FEDERAL CRIMINAL LAW

In the past two decades, Congress has enacted many new types of criminal statutes, such as the racketeer influenced and corrupt organizations act (RICO) and the continuing criminal enterprise and money-laundering offenses. New approaches to criminal penalties and sentencing have also been adopted, including criminal forfeiture, high mandatory sentences, and the sentencing guidelines. Although the government has been prosecuting these new crimes and penalties, often in combination, for many years, with few exceptions their constitutionality has not been tested in the Supreme Court.

The Constitution as applied to the substantive federal criminal law is largely dormant. The Supreme Court infrequently agrees to review cases raising issues of interpretation of federal criminal statutes. Even rarer is the case in which the Court agrees to consider the constitutionality of a substantive criminal statute. And cases in which the Court holds either substantive criminal legislation or prosecutorial action to be unconstitutional are rarer still. This is not for want of a large number of federal criminal cases in which such issues are raised, nor for a lack of applicable constitutional provisions or doctrines against which federal criminal statues and prosecutions can be tested—for example, double jeopardy, vagueness, and cruel and unusual punishment.

There have been a few recent exceptions to the prevailing pattern. In Grady v. Corbin, a 1990 decision arising out of a state drunk driving-criminal homicide prosecution, the Supreme Court adopted a revised double-jeopardy test that, among its most important effects, may have an impact on federal RICO and continuing criminal enterprise prosecutions.

Before Grady, the principal test for determining whether the Constitution was violated by successive prosecutions under two different criminal statutes for the same criminal act or transaction was the doctrine described in Blockburger v. United States (1932): that the double-jeopardy prohibition is not violated if each of the statutes involved in the two prosecutions requires proof of a fact that the other statute does not.

The effect of Blockburger has been generally to permit separate prosecutions growing out of the same conduct (even if the essence of the charges are similar) as long as they were based on different federal criminal statutes. In the federal criminal context, the Blockburger standard is easily met; there is little coherence or consistency in the way federal crimes are drafted, and the nature of most of these statutory offenses is such that they have elements quite different from all others.

In Grady, the Court ruled that the Blockburger test should still be applied in the first instance. If this standard is satisfied by a comparison of the elements of the two offenses, it is to be followed by a further inquiry under which the subsequent prosecution is barred if "the government, to establish an essential element of an offense charged in that prosecution, … prove[s] conduct that constitutes an offense for which the defendant has already been prosecuted."

Rather than focusing, as does Blockburger, on the statutory elements alone, this latter test requires a comparison of what the prosecutor attempts to prove at both of the trials. Justice william j. brennan, writing for the majority in Grady, took pains, however, to note that "[t]his is not … [a] same evidence test. The critical inquiry is what conduct the … [government] will prove, not the evidence … [it] will use to prove that conduct." Depending on its subsequent interpretation, application of the Grady test could impose an important restriction on the government's ability to prosecute RICO and continuing criminal-enterprise cases. The RICO offense is committed when a person conducts the affairs of an enterprise (a continuing conspiratorial group or legal entity, such as a corporation or a governmental agency) through a pattern of racketeering activity that involves the commission of two or more related predicate offenses.

Before Grady, the government could, and often did, prosecute RICO cases relying on predicate offenses for which the accused had previously been tried and convicted (and even offenses of which the accused had been acquitted). Grady 's abandonment of Blockburger as the exclusive test of double jeopardy in successive-prosecution cases can be argued to bar the use as predicate offenses in RICO (and, for similar reasons, in continuing criminal enterprise cases) of crimes for which the accused has previously been tried. If the Grady test is applied as Justice antonin scalia, in dissent, suggested it would be—that is, "where the charges arise from a single criminal act, occurrence, episode, or transaction, they must be tried in a single proceeding"—the decision will have the effect of barring separate trials of a RICO charge and the predicate offenses on which the RICO count is based.

An early post-Grady decision, United States v. Esposito (1990), handed down by a federal court of appeals, has taken a contrary view, however, holding that Grady does not bar a prosecution of the predicate crimes where there has been a prior acquittal on the related RICO charge. Esposito relied mainly on the earlier Supreme Court decision in Garrett v. United States (1985), a case only briefly cited in Grady.

Garrett involved the double-jeopardy implications of a continuing criminal-enterprise prosecution where the facts underlying a prior conviction of marijuana importation were used to prove one of the three predicate offenses on which the continuing criminal-enterprise charge was based. The Supreme Court ruled that the double-jeopardy prohibition was not violated where the prior conviction was only one incident of conduct that occurred on two single days during the five-year course of conduct that was the basis for the continuing criminal-enterprise charge.

Although Garrett seems to be a relevant precedent in deciding on the effect of Grady on RICO and continuing criminal-enterprise prosecutions, the question remains whether, after Grady, Garrett is still good law and, if so, whether in a RICO or continuing criminal-enterprise prosecution, the government in proving conduct underlying a prior conviction as a predicate offense is trying to "establish an essential element of … [the] offense charged in that prosecution" (emphasis added).

Grady does not affect another application of the same Blockburger test—its use as the constitutional standard for determining whether separate punishments can be imposed for offenses tried together. Accordingly, even after Grady, there is no constitutional bar to the practice of prosecuting, along with a RICO count, separate predicate offenses (even those based in essentially the same harmful conduct) whose statutory elements differ from each other and those in the RICO statute and, following conviction on all of the charges, imposing separate punishments for each of the several crimes.

Grady is a modern rarity, a constitutional decision that may impose a substantive restriction on the enforcement of the federal criminal law, but there is a chance that it will not remain very long on the books. It was a 5–4 decision, with Justice Scalia, joined by Justices sandra day o'connor, anthony m. kennedy, and Chief Justice william h. rehnquist dissenting. Given the close division in the case, the subsequent retirement of the author of the majority opinion, Justice Brennan, and the fact that the Court's articulation of double-jeopardy doctrine seems to be continually evolving, the case is a possible candidate for early overruling.

Apart from Grady, no other recent significant constitutional decision has served to restrict the use of the many innovative federal crime statutes and punishments enacted during the past two decades. The closest that the Court has come recently to such a decision is Justice Scalia's concurring opinion in H.J., Inc. v. Northwestern Bell Telephone Co. (1989) (joined by the same three Justices who joined him in dissent in Grady), in which he raised doubts about whether a key element of the RICO statute—the "pattern" requirement in the "pattern of racketeering activity" phrase—meets the constitutional proscription against vagueness in criminal statutes.

The H.J. decision itself involved a civil action under the provision of the RICO statute that authorizes a private treble-damage suit to be brought by a person injured by a criminal RICO violation. Justice Scalia noted that because RICO has criminal applications "as well," it "must, even in its civil applications, possess the degree of certainty required for criminal laws." A corollary follows from this proposition. A decision in a civil RICO suit that the "pattern of racketeering" phrase used in defining the criminal violation is constitutionally infirm would apply equally in the criminal context. Thus, a constitutional decision that might in its immediate impact serve to insulate business people from treble-damage actions could also serve to protect organized-crime figures from federal criminal prosecution. Of course, it remains to be seen whether the concurring opinion in H.J. will gain another adherent and ripen into a constitutional restriction on the breadth of the RICO statute.

An innovative aspect of the RICO and drug statutes, the punishment of criminal forfeiture, was recently considered in Caplin and Drysdale, Chartered v. United States (1989), where the Court held that neither the Fifth nor the Sixth Amendment exempts from forfeiture assets that a criminal defendant proposes to use to pay defense counsel. In a related case, United States v. Monsanto (1989), the Court upheld the constitutionality of a pretrial order freezing such assets in a defendant's possession.

A more central constitutional challenge to criminal forefeiture, litigated in some of the courts of appeals, but yet to be considered by the Supreme Court, is the question as to whether, given the nature and circumstances of the offense, a forefeiture might be grossly disproportionate under the Eighth Amendment's cruel and unusual punishment clause.

Under the RICO statute, the prosecutor may seek forfeiture of the convicted person's entire interest in an enterprise the affairs of which were carried on in violation of the statute; the statutory forfeiture provision contains no limitation. Moreover, once the accused is convicted, forfeiture is mandatory; the judge has no discretion to reduce the amount. Thus, a person who owns all or most of a corporation and violates the federal criminal law, for example, by accepting or paying some kickbacks may, as a result of a RICO conviction, forfeit his or her entire interest in the corporation to the government.

In United States v. Busher (1987), taking to heart the Supreme Court's ruling in solem v. helm (1983) (the Eighth Amendment "prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed"), the Ninth Circuit Court of Appeals ruled that the Eighth Amendment limits extreme criminal forfeitures under RICO (and under the drug laws) to insure that the punishment imposed is not "disproportionate to the crime committed." Some of the other circuits have ruled similarly.

None of these decisions has been reviewed by the Supreme Court. However, the Court has agreed to consider an appeal on an Eighth Amendment ground in a drug case that might shed some light on the forfeiture punishment issue. In Harmelin v. Michigan, the Court will decide whether a mandatory term of life imprisonment without parole imposed on a person with no prior criminal record, who has been convicted of possession of slightly more than a pound of cocaine, violates the eighth amendment proscription against cruel and unusual punishment. The case will be considered in the 1990–1991 term.

There has been one recent important constitutional decision affecting a key element in the federal criminal enforcement system, mistretta v. united states (1989), where the Court sustained the United States Sentencing Commission against a constitutional challenge claiming that the legislation setting up the Commission delegated excessive legislative power to the Commission and violated separation of powers doctrine.

In 1984, with a view to eliminating excessive disparity in federal sentences, the Congress enacted the Sentencing Reform Act setting up the Sentencing Commission as an independent body in the Judicial Branch, with authority to establish binding Sentencing Guidelines that, based upon detailed factors relating to the offense and the offender, provide for a range of determinate sentences for all federal offenses.

In Mistretta, the Court ruled that the Sentencing Reform Act sets forth "more than … [the] 'intelligible principle' or minimal standards" that are required under traditional nondelegation doctrine prohibiting excessive delegations of legislative authority: "Developing proportionate penalties for hundreds of different crimes by a virtually limitless array of offenders is precisely the sort of intricate, labor-intensive task for which delegation to an expert body is especially appropriate."

While recognizing that the Sentencing Commission "unquestionably is a peculiar institution within the framework of our Government," the Court rejected the argument that the structure of the Commission violated separation of powers doctrine insofar as it required Article III judges, who sit on the Commission with other nonjudicial appointees selected by the President, to exercise legislative authority; and also required those judges to share their judicial rulemaking authority with nonjudges; and threatened judicial independence insofar as the President is given authority to remove the judges from the Commission.

Mistretta is a significant decision since it sustains against constitutional attack the basic structural change relating to federal sentencing that Congress had effected by enacting the Sentencing Reform Act. Although there are further constitutional issues that may be raised in cases applying the guidelines—for example, whether the guidelines violate due process insofar as they restrict judicial discretion to weigh individual factors in sentencing—the message of Mistretta is that the Sentencing Commission and its guidelines are here to stay.

Although Mistretta is significant, it is also sui generis. It is a unique decision relating to a new institutional structure and does not detract at all from the observation made earlier that the Constitution is largely dormant as applied to the substantive federal criminal law.

Of course, given the current makeup of the Court, public attitudes toward crime, and the historical reluctance of the Court to adjudge substantive federal criminal legislation unconstitutional, even were the Court to agree to review the constitutionality of these new measures, it would be unlikely that any of them would be found invalid. Still, even if declarations of unconstitutionality are unlikely, it would be helpful to the bench and bar if the Court were to review these issues with greater frequency.

The import of the Court's general reluctance to review many issues of statutory interpretation and the constitutionality of substantive federal criminal laws and related issues (while inexplicably continuing frequently to delve deeply into the minutiae of Fourth Amendment search and seizure issues) goes far beyond the direct effect of the Court's failure to consider the relevant issues; it influences the lower federal courts, which see many more federal criminal cases than the high court, and it may also be having an impact on the Congress.

Not surprisingly, federal district courts and courts of appeals generally do not give extended consideration to claims challenging the constitutionality of the new federal criminal statutes such as RICO. Correspondingly and perhaps more importantly, they also appear generally not even to be influenced very much by constitutional values in their interpretation of federal criminal statutes. This may not be unexpected in a climate created by a high court that itself is paying little attention to such issues. Yet in a system of judicial review, one expects constitutional values to be applied not only as a basis for determining the validity of criminal statutes, but as an element influencing, in appropriate cases and to a limited extent, issues of statutory interpretation.

In recent years, Congress has legislated an explosion in federal criminal statutes. At the same time, the legislature seems to be paying less and less attention to statutory details and has even become careless in the drafting process. In 1984, 1986, and 1988, Congress enacted comprehensive legislative packages encompassing a large number of federal criminal subjects; in the 1988 legislation, for example, a significant number of the provisions were directed to correcting drafting errors in the earlier legislation. Although it is not possible to demonstrate any direct linkage between the Supreme Court's inattention to the federal criminal law and the increase in legislative action in this area and the corresponding increase in drafting sloppiness, one might expect the Congress to be affected in its actions if the Court were to enter this arena more frequently.

Were the Court more actively to review and perhaps occasionally invalidate federal legislative or executive action in the criminal sphere affecting substantive interests, the effect might go far beyond the specific issues being decided. It might influence federal judges' approach to issues of interpretation of federal criminal statutes and also affect the kinds of cases prosecutors bring and the kind of positions they take in cases being brought. Most important, it could influence the Congress and have a significant impact on the form and content of future federal criminal legislation.

Norman Abrams
(1992)

Bibliography

Abrams, Norman 1986 Federal Criminal Law and Its Enforcement. St. Paul, Minn.: West Publishing Co.

——1989 The New Ancillary Offenses. Criminal Law Forum 1:1–39.

Kurland, Adam H. 1989 The Guarantee Clause as a Basis for Federal Prosecution of State and Local Officers. Southern California Law Review 62:367–491.

Lynch, Gerard E. 1987 Rico: The Crime of Being a Criminal, Parts I & II, Parts II & III. Columbia Law Review 87:661–764, 920–984.