Who are the real criminals?

My apologies for titling this post with a 1960s slogan, but the stuff I have been reading about makes me so angry that I thought a little vintage rhetoric was justified.

Anyway, Glenn Reynolds is not kidding when he speaks of "THE CRIMINALIZATION OF EVERYONE AND EVERYTHING":

With the proliferation of criminal law, everyone is a criminal of some sort, whether they know it or not.
Perhaps because too many people have taken notice, in Washington, they're finally holding hearings on the subject.

And the stuff that is coming out is truly disgusting:

Chairman Robert C. Scott, Virginia Democrat, and ranking member Louie Gohmert, Texas Republican, conducted a truly bipartisan hearing (a D.C. rarity this year).

These two leaders have begun giving voice to the increasing number of experts who worry about "overcriminalization." Astronomical numbers of federal criminal laws lack specifics, can apply to almost anyone and fail to protect innocents by requiring substantial proof that an accused person acted with actual criminal intent.

Mr. Norris ended up spending almost two years in prison because he didn't have the proper paperwork for some of the many orchids he imported. The orchids were all legal - but Mr. Norris and the overseas shippers who had packaged the flowers had failed to properly navigate the many, often irrational, paperwork requirements the U.S. imposed when it implemented an arcane international treaty's new restrictions on trade in flowers and other flora.

The judge who sentenced Mr. Norris had some advice for him and his wife: "Life sometimes presents us with lemons." Their job was, yes, to "turn lemons into lemonade."

The judge apparently failed to appreciate how difficult it is to run a successful lemonade stand when you're an elderly diabetic with coronary complications, arthritis and Parkinson's disease serving time in a federal penitentiary. If only Mr. Norris had been a Libyan terrorist, maybe some European official at least would have weighed in on his behalf to secure a health-based mercy release.

Krister Evertson, another victim of overcriminalization, told Congress, "What I have experienced in these past years is something that should scare you and all Americans." He's right. Evertson, a small-time entrepreneur and inventor, faced two separate federal prosecutions stemming from his work trying to develop clean-energy fuel cells.

The feds prosecuted Mr. Evertson the first time for failing to put a federally mandated sticker on an otherwise lawful UPS package in which he shipped some of his supplies. A jury acquitted him, so the feds brought new charges. This time they claimed he technically had "abandoned" his fuel-cell materials - something he had no intention of doing - while defending himself against the first charges. Mr. Evertson, too, spent almost two years in federal prison.

It's the old principle of "if they want you, they've got you!" The number of things that are illegal are mind boggling. The Heritage Foundation cited a 2004 estimate that there were at least 4000 federal crimes, but said there could be many more.

Those of us who are online tend to hear about federal laws criminalizing things like annoying someone on the Internet, or using a false name in violation of TOS, but in reality, almost anything can be a federal crime.
Reason has a long piece on the subject, and noted that public welfare offenses are systematically becoming crimes based on congressional whims. So people like Edward Hanousek are going to prison for "crimes" of which they were never even aware were being committed:

In 1996 Edward Hanousek Jr., a road master for a railroad company running between Alaska and Canada, was convicted of negligently discharging a harmful quantity of oil into the Skagway River, a U.S. waterway, in violation of the Clean Water Act. An independent contractor had accidentally ruptured a pipeline while attempting to clear rocks off the tracks. Hanousek was off duty and at home that day, nowhere near the accident site, and he had no knowledge of the pipeline rupture until after the fact. The government nevertheless prosecuted Hanousek, a federal jury convicted him, and he received a sentence of six months in prison, six months in a halfway house, six months of post-release supervision, and a $5,000 fine.

These are just three of the many cases that illustrate how federal criminal law has overstepped its proper bounds, prescribing draconian punishments for offenses that should be handled at the state level or that should not be considered crimes at all. During the last century, especially in the last three decades and in the aftermath of the September 11 attacks, Congress has made federal crimes out of an astonishing array of behavior, much of which is already prohibited by state law, could be better addressed with civil penalties, or is considered wrongful not because it violates anyone's rights but only because Congress says so.

Any attempt to even count the number of crimes is doomed to failure, and even the Congressional Research Service said (remember this was over five years ago) that it was impossible:
In an October 2003 column published on Townhall.com, Rebecca Hagelin, vice president of the Heritage Foundation, noted: "America started out with three federal laws -- treason, counterfeiting and piracy. In 1998, the American Bar Association counted more than 3,300 separate federal criminal offenses on the books -- more than 40 percent of which had been enacted in just the past 30 years. These new laws cover more than 50 titles of the U.S. Code and encompass more than 27,000 pages. Today, the Congressional Research Service says it no longer can even say how many federal crimes exist." She continued: "Are we that much more evil than we were 200 years ago that we need this many laws to keep us off of each other? Or has the nanny state veered completely out of control -- creating crimes where no evil existed, pinning blame where no harm was intended?"
One reason it's impossible is that many offenses are "derivative" in nature:
One reason it's impossible to get a definitive count of federal offenses is that many are derivative, defined by other criminal acts. Laws against money laundering, for example, make otherwise innocent transactions criminal if the government believes they were intended to disguise the source of drug money or other ill-gotten gains. Under the USA PATRIOT Act, federal investigators can criminalize many normal financial transactions by alleging even the most tenuous connection to the funding of terrorism or other illegal activity. Federal prosecutors recently used the PATRIOT Act's money laundering provision against Las Vegas officials accused of taking bribes from a strip club owner. And as illustrated by the indictment of University of Alabama booster Logan Young, derivative crime laws can be used to transform a single offense into several, allowing prosecutors to pile on charges in a way that encourages a guilty plea.
I know it's tedious to read example after example, but I think that if these people had to endure prison in our name (which is, BTW, the nature of a federal prosecution), the least we can do is read about their fate.

The Hansens (who made the mistake of going into the plastics business) went to federal prison for years because an employee slipped in contaminated water. He wasn't injured, but that didn't matter:

Consider the case of Christian Hansen and his son Randall, owners and operators of the Georgia-based LCP Chemicals and Plastics. In 2001 the Hansens were convicted of more than 30 environmental violations, including offenses under the Clean Water Act, the Resource Conservation and Recovery Act, the Endangered Species Act, and the Comprehensive Environmental Recovery and Compensation Liability Act. The elder Hansen was sentenced to 10 years in prison, while his son was sentenced to four years. Even though only one employee testified to slipping in contaminated wastewater (but reported no resulting injury), the Hansens were convicted of endangering the health and safety of employees, among many other charges.

Perhaps the most disturbing feature of prosecutions like this one is that federal regulatory statutes such as the Clean Water Act and Endangered Species Act impose criminal liability on the basis of negligence and do not require any culpable intent by the accused. The Supreme Court has determined that certain "public welfare" offenses can trigger criminal sanctions without a showing of criminal intent, recklessness, or even knowledge of the violation. Thus, Congress can impose harsh criminal penalties on business owners and supervisors who have no knowledge of or control over regulatory violations that may occur at their firms.

Environmental regulations, antitrust laws, securities regulations, and a host of other federal laws aimed at nonviolent, nonpredatory behavior the government wants to discourage illustrate how far we have moved from the traditional view of crime as deliberate wrongdoing. Only intentional crimes against people or their property should be subject to criminal penalties. If the Hansens' environmental violations merited sanctions, they should have been civil, not criminal. And if Edward Hanousek, the railroad supervisor mentioned at the beginning of this article, was negligent in overseeing the independent contractor who accidentally spilled oil into a river, whatever harm resulted should have been addressed in a civil proceeding, requiring payment for cleanup or restoration of the waterway.

Back to Glenn, who thinks we should cut back on criminalization itself:
...the most important decision is the decision whether to prosecute. But while we've larded criminal procedure with due process, the decision to prosecute -- or not -- is almost entirely discretionary on the part of prosecutors. We either need to cut back on the criminalization (my first choice) or start cabining prosecutorial discretion.
I agree. The problem with relying on discretion is that it lends itself to completely arbitrary rule, and with everything being illegal, it's just a question of whether the government feels like prosecuting you. And as Reason points out, there's no practical remedy for abuse of prosecutorial discretion, because prosecutors enjoy a legal presumption that they acted fairly:
Courts consistently have rejected constitutional challenges by defendants complaining of selective prosecution. The federal prosecutor did not have to explain why he chose to prosecute Palmer but not Roberts for essentially the same conduct. Prosecutors enjoy a legal presumption that they exercise their discretion soundly, making their decisions almost entirely unreviewable. Even if the federal prosecutor had chosen to prosecute Palmer but not Roberts because he personally disliked Palmer, there would be no remedy for that abuse of discretion.
I won't mince words here. The whole federal system has become monstrous and tyrannical.

Especially in the wrong hands.

posted by Eric on 10.06.09 at 07:00 PM


In this post there is a link to a book:


Three Felonies a Day: How the Feds Target the Innocent

The bottom line is that you never ever talk to police without a lawyer present. A lawyer and a police officer explain why. Ayn Rand also explains why:

"Did you really think that we want those laws to be observed? We want them broken. You'd better get it straight that it's not a bunch of boy scouts you're up against . . . We're after power and we mean it. You fellows were pikers, but we know the real trick, and you'd better get wise to it. There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted -- and you create a nation of law-breakers -- and then you cash in on guilt. Now that's the system, Mr. Rearden, and once you understand it, you'll be much easier to deal with."

M. Simon   ·  October 7, 2009 12:02 AM

Throws a whole new light on the phrase "nation of laws not men".

liamascorcaigh   ·  October 7, 2009 10:06 AM

It's lawyers, Eric, you know it and I know it. Hang 'em high and close the law schools.

dr kill   ·  October 7, 2009 11:19 AM

What is the vast majority of Congress?


They have little to do but think up more and more ways to make more "laws" and business for themselves and their brethren.

Darleen   ·  October 7, 2009 9:48 PM

So do you think that we have a shortage of dishonest to badness criminals? Graft and corruption seemed to be more prevalent than ever. Should pension fraud cases be pursued, or is it OK to steal money from the government? How about income tax fraud?

Righties supposedly want law and order, but whose law and whose order?

Dwight   ·  October 8, 2009 4:04 PM

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