Justice Stevens died last Tuesday at age 99. Over more than 30 years on the U.S. Supreme Court, he authored critical majority and dissenting opinions on issues central to white collar criminal enforcement—indeed to criminal law generally. To start, he authored several of the decisions that have transformed criminal sentencing. One of these was Apprendi v. New Jersey, which held that any fact (other than a prior criminal conviction) that increases a defendant’s punishment beyond the otherwise applicable statutory maximum had to be proven to a jury beyond a reasonable doubt. Another, United States v. Booker—a fractured opinion in which Stevens wrote in part for the majority and partially in dissent—the Court invalidated a federal statute that generally required judges to sentence defendants within the ranges set by the U.S. Sentencing Guidelines.
Stevens also dissented from the Supreme Court’s 1987 decision that the federal mail and wire fraud statutes required the government to prove that defendants had deprived their victims of tangible property, including money. It was not enough, the majority said, for a victim to have been fraudulently deprived of “honest services.” Justice Stevens disagreed. He wrote that the Court’s decision undermined Congress’s efforts to broadly proscribe fraudulent schemes. Congress ultimately vindicated Stevens’s view by enacting a new honest services statute the year after the Court’s decision.
Finally, I urge you to this recent piece in the The Atlantic discussing Stevens’s formative encounter with white collar issues and the criminal justice system more generally when his father was convicted with embezzlement when Stevens was a child. The conviction was ultimately overturned.
I’m not really equipped to comment on all the ways that Justice Stevens made our society better. He was a veteran, an able lawyer, and a judge who always kept the humanity of the parties before him centered in his opinions.
As for Robert Morgenthau—who was also 99 years old and indeed just ten days shy of his 100th birthday when he died—there’s insufficient space to describe his outsize importance in criminal law. Non-lawyers and non-New Yorkers may most appreciate him as the inspiration for Steven Hill’s character on Law & Order. But Morgenthau was a real person, and his influence was vast.
He served as both the U.S. Attorney for the Southern District of New York, and also as Manhattan’s longest-serving District Attorney.
Morgenthau came from a long line of public service. His father was FDR’s Secretary of the Treasury. And his grandfather, Henry Morgenthau, Sr., served as U.S. Ambassador to the Ottoman Empire during World War I—during which, as detailed in Samantha Power’s indispensable book, A Problem from Hell, he coined the phrase “race murder” to describe the Armenian Genocide, which he vehemently opposed.
While Robert Morgenthau had a variety of successes (and controversies) over his decades as a prosecutor, his white collar victories included convicting Harvard Law dean, Louis Brandeis clerk, and federal jurisdiction scholar James Landis of tax evasion while Morgenthau was U.S. Attorney. As Manhattan’s DA, Morgenthau and his team secured the convictions of two Tyco executives for looting their own company of $600 million.
One of Morgenthau’s successors as U.S. Attorney had this to say about his death:
This is terribly sad. Robert Morgenthau, former SDNY US Attorney and Manhattan DA, was an unparalleled patriot, veteran, prosecutor, public servant. He gave his whole life to service. RIP. https://t.co/1beebQfJ9I
— Preet Bharara (@PreetBharara) July 22, 2019
Like Stevens, Morgenthau carved out an enviable legacy for himself.