Speaking Louder than Words: Finding an Overt Act Requirement in the Hobbs Act

28 Cornell J. L. & Pub. Pol'y 67

04 Dec 2018

Federal conspiracy law has a problem. It is sometimes easier to put someone in prison for twenty years than it is to put her away for five—for the very same crime. This situation stems from a bright-line rule to which the Supreme Court has long adhered: when Congress wants an overt act requirement, Congress will explicitly so specify. Consider the resulting status quo. The general federal conspiracy statute requires proof of an overt act. Its maximum sentence is five years. In contrast, the Hobbs Act contains no overt act requirement, yet it provides for a maximum sentence of twenty years when a defendant conspires to violate the Act. The problem becomes clear: if a defendant is charged under both statutes for the same crime, it is easier to imprison her for twenty years than for five. Other statutes have text that mirrors the Hobbs Act’s, expanding the problem’s scope. This Essay attempts to show that the Court’s explicit-language rule should not apply to the Hobbs Act. It demonstrates that Congress codified a baseline overt act requirement in the general conspiracy statute. Further, this Essay argues that the Hobbs Act’s legislative history undermines the Court’s rule. It thus concludes that the Act provides an ideal vehicle to revisit that rule.

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