Alex Hortis


Valuing Honest Services: The Common Law Evolution of Section 1346

Alex Hortis

In this Note, Alex Hortis analyzes the application of the mail fraud statute, as codified at 18 U.S.C. § 1346, to enforce citizens’ intangible right to the “honest services” of public officials. Reviewing the evolution of § 1346, Hortis finds that, although it has been perceived as statutorily vague and intrusive into state and local affairs, § 1346 has not been used in an unnecessary or overly broad manner, does not violate defendants’ constitutional rights, and does not result in a significant number of federal prosecutions of state and local officials. Rather, viewed from an economic perspective, Hortis argues that § 1346’s broad malleability, as a form of federal common law, is one of its greatest assets as it is more efficient to let the courts define crimes on a case-by-case basis than to redraft statutes to address new forms of corruption. Hortis further argues that centralizing enforcement at the federal level takes advantage of economies of scale and prosecutorial experience. Hortis concludes that § 1346’s broad applicability benefits the public by reducing prosecution costs with its lower evidentiary requirements, creating marginal deterrence against corruption, and reinforcing a desirable standard of conduct for public officers.