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Does a key line in Stevens foreshadow the demise of "honest-services" fraud statute?

By Douglas A. Berman

I found Chief Justice Roberts opinion for the Supreme Court in the Stevens "animal porn" case (basics here) to be a pleasure to read for a number of reasons (including my discovery that my new iPad is great for reading SCOTUS slip opinions).  But one particular sentence jumped out as an indication that there may be other forthcoming SCOTUS rulings that notable federal criminal statutes are constitutionally problematic.  Specifically, this sentence in the Court's discussion of prosecutorial discretion struck me as a harbinger of rulings to come: We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly. If I recall oral arguments correctly, I remember that a key part of the US Government's defense of the broad "honest services" fraud statute at issue in the Black case and some other pending SCOTUS cases (including Skilling) was its assertion that federal prosecutors would always and only use the statute responsibly...continue to full post

Full post as published by Sentencing Law and Policy on April 20, 2010 (boomark / email).