MAKING UP CRIMINAL OFFENSES

High Court Takes Up 'Money Laundering'

Stymied in their efforts to stop the drug trade and other "sinful"
activities, Congress in 1986 enacted laws that enabled federal police
to seize a suspect's homes, cars, boats and cash before he'd been
convicted of anything, under the newly thought-up prohibition against
"money laundering."

The law makes it a crime to transport money across a border with the
intent to conceal the source, ownership or control of the funds.

This is a dangerous law even when used as intended. But no one
familiar with federal law enforcement will be surprised to learn the
G-men are now using the "money laundering" statute in cases never
contemplated by Congress.

In October, the U.S. Supreme Court heard an appeal in the case of
Efrain Santos, convicted of running an illegal lottery, or bolita, in
northwest Indiana.

Santos was sentenced to five years in prison on the gambling offense
- -- and an additional 171/2 years for "money laundering," based on the
government's contention that he was "laundering" his illegal proceeds
by using them to compensate his employees and pay off the winning bettors.

In a similar case heard by the high court Monday, officers stopped
Humberto Cuellar in Schleicher County, Texas, about a hundred miles
from Mexico after his car swerved onto the shoulder of the road.
Authorities subsequently found more than $80,000 in cash in a secret
compartment in the car. Cuellar was convicted of international money
laundering and sentenced to 61/2 years in prison.

In Washington on Monday, justices seemed rightly skeptical of the
assertion that merely hiding cash in a car headed for Mexico --
absent evidence that the suspect sold drugs, managed a prostitution
ring or anything else nefarious -- constitutes international money
laundering, which carries a maximum penalty of 20 years in prison.

"No grand design" was shown, said Justice Ruth Bader Ginsburg,
echoing the skepticism of Chief Justice John Roberts and Justices
Anthony Kennedy, Stephen Breyer and David Souter. "All he is is a courier."

In the October case of the illegal Indiana lottery, it was Justice
Antonin Scalia who took a turn chiding a Justice Department lawyer
for stretching the purpose of the money-laundering law. "Come on,"
Justice Scalia said. "Nobody runs a gambling operation without paying
off the winners. It's not going to last very long. To make the paying
off of the winners a separate crime from running the gambling
operation seems to me quite extraordinary."

The justices are right to be skeptical. The government brought money
laundering cases against 1,347 people in 2006, according to the
Administrative Office of the U.S. Courts.

Are we to believe they laid hands on 1,300 major drug kingpins in one
year? Big-time "Godfathers" such as Efrain Santos and Humberto Cuellar?

It's all too easy to say, like Mark Twain's Aunt Polly, "Well, they
probably committed other crimes when we weren't looking."

Cynical commentators used to refer to such police-invented crimes as
"driving while black." The court should take firm steps, right now,
to halt this pattern of overcharging, often designed to make the
loaded-up prison sentence look so onerous that even innocent
defendants may be tempted to "take the deal" in hopes of getting out
before their small children are grown.

It is not a crime to "possess a lot of cash while Hispanic." And
those who will not stand up and say so, right now, may live to echo
Pastor Martin Niemoller, who recalled that "There was no one left to
object, when they finally came for me."