S. 49 & H.R. 2822, Public Corruption Prosecution Improvements Act

The “Public Corruption Prosecution Improvements Act” (the “Act”) is the Congressional response to the instances of corruption by public officials that have come to light in recent years. Both bills substantially expand federal criminal statutes aimed at prosecuting public corruption by: (1) increasing the statute of limitations from 5 to 6 years for crimes involving bribery, extortion, theft of government property, mail fraud, and racketeering; (2) reducing the threshold amount for theft or bribery involving federally-assisted programs from $5,000 to $1,000 while increasing the maximum prison term for each offense from 10 to 15 years; (3) applying the statutes prohibiting embezzlement or theft of federal money or property to government officials and employees in the District of Columbia; (4) increasing the predicates for RICO prosecutions and wiretaps to include embezzlement or theft of government money or property; and (5) revising the crime of illegal gratuities to include gifts given “for or because of” the recipient’s public office rather than “for or because of any official act.” Additionally, S. 49 and H.R. 2822 authorize the appropriations of $25 million to the Offices of the Inspectors General and the Department of Justice to investigate and prosecute public corruption offenses.

S. 49 goes beyond H.R. 2822 to also: (1) expand mail and wire fraud statutes to cover offenses involving any thing of value; (2) enlarge the venue for federal offenses by allowing prosecutions in any district in which an act in furtherance of the offense is committed; (3) increase the maximum term of imprisonment for several public corruption related offenses; (4) provide a new expansive venue provision for crimes of perjury; and (5) directs the United States Sentencing Commission (“USSC”) to review and amend its guidelines and policy statements regarding public corruption offenses in light of congressional intent to increase the penalties for such offenses.

NACDL believes that the provisions of the Act are redundant and unnecessary. The federal statutes addressing public corruption crimes, especially that of mail and wire fraud, are already read expansively by federal courts to address any conduct that even remotely resembles public corruption. Therefore, the Act’s revisions of these statutes will serve only to stretch the definition of these crimes beyond any recognizable boundary and invite prosecutorial abuse. Regarding the directive given to the USSC, no evidence has been produced to show that the current guidelines fail to provide adequate sentences for public corruption offenses. Such an unjustified increase in these penalties is wholly inappropriate.

On February 26, 2009, NACDL sent a letter to the Senate Committee on the Judiciary expressing its opposition to the Act’s passage. On March 12, 2009, the Committee approved of S. 49 and it was placed on the Senate Legislative Calendar. H.R. 2822 was referred to the House Committee on the Judiciary on June 11, 2009 and is currently being reviewed by the Subcommittee on Crime, Terrorism, and Homeland Security.

Resources on S. 49 and H.R. 2822

February 26, 2009, NACDL Press Release Criticizing S. 49

February 26, 2009, Letter From NACDL and the Heritage Foundation Regarding S. 49    

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