White-Collar Crime

Justice Scalia, Traffic Stops, and White-Collar Crime

Maybe, just maybe, there are too many laws.

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Since the first of the year, the registration on my car — a white Prius- has been suspended. (The state where I live requires emissions testing for all cars, including my Prius, which I think is unbearably silly. Also I work a lot and haven’t been able to make time to run out to the emissions testing place.)

One of the taillights went out about nine months ago, which I used to be able to fix by hitting it really hard. Eventually that stopped working. When I’m driving, I look like a middle-aged white guy who is either a lawyer or a suburban dad (because I am both).

Guess how many times I’ve been pulled over this year?

That’s right, zero. I am in clear violation of the law with my taillight and suspended registration. Yet, I haven’t been pulled over by the police while driving since 1997.

When I was a federal public defender, by contrast, most of my clients were black.

For a large swath of them, pretty much any time they drove they were pulled over. And, because they were my clients, the cops found drugs or guns or evidence of some other crime. I’ve seen people pulled over for driving 66 miles an hour when the speed limit was 65. I’ve had clients pulled over for window tint violations. Or turning without using a turn signal.

Why were these folks pulled over? Because our traffic laws now exist so that cops have an excuse to pull people over whenever they want.

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Those of you who remember law school and didn’t go to Yale know the reason — Whren v. United States.

In Whren, Justice Scalia wrote for the Court that pretextual stops — traffic stops made where there was a legitimate violation of the traffic laws, but where the police were motivated by some, or any, other reason — are kosher under the Fourth Amendment.

If a cop wants to pull you over because he thinks you’re dating his ex-girlfriend, as long as you were actually stopped for a legitimate traffic violation — say, being a few feet over the white line in front of the stop light — that’s completely fine under Whren.

Perfect compliance with the traffic laws is impossible, and almost everyone has to drive. So, essentially at will, the police can pull just about anyone over at just about any time and try to collect evidence of a crime from their car.

Thanks to our dramatic expansion of federal criminal statutes, federal law enforcement can now do essentially the same thing to folks they suspect have committed white-collar crimes.

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It’s been said before, but probably bears repeating: we have more than 4,000 statutes in the United States Code that provide for criminal punishment — 215 of these relate to false statements alone. There are more than 300,000 regulations that allow for criminal enforcement, according to former Attorney General Richard Thornburgh. As judicial-hottie Chief Judge Kozinski has said, in light of this ballooning of federal criminal law, “most Americans are criminals and don’t even know it.”

The American federal criminal justice system is basically a lottery that all of us are entered in that no one wants to win.

Maybe, you think, this is ok — after all, we trust the federal government. Surely they won’t use their immense power to imprison almost any person at will?

This is a problem, though, because, now, our federal criminal world is so law-full that it’s lawless.

Of course, it would be legal to have a law that says “Any person can be put in prison for any time.” This would also be seriously problematic because it punts the point of having a law.

The reason you have a law is so that the government can’t merely arrest you when it believes that you are displeasing. That’s the point of the Magna Carta, right? Law is meant to cabin the authority of the sovereign. A law that says the sovereign can do whatever it wants is barely a law.

Having two statutes that say “any person can be put in prison during the day” and “any person can be put in prison during the night” does not make that any less problematic. Having 4,000 statutes that carve up the world so that virtually any person can be convicted of a crime is no less problematic than having one law that does it, or two.

Regardless of whether the government acts on it, we have moved to a world where the discretion of federal prosecutors is the only meaningful check on whether someone is going to be facing a criminal sanction.

As I wrote about recently, there are good reasons to be skeptical of that discretion, and, if you believe what Scalia said at oral argument in Yates, even he agrees. If the government is going to prosecute to the fullest extent of the law any time they decide to move forward with a case or a person, the Court, on Scalia’s view, ought to start moving to limit that authority.

Which brings us back to Whren. There, Scalia wrote this:

Petitioners urge as an extraordinary factor in this case that the “multitude of applicable traffic and equipment regulations” is so large and so difficult to obey perfectly that virtually everyone is guilty of violation, permitting the police to single out almost whomever they wish for a stop. But we are aware of no principle that would allow us to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement. And even if we could identify such exorbitant codes, we do not know by what standard (or what right) we would decide, as petitioners would have us do, which particular provisions are sufficiently important to merit enforcement.

Based on what Scalia said at oral argument in Yates, perhaps he’s starting to rethink “at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the measure of the lawfulness of enforcement.”

Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.

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