The Minefield of American Criminal Law
Over the weekend, the Wall Street Journal ran an excellent article about the problem of overcriminalization—the proliferation of criminal laws and how more and more people can find themselves on the wrong side the law without even realizing it. Here’s an excerpt:
In 2009, Mr. Anderson loaned his son some tools to dig for arrowheads near a favorite campground of theirs. Unfortunately, they were on federal land. Authorities “notified me to get a lawyer and a damn good one,” Mr. Anderson recalls.
There is no evidence the Andersons intended to break the law, or even knew the law existed, according to court records and interviews. But the law, the Archaeological Resources Protection Act of 1979, doesn’t require criminal intent and makes it a felony punishable by up to two years in prison to attempt to take artifacts off federal land without a permit.
Read the whole thing.
It’s great that this phenomenon is getting more attention. Too many people in Washington seem to think that the more laws Congress enacts, the better the job performance of the policymakers. That’s twisted. Before an elected official can take any action whatsoever, he or she must first take an oath to uphold and preserve the Constitution—and the role of the federal government in the criminal area is supposed to be quite limited. I testified before a congressional committee two summers ago on this subject. And Judge Alex Kozinski, quoted in the WSJ article above, has a terrific essay in my book, In the Name of Justice, about the score of federal criminal laws now on the books. And Cato adjunct scholar Harvey Silverglate authored a fine book on the problem, called Three Felonies a Day. More here (pdf) and here.
Brian Aitken’s Sentence Commuted
New Jersey Governor Chris Christie has commuted the seven-year sentence of Brian Aitken, the man wrongfully convicted on firearms charges under that state’s draconian gun laws. Good.
While a full pardon seems more appropriate – the judge in this case should have given the jury instructions on the “moving exception” that protected Aitken – this is at least recognition of an injustice and relief for one man and his family.
The New Jersey state judicial system’s webpage describes the grand jury’s function as “a screening mechanism to protect citizens from unfounded charges.” That didn’t happen in this case. For more on this phenomenon, read this Cato Policy Analysis, “A Grand Façade: How the Grand Jury Was Captured by the Government.”
For more Cato work on criminal justice, check out Tim Lynch’s excellent book, In the Name of Justice.
Overcriminalization Incentives
In my post on Brian Aitken’s plight, I discussed New Jersey’s draconian gun laws and how a law-abiding citizen can become a victim of overbroad laws. New Jersey gun laws weren’t always so bad, but overcriminalization warped them into their current unconstitutional state.
This trend is a staple of modern legislative activity. Every time a politician says that we must pass a new law to “get tough on crime” and that their pet legislation ought to be passed “for the children,” it’s a sure indicator that the rule of law is about to take another body blow. Take, for instance, the crusade against sexting that threatens to make foolish teenagers into sex offenders. Or the proposed federal cyberbullying act, which aims to turn teens into federal felons, in spite of the fact that there is no federal juvenile justice system. New Jersey gun laws jumped the shark a long time ago and haven’t looked back.
The same is true with federal “honest services” fraud. In the words of one former lawmaker who fed the overcriminalization beast only to see it turn on him:
When I served in Congress, I vigorously opposed any expansion of federal agency authority. All too often, however, I exempted the Justice Department from my efforts because I wanted to give law enforcement the power it needed to keep our country safe from dangerous individuals. After enduring a years-long investigation into crimes my wife and I did not commit, and after watching the outrageous prosecution of Kevin Ring, I have serious doubts about whether I was wise to faithfully support the Justice Department. I strongly encourage the new Congress to examine the guidance and leeway the Department gives to federal prosecutors, and to refrain from passing any new vague criminal laws which seem to invite the worst prosecutorial abuse.
This is just the tip of the iceberg. For more on overcriminalization, take a look at Tim Lynch’s book, In the Name of Justice, or Harvey Silverglate’s Three Felonies a Day.
Prosecutorial Misconduct
A federal prosecutor’s misconduct tilted the scales of justice against Antonio Lyons, an Orlando businessman. Lyons served three years in prison before his attorney discovered statements from a witness that differed from the testimony given at trial. That was just the tip of the iceberg.
For more than a week in 2001, the jurors listened to one witness after another, almost all of them prison inmates, describe how Lyons had sold them packages of cocaine. One said that Lyons, who ran clothing shops and nightclubs around Orlando, tried to hire him to kill two drug dealers.
But the federal prosecutors handling the case did not let the jury hear all the facts.
Instead, the prosecutors covered up evidence that could have discredited many of Lyons’ accusers. They never disclosed that a convict who claimed to have purchased hundreds of pounds of cocaine from Lyons struggled to identify his photograph. And they hid the fact that prosecutors had promised to let others out of prison early in exchange for their cooperation.
An investigative project by USA Today documented 201 cases from across the nation in which federal judges found that prosecutors broke the rules. It includes a database and interactive map chronicling prosecutorial misconduct. Read the whole thing.
Check out Tim Lynch’s In the Name of Justice: Leading Experts Reexamine the Classic Article “The Aims of the Criminal Law” and Harvey Silverglate’s Three Felonies a Day: How the Feds Target the Innocent for more on the criminal justice system.
Ninja Bureaucrats on the Loose
Quinn Hillyer has an excellent piece at the Washington Times highlighting the simultaneously farcical and frightening use of armed agents in enforcing suspected regulatory violations.
”The government,” wrote 50-year-old Denise Simon, “is too big to fight.” With those words, in a note to her 17-year-old son, Adam, she explained why she was committing suicide (via carbon monoxide) three days after 10 visibly armed IRS agents in bulletproof vests had stormed her home on Nov. 6, 2007, in search of evidence of tax evasion. Her 10-year-old daughter, Rachel, was there with Simon when the agents stormed in.
“I cannot live in terror of being accused of things I did not do,” she wrote to Adam. To the rest of the world, in a separate suicide note, she wrote: “I am currently a danger to my children. I am bringing armed officers into their home. I am compelled to distance myself from them for their safety.”
The IRS is not the lone culprit. The EPA, National Park Service, Small Business Administration and even the Railroad Retirement Board have acquired a taste for tactical enforcement of administrative sanctions.
Read the whole thing. And when you’re done, check out Tim Lynch’s book on the proper role of the criminal law, Radley Balko’s work on the unwarranted expansion of SWAT teams within American law enforcement, and the Heritage Foundation’s report on the uncontrolled growth of the federal criminal code.
‘A Smorgasbord of Delights’
That’s what my colleague Tim Lynch’s 2009 volume In the Name of Justice is, according to a glowing review in the new edition of the Loyola Law Review. Tim’s probably too modest to link it himself, so I’ll do that here.
In the review, Professor Laurie L. Levenson of Loyola Law School writes:
I have been teaching criminal law for more than twenty years and the one question I predictably get from my students every year is, “Why do we have to read so much?” Sometimes they add, “Isn’t there one book—one article—that explains all of criminal law?” Ordinarily, I just smile and assign them more reading. However, the recent book, In the Name of Justice reminded me that there is such a work. This book raises nearly every important issue one must consider in critically analyzing criminal law.
In the Name of Justice is structured around Professor Henry M. Hart’s classic 1958 essay “The Aims of the Criminal Law,” and Tim assembled an all-star team of scholars and practitioners–including Judge Richard Posner, Judge Alex Kozinski, James Q. Wilson, and Alan Dershowitz–to react, criticize, comment, and expand on Hart’s seminal article. Professor Levinson concludes:
Timothy Lynch has done an excellent job of assembling original essays and appendices of previously published essays and speeches on the critical issues in criminal law. The book is a smorgasbord of delights—the real “meat and potatoes” of criminal law. For my taste, the most fulfilling observations actually come from the contributions in the book’s closing materials. Justice Robert H. Jackson’s famous speech to federal prosecutors on their role in the criminal justice system and the function of criminal law is infused with lessons from Hart, as are the other speeches and essays in the Appendices. The aim of criminal law remains elusive, but the journey itself is worth the effort. In the Name of Justice is the perfect manner to explore the journey of understanding and applying our criminal laws.
I couldn’t agree more: I wish I’d had this book when I took Crim Law. Fortunately, it’s available now for law professors, students, and anyone else who wonders whether our burgeoning state and federal criminal codes have become unmoored from the criminal law’s proper purposes.
One Nation Under Arrest
Brian Walsh of The Heritage Foundation and Paul Rosenzweig have a new book out, One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty.
For an example of how our federal criminal laws have morphed into a leviathan that threatens the liberty of average citizens, take the case of inventor and entrepreneur Krister Evertson:
In May 2004, FBI agents driving a black Suburban and wearing SWAT gear ran Evertson off the road near his mother’s home in Wasilla, Alaska. When Evertson was face down on the pavement with automatic weapons trained on him, an FBI agent told him he was being arrested because he hadn’t put a federally mandated sticker on a UPS package.
A jury in federal court in Alaska acquitted Evertson, but the feds weren’t finished. They reached into their bag of over 4,500 federal crimes and found another ridiculous crime they could use to prosecute him: supposedly “abandoning” hazardous waste (actually storing, in appropriate containers, valuable materials he was using for the clean-fuel technology he was developing). A second jury convicted him, and he spent 21 months in an Oregon federal prison.
Draconian enforcement of regulatory offenses is just the tip of the iceberg. For additional information on the creep of federal criminal law, check out In the Name of Justice: Leading Experts Reexamine the Classic Article “The Aims of the Criminal Law” by Tim Lynch, Three Felonies a Day: How the Feds Target the Innocent by Harvey Silverglate, and Go Directly to Jail: The Criminalization of Almost Everything by Gene Healy.
Three Felonies a Day
Harvey Silverglate’s new book, Three Felonies a Day: How the Feds Target the Innocent, is receiving a good bit of press. L. Gordon Crovitz has a good piece up at the Wall Street Journal discussing federal overcriminalization and how it impacts information technology. National Review Online has an audio interview with Silverglate discussing how federal law often strays from traditional notions of criminal intent, making innocent activity potentially criminal.
Silverglate will be speaking at Cato on Thursday at a book forum with Tim Lynch. Tim’s recent book In the Name of Justice looks at the evolution of strict liability statutes and other developments in criminal law with chapters from prominent legal thinkers. Washington Times columnist Tony Blankley will be serving as guest moderator. Admission is free; registration information is available here, and the event can be watched live at the link.
Ken Lammers on Posner and Strict Liability
Ken Lammers, who blogs over at CrimLaw, recently posted a review of my new book, In the Name of Justice. By way of background, the book is an edited collection of essays. The lead essay is a reprint of the 1958 classic, “The Aims of the Criminal Law,” by Harvard Law Professor Henry Hart. Legal and criminal law experts, such as Judge Richard Posner and James Q. Wilson (among others), have written original essays about Hart’s ideas.
Among other things, Hart critiqued the doctrine of strict criminal liability–which essentially dispenses with the requirement of proving someone’s criminal intent. Hart says this is profoundly wrong. The essence of criminal conduct is that the person has done something which is blameworthy. With strict liability, prosecutors can condemn certain persons as “criminals” without proving that they have done anything that is truly blameworthy.
Judge Richard Posner’s essay offers a defense of the strict liability doctrine, but Ken Lammers is not persuaded. Here’s an excerpt:
Posner’s strongest argument is born of the wisdom of ignorance: the statutory rape argument. The statutory rape, best-interest-of-the-child, absolute strict liability is a creature born of emotion divorced from logical thought. We must protect the children at all costs. Therefore, anybody who crosses the line gets convicted no matter the circumstance. “The effect is to induce men to steer well clear of young-looking women, a form of care they would be less likely to use if ignorance were a defense.” (p. 97)
This pretty much brands Posner as someone who has not had actual trial experience. He’s never seen that trial wherein the immature 18 year old defendant (looking all of 14) has “raped” the 14 year old predatory girl (who looked 20) who had a list on her bedroom door of men she aimed to have sex with and had crossed several names off as she achieved her goal. Y’know, the same girl who turned the defendant in because she got mad at him when he found out her age and refused to have sex with her anymore. Guilt via strict liability. I’ve seen at least two cases with facts similar to this in my 8+ years practicing (none at my current locale); persons in larger jurisdictions can probably relate more of the same. This is how the “justice” of strict liability plays out in real life and anyone who thinks that is the proper way for the law to work is clearly engaging in faulty reasoning.
I agree. And statutory rape is just a single example of where the doctrine of strict liability has taken hold. Once that precedent was established, it has expanded elsewhere, as have the injustices. For example, the law bans felons from possessing guns and ammunition. Dane Yirkovsky found a bullet at his girlfriend’s house and put it in a dish on the dresser. Later, police search and find the bullet. Yirkovsky tells them that he put it there. Since he is an ex-con, he gets arrested on a felon-in-possession charge. And with mandatory minimum sentencing in place, he is now serving a fifteen year prison sentence. Under the law, Yirkovsky is “guilty.” But did he do anything that was really blameworthy? Can his conduct really be described as “criminal?”
To learn more about the state of our criminal law, get the book.
Who’s Blogging about Cato
Here’s a round-up of bloggers who are writing about Cato this week:
- Writing at the Adam Smith Institute blog, Phillip Salter discusses Patrick J. Michaels’s proposal that scientific articles should be available online for public comment.
- Penning his thoughts on Obama’s plan to raise taxes on oil and gas usage, Wintery Knight cites Jerry Taylor’s research that shows why similar price control programs didn’t work in the 1970s.
- Reihan Salam quotes William Niskanen on The Atlantic‘s Washington blog in a post about the “starve the beast” theory that says lawmakers can slow government’s growth by lowering taxes and running up deficits.
- Think Progress blogger Matthew Yglesias responds to Michael Cannon’s work on health care reform in a post about Obama’s White House health care summit.
- Dr. Paul Hsieh of FIRM (Freedom and Individual Rights in Medicine) and Brian Schwartz of Patient Power cite John H. Cochrane’s Cato paper on free market solutions to health care security.
- CrimLaw started his review of Tim Lynch’s new book In the Name of Justice.
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