Federal Blackmail Statute (1994)

Stuart P. Green

The federal blackmail statute (P.L. 103-322, 108 Stat. 2147), enacted in its current form as part of the Violent Crime Control and Law Enforcement Act of 1994, and based on earlier statutes dating from 1948 and 1909, makes it a crime to demand money or other items of value from a person in return for not informing on the person's violation of federal law. Along with the Hobbs Anti-Racketeering Act, which criminalizes extortion, the blackmail statute is one of a series of statutes that make it a crime to obtain money by means of threats. Extortion involves a threat to commit an act that is independently illegal, such as inflicting physical injury—give me money or I'll break your arm. Blackmail involves a threat to commit an act that is not independently illegal, such as revealing information about the commission of a crime—give me money or I'll tell the police what you did.

The fact that blackmail entails the conjunction of two otherwise legal acts—namely, exercising one's right to make truthful statements about another person, and seeking payment in return for not exercising such a right—is thought by many commentators to constitute a kind of "paradox." Some legal scholars argue that the crime of blackmail makes a wrong out of two rights. For many years, scholars have sought to explain this puzzle. A minority have argued that blackmail ought not to be a crime at all because, they say, it violates no basic legal right of the victim. The vast majority of scholars believe that blackmail should be a crime, though they differ widely in their explanations as to why.

THEORIES ABOUT BLACKMAIL

One major theory about blackmail seeks to justify the criminalization of blackmail on the grounds that negative consequences would occur in a system that regularly tolerated it. For example, if blackmail were widely permitted, there would be a greater number of victims desperate to raise funds necessary to pay off their blackmailers, and many such victims would likely resort to criminal acts such as theft and fraud. Allowing blackmail to go unpunished would also tend to encourage people to engage in greater deception in their social dealings. In addition, it would create new incentives for people to invade people's privacy, much as the tabloid media now invade the privacy of celebrities, because such private information would have increased economic value.

The second major theory views blackmail as wrong in and of itself. One variant of this approach views blackmail as involving a triangular relationship among blackmailer, party blackmailed, and a third party with an interest in the information that has been suppressed. For example, imagine that a blackmailer threatens to tell Smith's wife that Smith is having an affair. According to this view, it is Smith's wife who has the strongest interest in having such information. By depriving her of that information, the blackmailer is wrongly attempting to use leverage that properly belongs to her. Another related theory suggests that blackmail resembles theft or robbery, because the blackmailer intends to take money from one who does not wish to part with it.

Despite the ongoing controversy among scholars as to the underlying rationale for making blackmail a crime, there is little disagreement that it should be a crime. The federal blackmail statute remains an important complement to the Hobbs Anti-Racketeering Act and a significant, if only occasionally used, tool in the federal prosecutor's arsenal.

See also: Bribery Act ; Hobbs Anti-Racketeering Act ; Sentencing Reform Act .

BIBLIOGRAPHY

Berman, Mitchell N. "The Evidentiary Theory of Blackmail: Taking Motives Seriously." University of Chicago Law Review 65 (1998): 795–878.

"Blackmail." Symposium. University of Pennsylvania Law Review 141 (1993): 1565–2168.

Feinberg, Joel. Harmless Wrongdoing. Oxford, U.K.: Oxford University Press, 1988.

Katz, Leo. Ill-Gotten Gains: Evasion, Blackmail, Fraud, and Kindred Puzzles of the Law. Chicago: University of Chicago Press, 1996.

Lindgren, James. "Unraveling the Paradox of Blackmail." Columbia Law Review 84 (1984): 670–717.