The Supreme Court and Federal Prosecution of State and Local Government Corruption

Abstract

In Skilling v. United States (2010), the U. S. Supreme Court sharply limited the use of the honest service doctrine of the federal mail fraud statute to prosecute state and local officials on public corruption charges. The decision limits the application of the doctrine to bribes and kickbacks. The high court made clear that Congress has broad authority to criminalize "corrupt" conduct, but to do so must clearly define the conduct it wishes to regulate. This article evaluates the impact of the Skilling decision on federal prosecutions of state and local government officials, and proposes a new federal criminal prohibition on acceptance of high-value illegal gratuities by state and local employees. Despite the strong public policy argument for the passage of a high-value intergovernmental illegal gratuity statute, Congress has shown considerable reluctance to enact statutes giving prosecutors clear authority to pursue state and local officials for non quid pro quo offenses.