Despite SCOTUS Ruling, Aggravated Identity Theft Statute Ripe for Overreach

In 2004, when identity theft emerged as a significant threat to individuals and institutions alike, Congress enacted 18 U.S.C. §1028A, entitled “Aggravated Identity Theft,” to impose stricter penalties on offenders. The statute imposes a non-discretionary two-year prison sentence for offenders who, “during and in relation to any [predicate offense], knowingly transfer, possess, or use, without lawful authority, a means of identification of another person.”
Predicate offenses encompass a wide range of crimes, including healthcare fraud and wire fraud, and the two-year mandatory minimum must run consecutively to the sentences imposed for the predicate and other offenses charged.
While intended to target classic identity theft, the statute’s ambiguous language has allowed prosecutors to apply it expansively, often leading to disproportionate sentences for defendants whose actions fall outside the traditional understanding of identity theft.
The Supreme Court’s June 2023 decision in Dubin v. United States, 599 U.S. 110 (2023), aimed to curb this prosecutorial overreach by narrowing the interpretation of §1028A. However, early indications suggest that the decision’s impact has been limited as the government and lower courts continue to apply the statute broadly.
This article suggests that, despite the Supreme Court’s ruling in Dubin, §1028A remains inherently vague, perpetuating unjust outcomes. Without legislative amendment or more definitive judicial guidance, the statute will continue to serve as a tool for prosecutorial overreach.