Al Capone committed many violent crimes, but the charge that ultimately sent him to jail was federal income tax evasion. Inspired by Eliot Ness, enterprising prosecutors are always looking for creative ways to put bad guys in jail, when conventional justice seems not to work.

Federal prosecutors filed criminal charges against David W. Lanier, a Tennessee state judge, claiming his sexual harassment and abuse of several women violated 18 U.S.C. . 242, the criminal analog of 42 U.S.C. §1983 (the federal law that imposes civil liability on state officials who, under color of law, deprive persons of their civil rights). Lanier was convicted under Section 242 and spent two years in prison before the Sixth Circuit Court of Appeals, ruling en banc, vacated his criminal conviction. The Supreme Court will hear arguments on the appeal of that ruling in January 1997.

The Sixth Circuit’s decision should stand. As vile as Lanier’s behavior was, it did not constitute criminal deprivation of constitutional rights within the meaning of Section 242. There remain many other ways to punish David Lanier. The women he abused have sued him for civil damages under Section 1983 and under a variety of state tort claims. Damages and costs are likely to exhaust whatever assets and income Lanier may have, stripped of his office and his reputation.

Lanier also remains subject to state criminal prosecution until the applicable statutes of limitations run for such crimes as aggravated rape (15 years), rape (eight years), aggravated sexual battery (eight years) and sexual battery (two years).

Media reports and dissenting judges have said the State of Tennessee never would have prosecuted Lanier, because county officials were “beholden to the longstanding sway of the Lanier dynasty,” including Lanier’s brother who was the states attorney in the district at the time. The majority of judges in the Sixth Circuit, however, found no basis for that assumption; they concluded that state and local officials were cooperative, and simply deferred when the federal district attorney decided to prosecute.

Lanier’s criminal conviction rested on the contention that Lanier acted under color of state law when he harassed and abused women whom he knew and that those women had a constitutional right not be sexually assaulted. The Sixth Circuit correctly determined that sexual assault and battery is a crime but not, in and of itself, a violation of the U.S. Constitution.

Section 242 was intended to protect persons from being deprived of constitutional rights (unreasonable search and seizure, cruel and unusual punishment, lack of due process), not general rights that are secured by other laws and customs. If that weren’t so, there would be no end to potential Section 242 claims and no principled way to limit them.

The Sixth Circuit also correctly determined that Lanier did not act under color of state law. Section 242 also was intended to protect persons who otherwise might have no recourse to protect their constitutional rights, namely, persons in state custody. Unlike prisoners or detainees, courthouse visitors, employees and job-seekers are free to come and go. Ordinary citizens are already protected by traditional state laws; they should not hesitate to demand that state officials fulfill their proper duties, so that federal officials can attend to theirs.

Women’s groups have made the Lanier case a cause celebre, but for the wrong reasons. Instead of pressing for recognition of new “constitutional” crimes, we should insist on strict enforcement of the laws we have. Instead of handing sex crimes off to federal courts, thus relieving state courts of the burden of prosecution, we should demand that our local common-law courts and state officials do their duty.