Back in 2004, Congress decided to tackle the problem of "identity theft." It was responding to much-publicized cases in which criminals obtained credit cards in other people's names, sticking them with the resulting bills and hurting their credit ratings. But instead of focusing on that paradigmatic situation and crimes of a similar nature, Congress passed the Identity Theft Penalty Enhancement Act, which prescribed a two-year mandatory minimum sentence for "aggravated identity theft." The law's definition of that crime is so broad that it can be read to cover myriad minor offenses that are nothing like identity theft as it is generally understood. Naturally, the federal government favors a sweeping interpretation of the statute, which gives prosecutors more power to coerce guilty pleas. Under the Justice Department's reading, defendants who otherwise might pay fines and/or receive probation for low-level fraud can instead go to prison for two years. But during oral arguments this week in Dubin v. United States, a wide range of justices pushed back against that interpretation, noting that it produces absurd results.
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