The Supreme Court will be on the bench tomorrow for a single hearing, examining what Congress meant when it outlawed identity theft and added extra punishment when that crime occurs along with another crime.
The Court will broadcast “live” the audio (no video) of the hearing on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt
Monday’s case: Dubin v. United States The hearing begins at 10 a.m. and is scheduled for one hour.
Background: It is a basic legal principle, and the Supreme Court regularly reminds lower courts of it, that a federal criminal law should not be interpreted to sweep broadly when there is a narrower reading available. This goes by the name of the “rule of lenity.” The reason for it is that a person’s freedom is at stake in a criminal prosecution, so law should extend no further than necessary to prevent the crime or to achieve justice.
Lawyers who specialize in defending those accused of crime regularly complain that prosecutors will seek to stretch the scope of a criminal law in order to make it reach more criminal conduct. If a court can be persuaded to read an existing law more broadly, then there is no need to go to the legislature to enact a new one to achieve the prosecutor’s goal. Defense lawyers call this “over-criminalizing” of law. And that’s exactly what they say is at stake in the case being heard by the Supreme Court on Monday.
This case is a fundamental test of the reach of a 2004 law, the Identity Theft Penalty Enhancement Law. Congress passed that law out of concern for a spreading cultural problem – made significantly worse by the amount of personal data gathered by social media platforms – of “identity theft.” (This law was an illustration of a technique that Congress fairly frequently uses, treating a perceived kind of misconduct as a separate crime when it occurs while committing another crime, the idea being that it makes that other crime worse. Other illustrations of this are laws that tack on more prison time if a gun is used while carrying out a separate crime — say, a robbery.)
Identity theft (a phrase that seems to have first entered the language in 1964) in its simplest form is the assumption of one’s identity without permission in order to benefit from it, and commonly occurs when a person’s name or Social Security number or other specific identifier is used for the thief’s benefit. It can cause the victimized person a great deal financially, or otherwise.
The 2004 law adds a mandatory two-year prison term for identity theft whenever that occurs while committing another crime, tacking that onto any sentence for the other offense. This specific case shows its impact: a Texas man was convicted of Medicaid fraud and was sentenced to one year for that crime, but he was also convicted of identity theft during the fraud, resulting in an actual sentence of three years.
The facts of this case: David Fox Dubin of San Antonio was accused of violating the law against fraud in the Medicaid program, which provides federal health benefits for the poor. He was the manager of billing in his father’s mental health facility. Prosecutors claimed that Dubin billed Medicaid for $540 for a psychological examination of a youth, identified as “Patient L.”
Although the youth had, in fact, been evaluated, that exam was not billed because it had occurred at a time when Medicaid benefits had run out for that individual. The billing claimed payment for an evaluation at a later time, which had not occurred at all. It was also billed at a higher rate than would have been available for the earlier examination.
That was enough to win a guilty verdict for Medicaid fraud. But prosecutors also charged Dubin with identity theft, because the billing listed the name of “Patient L” and the youth’s Medicaid identification number. Convicted on that, too, Dubin was given the added two years prison sentence on top of the one year for fraud.
Lower courts upheld the conviction over Dubin’s complaint that he did not violate the identity theft law because he did not steal the patient’s identity or misrepresent that identity but merely used it, which actually was a required part of Medicaid billing practices. It was enough, the lower courts concluded, that the name and number were used at all.
That outcome conflicts with rulings by other lower courts, which have required some wrongful use of identifying information – such as stealing it – before there can be a violation of the 2004 law. Dubin’s lawyers took the case to the Supreme Court to clarify the meaning of that law.
The question before the Court: Is the mere recitation of an individual’s name and identifying number a crime under federal law, if those identifying features were not stolen or misrepresented?
Significance: This is basically a simple case, because it turns primarily on the meaning of the word “use.” The 2004 law makes it a crime to commit identity theft while committing another federal crime, and does so by outlawing “transfer, possession, or use, without lawful authority” of the identifying information of another person. Dubin’s appeal focuses on the “use” factor, conceding that his only use of the patient’s information was in the act of Medicaid fraud, not the separate act of identity theft.
The Biden Administration’s Justice Department tried to head off Supreme Court review, arguing that the Court had previously passed up several similar appeals. The Justices granted review, however, apparently finding that the lower court rulings in Dubin’s case created a more distinct split among lower court results. It also probably had made a difference that there were eight dissenting judges on the 18-member appeals court that decided the Texan’s case.
The Supreme Court’s coming ruling, for all of its simplicity, could sweep broadly, because the identity theft law adds extra punishment not only when the use of an identity occurs in a fraud case like Dubin’s, but also in “all types of serious crimes” spelled out in federal law.
The problem of identity theft in this country almost certainly has grown, perhaps by leaps and bounds, since this law was enacted almost 19 years ago. Within society as a whole, identity theft is now more widely perceived as a major threat to personal privacy.
On Tuesday, the Supreme Court will hear two major cases testing who, if anybody, had a legal right to sue the Biden Administration to challenge its sweeping plan to cancel millions of dollars’ worth of students’ college loan debt, and, if they did have the right to sue, is that plan illegal?