The most important lawsuit argued in the US Supreme Court last week wasn’t the dispute over the president’s power to forgive student loans. It was an almost unnoticed criminal case involving Medicaid fraud and identify theft. The wrong result could violate our right to have clear notice of what constitutes a crime. In a nation with as many criminal laws as this one, this matters.
The facts are deceptively simple. The defendant, David Dubin, was convicted of fraud after overbilling the federal government for services provided to a patient. If that’s what he did, he deserves to be punished. Plaudits to the prosecutors for getting him.
The tricky part is that he was also charged with aggravated identity theft. That crime requires that the defendant “use” the identity of another person “without lawful authority.” How did Dubin do that? According to the prosecution, he sought reimbursement for an examination that he never performed.
Okay, that’s a terrible thing to do. It’s obviously illegal. But it’s not how most of us think about identity theft. We imagine someone pretending to be us. But Dubin didn’t claim to be the patient. He lied by claiming that he provided more services to the patient than he really did. That’s bad – but it’s hard to call it theft of the patient’s identity.
Small wonder that during oral argument in the Dubin case, justices on both ends of the political spectrum suggested that so broad an interpretation of identity theft was a considerable stretch. Justice Neil Gorsuch summarized the prosecution’s position this way: “Every time anyone overbills for anything, that triggers this statute.” Justice Ketanji Brown Jackson warned that the government’s theory would turn “every fraud in the world” into identity theft.
Still, even if the justices doubt the government’s theory, what makes the outcome so important? Because of the fundamental principle that you and I deserve clear and unambiguous notice of what constitutes a crime. If a vague statute leaves doubt about what’s forbidden, even the most determinedly law abiding among us can stumble into prison.
That’s why the courts have long endorsed the rule of lenity, under which ambiguous criminal laws are interpreted narrowly. The rule, the late Justice Antonin Scalia once wrote, means that “the tie must go to the defendant.” The principle has many versions, but they share the core insistence that the government must be crystal clear about what it intends to forbid.
This insistence is particularly important because nobody knows how many criminal laws there are, say nothing of what they prohibit.
It’s true. Back in the 1980s, the Justice Department tried to count federal criminal laws and gave up at around 3,000. A January 2023 study by the Mercatus Center puts the current figure at 5,199. But if we include the crimes created by federal agencies from power delegated by Congress, the number is somewhere in the six figures.
And that’s just federal law.
Even if one views as hyperbole the popular claim that each of probably commits three felonies every day, the proportion of otherwise law-abiding citizens who inadvertently offend is certainly high. Or perhaps you were unaware that under Agriculture Department regulations, you can be sentenced to a year in prison for playing music too loud in a national forest.
Now add to the too-many-laws challenge the additional problem that many of those statutes are ambiguous. Unless you can explain exactly what it means to “disturb” a “significant cave” — another federal crime punishable by up to 12 months in prison — it’s easy to see why democracy requires a rule of lenity. Otherwise, we’ll be without fair notice of what conduct could land us in jail.
Legislators often look askance at the rule of lenity, as it were just another technicality to let criminals off the hook. But the Supreme Court has often endorsed some form of it. The most recent came in 2015, when the justices relied on the lenity principle in determining that a fish is not a “tangible object” under the Sarbanes-Oxley financial fraud provision. As a result, a ship’s captain who threw a (possibly illegal) fish overboard was not guilty of destroying evidence within the meaning of the act. Writing for a four-justice plurality, the late Justice Ruth Bader Ginsburg explained that because the statute could be construed in more than one way, lenity required that it be interpreted to “provide fair warning concerning conduct rendered illegal.”
Exactly. Fair warning is required. The government’s reading of the federal identity theft statute provides none.
As it happens, the rule of lenity has already been applied to identity theft. To take one example, in 2016 the Supreme Judicial Court of Massachusetts held that using a forged letter to try to get benefits from a fund for victims of the Boston Marathon bombing was only larceny, not identity theft, because the defendant never pretended that he himself was the author of the letter. Whenever a criminal law has more than one plausible interpretation, the court concluded, “the rule of lenity requires the defendants be given the benefit of the ambiguity.”
To be sure, the language of the federal statute is different, but the theory should be the same. Dubin should win his case, not because he’s a sympathetic character — he obviously isn’t — but because the alternative would be to interpret the countless ambiguities in our many thousands of criminal laws any way prosecutors want.
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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”
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