was guilty of any more-than-technical
with the Whitewater Development Corporation a
Savings & Loan. The Lewinsky investigation left tha
Starr's office go for the blue dress because Clinton
but hard-to-prove fraud, or only because a sex s
headlines and talk shows? This leads to another im
est: Voters needed to know whether Starr and his s
jobs well-which depended mostly on what they
about Whitewater, not about Monica. Wholly apart f
to our politics, the Lewinsky investigation left u
question that needed resolving in the public's m
innocence of Whitewater-related charges-and ma
ate the independent counsel's investigation of tha
Muddied signals are not always a problem in
times, voters and legislative oversight committee
sources of information about the relevant crimes and the relevant
criminals. After all, everyone knew what Capone was up to. Where that
so, prosecutors can maximize some mix of the odds of conviction and the
extent of punishment and ignore the nature of the crime charged. B
where substitute signals are absent, pretextual targeting may prove quite
costly. Notice too that individual prosecutors do not internalize the rele-
vant costs: The line prosecutor gets much of the benefit of a conviction;
if the conviction is for the wrong crime, the costs of that mistake will
borne over time by the prosecutor's office, by other law enforceme
agencies, and by the voters. This creates a serious problem of politic
economy. The system as a whole functions best when prosecutors charge
for the crime that motivated the investigation, but individual prosecutor
may prefer pretextual charges.
Again, the political economy problem does not exist everywhere
For example, it is (or was-such cases are mostly a thing of the past) n
such a large problem when the defendant is a leading figure in a Maf
family. Perhaps that is why the Capone strategy arose in cases like
Capone's. As John Ashcroft explained, in the course of justifying the use
of similar tactics against suspected terrorists:
Attorney General [Robert] Kennedy made no apologies for
using all of the available resources in the law to disrupt and dis-
mantle organized crime networks. Very often, prosecutors were
aggressive, using obscure statutes to arrest and detain suspected
mobsters. One racketeer and his father were indicted for lying
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).

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
on a federal home loan application. A

Capone mob was brought to court on
tory Bird Act. Agents found 563 gam
mere 539 birds over the limit.
Robert Kennedy's Justice Department, it is said, would ar-

rest mobsters for "spitting on the sidewalk" if it would help in
the battle against organized crime. It has been and will be the
policy of this Department of Justice to use the same aggressive
arrest and detention tactics in the war on terror.45
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.
II. PRETEXT AND FEDERALISM
Historically, pretextual prosecutions of Mafia dons were almost al-

ways federal prosecutions. The same is true today of prosecutions of
would-be terrorists. The pretext problem seems closely tied in some man-
ner to federalism.
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.

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(who enforce state criminal codes) frequently go af

rious crimes for which those defendants cannot
which sounds like prosecuting Capone for bo
Broad criminal codes and hard-to-convict criminal d
theory, generate lots of Capone-like prosecutions fo
offenses. That plainly happens in federal court.
are rare in state courts. If we are to solve the prete
first understand why that is so.
A. Local Prosecutions
Most regulatory systems are enforced by a mixture of government

sanctions and private litigation. Securities law, environmental law, and
employment discrimination law all have this character, and there are
many more examples. Criminal law enforcement does not work this way:
The government has a monopoly on it. State legislatures write their
states' criminal codes. Local district attorneys, elected by their home
counties, enforce those criminal codes. Their case selection decisions are
unreviewable.48
Four key features of this system push against Capone-style pretextual

prosecutions. First, a small but important part of state criminal codes are
politically mandatory.49 Local prosecutors do not have the option of ig-
noring violent felonies and major thefts. The same is true, at least in
some measure, of distribution of hard drugs. No district attorney can
ignore these crimes in order to go after particular targets or pursue some
personal agenda-at least not if she wants to keep herjob. It is important
to understand why that is so: These crimes are politically mandatory both
because they are important to voters and because local prosecutors are
politically accountable for dealing with them. Other provisions of state
criminal codes give prosecutors options; these provisions create
obligations.
Second, there are enough of these politically mandatory crimes to
occupy all or nearly all of local prosecutors' time and manpower. This
has not always been true; there have been periods in American history
when district attorneys' offices had a good deal of slack. But any slack has
long since disappeared, as the following data suggest. In 1974, there were
17,000 local prosecutors in the United States. By 1990, that number had
grown to 20,000.50 During those same years, the number of felony prose-
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).

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cutions more than doubled.51 Crime has f

dockets (and hence prison populations)
prosecutors' offices have not caught up
treme docket pressure characterizes DAs'
cities where crime rates tend to be highes
tion must be rationed not only based on p
on cost. "Detours" themselves may be ch
give rise to them are expensive, and distr
pensive investigations. That is why high-e
few rare exceptions)53 a federal preser
51. State court felony filings rose 36% from 197

State Court Caseload Statistics: Annual Report 1
an additional 51% from 1985 to 1991. Nat'l Ctr. f
Statistics: Annual Report 1991, at 37 tbl.1.25 (199
rose between 1984 and 1985 as well, but even if th
cases more than doubled between the late 1970s a
This massive increasr in local criminal dockets w
in crime rates that America suffered between about 1960 and 1975: more than 200%,
according to the FBI's numbers. See The Disaster Ctr., United States Crime Rates
1960-2000, available at http://www.disastercenter.com/crime/uscrime.htm (last visited
Jan. 12, 2005) (on file with the Columbia Law Review). That massive crime wave coincided
with (and perhaps was partly caused by) a decline in the prison population; the number of
inmates in America's prisons fell 13% between 1960 and 1970, Margaret Werner Cahalan,
Bureau of Justice Statistics, U.S. Dep't of Justice, Historical Corrections Statistics in the
United States, 1850-1984, at 29 tbl.3-2 (1986), while the crime rate more than doubled.
The number of prisoners rose in the 1970s, but not enough to compensate for the increase
in crime. See id. (showing 34% rise in inmate population between 1960 and 1980). By the
1980s, there was enormous political pressure on local district attorneys to close the gap.
52. The number of state court felony convictions is a good proxy for the size of local
criminal dockets. The year 1990 saw 829,344 felony convictions in state courts. Bureau of
Justice Statistics, U.S. Dep't of Justice, Sourcebook of Criminal Justice Statistics--1992, at
527 tbl.5.49 (1993). By 2000, that number had grown to 924,700. Bureau of Justice
Statistics, U.S. Dep't of Justice, Sourcebook of Criminal Justice Statistics-2002, at 447
tbl.5.44 (2003) [hereinafter 2002 Sourcebook]. Crime started to fall in 1991; that year,
America's inmate population (those either in jail or prison) stood at 1,216,664. Id. at 478
tbl.6.1. By 2002, it had grown to 2,033,331-an increase of more than two-thirds. Id. The
mushrooming of the prison and jail populations was partly due to inmates serving longer
sentences, but only partly: Average sentence length in state criminal cases (federal
prisoners are a small fraction of the total; their average sentence length is thus a small
factor in these trends) rose a mere 16% between 1993 and 1999. Id. at 505 tbl.6.37.
Plainly, the number of defendants prosecuted for serious crimes has continued to grow
even as crime has fallen.
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

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
power to deal with the long, intricate paper trails,

afford to initiate and pursue major investigations
that those investigations will turn up evidence of se
Local police, on whom district attorneys must
under severe resource constraints. That reinforces d
dency to avoid detours. "Detour" crimes tend to
investigations, where police and prosecutors are w
after a particular set of targets: Think Al Capone, B
Stewart. Local police cannot afford long, comple
much the same reason, local cops and local prosec
gether on an investigation; the norm is for polic
prosecutors-more a relay race than a team sport.
Third, district attorneys are subject to perfor
reinforce their tendency to concentrate on a small
portant crimes. The FBI's crime index measures
offenses: murder, manslaughter, rape, arson, kidnap
sault, robbery, burglary, and auto theft. The FBI pu
the number of index crimes nationwide;57 there is
ity attached to these numbers in local jurisdictions.
prosecutions has been squarely criticized by those seeking

Robert Kolker, Happy 85th Birthday, Bob Morgenthau, N.Y. Mag
47 (noting criticism of Morgenthau's "special interest in W
challenger, Leslie Crocker Snyder); Greg Sargent, Youn
Prosecutor, N.Y. Magazine, Nov. 22, 2004, at 14, 14 (quoting D
supporter, as noting: "While white-collar crime is important,
really prosecute criminals-rapists and killers.").
54. The best discussion of white-collar crime investigations
investigations-a sign of how the federal government has
generally Kenneth Mann, Defending White Collar Crime: A Po
(1985).
55. While an increasing number of district attorneys' offices
investigative units, see Carol J. DeFrances, Bureau ofJustice St
State Court Prosecutors in Large Districts, 2001, at 2 tbl.1 (
investigators comprise 9.9% of total personnel in prosecutor
(defined as those serving populations of 500,000 or more)), th
capabilities of even those offices remain comparatively small
responsibilities.
56. See Elizabeth Glazer, Thinking Strategically: How F
Reduce Violent Crime, 26 Fordham Urb. L.J. 573, 574 (1999);
Prosecutors and Their Agents, Agents and Their Prosecutors,
(2003) [hereinafter Richman, Prosecutors and Their Agents] (
prosecutor interaction).
57. See sources cited supra note 46.
58. The St. Petersburg, Florida, Chief of Police recently no
The UCR data represents the official level of crime in th
reports and the news media stories about them can have a s
the community. They often serve as grist for the political
have been greatly influenced by crime reports. In some
police chiefs and sheriffs have been affected in either positiv
these statistics.

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
these numbers falls heaviest on police for

attorneys but to mayors and city councils
the only source of the local district att
also a potentially loud source of informat
ance, and they ensure that any district
these reports will soon become so.59 Th
vant yardstick, and they must defend the
every few years.60 The upshot is that b
offices are held responsible for increase
That combination of political accoun
performance measure matters in severa
tors would go after violent crimes and
crime index. Pressure by victims and
lying in the street, a destroyed buildin
see to that. But the index-specifically,
crime statistics-focuses even more attention on those offenses, since lo-
cal voters will hear about whether their number is rising or falling, and by
how much. Another effect matters more. The fact that crime statistics
are out there and will be reported gives local prosecutors a strong incen-
tive to prosecute the relevant crimes "straight up" rather than pretextu-
ally. If the number of murders in a given jurisdiction is two or three
times the number of murder prosecutions, the DA's opponent in her
next election has an incentive to publicize that fact.62 Voters will know it;
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,

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
they will get the impression that the DA and the lo

ing enough attention to murders-even if many of t
prosecuted and convicted for something else (an
just as Capone was charged, convicted, and punish
taxes. The DA could try, of course, to shift blam
that strategy would not work very well since voter
and she alone, controls criminal prosecutions in h
cally smart move is to maximize not convictions of
tions for murder.63
The crime index may matter in one more way
good crime data makes local prosecutors' offices r
part, for the ups and downs of the rates of crimes
dex. Sure, other factors like the economy or local
affect the crime rate more than prosecutorial strat
cutors and police-so quick to take credit for cri
like they are addressing the reported statistics. Pro
incentive to engage in the charging practices that m
index crimes: violent felonies and major thefts. The
rent signal is the simplest one-punishing killers f
stealing, kidnappers for kidnapping, and so forth
some of them, may pay attention to the price of cr
with great care. If criminals are punished for diffe
ones that caused prosecutors to go after them,
would-be criminals a confused signal; any deterrent
ing crime is diluted. It seems likely that elected dis
to maximize the deterrent effect on the crimes tha
at B1 (noting role of O.J. Simpson case in close Los Angeles

Steve Lipsher, Bryant Prosecutor Relieved After Close Call: Ea
Retains His Seat After Trailing Newcomer Bruce Brown at On
Changes, Denver Post, Nov. 4, 2004, at B4 (noting role that
Bryant played in close election that ultimately returned DA t
overall performance issues actually supports our point. Indeed
these prosecutions makes it even more interesting that pretex
in these situations.
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 ....").

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also seems likely that pretextual chargi

that goal.
The fourth factor may be the most important. For the state law
crimes that are punished most consistently-basically, FBI index crimes
plus distribution of serious drugs-state criminal law functions as law.65
As we have already noted, prosecutors prosecute these crimes systemati-
cally and aggressively, meaning that, at least roughly, the crimes are en-
forced as written. Legal definitions are not a cover for strategic charging
patterns. Murder, manslaughter, robbery, and aggravated assault-all
these crimes have conduct and intent terms that roughly correspond to
the behavior prosecutors seek to punish. Those legal definitions are rea-
sonably consistent, across both time and place-one reason why these
crimes are good vehicles for comparing crime rates. Consistent, non-
strategic crime definition may flow from another characteristic index
crimes share: They also have public definitions. Burglary, kidnapping,
and rape are not just technical legal terms; ordinary citizens know what
those terms mean.66 That fact constrains state legislators. Members of
Congress can redefine mail and wire fraud to mean, roughly, undisclosed
breach of fiduciary duty (as they have), but no state legislature could
redefine murder to include nonnegligent homicide. Voters would think
such an enterprise silly, or worse. Jurors might refuse to apply the strate-
gic definitions.
In sum, politically accountable local district attorneys must spend the
bulk of their time enforcing a small number of serious crimes. Those
crimes are defined nonstrategically. They must be enforced, roughly, as
written. That is not a recipe for pretextual prosecution.
At first blush, the rise of "community policing"-and the associated
(though less commented on) rise of "community prosecution"-might
seem to change that state of affairs. The 1980s and 1990s saw many po-
lice departments, particularly in urban areas, move toward new problem-
oriented policing techniques and away from simple call-and-response
case processing.67 That meant more police involvement in patrolled ar-
eas, and broader and deeper relationships with local residents and busi-
nesses. It also meant more enforcement of what were previously thought
to be minor crimes-vandalism, vice, various sorts of loitering-both in
order to make troubled neighborhoods more livable for their residents
and as a means of reducing major crimes.68 Beginning in the 1990s, many
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

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prosecutors' offices followed this same pattern o

with local communities, more "say" in charging prac
greater attention to "quality of life" offenses-all
same problem-solving approaches police departm
Notice that one common feature of some kinds o
ing and prosecution is the enforcement of low-level
catching and punishing criminals guilty of much
classic example comes from the New York subway s
forcement of minor crimes like turnstile jumping l
with outstanding warrants on major crimes, and ser
sharply.70 That approach-going after "broken wi
der to get at other, worse crimes-sounds like the Ca
is actually Capone in reverse: Turnstile jumping was
stitute charge to take the place of major felonies.
lice to catch people who could then be convicted
nies.71 It is as if the tax investigation had led to
and bootlegging charges against Capone, inste
around. In such cases, the prosecuted offense is
pretext.
Aside from these reverse-pretext cases, the bigge
nity policing and prosecution is to encourage pro
legedly "minor" crimes non-pretextually, not as sta
else.72 When Police Chief William Bratton wrote ab
stile jumpers, he made it clear that the chief goal o
of Broken Windows Policing (2001). For the best analysis of th

police tactics, see generally Debra Livingston, Police Discretion
Public Places: Courts, Communities, and the New Policing, 97
69. For a good account of the rise of community prosecuti
community policing, see Coles, Community Prosecution, supr
see also Am. Prosecutors Research Inst., The Changing Nature of Prosecution:
Community Prosecution vs. Traditional Prosecution Approaches (Feb. 2004), available at
http://www.ndaa-apri.org/pdf/changing_nature-ofprosecution.pdf (on file with the
Columbia Law Review) (surveying extent to which community prosecution methods have
been adopted).
70. See William J. Bratton, Great Expectations: How Higher Expectations for Police
Departments Can Lead to a Decrease in Crime, in Measuring What Matters, supra note 58,
at 11, 13.
71. "[A]bout one in seven of people arrested for fare evasion was wanted on a
warrant" for another offense. Id. at 13.
72. As Catherine Coles put it:

But where police have moved into community policing, and where prosecutors
have direct contacts with citizens, this demand [for community prosecution]
increasingly takes the form of requests for prosecutors to handle not just felonies,
but also offenses such as prostitution, low-level drug dealing, aggressive
panhandling, intimidation of elderly residents by juveniles, and other quality-of-
life crimes that affect local neighborhoods.
Coles, Community Prosecution, supra note 61, at 22.

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stop people from jumping the turnsti

pressure-recall the data that show caselo
ing through the 1990s74-leaving prosecut
ecutions. Greater community involveme
means that local prosecutors must pay mo
That too tends to work against pretexts: V
punishing the crimes that victimize them
State codes remain full of "crimes" that
Overcriminalization is a problem at the st
it matters much less at the state level,
force those overbroad state codes have l
the opportunities those codes give them
that proposition.77 Consider guilty plea r
constraints and the charging opportun
codes leave to them, local prosecutor
proaching one hundred percent. If a m
acquittal, the prosecutor should find anot
term that can be pinned on the defendan
together, inducing a plea should be easy
are low. Federal prosecutors do not have
ticular defendants, at least not many
countability leaves them free to pursue
taining trial experience.7" Nor do they
constraints that local prosecutors face. Al
guilty plea rates in federal court. Yet f
73. See Bratton, supra note 70, at 12 (calling f

collectively amount to a colossal theft").
74. See supra note 52 and accompanying text.
75. See Coles, Community Prosecution, supra n
76. See Stuntz, Criminal Law's Shadow, supra no
and state crimes and prosecutions). One of us ha
federal legislators alike have incentives to define
federal prosecutors alike have incentives to exploi
Stuntz, Pathological Politics, supra note 7, passim.
ignores the factors discussed in this Essay, which
for local prosecutors than for their federal counte
77. To the extent that local prosecutors truly e
model, the issue of pretextual prosecutions and
them become more salient. See Coles, Community
78. There is some evidence that federal prosec
their case selection decisions. See, e.g., Edward
Maximize? An Analysis of the Federalization of D
(2000) (arguing that federal prosecutors seek certa
connections); Richard T. Boylan & Cheryl X. Lon
Examination of United States Attorneys 15-16 (Ju
bc.edu/RePEc/es2000/0089.pdf (on file with the C
young prosecutors are prone to take cases to trial
closely monitored).

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higher guilty plea rates than their local counterp

acquittal rates for murder cases brought by local dist
are high, a good deal more so than for felonies as
suggest that, at least in high-crime cities and countie
is a fairly strong norm and that district attorneys in
dictions prefer to charge serious crimes and lose
lated lesser crimes and win.
There may be a partial exception in drug cases, which is why the

guilty plea rate in drug cases is higher than the rate for violent crimes and
major thefts.81 No good external measures of drug crime exist; there is
no way to know how many sales of cocaine or heroin occurred in a given
jurisdiction over a given period of time. That may explain why pretextual
prosecutions-say, charging someone believed to be a dealer with posses-
sion of amounts that, in someone else's hands, might be shrugged off as
user quantity-are more common than in street-crime cases.
As the drug example suggests, this system is far from perfect. But at
least for core crimes, meaning violent felonies and major thefts, the legal
and political systems seem to reinforce one another. The law functions as
law: These core crimes seem to be defined nonstrategically and in rough
accord with public definitions. Prosecutors generally charge the crimes
they believe defendants have committed, even when that practice poses a
significant risk of acquittal. And voters know how large or small the gap
is between the crimes their jurisdictions suffer and the criminal charges
their prosecutors file.
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.

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assistants an enormous range of charging

bility may be small, but jurisdiction is
means that federal prosecutors have bot
do what they want, including pursuin
means they tend to think about criminal
the targets of federal investigations, not a
atically. Again, that tendency encourage
ance measures like the FBI's crime index d
the absence of such measures reinforces
preferences in charging practices. Last bu
is not at all like the state laws that define
offenses. Murder and robbery statutes
those terms are generally understood. F
trast, cover a great deal more than cor
merely technical. All American codes are
crimes. In the states, those crimes are
system, they are the staples of criminal l
fined crimes give prosecutors, who are al
charging strategies, a great many op
strategies.
Begin with the two central truths of federal criminal law enforce-
ment: a very small sphere of responsibility coupled with a very large
sphere of jurisdiction. Minimal responsibility is a consequence of local
law enforcement agencies, to whom voters assign the job of crime con-
trol. Maximal jurisdiction is due to the interplay of Congress and federal
law enforcers.
Responsibility first. Local police forces and prosecutors' offices have

been in charge of crime control since those agencies first came on the
scene during the first half of the nineteenth century.82 Even where they
had the constitutional power to do so, federal and state governments had
little interest in taking over that job.83 Over time, local control has be-
come the dominant characteristic of American criminal justice.
Federal prosecutors have had their own sphere of exclusive responsi-
bility, but historically that sphere was politically modest apart from na-
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.

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tional security cases: counterfeiting and immigra

murders and rapes. That sphere of exclusive fede
numerically as well as politically small. Prohibition
ble federal enforcement bureaucracy84-not nearl
over primary responsibility for ordinary law enforc
confine itself to areas where federal criminal law oc
since the repeal of Prohibition in 1933, that fed
various investigative and prosecutorial agencies that
Department (with some important components from
cies, notably Treasury, thrown in for good meas
other uses for its time and talents, creating a kin
mand for broad federal criminal jurisdiction to give
tant United States Attorneys interesting things to
Congress has been all too happy to meet that d
the past generation. Partly, that is because doin
When the Justice Department asks for some new
there is rarely much interest-group opposition, s
that limits other kinds of legislation tends to be low
of criminal legislation can be substantial: Congre
stand against some new crime fad without worry
quences, since local police and prosecutors retain
That is how we've ended up with federal laws agains
violence, and a lot else.88 Federal courts periodica
84. However, the bureaucracy was mostly devoted to the en

Act, not other federal crimes. Thus, the FBI had only about 40
responsible for "secur[ing]" convictions in slightly more than 4,
most of them for violations of the ban on interstate transpor
See J. Edgar Hoover, Report of the Director of the Bureau
Report of the Attorney General of the United States for the F
(1930). Those 4,300 cases were a small fraction of the federal
cases, roughly 65% of which were for Prohibition violations.
Study of Federal Criminal Prosecutions, 1 Law & Contemp.
85. For a (pre-Homeland Security) discussion of the vario
and their interactions with local police agencies, see Daniel
Boundaries Between Federal and Local Law Enforcement, in
Boundary Changes in Criminal Justice Organizations 81, 93-99
2000), available at http://www.ncjrs.org/criminaljustice200
with the Columbia Law Review).
86. Cf. Jamie S. Gorelick & Harry Litman, Prosecutoria
Federalization Debate, 46 Hastings L.J. 967, 973 (1995) (argu
criminalize conduct "even though it intends the jurisdiction it au
a small percentage of cases," and let "prosecutorial discretion"
and effective brake on the federalization of crime"). Gorelick
Department positions at the time their article was published.
87. Daniel C. Richman, Federal Criminal Law, Congressi
Enforcement Discretion, 46 UCLA L. Rev. 757, 771-72 (1999) [hereinafter Richman,
Federal Criminal Law].
88. See id. at 772 ("There are perceived political rewards for supporting all criminal
legislation, particularly if aimed in the direction of some recent outrage, and political
penalties for opposing or seeking to narrow all such laws.").

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expansion. We are in the midst of one suc

ing to more rigorous application of jurisd
two ago, the focus was on ratcheting up in
nal statutes.90 The end result of these jud
They leave federal criminal law more co
Little responsibility and vast jurisdict
forcers must exercise an extraordinary
prosecutorial discretion in deciding whe
that jurisdiction. Congress has seen to
criminalization with a fairly small enforc
2002, there were only about 93,000 fed
(compared to more than 700,000 state
40% of them conducted criminal inv
agency whose task is general criminal la
agents.93 The extent to which agents fr
collaborate with federal prosecutors wil
can be brought only by the five thous
89. The case that spawned this trend is, of cou

549 (1995). Lopez was a constitutional decision, b
involving the interpretation of statutory jurisdictio
529 U.S. 848, 850-51 (2000) (holding arson of ow
scope of the federal arson statute because such
"commerce"). Since Jones, lower federal court dec
elements of various federal crimes have become a
not as common as the Supreme Court would h
Reynolds studied lower court applications of Lopez
"willful judicial foot-dragging." Brannon P. Denn
Resistance: The New Commerce Clause Jurisprud
Ark. L. Rev. 1253, 1256 (2003); see also Craig M.
Criminal Law, 55 Hastings L.J. 573, 574-75 (2004) (
to extend Lopez and progeny to other cases).
90. See, e.g., Staples v. United States, 511 U.S
federal weapons statute requires that a defendan
weapon he possessed); Ratzlafv. United States, 51
currency "anti-structuring" statute requires proof t
illegally evading currency reporting requirement)
433-34 (1985) (holding that food stamp fraud stat
his conduct violated governing federal regulation
decision, Ratzlafwas overruled by Congress. That s
Court's posture; the Justices have been much less
requirements since 1994 than previously-and muc
liability rules that go to conduct as well. For a disc
Pathological Politics, supra note 7, at 561-65.
91. Daniel Richman, The Right Fight, Boston
[hereinafter Richman, Right Fight].
92. Bureau of Justice Statistics, U.S. Dep't of
Officers, 2002, at 1 (2003), available at http://ww
(on file with the Columbia Law Review).
93. Id.

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States Attorneys' offices around the country,94 or

of prosecutors in Main Justice.95
No federal agency has the manpower to make eve
the criminal activity that falls within its statutory
need for selection mechanisms. Just about every fe
ries with it a story about why the case went federal.
as Eliot Ness's targeting of Al Capone. Or as persona
decided to call the FBI instead of the local police
answered the phone thought the case sounded intere
tional as a federal program in which all predicate
police catch with a gun in a designated high-crim
federal court.96 But-outside of a few highly spec
be some story that goes beyond the fact that the de
crime falling within federal jurisdiction.
For evidence of how robust expectations of feder
cretion are, one need go no farther than the neares
proclaim the FBI's commitment to going after ba
beries were recently on the rise.97 Yet instead of
ment in this area, the Bureau actually reduced it,
police to pick up the slack.98 The stickers remain
vague expression of interest than a real commitm
ings surely apply to the ubiquitous FBI warning
94. See Executive Office for U.S. Attorneys, U.S. Dep't o

Attorneys' Annual Statistical Report 2 (2002), available at http
room/reports/asr2002/02_stat_book.pdf (on file with th
(reporting 5,304 assistant U.S. attorneys).
95. See generally Richman, Prosecutors and Their Agents, s
the working interaction between prosecutors and law enforce
96. See Daniel C. Richman, "Project Exile" and the Alloc
Enforcement Authority, 43 Ariz. L. Rev. 369, 379 (2001) [he
Exile] (describing development of "Project Exile" in Richmond
provided for federal prosecution of every gun arrest by the loca
federal jurisdiction).
97. See Abraham McLaughlin, Bank Bandits Move In as Busy
Sci. Monitor, Apr. 18, 2002, at 3 (reporting that nationwide bank
in 1999 to 7,217 in 2000 to 8,259 in 2001); Jodi Wilgoren,
Small-Town Bank, N.Y. Times, Mar. 24, 2002, at 1 (noting that
small towns and 27% in unincorporated rural areas, compar
98. See, e.g., Fox Butterfield, As Cities Struggle, Police Get
July 27, 2004, at A10 (noting the increasing pressure on local
budget cuts and increased responsibility); Gary Fields & John
Places Burden on Local Police, Wall St. J., June 30, 2003, at
departments across the country must fill the void left by rea
Johnson, FBI Passing on Bank Robberies, S. Fla. Sun-Sentinel,
FBI's shift from fighting such crimes as drugs and wh
counterintelligence and counter-terrorism means there are fe
bank robberies-a job increasingly being left to local police."

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CDs-to potential digital pirates.99 Th

cases,'00 but expectations of extreme select
of simultaneously "selling" its intellectual
avoiding the massive resource commitmen
a real "beat" in this area.
This extreme disjunction between federal jurisdiction and federal re-

sources has bred a norm of radical underenforcement. The norm is self-
reinforcing. It reduces the cost to Congress of adding more crimes to the
federal code,'10 which in turn adds to the degree of underenforcement-
and gives agents and prosecutors still more options, more crimes to pur-
sue or not as they wish. The peculiar structure of the federal
prosecutorial establishment reinforces this front-line discretion. The U.S.
Attorneys' offices that bring the huge majority of federal criminal cases
are, in theory, under the control of Main Justice. Officials in different
administrations periodically try to assert that control.102 They regularly
fail. Field offices preserve their independence by leveraging their con-
nections to local officials and by playing off supervision by Main Justice
against oversight by Congress.
Nor are federal prosecutors constrained by meaningful performance
measures. Crime rates, either measured by the FBI's crime index or by
victimization surveys, offer important information about how well local
law enforcers are doing their jobs. No equivalent exists for federal offi-
cials. Partly, that is because most federal crimes are primarily the job of
those local officials. Where expectations of federal activity are greater,
the measures of criminal activity are far more elusive. This was one lesson
of the Savings and Loan scandals of the late 1980s and early 1990s. The
value of collateral plummeted and banks failed. Some of this could be
attributed to criminal fraud, but how much?1'3 The same question can
be asked of the current wave of corporate scandals. Many have been
prosecuted as a result,104 but how can the public or Congress judge
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),

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
whether the federal government has overshot or unde

its criminal enforcement response?105 To ask the ques
that it cannot be satisfactorily answered.
Those who take an interest in monitoring the per
eral enforcers are hard pressed to ascertain levels of act
ness. They still try. Indeed, those who take the inso
Congress passes substantive criminal law statutes as th
interests in the area sorely underestimate the degre
monitors and endeavors to influence enforcement p
orities.1'6 Yet federal enforcers do have considerabl
than their local cousins when it comes to how the
performance.
Back in the 1960s and early 1970s, for example, the FBI under J.
Edgar Hoover was able to bulk up agency statistics by referring a lot of
cases for prosecution under the federal Dyer Act, which covered inter-
state car thefts.'07 U.S. Attorneys would occasionally balk at taking these
"cheap" cases,?08 but they constituted between a sixth and an eighth of all
federal prosecutions from 1964 to 1970.109 The combination of
prosecutorial resistance-particularly in large cities where U.S. Attorneys'
offices thought they had better things to do' o0-and the end of the Hoo-
ver era, however, soon led to a massive shift in FBI resources. Without
resistance from Congress, Director Clarence Kelley was able to launch a
"quality case program" in 1975, under which the statistics touted by Hoo-
ver sharply declined."' Kelley explained the decline by noting an in-
creased emphasis on white-collar and organized crime investigations and
conceded that there was "no way to precisely measure the benefits of this
change in investigative emphasis.""'2 But that was enough.
available at http://www.usdoj.gov/dag/cftf/2nd_yr_fraud_report.pdf (on file with the

Columbia Law Review).
105. See generally Geraldine Szott Moohr, An Enron Lesson: The Modest Role of
Criminal Law in Preventing Corporate Crime, 55 Fla. L. Rev. 937, 973 (2003) ("Depending
solely upon criminal law to control corporate crime is misguided, at best."); Stephen
Labaton, Downturn and Shift in Population Feed Boom in White-Collar Crime, N.Y.
Times, June 2, 2002, at 1 (noting a marked increase in white-collar crimes).
106. See Richman, Federal Criminal Law, supra note 87, at 789-93.
107. SeeJames Q. Wilson, The Investigators: Managing FBI and Narcotics Agents 172
(1978) (recounting congressional testimony by Hoover boasting of "another record ... set
with the recovery of 32,076 automobiles").
108. James Eisenstein, Counsel for the United States: U.S. Attorneys in the Political
and Legal Systems 22 (1978). One U.S. Attorney at the time defended his selectivity: '"You
cannot prosecute every violation of the law that is brought to you. ... There were a lot of
cheap prosecutions available which could have just shot your statistics sky high, but would
have had no significant impact on things." Id.
109. Id. at 106 tbl.6.2.
110. See id. at 105.
111. Wilson, supra note 107, at 173-74.

112. Id. at 174.

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
The federal enforcement bureaucracy c

tension between quality and quantity-th
cretion to further broader programmatic
tisan) goals against the desire to tout it
tional funding. The tension is greatest
demonstrations of a high level of activity
gain and general deterrence. The Justic
ance and Accountability Report, for exam
sure the effect of its fraud or corruption
those areas. It simply recites numbers of
coveries and fines."3
What happens when an enforcement bureaucracy has broad jurisdic-

tion, is small enough to escape responsibility for going after every crime
(even every serious crime) within that jurisdiction, and wants to make as
big a splash as possible with its cases-for political, institutional, and per-
sonal gain? One thing that happens is the frequent reliance on Al
Capone-like strategies. Because federal enforcers can strategically invest
their resources, they have the luxury of looking into areas of possible
criminal activity before it is clear what, or whether, crimes have been
committed. A company restates its earnings and its stock price plummets.
A newspaper prints allegations of municipal corruption. These will re-
quire the expenditure of considerable investigative resources and often
sustained cooperation between agents and prosecutors.114 Along the
way, all sorts of statutory violations may turn up-offenses that fall far
short of the suspicions that first triggered the inquiry. Indeed, a new
crime occurs each time an interviewee lies to investigators."15 Needless to
say, such easy-to-prove crimes can often be generated with only modest
effort from the investigating agents.
The temptation to actually charge these add-on crimes grows as the
investigation progresses. The threat of charges, any charges-the more
easily proved, the better-pushes targets and witnesses alike to cooperate.
As time passes, the temptation to bring any provable charge against the
main target will grow, as an enforcer looking to move on to the next case
(and to reap the personal and professional rewards of having obtained a
conviction) sees little marginal gain from further investigative invest-
ments. The pressure to bring any provable charge will be even greater if
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).

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
reports of the investigation appear in the media,

asking whether and when "X" is going to be indic
The pressure to bring any provable charge agains
tified target has also led federal prosecutors to push
relax the burden of proof. This is not a uniquely
Legislation criminalizing the possession of burgla
does the same thing and can be found in state penal
cutions under those state laws seem to be rare.
equivalent federal statutes are common. Sometim
creatively develop new charging doctrines-without
action-that eliminate the need to prove elusive
local official sold his discretionary power for pe
needs to be proved; only that he took money with
constitutes mail fraud, because it deprives the citize
right to his honest services (and inevitably some
the way, mailed a letter).118 Obviously, federal pro
this theory to one requiring them to prove some qu
iness of federal courts to accept the theory is les
Winter has noted, favorable facts-the whiff of corr
the prosecutor's attention to begin with-go a long
preme Court, the court least likely to focus on t
theory.120 And it was thereafter overruled by Cong
Eskridge has shown, overrules only Court decision
criminal statutes, never decisions that broaden thos
116. See Oesterle, supra note 18, at 451 ("Prosecutors in c

cases now seem quite content to turn to sideshow prosecutions v
public pressure for justice and to avoid the high risks of a m
117. See, e.g., Cal. Penal Code ? 466 (West 1999) (including s
screwdrivers among the banned tools).
118. Charles F.C. Ruff, Federal Prosecution of Local Corrup
Making of Law Enforcement Policy, 65 Geo. L.J. 1171, 1176 (
119. See Ralph K. Winter, Paying Lawyers, Empowering Pr
Managers: Raising the Cost of Capital in America, 42 Duke L.J
instances where proof of failure to disclose has led courts t
criminal law statutes); see also Dan M. Kahan, Is Chevron Re
Law?, 110 Harv. L. Rev. 469, 479-80 (1996) (discussing prosecu
120. See McNally v. United States, 483 U.S. 350, 356 (19
rights theory). For a more recent case in which the Supreme
property theory previously accepted by lower courts, see
Women, 537 U.S. 393 (2003).
121. See 18 U.S.C. ? 1346 (2000) (reinstating intangible rights theory).
122. See William N. Eskridge,Jr., Overriding Supreme Court Statutory Interpretation
Decisions, 101 Yale L.J. 331, 343-53 (1991) (describing "characteristics of Supreme Court
decisions that render them most likely to be overridden"). Eskridge found that criminal
law cases were the largest single category of congressional overrides, at 18%. Id. at 344
tbl.4. The federal government was the most common beneficiary of congressional
overrides (25%), while criminal defendants were among the least common (2%). Id. at
348 tbl.7.

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The use of a theory as baroque as intang

after something as straightforward as br
prosecutors' desire to cut evidentiary corn
noted constitutional limitations on fed
federal prosecutors started to use the mai
corruption, there was no federal bribery
cials.123 A federal bribery statute was th
proof of some nexus-the precise nature
out in the courts124-to federal funding
the conduct that seems worthy of pro
gress, and to prosecutors themselves-a
supporting federal jurisdiction. That d
crimes will rarely have public definitions
alized version of some traditional state
jurisdictional elements thus serve main
complex. Virtually all federal crimes ar
hibited conduct and the conduct that brin
federal power-and those two things ar
might mean something to ordinary voters
"Bribery" will; "federal program bribery"
connection to a federal program is far
All of which means that, while a state l
to redefine core crimes, Congress can do
is the classic example; there are many o
whose sole conduct element is crossing
the crime lies in the intent term: It cov
states with the purpose of committing or
ous state law crimes, including minor o
enforcement agency could possibly enforc
any more than the federal government
prive someone of "the intangible right
utes define not crimes but hooks, legal fo
123. To be sure, the government might have

? 1951, which covers "extortion," oddly defined to
the Travel Act, 18 U.S.C. ? 1952, which criminalizes
foreign commerce" with intent to commit a wide ra
bribery.
124. For the Court's latest effort at working out the precise nature of the nexus
between bribery and federal funding, see Sabri v. United States, 124 S. Ct. 1941, 1945-46
(2004).
125. 18 U.S.C. g 1952. The Travel Act was the centerpiece of the anti-Mafia legislative
program put forward by the KennedyJustice Department. See Nancy E. Marion, A History
of Federal Crime Control Initiatives, 1960-1993, at 28-30 & tbl.2.3 (1994). It was self-
consciously designed for pretextual targeting-for catching a category of criminals, not
defining a type of banned conduct.
126. 18 U.S.C. ? 1346.

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
ment but do not explain or justify it. The reasons f

outside the law.
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.
III. PRETEXT AND TERRORISM
Enter terrorism. Terrorism is something the public cares about (to

put it mildly) and hence pays attention to-it's like homicide (indeed, it
often is homicide), not like mail fraud. It also has a public definition:
politically or religiously motivated violence against civilians. And, impor-
tantly, it has an external measure. Like FBI index crimes, terrorist attacks
are carefully counted, not just nationally but internationally, with consid-
erable attention paid to such data, as we saw in June 2004, when the State
Department took heavy criticism for undercounting.127 And terrorism,
particularly of the international variety, is something for which the fed-
eral government is plainly responsible. To be sure, the feds cannot meet
the threat by themselves.'28 But the FBI is plainly "on the hook" if a
terrorist attack occurs, in a way that is untrue of just about any other
publicly recognized crime.
The catastrophic nature of the September 11 attacks has changed
the federal playing field still more. Now we are unwilling to wait for at-
tacks to occur; we demand that federal enforcement agencies work to
prevent them from happening, not just by improving their intelligence
capabilities but by prosecuting the terrorists before they actually strike.
The Justice Department agrees, and its top officials have regularly made
"prevention" a mantra to justify their requests for additional powers and
to explain what has become a massive redeployment of resources away
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).

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
from other areas.'29 And it has invoked

its commitment to use every possible too
But, of course, therein lies the problem
exceedingly hard to tell what success the
of terrorism, or even whether the peopl
ship to terrorism at all. The prosecuti
under the "material assistance" statute
more teeth by the USA PATRIOT Act)1
versy.132 And the government's interpr
element may allow the conviction of peo
they were aiding a terrorist group. Yet
that a connection to terrorism (on th
shown, either judicially or administra
about "terrorism-related" prosecutions f
element.
The nature of the crimes believed to be characteristic of terrorists
and their supporters has made the challenge of assessing preventive pros-
ecutions even harder. The 9/11 plotters made use of false identification
documents.'33 The use of such documents will often be a federal crime,
but every prosecution of such conduct can hardly be ascribed to the War
on Terror. Nor can all prosecutions of other kinds of criminal activity
that, according to federal authorities, have been used to support terrorist
groups: "stealing and reselling baby formula, illegally redeeming huge
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).

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
quantities of grocery coupons, collecting fraudule

swiping credit numbers and hawking unlicensed T-s
The Bush Administration has had middling suc
problem. In December 2001, a Philadelphia Inquir
data from the Transactional Records Access Clea
alleged that the Justice Department had overstated it
ism cases and convictions in order, among other
budget request.136 A General Accounting Office
ducted in response to these allegations found th
classified by the Justice Department as terrorism re
2002, at least 132 had been misclassified, and the "ov
remaining 156 convictions is questionable."'37 In its
the GAO chided the Justice Department: "Without r
lated conviction data, DOJ and the Congress's abil
terrorism related performance outcomes of our c
and the results of efforts to combat terrorism will be limited."'38 And
critics accused the Justice Department of "blur[ring] the line between
terrorists and common criminals" and deliberately "sabotag[ing]" antiter-
rorism efforts.'39
At a March 2003 House Appropriations hearing, Attorney General

Ashcroft noted that "212 criminal charges" had been brought "related to
terrorism" and "108 convictions or guilty please [sic]" obtained." When
pressed as to whether the charges had been related to terrorism, Ashcroft
responded that "these are individuals that we believe are related to terror-
ism. The criminal charges are not all-some of the criminal charges are
related, for example, to document fraud."'40 At an October 2003 Senate
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.

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Judiciary hearing, the Chief of the Justi

stepped gingerly around the issue. He a
of September 11th, we've charged 284 def
ism investigations,"141 but quickly qualif
[T]here are a number of terrorism inve
cision that is made at the charging st
dant with a non-terrorism crime in ord
security and classified information that
and methods and that sort of thing, th
the criminal discovery that would ensu
terrorism offense.142
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.
141. Criminal Terrorism Investigations and Prosecutions: Hearing Before the S.

Comm. on the Judiciary, Oct. 21, 2003, (testimony of Christopher Wray), LEXIS, Federal
News Service Transcript.
142. Id.
143. TRAC, Criminal Terrorism Enforcement Since the 9/11/01 Attacks (Dec. 8,
2003), at http://trac.syr.edu/tracreports/terrorism/report031208.html (on file with the
Columbia Law Review).

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
This strategy has proven to be an effective meth

and disrupting potential terrorist acts.
Years ago, the government knew Al Capone wa
organized crime boss, yet we prosecuted him wit
remove him from the streets. Today, in order
lives of Americans at the earliest opportunity, th
may charge potential terror suspects with lesser
move them from our communities. The fact that
ism investigations result in less serious charge
the case is not terrorism-related. Moreover, pl
serious charges often result in defendants wh
provide invaluable information to the govern
tion that can lead to the detection and prevention
rorism-related activity....
Often, there is no clear line between terrorism and other
criminal activity such as money laundering, identity theft, visa
fraud, or immigration violations. So-called "sleepers" are diffi-
cult to identify as they seek to blend in with minimal illegal activ-
ity until they are activated. This Administration's strategy of
preventing terrorism has helped protect America for over two
years since the attacks of September 11, 2001. Our commitment
to preventing another attack on U.S. soil has not, and will not,
waver.144
Corallo's statement captures the essence of the problem. Con-

fronted with the greatest security challenge it has faced in recent years,
the federal law enforcement bureaucracy has turned to the strategy it
used to bring down Capone and dozens of other mob figures. And, in-
deed, that strategy is particularly well-suited to the War on Terror.
Among the hallmarks of the 9/11 plot and Al Qaeda operations generally
are low-profile cells of individuals who do not conspicuously violate the
law until they are ready to inflict catastrophic damage or assist those who
do.145 To be sure, it is sometimes possible to grab terrorists at a point in
their planning such that the government can clearly prove their inten-
tions and still neutralize the threat, as occurred when Sheik Abdel
Rahman and others who were prosecuted for plotting to blow up a num-
ber of New York City landmarks in 1993.146 Yet in that case, an FBI in-
formant had infiltrated the group-a piece of investigative success that
can rarely be replicated.
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).

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
If they can be criminally prosecuted be

offenses of those seeking to commit terr
minor. Bringing such cases can disrupt te
age for the government to obtain coop
also incapacitate targets without resort to
gration detentions, and other noncrim
some) are amenable to even greater mis
can satisfy its discovery obligations witho
(so long as it's not exculpatory) when it b
Yet this strategy has left the Administ
strate to Congress and the public that it
resources that have been committed to
surances that the right people are being p
and that terrorist plans are being foiled o
when such matters are not subject to
emerging patterns of minor charges bein
cans or Middle Eastern nationals, in the ab
will surely provide grist for those dispose
The point is not that the Justice Depar
Capone approach to counterterrorism pr
be no realistic alternative. For prosecu
Capone strategy was a convenience. For pr
would-be terrorists it is probably a necess
of proving planned acts of terrorism b
fruit. And the downsides of strategic c
rogue prosecutor going overboard while t
self--are substantially lower in terrorism
trol that Main Justice exercises in this
model for prosecutors, it should be a m
But the Capone strategy does carry a pr
better understood. For decades, federa
system that offered a host of strategic ch
sponsibility, and no external performance
tem, prosecutors' incentives were to (1) se
criteria prosecutors wish to advance), (2
maximize the odds of conviction, and (
147. See generally Samuel R. Gross & Debra

Attack, 102 Colum. L. Rev. 1413, 1417-24, 1436-3
the Justice Department to interview thousands o
thirty-three in order to gather information on ter
148. The precise role that Main Justice played i
recent Detroit terrorism prosecution has yet fu
Lichtblau, After Convictions, the Undoing of a U.S
2004, at Al (describing how, after a scathing int
moved to dismiss charges in case that officials h
Richard Serrano & Greg Miller, Terrorism Case Sh
Oct. 12, 2004, at Al (reporting on the implosion of

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
treme terms possible. Congress's incentive was t

many charging options as possible. For some time
dysfunctional system has been doing what comes na
Doing what comes naturally is not a strategy for
tors' credibility over time, but then there was neve
mize credibility: There were no performance clai
congressional overseers cared deeply about. Now,
in a different world. Terrorism is the Justice Depart
bility. Voters and oversight committees care deeply
whether federal officials are meeting that responsib
ters. The Justice Department would be much bett
Capone go, along with the bird-killing Mob defenda
profile, white-collar targets of the last few decades
Of course, that is water under the bridge. For no
ways to rebuild federal law enforcers' ability to
When we say we've taken down a terrorist, we tr
terrorist. That means, among other things, reducin
tives to follow the Capone strategy everywhere else
IV. DISCOURAGING PRETEXTUAL PROSECUTION
So pretextual prosecution is indeed a problem, not of fairness, but of

political economy. This problem has no neat solution. Pretextual charg-
ing cannot be abolished-federal law enforcers may need it for the War
on Terror. But its use needs to be minimized in cases that do not involve
terrorism. How is that supposed to happen? To some degree, it may
already be happening. The key mechanism is accountability. Several im-
portant trends in federal criminal law enforcement push toward increas-
ingly accountable and transparent policing and prosecution. Unfortu-
nately, current trends in statutory interpretation and federal criminal
jurisdiction push the other way.
Recall the four factors that tend to minimize Capone-style prosecu-
tions in state courts: a clear sphere of responsibility, constrained re-
sources, external performance measures, and unstrategically defined
"core" crimes. At least in the recent past, none of those four features of
local prosecutors' offices has applied to federal prosecutors' offices. That
may be changing. A variety of forces are pushing toward clearer lines of
responsibility for federal law enforcement officials-especially for the
FBI. Consequently, those officials are operating under substantially
greater resource constraints than they have experienced in the past. Fed-
eral law enforcers are still not as constrained, either politically or finan-
cially, as their local counterparts, but the movement is very much in that
direction. Joint initiatives with federal and local officials working to-
gether (usually to deal with some form of criminal violence or drug
crime) may also impose greater political constraints on federal officials.
And at least in a couple of areas, federal law enforcers are increasingly
subject to external performance measures.

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
These trends do not solve the pretext p

to mitigate it, perhaps substantially. The
ber of core federal crimes are defined str
tion for a nominal "crime" distinct from
and prosecutors are seeking to punish. H
promising enforcement trends but in c
narrowing federal criminal liability rules
diction were broadened.
Begin with expanding federal enforcement responsibilities. In re-

cent testimony before a House appropriations subcommittee, an FBI offi-
cial highlighted the Bureau's need to "focus on those areas where there is
not a strong state or local presence in terms of criminal investigative
work." "[R]ight now," he continued, "that is counterterrorism, counter-
intelligence, and those major investigative areas in white collar crime, or-
ganized crime, public corruption, things that other people just don't
do."149 Plainly, counterterrorism is the priority among priorities. At a
March 2004 Senate appropriations hearing, when asked why, with ap-
proximately 12,000 agents, the Bureau was "only dedicating 2,500 to the
effort," Director Mueller assured his questioner that the shift of even
more agents was being considered, and that agents doing criminal work
could always be pulled in, to ensure that every terrorism case gets ad-
dressed.'50 A recent GAO study shows that agents indeed spent less time
on violent and white-collar crime cases than was originally allocated, as
they were redirected to counterterrorism-related matters151-a sign that
resource constraints are hitting the FBI in a way they haven't before.
The priority extends to prosecutors as well. In July 2004, the Mary-
land U.S. Attorney inartfully told his staff that by November 6 (four days
after the general election), he wanted "Three 'Front Page' White Collar/
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").

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
Public Corruption Indictments" and that he was "em

that this office has not convicted an elected offic
1988."152 When the email became public, the
spokesman made clear for the record: "All of our U
know that our top priority is fighting terrorism....
portant issues such as public corruption, yes, but ou
prevention of terrorist attacks and I'm sure that the
land is well aware of that."153
Outside the terrorism area, the scope of federal responsibility is less

clear-and the picture is complicated by the growing opportunity cost of
counterterrorism efforts. Congress seems not to recognize that this op-
portunity cost exists; the congressional message to federal law enforce-
ment has been to do more of everything. The pressure to go after all
forms of white-collar crime remains strong-indeed, that pressure has in-
tensified since the Enron and WorldCom scandals. So does the pressure
to investigate and prosecute government corruption.154 And Congress
continues to press for more federal involvement in violent crime cases. A
May 2003 hearing gave members of the Senate Judiciary Committee a
chance to celebrate Project Safe Neighborhoods-the Administration's
umbrella term for a variety of local programs that use federal agents and
prosecutors against gun violence.'55 And, in June 2004, a bipartisan
group of senators gained Judiciary Committee approval for the Criminal
Street Gang Abatement Act, which would target "criminal street gangs"
(loosely defined) with new offenses, higher sentences, and additional fed-
eral resources.156 One needs to look long and hard (and with more suc-
cess than we have had) to find any evidence of a former priority that
legislators or law enforcers have abandoned since 9/11.
This unwillingness to relinquish any federal responsibility, coupled
with the demands of the criminal justice "front" on the War on Terror,
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).

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
leaves federal law enforcers substantially m

other kind of constraint arises from the stil
to fighting violent crime.'57 For the mo
played out through partnerships between
enforcement personnel. Any time feder
gether on some governance matter, the te
eral officials are driving the train. But in
local cops generally know who ought to b
arrests should be pursued federally-the as
likely, the political factors that constrain loc
federal partners when the two groups work
within the locals' sphere of primary respon
The locals get federal dollars and conside
prosecuted; the feds have to work within
accountability.158 That tradeoff cuts dow
targeting. The local thug singled out for
proven federal offense of being a felon in p
feel aggrieved. But the reason for his select
nection to a comprehensive local enforcem
the federal end of this strategy will often e
in other areas, as federal prosecutors worki
local authorities find themselves under c
nounce precisely what kinds of cases they w
At least in some respects, the Justice Dep
accountability. Consider the "Violent Crim
the Attorney General announced in June
teams of federal agents and prosecutors assi
with the local authorities targeting violen
157. See GAO, Data Inconclusive, supra note 151, a

referrals to U.S. Attorneys' offices increased by
increased activity by ATF more than offset the decr
158. See Richman, Project Exile, supra note 96,
disadvantages to "letting federal, state, and local en
boundaries of their interaction without legislative in
159. 18 U.S.C. ? 922(g) (2000); see also Daniel C. Ric
Stipulating Away Prosecutorial Accountability?,
(discussing ease of conviction for the offense).
160. A recent study noted:
[S]tanding Federal-local task forces necessar
investigative agents in potentially more sophisticat
more structured organizational environment .... Th
urban landscape whose interlocking crime and la
dense and complex, and where greater scrutin
professionals (and the media) exists. These fact
decisionmaking process that is likely less casual th
Malcolm Russell-Einhorn et al., Federal-Local Law Enforcement Collaboration in
Investigating and Prosecuting Urban Crime, 1982-1999: Drugs, Weapons, and Gangs 113
(May 2000), available at http://www.ncjrs.org/pdffilesl/nij/grants/201782.pdf (on file
with the Columbia Law Review).

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
sion of Project Safe Neighborhoods; what's new is th

sion. The goals of the initiative, according to the
decrease, within six months, the number of homici
arms related to homicides, number of violent crime
lent firearms crimes."''16' The risk with these progr
that local officials (supported by their members of
them into unlimited draws on federal resources.162
specification of these parameters is notable evidence
is voluntarily taking on the kind of scrutiny that o
bring to its conduct in the terrorism context.
Such precommitment strategies cannot work e
larly in the white-collar crime area, demonstrating
forcers have accomplished remains a large challen
to dodge the challenge by pointing to the defend
on corporate or political ladders, thereby deflecti
charged offense. Yet as the opportunity cost
grows-that is what the growing emphasis on ter
crime, and violent crime) means-the Justice Depa
better than simply counting the number of politici
utives who lost their jobs due to criminal investi
source constraints, the rise of organizations like
dict grandiose law enforcement claims, the in
importance of federal-local partnerships, and the
eral responsibility for particular crime problems (in
ited to terrorism)-all these things are likely to push
ward a focus on crimes rather than criminals an
charging practices rather than pretextual ones.
Right now, the biggest obstacle to this healthy s
law. Too many federal crimes-including offense
prosecuted; this is not just a matter of doctrinal tec
both broadly and strategically (not the same thing).
the conduct that law enforcers or legislators actuall
statutes seem designed to facilitate convictions i
crime lies somewhere else. "Fraud" in federal criminal law covers a wide
and diverse array of corrupt practices in both the public and private sec-
tors.'61 The federal false statements statute covers concealment, not just
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

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
lies;164 it also covers unadorned false den

was misled by the denial.165 "Extortion"
cepting bribes,167 and blackmail.'68 M
much any handling of money or prope
activities.169 And federal sentences, e
guns or drugs, are infamously severe.170
to federal agents and prosecutors to look
not as laws that define criminal condu
menu that defines prosecutors' option
deprive another of the intangible right of hones

breadth of this statute, see generally John C
"Criminal"?: Reflections on the Disappearing Tor
B.U. L. Rev. 193 (1991).
164. 18 U.S.C. ? 1001(a)(1) includes within it
conceals or covers up by any trick, scheme, or d
165. See Brogan v. United States, 522 U.S. 398,
ended, a federal offense had been completed-ev
unadorned denial misled no one.").
166. The Hobbs Act, 18 U.S.C. ? 1951, covers
States v. Culbert, 435 U.S. 371 (1978), the Court
and extortion that constituted racketeering were
Nothing on the face of the statute suggests a
coverage to persons who have engaged in "rac
statutory language sweeps within it all persons w
affect[ed] commerce . .. by robbery or extort
These words do not lend themselves to restr
recognized, they "manifest . . . a purpose to
Congress has to punish interference with in
robbery or physical violence," Stirone v. Unite
Culbert, 435 U.S. at 373.
167. See, e.g., Evans v. United States, 504 U
public official's acceptance of a bribe constituted
168. See, e.g., United States v. Jackson, 180
federal extortion statute in blackmail prosecutio
illegitimate daughter, who attempted to obtain mo
tabloid press that he was her father).
169. See Jimmy Gurulk, The Money Launderin
Federal Offense or Merely Affording Federa
Punishing Specified Unlawful Activity?, 32 Am.
broad definition of money laundering); Teres
Laundering Charges to White Collar Crimes: W
the Courts Doing?, 17 Ga. St. U. L. Rev. 531, 5
behavior used as basis for charging defendants w
170. There are too many sources to cite for t
critique of the Federal Sentencing Guidelines, see
Fear of Judging: Sentencing Guidelines in the
discussion of the racial impact of federal drug se
Cocaine, Race, and Equal Protection, 47 Stan. L
interesting comparison between America's (and
sentencing doctrines and the more lax senten
generally James Q. Whitman, Harsh Justice: C
Divide Between America and Europe 3-17 (2003

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whom to send up the river, then select the appro

menu in order to induce a guilty plea with the
precise contours of the crime matter only insofar a
tactics or plea bargaining stances. Overly broad fede
harsh federal sentences-crime definition probabl
too tough sentencing rules, though both matter
that makes criminal law enforcement an enterprise
not punishing crimes.
For evidence of the cost of that mindset, one nee
than the history of criminal enforcement of th
success of the Capone case inspired a long traditio
against mobsters, drug dealers, and corrupt official
prosecutors gunning for elusive targets, these "illeg
at a price: Ordinary tax cheats received little pr
Since ordinary tax cheats knew this, the role of cri
in curbing tax evasion was vastly diminished."17
The solution is for federal criminal law to functio
law of homicide. Murder and manslaughter statut
conduct that prosecutors actually punish; autho
those statutes correspond to the sentences prosec
impose on the defendants they prosecute.172 Con
use those statutes to punish the specified conduct
who are guilty of some other, harder-to-prove c
much of federal criminal law falls so far short of that standard does little
harm to the legitimate interests of criminal defendants. Few innocents
are targeted by the FBI and United States Attorneys' offices (notice that
both entities have to agree on the targeting, which protects innocents
better than any realistic legal doctrine restricting charging decisions
could).173 The harm, rather, goes to the political economy of federal law
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).

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
enforcement. Voters and legislative ove

prosecutors do their jobs in a world in
law, not as a menu. Criminals are most
price of their crimes is publicly and trans
that prompt their prosecutions. And fede
have more credibility in a system where
forced unstrategically. That credibility,
one area where the Capone strategy
counterterrorism. Federal criminal law re
boon to federal defendants. It is a necessit
Wise law reform need not mean a whol
the federal code.174 There is a great deal
around the edges of the doctrine, in th
generally work. Unfortunately, current t
terpretation and federal jurisdiction-t
territories-make productive change har
States"75 offers a good example. James
who took bribes from employers to sell o
a federal labor racketeering statute that t
agents investigating Brogan either were
victed of violating that statute or wanted
their investigation. Justice Ginsburg's con
happened next:
Two federal investigators paid an un
ning to James Brogan's home. The in
sessed records indicating that Brogan
ceived cash from a company that em
union Brogan served. (The agents gav
one later testified, because they wanted
surprise ....) When the agents asked
received any money or gifts from t
sponded "No." The agents asked no f
Brogan just said "No," however, the
Government had in hand the records in
was false; and (2) lying to federal ag
investigation is a crime. . . . Brogan
Thus, when the interview ended, a federal offense had been
completed-even though, for all we can tell, Brogan's
unadorned denial misled no one."'
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).

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
Brogan was charged and convicted of both lab

violating the federal "false statements" statute. The
the Supreme Court on the question whether Bro
fell within the terms of the latter prohibition. B
Court held that it did, on the ground that the false
no explicit exemption for unadorned denials of g
By construing the false statements statute so
Court made it easy for federal law enforcers to use t
tute for harder-to-prove labor racketeering char
signals federal criminal litigation sends, and it mak
ment less transparent-to union bosses inclined to
the voters, and to Congressional oversight committ
for federal judges to raise the cost of prosecuting c
like false statements, perhaps by applying a stron
lenity to those crimes. In Brogan, the Court did e
made detour prosecutions cheaper and left the rule
The larger problem has to do with federal cr
Strict jurisdictional requirements are supposed to
nal law. The actual effect is in the other direction;
both narrower and more transparent federal crimin
risdictional restrictions were relaxed. Take an exa
public corruption. Obviously, someone in America
tem needs to police the honesty of state and local o
attorneys are unlikely to do that job well, both b
take a lot of time and manpower to develop, and
have close ties to would-be defendants. A functional
alism would conclude that the FBI and U.S. Attorn
class of crimes, that we should have a general feder
extends to all government officials. But the law of
diction is anything but functionalist. So we have brib
utes for federal officials;'18 state and local gover
bound by a law that bans bribe-taking by those who
178. Id. at 400-04, 406-08 (opinion of the Court); id. at

concurring in the judgment). Justices Stevens and Breyer dis
that the "exculpatory no" doctrine had won the adherence of
federal courts that had considered the issue. Id. at 419-20 (Ste
179. For the two best discussions of the rule of lenity, see
Lenity and Federal Common Law Crimes, 1994 Sup. Ct. Rev. 3
of Lenity as a Rule of Structure, 72 Fordham L. Rev. 885 (2
focus on the rule's effects on lawmakers and law enforcers, not on criminal defendants.
That runs contrary to the traditional view, which sees the rule as a means of ensuring that
individual defendants have "fair warning" of the crimes with which they are charged. For
the classic discussion, see generally Livingston Hall, Strict or Liberal Construction of Penal
Statutes, 48 Harv. L. Rev. 748 (1935).
180. 18 U.S.C. ? 201(b) (2000) (bribery); id. ? 201(c) (gratuities). For the leading
case on the meaning of these statutes, see United States v. Sun-Diamond Growers, 526 U.S.
398, 404-12 (1999).

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enterprises that receive more than $10,00

A large fraction of the litigation under t
devoted to jurisdictional questions: Wha
tity for purposes of measuring the amou
nexus must there be between the feder
ity?182 All of this is both costly to prose
core enterprise of punishing corrupt poli
It gets worse. Before the program bri
tors used the "intangible rights" doctrine
statutes into de facto bribery statutes.183
program bribery statute, they have co
against local corruption,184 partly becau
That means a large fraction of federal br
fraud statutes that (because they are frau
do not require proof of a "quid pro quo
ery cases. This arrangement has a numb
of them is the subject that increasingly d
ture: concerns about whether politician
that they might be straying into legally
take money on the sly.a85 Notice, vaguen
181. 18 U.S.C. ? 666.

182. Cf. Sabri v. United States, 124 S. Ct. 1941 (
facial challenge to the constitutionality of the
Congress acted within the scope of its power un
what message Sabri conveys with respect to the
bribery: The Court stressed the facial nature o
1948-49, so the fate of as-applied challenges rema
183. See Ruff, supra note 118, at 1181-86.
184. See Pub. Integrity Section, U.S. Dep't of
Activities and Operations of the Public Integrity
http://www.usdoj.gov/criminal/pin/AR-Final_200
with the Columbia Law Review) (discussing fe
government official).
185. For examples, see Geraldine Szott Moohr, M
Doctrine: Someone to Watch over Us, 31 Harv. J.
fraud statute fails the notice test because the term
the content of criminal conduct."); Gregory Ho
Prosecutorial Decree: The Use and Abuse of Mail
("The floating definition of 'a scheme to defra
persons potentially subject to it."); Todd E. Molz,
Argument for Repeal by Implication, 64 U. Chi.
language of the mail fraud statute fails to identif
about vagueness have yielded a variety of proposals
fraud. For one of the more interesting examples,
Ephraim Margolin, The Case for the Admissibility
Political Practices in Official Corruption Prosecut
Criticism of private sector mail fraud cases has
cost of overregulation. For the best example of su
at 954-57.

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
concerns in a few cases, but only in a few cases. 86

one of political structure. Neither voters nor me
easily tell what the federal law enforcement bur
when the description of crimes so poorly fits the c
punished. In a world where laws governing fraud, m
bribery do not conform to the ordinary meaning of
ing is impossible and strategic prosecution is inev
Notice the combination of legal rules that produc
fairs. Courts are loath to impose even commonse
substantive legal liability, as cases like Brogan sugge
courts enforce jurisdictional elements strictly, ther
for prosecutors to seek and for Congress to supply
nient catch-all crimes, which is what mail and wire
Prosecutors shop around for the most favorable jur
substance of the relevant crime becomes an afterth
And yet another problem arises out of the curren
strict enforcement of jurisdictional elements. Th
cuts across crimes, not between them. It thus defeat
and accountability instead of reinforcing those goal
ing system of criminal law enforcement, voters, po
forcers would all know which officials are responsib
crimes. Bribery by state and local officials would
district attorneys or with their federal counterpart
ses of the sort popular today, whether under the Sp
Commerce Clause, create uncertainty; it is hard
where. If local officials are corrupt, local voters
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

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
blame. If politics is cleaner than it once

serves credit. That is not a healthy system
Meanwhile, attention is diverted from
the attention they can get: defining crim
tures the prohibited conduct without disa
guilt, and allocating crimes well, so that l
can use their time and talents to the best
hard and important task, with useful role
of Congress and federaljudges. Over tim
bly one in which Congress defines the ge
fine exceptions and defenses (and, often
when it disapproves of interstitial judicia
can history, that is how criminal law work
the past few decades, it has worked ver
broad criminal prohibitions, without ex
cannot touch them-save for their juris
This problem extends well beyond p
mid-1990s, a wave of arsons hit black chu
eral government announced that it was go
lem.'s8 In a healthy legal system, such a
The federal government was making itsel
surable crime, with officials unable to c
and with media and public scrutiny of th
of encouraging this step, federal courts u
(and vague) construction of the arson stat
ment.g90 As a result, jurisdiction has dom
area, with reported opinions focusing o
torched also ran a day care center,191 wh
188. In June 1996, the New York Times ran a deta

three church arsons in particular. Robyn Mere
About Role of Racial Hatred, N.Y. Times, June
Alabama: Out of Ashes, Many Blessings, N.Y. Time
Tennessee: For One Congregation, Trying to Reg
June 23, 1996, ? 1, at 14. For a follow-up story a f
Racism, A Panel Says, N.Y. Times, Oct. 10, 1996, a
189. See generally Church Arsons and Hate Cr
1998, available at http://www.usdoj.gov/usao/e
(on file with the Columbia Law Review) (issue dev
Force).
190. Congress responded with the Church Arso
104-155, 110 Stat. 1392 (codified at 18 U.S.C. ? 8
substantial attention to jurisdiction. For a good e
F.3d 489, 493 (8th Cir. 2004), where the chief que
anti-Semitic threats over the phone-not whet
incident that led to the filing of federal charges.
191. See United States v. Terry, 257 F.3d 366, 3
jurisdiction primarily because the church ran a no

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
local radio stations,192 whether some of its mem

materials crossed state lines,193 or (our personal
church owned a recreational vehicle.194 Natur
quences of any or all of these factors remain unclea
can safely be said is that some church arsons fall w
tion-but only some.195
This is lunacy. Federalism is not an end in its
ensuring proper constraints on government. Clear l
and political accountability advance that goal.'96
to federalism in criminal law retards it. And to no
In a world with 11,000 FBI agents and 700,000 lo
there is no danger that the federal government wil
ests of state and local governments in punishing cri
that federal agents and prosecutors will freelance
reputations and careers at the expense of the sys
gan's "plain language" approach to substantive cri
jurisdiction fetish we have seen since United States
crease that danger. Crimes are more broadly defi
ent than they otherwise would be, and litigation fo
tion than on the conduct and intent elements that
If fostering enforcement accountability is the go
the church arson cases is completely backward. Bett
eas where federal officials have assumed primary
enforcement, jurisdictional restraints should be rela
the margin, that would tend to steer federal pro
where federal criminal law enforcement is most
crime is plausibly within the scope of some Artic
by the standards applied outside criminal law, al
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).

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
within the scope of one or another fed

do not regularly prosecute it ("thing
do"),'99 federal jurisdiction should be a
dictional elements already exist, they s
possible construction, in order to steer lit
channels. Meanwhile, statutory interpre
language arguments and more on the k
tice policy arguments that, not so long
in this area. And more on raising the cost
like false statements and mail fraud, in
from those crimes and toward the offens
tions. Finally, courts and Congress alike n
ing for criminal statutes, so that fraud st
utes punish bribery, and no statutes pu
Not so that defendants are treated better
ers can know their job, and voters can see
Broad jurisdiction would have another
Federal law enforcement officials would h
are putting their resources and, critical
using uncertain jurisdiction as an excus
forcement decisions both more tran
Which, in turn, would allow local official
the allocation of their resources. This kin
federalism is likely to protect state and
time, than any judicial construction of
One more issue needs addressing. Fed
tributes to the pretext problem. Inflated
any reasonable measure, most federal s
prosecutors to charge those crimes instea
their investigations. The Federal Senten
duct" or "real offense" orientation mak
Guidelines were designed to promote se
fendant's criminal conduct, not just the c
liability.201 Real offense sentencing acts
charging: Prosecutors can charge crime
tenced based on crimes X, Y, and Z-eve
and crimes Y and Z are very large. Tha
transparent and criminal charges more st
199. See supra note 149 and accompanying tex

200. See U.S. Sentencing Guidelines Manua
Barkow, Recharging the Jury: The Criminal J
Mandatory Sentencing, 152 U. Pa. L. Rev. 33, 93
201. For a good description and critical analysis
Illogic, and Injustice: Real-Offense Sentencing and
Minn. L. Rev. 403 (1993).

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
At first blush, the Supreme Court's recent decisi

Booker202 seems to reinforce that state of affairs. J
(one of the two majority opinions in Booker) inc
praise to real offense sentencing.203 Preserving jud
based on uncharged conduct appears to have been
behind Breyer's reconfigured Guidelines.204 But
may lead to consequences different from (and, in ou
those its author intended.
Breyer's opinion in Booker converts the Guidelines into, well, guide-

lines-not mandatory rules. Sentencing judges are free to vary from
Guidelines sentencing ranges, subject to appellate review under a soft
"reasonableness standard."205 What that means in practice depends on
how federal judges exercise their new-found sentencing discretion-and
on Congress's willingness to stay its legislative hand. Discretion might be
used to reduce excessive sentences for detour crimes. It might also be
used to scale back sentences in cases where the gap between charged con-
duct and uncharged conduct is especially large: where only minor crimes
are proved, while major offenses lie in the background. If those two
things happen and if courts of appeals affirm the relevant sentences, we
might see the emergence of sentencing law that is both less harsh and
more transparent. Booker could end up advancing the cause of effective,
politically accountable federal law enforcement.
That cause, in turn, may be the key to bringing federal sentences
down to reasonable levels. One reason Congress feels free to pass harsh
sentencing rules is that those rules cost little. Most federal crimes are
rarely, if ever, enforced. Consequently, when they pass some new federal
crime or sentencing enhancement, members of Congress might reasona-
bly believe the new rule will apply only to a handful of cases. That does
not promote responsible lawmaking. If federal sentences were more
transparent and if a larger slice of federal criminal law enforcement dealt
with cases for which federal officials have primary responsibility-so that
congressional drafters know when drafting sentencing rules that the rules
will be frequently applied-Congress would likely draft more reasonable
sentencing rules. Over time, federal sentencing law would become less a
vehicle for political posturing and more a means of defining punishments
that fit the relevant federal crimes.
202. No. 04-104, 2005 WL 50108 (U.S. Jan. 12, 2005).

203. See id. at *19 (opinion of Breyer, J.) ("Congress' basic statutory goal-a system
that diminishes sentencing disparity-depends for its success upon judicial efforts to
determine, and to base punishment upon, the real conduct that underlies the crime of
conviction." (emphasis in original)).
204. See id. at *20 (opinion of Breyer,J.) (discussing examples of sentencing disparity
based on uncharged conduct that would result if the Court were to require jury findings of
Guidelines sentencing factors).
205. Id. at *26 (opinion of Breyer, J.).

182.255.0.242 on Fri, 23 Oct 2020 07:37:37 UTC
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.

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Al Capone's Revenge: An Essay on the Political Economy of Pretextual Prosecution

Author(s): Daniel C. Richman and William J. Stuntz

Stable URL: http://www.jstor.com/stable/4099318

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AL CAPONE'S REVENGE: AN ESSAY ON THE POLITICAL

Daniel C. Richman * & William J. Stuntz **

Most analyses of pretextual prosecutions-cases in which prosecuto

In 1931, Al Capone was the leading mobster in Chicago. He had

* Professor, Fordham Law School.

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money."' Actually, it could. So he was convicted

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erally tolerated in the academic literatu

An analogous issue arises with respect to prete

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their community and about the justice system: that

Another audience also gets a muddied signal: would-be criminals.

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needs, and voters lose the trust they need

The balance of this Essay is organized as follows. Part I reviews the

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sensible statutory interpretation doctrines in crimi

I. THE PRETEXT PROBLEM

Consider four characteristics of Capone's prosecution. First, the gov-

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This in-between quality-not like homicide or armed robbery, yet

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Owls"l"-means that enforcing laws like the ones l

13. These are the two most famously innocuous federal c

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for prosecution.15 If that conclusion is

15. After exploring the various gradations of pe

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Another risk is a good deal larger. Suppose Clin

18. At least until Lucky Luciano rose to fame in the mid

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White Defendant."19 As Robert Gord

Freedman went on to assert that prosecutors have an "ethical obligation"

One obvious response is that all prosecutions are directed at individ-

22. Monroe H. Freedman, The Professional Responsibility of the Prosecutin

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enforcement buck is to bring well-publicized cases.2

25. Cf. Mark E. Matthews, New IRS Publicity Strategy, U.S.

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about laws that ban sleeping under brid

While there is a basic unfairness in some pretext cases

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power to threaten more years in the penitentiary t

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pretextual targeting is fine, constitutiona

38. 238 F.3d 198 (2d Cir. 2001).

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the risk of convictions on trumped-up charges. But

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on a federal home loan application. A

Robert Kennedy's Justice Department, it is said, would ar-

II. PRETEXT AND FEDERALISM

Historically, pretextual prosecutions of Mafia dons were almost al-

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(who enforce state criminal codes) frequently go af

Most regulatory systems are enforced by a mixture of government

Four key features of this system push against Capone-style pretextual