The 1988 law at issue aims at public corruption and corporate misconduct, but sweeps far too broadly, criminalizing schemes to "deprive another of the intangible right of honest services."
If that language seems a little, well, intangible to you, you're not alone. Hurling hypotheticals, the justices strained to find a limiting principle that could prevent the law from covering an employee reading a racing form on the clock (Stephen Breyer) or calling in sick to go to a ballgame (Antonin Scalia). Of some 150 million workers in the United States, Breyer told Drebeen, "I think possibly 140 million of them would flunk your test."
The court's struggle with the "honest services" statute points toward a larger issue: the burgeoning problem of overcriminalization.
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