Philosophy students occasionally wile away idle moments by arguing over what constitutes a truly victimless crime. It's a more complicated issue than one might suppose. Failure to wear seat belts is an individual decision, but society as a whole pays for the results of horrific accidents. Gamblers risk their money voluntarily, but a compulsive gambler may end up hurting everyone close to him. And so forth.
But I think I've stumbled on a crime whose victimlessness defies any effective rebuttal. It's the crime of Olympic bribery.
A couple of guys get hired by the civic leadership of a state to bring the Games to the state's largest city. They discover that members of the international committee charged with choosing the site have a little weakness for expensive gifts--luxury apartments, trips to Disneyland, help with their children's college tuition. The Olympic entrepreneurs find more than a million dollars in gift money, hand it out, and win the prize.
Who are the losers here? Certainly not the members of the international committee; they've lived like potentates. Not the city that submits the winning bid; its Chamber of Commerce is salivating over the potential long-term profit. Not the taxpayers of the state; it wasn't their cash that got handed out.
I suppose you could argue that the victims are the other applicants around the world that lost the competition because they didn't bribe lavishly enough. But that's a pretty weak argument. Nobody needs to host the Olympics. Any city in the world can survive perfectly well without ever coming near them.
So one reasonable reaction to the current Olympic bribery scandal might be to say, "Well, if Salt Lake City wants to spend all that money to bring home the 2002 Winter Games, that's up to them. Nobody's getting hurt here." But as you may have heard by now, that wasn't the reaction of the U.S. Justice Department. In July, the department's prosecutors indicted Thomas Welch and David Johnson, the former president and vice president of the Salt Lake Olympic Committee, on 15 counts of using illegal tactics to win the Games for their city and state. The trial is coming up. If they are found guilty, they could each be sentenced to 75 years in prison.
You have to wonder what in the world is going on here. If the feds think they are somehow protecting the integrity of the Olympic institution, they haven't been paying much attention to it lately. The Olympics sold out years ago to any person or interest with a checkbook. If Governing had enough money, we could probably be the official magazine of the Olympics. For the Salt Lake City games, it's a matter of public record that benefits were being traded right and left. One member of the Salt Lake City Olympic planning board was given a multi-million-dollar contract to build a roof for the skating facility. Another one was offered a brand-new road to his private ski resort.
The more you read about this affair, the harder it is to figure out just who was taking advantage of whom. In that sort of environment, picking on Welch and Johnson for handing out favors to the international site panel comes off as the worst kind of legal scapegoating. "We operated in a culture others created," Johnson said the day after he was indicted. He was right.
But there's a larger point to be made about the whole Salt Lake City legal mess, and it involves the puzzling relationship between state and federal authority. At first glance, the 9,000-word federal indictment seems fairly clear. As in so many federal indictments these days, Welch and Johnson have been hit with a long list of charges that center around conspiracy and mail fraud. But that still begs the question of what the crime was. What illegal act were they conspiring and using the mails to commit?
Here's where it gets really interesting. The Justice Department has concluded that the underlying crime was a violation of Section 76-6- 508 of the Utah Criminal Code. That's a bribery statute. But it's a state--not a federal--law. The feds not only are throwing the book at Welch and Johnson, they're throwing a book from somebody else's library.
This isn't unusual. Courts routinely allow federal prosecutors to use conspiracy and mail fraud as fig leaves to cover the fact that they don't have any tangible federal offense to prosecute. But the fact that they can do this still suggests that something has gone a little haywire in the whole federal-state prosecutorial system.
If Utah officials feel that their bribery laws have been violated, they are the appropriate authorities to bring the case. In fact, they aren't doing that. Why not? Because, they say, the Justice Department got there first. In the wake of the federal indictments, the state attorney general's office issued a statement declaring that the federal move pre-empted the need for any action on their part. "It doesn't make much sense for us to pursue it," a spokesman for the attorney general said. So what you have is the feds out-muscling a state for the opportunity to enforce the state's own law.
Of course, there are situations where this might be justified. The Utah court system might be so hopelessly corrupt--or so packed with cronies of the Olympic Committee establishment--that there was no real hope for honest prosecution at the state level. If the federal government felt it had no choice but to rescue the citizens of Utah from their own legal system, it should have said that right up front. But I've never heard anybody make this case.
What the affair really reflects more than anything else is the continuing attitude of the federal government that wherever there's a well-publicized example of human wrongdoing, a federal crime must exist also. It isn't only the Justice Department that seems to believe this; it's the legislative branch as well.
Nearly every year, Congress manages to take at least one existing act already illegal virtually everywhere under state and local law, and make it subject to prosecution by federal authorities. Often this involves legislation so compassionate in its language and rhetoric that it is difficult to oppose. Hate crimes legislation is an example. Earlier this year, the U.S. Senate passed, and the House is about to consider, a bill that would dramatically expand the definition of a federal "hate crime" to include virtually any illegal act that can be associated with racial, ethnic or gender bias--even if the act is unrelated to the exercise of any federal right.
I hesitate to bring this up, because I don't want anyone to think I'm in favor of hate crimes. But the fact is that piling a federal crime on top of existing state and local crimes doesn't stop anybody from committing an act of violence. It just makes a mess out of the legal system.
In the worst situations, the enactment of new federal crimes and federal rights to sue establishes what amounts to double jeopardy. The state tries a defendant for a felony offense, and if it can't convict him, the Justice Department can come in and try again. Or he can be sued for violating the federal civil rights of his victim.
Sometimes, admittedly, this leads to results that seem more good than bad. After O.J. Simpson was acquitted of murder charges under California law, the relatives of Nicole Simpson and Ronald Goldman were able to sue him in federal court on civil rights charges and win $33.5 million. If you believe that the evidence points overwhelmingly to Simpson's guilt, you're likely to be pleased by that outcome. But it still amounts to double jeopardy: trying somebody twice for the same crime. I know the courts don't rule this way. But double jeopardy is what it is, and that is supposed to be illegal in the United States.
I think most of us know why this situation has come about. It exists because until a generation or so ago, crimes of violence against black people and white civil rights workers went unpunished in the Deep South. Even if the perpetrators could be brought to trial, juries would not convict them. So it became necessary to enact federal statutes guaranteeing the protection of the endangered. And thus it happened that several of the most odious racist criminals of the 1960s were finally brought to justice in the 1980s and '90s, long after they had been acquitted after perfunctory trials in local court.
This was an undeniably favorable outcome--an inspiring one, in fact. But over the past couple of decades, Congress and the Justice Department have gradually slipped closer and closer to the notion that if the federalization of offenses worked in Mississippi and Alabama in the civil rights days, then it's worth applying to just about any offense that happens to come up.
Most recently, the U.S. Supreme Court has begun placing a few restrictions on this practice. This spring, in the case of U.S. v. Morrison, the court overturned a portion of the 1994 Federal Violence Against Women Act, permitting rape and domestic violence victims to sue their attackers in federal court. Congress had justified this law on the grounds that it was a legitimate use of the federal government's power to regulate interstate commerce. The court disagreed. Awful as the crimes might be, the justices said, they had nothing to do with interstate commerce and were not crimes against federal law.
But it isn't mainly the controversial new laws that are distorting the system--it's the dubious employment of the old standbys--mail fraud, conspiracy, and their equally vague and easily manipulated counterparts. As long as the feds can use these provisions to reach down and pluck a case out of state court, they are intruding on territory where they don't logically belong.
I'm not naive enough to assume that there's any immediate solution to this problem. But sometime in the next few months, a Utah jury could strike a blow for common sense by urging the federal prosecutors of Welch and Johnson to go back home and find something better to do with their time.