Perhaps lost on all but the most astute observers of local criminal justice in recent years is the fact that the jurisdiction of the Attorney General of the State of New York in the enforcement of the criminal law is strictly circumscribed. The Attorney General has “no general prosecutorial authority and, except where specifically permitted by statute, has no power to prosecute criminal actions.”1 Indeed, the Attorney General’s criminal law enforcement authority derives essentially from one statute—the Martin Act, New York’s securities fraud statute.
According to common lore, the Martin Act was “rediscovered” by the current Attorney General’s predecessor, who aggressively pressed its enforcement to the point of seemingly general acceptance of its broad applicability, primarily by defendants who were steamrollered to accept guilty pleas. This broad acceptance of its applicability tended to obscure the notion that, to paraphrase the United States Supreme Court in an analogous context, while the Martin Act had come to be aptly described as a catchall provision, what it catches must be fraud. The expanding bubble of enforcement success fueled a prosecutorial exuberance supported less by legal precedent than by guilty pleas and public relations. The bubble may be about to burst.
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