“American Criminal Class”: Why Congress (Sometimes) Protects the Rights of Defendants

LERNER.DOC 11/23/2004 10:21 AM LEGISLATORS AS THE “AMERICAN CRIMINAL CLASS”: WHY CONGRESS (SOMETIMES) PROTECTS THE RIGHTS OF DEFENDANTS Craig S. Lerner* It is an axiom of faith among criminal procedure scholars that legislatures are hostile to criminal defendants. Many have gestured towards an alleged “legislative default” in criminal procedure to support judicial activism to ensure fairness in the criminal process. This article, taking its cue from Mark Twain’s insight that Congress is our “distinctly native American criminal class,” questions the prevailing wisdom and argues that legislatures are sometimes sympathetic to criminal defendants. Over the centuries, legislators have been menaced by criminal prosecution, and this prospect has, on significant occasions, shaped the development of Anglo-American criminal procedure. In the late seventeenth century, after a prolonged period of vicious treason prosecutions, over the course of which almost every political faction was threatened and not a few innocent people executed, Parliament intervened to provide protections for defendants accused of treason. These measures included many of the rights we take for granted in criminal trials today: the right to counsel, to compel witnesses to ap- pear on the defendant’s behalf, and to have those witnesses sworn. More recently, in the aftermath of the Abscam sting operation of 1978–1980, Congress scrutinized undercover investigations; and following the unsuccessful prosecution of Representative Joseph McDade in 1996, Congress enacted a pair of measures to rein in federal prosecutors. Congress in part has itself to blame for the ease with which federal prosecutors can now bring close cases, for Congress has in recent years vastly extended criminal liability, particularly in the area of white collar crime. This article argues that the federaliza- tion of crime exposes politically prominent individuals, including * Associate Professor, George Mason University School of Law, 3301 North Fairfax Drive, Ar- lington VA, 22201, (703) 993-8080, [email protected]. The author thanks Michael Abramowicz, Renee Lettow Lerner, Nelson Lund, Daniel Polsby, Ronald Rotunda, Nancy Tardy, and Todd Zywicki. 599 LERNER.DOC 11/23/2004 10:21 AM 600 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2004 members of Congress, to the criminal process and in this way ensures that the institution will not be wholly antagonistic to criminal defendants. TABLE OF CONTENTS I. Introduction..........................................................................................601 II. The Theory and Practice of Legislative Default ..............................604 A. Political Process ................................................................605 B. Public Choice.....................................................................608 C. Testing the Theory............................................................610 III. Legislative Default Revisited .............................................................613 A. Protecting Defendants......................................................613 B. Upscale Criminals, Their Lawyers, and America’s Antigovernment Tradition............................618 C. The “American Criminal Class” .....................................622 D. The Availability Heuristic: Revisiting Public Choice Theory...................................................................628 IV. Legislators in Action: Protecting Themselves, Protecting Criminal Defendants ...........................................................................632 A. Treason Act of 1696 .........................................................632 B. The Abscam Investigation...............................................636 C. The McDade Blowback ...................................................640 1. The Hyde Amendment.......................................641 a. The Puzzle ..............................................641 b. The Solution...........................................643 c. Postscript ................................................649 2. Citizen Protection Act........................................650 D. Two Cheers for Independent Counsels..........................656 V. Conclusion ............................................................................................661 Appendix A ..................................................................................................663 LERNER.DOC 11/23/2004 10:21 AM No. 3] LEGISLATIVE INITIATIVES IN CRIMINAL PROCEDURE 601 I. INTRODUCTION Mark Twain’s barb that “there is no distinctly native American criminal class except Congress”1 is usually taken as comic exaggeration. At least that was my own view until, while voting in the last election, I realized that my last four Representatives in Congress had all had run-ins with the law, and not on the side of its avenging angels. Police had been dispatched to the home of James Moran (D.-Va.) to investigate a “do- mestic argument” involving his wife;2 Eleanor Holmes Norton (Del.- D.C.), an indefatigable advocate of tax reform, failed to file income tax returns for seven consecutive years;3 Joe Kennedy (D.-Mass.) was frus- trated in his gubernatorial bid when it was revealed that his brother and campaign manager, Michael, had carried on a possibly criminal affair with a teenage babysitter;4 and finally, Mel Reynolds (D.-Ill.) resigned from Congress in 1995 after being convicted in state court of statutory rape.5 In 1997, Reynolds was sentenced on unrelated charges to federal prison, where he repented for several years until President Clinton par- doned him.6 That members of Congress are frequently subjects in criminal investigations and defendants in criminal trials, although seemingly comical, has relatively serious implications. It is an axiom of faith among criminal procedure scholars that legislatures are unsympathetic to criminal defendants. In an influential 1974 law review article, Professor Anthony Am- sterdam coined the phrase “legislative default” to describe the perceived failure of legislatures to enact criminal procedure protections.7 “Legisla- tures,” he wrote, “have not been, are not now, and are not likely to be- come sensitive to the concern of protecting persons under investigation by the police.”8 Amsterdam’s pessimism was born of his conviction that “[e]ven if our growing crime rate and its attendant mounting hysteria should level off, there will remain more than enough crime and fear of it in American society to keep our legislatures from the politically suicidal undertaking of police control.”9 As a consequence, Amsterdam was 1. MARK TWAIN, Following the Equator, in SELECTED WRITINGS OF AN AMERICAN SKEPTIC 329, 330 (Victor Doyno ed., 1983). 2. See Jo Becker, Moran Got Loan from Drug Lobbyist; Va. Congressman Co-Sponsored Bill to Help Pharmaceutical Firm, WASH. POST, Oct. 31, 2000, at A1; see also Marc Fischer, Moran’s Conduct No Impediment to Incumbency, WASH. POST, July 23, 2002, at B1 (“Moran has had a special relation- ship with ethics.”). 3. See Kent Jenkins, Jr., Del. Norton’s Money Battles; Taxes, D.C. Deficit Test Freshman Law- maker, WASH. POST, Feb. 25, 1991, at D1. 4. See Matt Bai, A Kennedy Crackup, NEWSWEEK, May 12, 1997, at 50. 5. See Mike Dorning, Clinton Grants Clemency, Frees Reynolds, CHI. TRIB., Jan. 21, 2001, at 15. 6. Id. 7. Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 378– 79 (1974). 8. Id. 9. Id. at 379. It should be noted that the public “hysteria” may not have been wholly hysterical: starting in the mid-1960s, crime rates rose dramatically and did not plateau until the mid-1990s. See FRANCIS FUKUYAMA, SOCIAL DISRUPTION (1999) LERNER.DOC 11/23/2004 10:21 AM 602 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2004 skeptical of proposals to cede judicial control over police practices to legislatures, as it was unlikely that the latter would formulate effective sub- stitutes to judicial checks—such as the exclusionary rule—on police over- reaching.10 Since Amsterdam, many scholars have similarly emphasized “legislative default” in the criminal procedure area to support judicial activism to protect defendants.11 Judges have also gestured towards an alleged failure in the legislative process to claim a license to give broad readings to constitutional provisions protecting criminal defendants.12 But the premise—that legislatures are indifferent to criminal defendants—has seldom been scrutinized. In fact, legislators have on several occasions confronted the possibility of criminal prosecutions, and this prospect has profoundly shaped the legislative development of Anglo-American criminal procedure. Although legislators may have responded to criminal prosecutions by seeking to narrowly protect themselves, they are of- ten unable to do so without affording protections to others as well. History provides an important example of spillover in procedural protections, from the political classes to ordinary defendants. The Trea- son Act of 169613 was a landmark in the history of Anglo-American procedure; it went far towards establishing the adversary system that we know today.14 Initially, however, the protections it afforded criminal defendants were intended to apply to only a tiny class of cases: prosecutions for treason.15 The defendants in such cases were not ordinary folks, but members of the political classes—peers and gentlemen who sat in the Houses of Parliament.16 After a prolonged period of vicious treason prosecutions encouraged by various political factions, over the course

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