American Elephants

You Are Probably Committing Three Felonies a Day. by The Elephant's Child

From the Foundry at the Heritage Foundation:

Albert Schoenwetter had been in the commercial seafood business since 1986. He had built a successful business over the years, distributing seafood across the country, including lobster tails imported from overseas. Schoenwetter was a law-abiding citizen, his transactions were perfectly legal and he had no reason to believe that he was breaking any law.

At 7:00 a.m. one morning in 1999, armed agents from the FBI, IRS and National Marine Fishery Service (NMFS) showed up at his south Florida home with search warrants. The federal agents herded him, his wife, his mother-in-law and his daughter (all still in their night clothes) into the living room where they were told to sit and be quiet.
A year later, Schoenwetter was sentenced to eight years in prison, three years of supervise release and fined over $100,000. His crime? Schoenwetter testified to the House Judiciary Committee last week:

No matter how you frame it, the truth is that I am a convicted felon who has just spent the last six years of my life in federal prison for entering into a contract to buy lobsters.

Specifically, the NMFS charged Schoenwetter with violating the Lacey Act, a law that makes it a crime for an American to take wildlife in violation of domestic laws or regulations.  The law was intended to punish, for example, an American who killed an elephant in Kenya in violation of Kenyan wildlife protections.

What regulations had Schoenwetter violated?  The NMFS claimed that the lobsters he had contracted to buy were in violation of three Honduran regulations: 1) they were in plastic bags, not cardboard boxes; 2) they were undersized; 2) some of them were egg-bearing lobsters.

Despite the fact that this specific shipment was no different than any of the hundreds of other deals Schoenwetter had done over the years, despite the fact that he had never seen the lobsters in question and knew nothing of the Honduran regulations, and despite the fact that the Honduran Attorney General confirmed that the size regulation had never actually been signed into law and the Honduran Minister of Justice testified that the egg-bearing regulation was directed at turtles, not lobsters, Schoenwetter’s conviction was upheld.

Heritage posted this story to illustrate a very real problem undermining the civil liberties of all Americans.  Just by the end of 2007, the U.S. Code contains more than 4,450 federal crimes, with tens of thousands more in the federal regulatory code.  Heritage Senior Legal Research Fellow Brian Walsh testified to last week’s Judiciary Committee why this is happening:

Placing thousands of vague, overbroad criminal laws in the hands of government officials means that no one is safe from unjust prosecution and punishment. Many of these criminal laws punish conduct that the average person would not guess is prohibited. The body of criminal law thus fails to meet one of the primary requirements of due process: providing individuals with fair notice of what conduct can be punished criminally.

A basic principle of our system of justice has been that no citizen should be subjected to criminal punishment for conduct that he did not know was illegal or otherwise wrongful.  This principle is embodied in the requirement that, with rare exceptions, the government must prove a defendant acted with intent, or at least knowledge, before subjecting him to criminal punishment.

A wide range of organizations supported the congressional hearing on overcriminalization, including the American Bar Association, the National Federation of Independent Business, the Civil Liberties Union, the National Association of Criminal Defense Lawyers and many others.

Heritage recommends that Congress should: 1) Enact default rules ensuring that  mens rea (criminal intent) requirements are adequate to protect against unjust conviction; 2) Codify the rule of lenity which grants the benefit of doubt when Congress fails to legislate clearly; 3) Require adequate judiciary committee oversight of every bill proposing criminal offenses or penalties; 4) Provide detailed written justification for an analysis of all new federal criminalization; 5) Redouble efforts to draft every federal criminal offense clearly and precisely.

Civil Liberties Attorney Harvey Silvergate notes that the average working American probably commits Three Felonies a Day.

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