Sheldon Silver’s Sentencing Turns Spotlight on Hotly Debated Law

pr Sheldon Silver, one of New York’s most powerful politicians, was sentenced on May 3, to 12 years in ison. The case symbolizes, for many, the state capital’s culture of corruption.

Silver’s conviction was the capstone of Preet Bharara‘s crusade against corruption by public officials. Bharara, the Attorney for the Southern District of New York, has seen over twelve state lawmakers’ convicted — or pleading guilty.

None of the lawmakers had the power that Silver enjoyed. Prosecutors wanted to make him into an example of how NOT to behave, and they asked that Silver’s sentence be greater than that given to other New York State legislators.

Silver, convicted on November 30, faced charged that included money laundering, extortion and the semi-nebulous crime of honest services fraud.

Honest Services Fraud

The law that defines honest services fraud is only 28-words long. The number of words consumed in challenging the statute in front of America’s Supreme Court are numberless. A person might as well try to count the grains of sand at the beach as to quantify everything written about the controversial rule.

William Anderson, a teacher at Frostburg State in Maryland, says, “You may not have robbed a bank or stolen anything — but I guarantee that you are guilty of “honest services fraud”.

If you have ever taken a longer lunch break than was authorized or made a personal phone call at work, used your employer’s computer for personal business or had a contract dispute with a client, then an enterprising federal prosecutor justifiably, under the law, portray you as a criminal.

What The Law Is

The honest services fraud law was signed in 1988 as a part of the mail and wire fraud regulations passed the same year. The law declares it a felony for executives and government leaders to deny the people they serve the “intangible right to honest services”.  The regulations are strangely worded and has divided juries and let to criticism for numerous, baseless prosecutions.

Honest services fraud comes in two flavors: public and private. The public version covers elected or appointed officials. The second includes private citizens who fail to provide honest services. Because of this, private, honest services fraud can be a crime that almost everyone is guilty of. Violate the Statute and you’re facing five years in prison, a $250,000 fine — or both.

Critiques

Most people are critical of the honest-services law and argue that two main flaws are built in:

The statute allows federal prosecutors too much discretion and allows them to go after persons they don’t like.Prosecutions of state officials under the law ay violate principles of federalism because it represents a federal judgment that can’t be trusted to the states.

Before he died, Supreme Court Justice Scalia was critical of the law. According to him, the Justices have not defined what separates the “criminal breaches” from the offensive but legal ones. The honest services law “invites misuse by attention-seeking prosecutors” who want to bring down local officials and corporate CEOs.

Comprehending the problem, Scalia promised that the “current chaos prevailing is irresponsible.”

Notable Fraud Cases

• Jack Abramoff — a Washington DC lobbyist, sentenced to four years in prison for providing politicians golf junkets and expensive meals.
• Wayne Bryant – former Democratic State Senator from New Jersey, Bryant was convicted of several corruption charges for using his power and influence to obtain a job at a state Medical school in exchange for funneling millions of dollars to the school.
• Randy Cunningham – a former US representative, Cunningham was sentenced in 2006 for charges surrounding his acceptance of over $2.3 million in homes, yachts Persian rugs and antiques.

Ask the Questions

If you are charged with honest services fraud, be sure to retain an attorney experienced in this obscure corner of justice.