Making Grandpa an ex-con: federal overcriminalization

Posted on October 5, 2009

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I just read a thought-provoking article in the Washington Times on the overcriminalization from federal law violations. Rep. Robert C. Scott (D-VA) and Rep. Louie Gohmert (R-TX) held a hearing over the summer over the rapid expansion of federal law that can sometimes trip up otherwise law-abiding citizens.

The example cited by the article is truly egregious. Kathy and George Norris, both in their 60’s, had their home ransacked by federal agents on behalf of the Fish and Wildlife Service related to George’s home business of growing orchids. George went to prison for two years because he lacked sufficient paperwork for his perfectly legal orchids, and was released at the age of 71. His wife testified at the hearing, along with another small businessman who spent two years in prison for failing to put a mandated sticker on an otherwise okay mail package of fuel cells.

This passage is key:

As George Washington University law professor Stephen Saltzburg testified at the House hearing, cases like these “illustrate about as well as you can illustrate the overreach of federal criminal law.” The Cato Institute’s Timothy Lynch, an expert on overcriminalization, called for “a clean line between lawful conduct and unlawful conduct.” A person should not be deemed a criminal unless that person “crossed over that line knowing what he or she was doing.” Seems like common sense, but apparently it isn’t to some federal officials.

Former U.S. Attorney General Richard Thornburgh’s testimony captured the essence of the problems that worry so many criminal-law experts. “Those of us concerned about this subject,” he testified, “share a common goal – to have criminal statutes that punish actual criminal acts and [that] do not seek to criminalize conduct that is better dealt with by the seeking of regulatory and civil remedies.” Only when the conduct is sufficiently wrongful and severe, Mr. Thornburgh said, does it warrant the “stigma, public condemnation and potential deprivation of liberty that go along with [the criminal] sanction.”

 I believe the majority of law enforcement folks are stoutly committed to getting the really bad people off the streets – murderers, rapists, thieves, and the like. However, we should remember that according to the letter of the law, we can call get slapped with a fine for driving one mile over the speed limit. Discretion is left to the police and to the prosecutors to exercise common sense judgment, and they do in most instances – but not all.

I’d like to believe that cases like the Norris’ are the exception, but with an ever-growing bureaucracy and a sometimes byzantine labyrinth of paperwork and regulations to navigate, it’s not hard to envision how easy it is for small businesspeople and individuals to get tripped up. It can be too easy to dismiss those who run afoul as needing to “know better,” as the rules are often deftly navigated by companies that need large compliance departments to stay above-board.

It’s one of the perils of the growth of government and another reason why expansion of federal jurisdiction and power should always be viewed with the utmost caution.

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Posted in: News, Politics