A federal identity theft law meant to protect individuals from the devastating consequences of identity theft by toughening consequences for criminals using another person’s identity in connection with another crime is getting another look by the Supreme Court.
A federal identity theft law meant to protect individuals from the devastating consequences of identity theft by toughening consequences for criminals using another person’s identity in connection with another crime is getting another look by the Supreme Court. The federal law called for an additional two-years added to sentences when another person’s social security number was used in the commission of a crime and the offender “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.”
So why is the Supreme Court taking another look?
The question on the table is not whether the law being used as intended is constitutional or even whether or not it is deterring identity theft. The question before the Supreme Court is whether or not the federal identity theft law can be fairly applied to illegal immigrants who use fake social security numbers to obtain employment in the U.S.
The law intended to punish identity thieves committing financial fraud has been used or threatened in immigration prosecutions in cases where the social security numbers used turn out to be actual social security numbers with owners.
Justice John Paul Stevens, just one of the justices concerned about the interpretation of the law by the government, said, “There’s a basic problem here.” He added, “You get an extra two years if it just so happens that the number you picked out of the air belonged to somebody else.”
The key element of the discussion revolved around the words “knowingly” and how far down the line of the statute it applies.
The Case Scenario:
Ignacio Flores-Figueroa, the client, was a Mexican citizen working in a plant in the United States illegally. Initially, Flores-Figueroa used a fake social security number and name. The fake social security number happened to not belong to any U.S. citizen. After six years, he told his employer that he wanted to be known by his real name and offered up a forged social security card and alien registration card. This time the forged social security card number had an owner.
Mr. Flores-Figueroa was caught and plead guilty to immigration offenses. He was given a 51 month sentence but went to court to fight the additional time incurred under the identity theft laws.
Flores-Figueroa’s lawyer, Kevin K. Russell, believes that “knowingly” means the government must prove that his client knew the social security numbers belong to someone else in order for the federal identity theft law sentencing to apply.
The United States Court of Appeals in St. Louis upheld the conviction arguing that the government only needed to prove that Flores-Figueroa knew that he was using fake information and not whether or not he knew the fake numbers had owners.
The Two Sides Square Off:
Russell argues that two people who commit identical crimes could have different punishments. On the other hand, two people could have identical punishments that committed two different crimes, results that have been referred to as “perverse results.”
Toby J. Heytens, representing the government wants the court to focus on the victims not on the perpetrators arguing that the law often makes distinctions between equally culpable behaviors based on the consequences.
From the Supreme Court Bench:
Several justices seem to concur that the federal identity theft law was ambiguous enough to defer to a “rule of lenity.” Justice Scalia added that from the bench that in which case the “tie goes to the defendant.”
We’re Putting YOU on the Bench!
Is it fair to use to use the federal identity theft laws to apply to immigrant prosecution, even if it appears to punish those who pick a real social security out of a hat and not apply to those who pick a fake social security number? We’d love to hear your arguments in our comments section.