Tag: overcriminalization

Not Everything Can Be a Federal Crime

Cato legal associate Carl DeNigris co-authored this blogpost.

Over the last few decades, the number of federal crimes has exploded. The U.S. criminal code has grown so large and so expansive that no one is exactly sure how many federal crimes are actually on the books, with estimates ranging from 4,000 to 300,000. As Justice Scalia has noted, “It should be no surprise that as the volume increases, so do the number of imprecise laws.”

Many individuals and organizations from across the ideological spectrum have voiced concern over this growing trend, recognizing that broadly defined crimes lack the clarity traditionally required before depriving citizens of their liberty.

The expansion of 18 U.S.C § 1001, which criminalizes the knowing and willful making of materially false statements in “any matter within the jurisdiction of” the United States, exemplifies this broadening scope. Cory King was prosecuted under this statute for making a false statement to a state official wholly unconnected to any federal agency or investigation. Yet, the Ninth Circuit held that Mr. King violated § 1001 because the subject matter of his statement was one over which a federal government agency possessed regulatory authority.

King has now asked the Supreme Court to hear his case. Cato has joined the National Association of Criminal Defense Lawyers and the Texas Public Policy Foundation on a brief supporting him and arguing that the Ninth Circuit stretched § 1001 beyond its proper jurisdictional reach. Such an unbounded interpretation risks greater over criminalization and further misuse of the federal criminal code.

Moreover, since § 1001 is a “process crime” that focuses on offenses “not against the particular person or property, but against the machinery of justice itself,” an excessively broad construction would undermine the integrity of the criminal justice system. Wider application of such crimes facilitates pretextual prosecutions, in which “the operating philosophy seems to be that, if the government cannot prosecute what it wished to penalize, it will penalize what it can prosecute.”

Such an arbitrary and far-reaching application of the criminal code – the federal criminal code, at that – has no place in a free society.

The Court will decide whether to take up King v. United States sometime this spring.

Feds Take in Billions with Forfeiture Powers

Today’s Wall Street Journal has part 2 of its critical look at the powers of federal law enforcement agencies and the focus of this article is on the power to seize cash, cars, homes, and other assets from people who have not been convicted of a crime.  It’s called “civil asset forfeiture”  because there is no criminal prosecution.  Here’s an excerpt (subscription only):

New York businessman James Lieto was an innocent bystander in a fraud investigation last year. Federal agents seized $392,000 of his cash anyway.

An armored-car firm hired by Mr. Lieto to carry money for his check-cashing company got ensnared in the FBI probe. Agents seized about $19 million—including Mr. Lieto’s money—from vaults belonging to the armored-car firm’s parent company.

He is one among thousands of Americans in recent decades who have had a jarring introduction to the federal system of asset seizure. Some 400 federal statutes—a near-doubling, by one count, since the 1990s—empower the government to take assets from convicted criminals as well as people never charged with a crime.

Last year, forfeiture programs confiscated homes, cars, boats, and cash in more than 15,000 cases.  The total take topped $2.5 billion, more than doubling in five years, Justice Department statistics show.

The expansion of forfeiture powers is part of a broader growth in recent decades of the federal justice system that has seen hundreds of new criminal laws passed.  Some critics have dubbed the pattern as the overcriminalization of American life.

Last year, Cato hosted an event on the problem of forfeiture law and before that published numerous books and studies and articles.  It’s nice to see the Wall Street Journal highlighting this problem for its readership.

Saving a Baby Woodpecker: The Legal Consequences

Federal law makes it illegal to “take,” “possess,” or “transport” a migratory bird except under permit. If you worry that this sweeping language might give the federal government too much enforcement power, perhaps you are one of those horrid House Republicans who, according to Bryan Walsh in Time magazine, are in the grip of “antigreen ideology” and want to “essentially prevent” agencies like the Department of the Interior “from doing their jobs.” Who else would object to laws meant to protect Nature?

It’s a pretty safe bet that Walsh hasn’t met the Capo family of Fredericksburg, Virginia. According to a report on broadcast station WUSA, and now being picked up far and wide by other news outlets, 11-year-old Skylar Capo saved a baby woodpecker in her back yard from the family cat and decided to keep it for a day or two to make sure it wasn’t injured before letting it go. The family’s problems began when Skylar took the bird into a Lowe’s to keep it out of the hot sun and was spotted by a woman in the store who confronted her and said she was a Virginia state game officer. Two weeks later, says Skylar’s mother Alison, the woman showed up at their front door accompanied by a state trooper with the news that the family owed a fine of $535; the federal law also carries possible jail time. (The bird itself was long gone by this point, having been released the same day of the store visit, the family says.)

With publicity about the case hitting the wires, the U.S. Fish and Wildlife Service has now announced that it has rescinded the fine—the ticket had been mistakenly issued, it insists, in spite of a decision not to pursue charges. That also presumably takes care of the worry about jail time. But really, if you’re the parent of a youngster fascinated by backyard wildlife, why take chances? Order them back indoors to play video games and watch TV. It’s much legally safer that way.

For more from Cato on overcriminalization, see posts like this, this, and this.

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.

When Cops Go Commando, It’s No Laughing Matter

I received a response to my recent blog post on the Department of Education serving a warrant and dragging Kenneth Wright of Stockton, California from his home at six in the morning (incident added to the Raidmap, and here’s an updated link to the story). Here is the word from Department of Education Press Secretary Justin Hamilton:

“Yesterday, the Depart of Education’s office of inspector general executed a search warrant at Stockton California residence with the presence of local law enforcement authorities.

While it was reported in local media that the search was related to a defaulted student loan, that is incorrect. This is related to a criminal investigation. The Inspector General’s Office does not execute search warrants for late loan payments.

Because this is an ongoing criminal investigation, we can’t comment on the specifics of the case. We can say that the OIG’s office conducts about 30-35 search warrants a year on issues such as bribery, fraud, and embezzlement of federal student aid funds.

All further questions on this issue should be directed to the Department of Education’s Inspector General’s Office.”

This does not change my analysis one bit. The Department of Education doesn’t need a squad of “operators” busting down doors in white collar crime cases.

Search warrants issued pursuant to an investigation of bribery, fraud or embezzlement shouldn’t require door breaching at dawn unless there’s some exigent circumstances justification. Did the agents think that Kenneth Wright was going to resist the warrant service with deadly weapons, or destroy evidence? If so, say so. At least it would provide some evidence of surveillance prior to the raid or actual investigation. Investigation or surveillance might have revealed that the target of the warrant, Wright’s estranged wife, would not be home when agents came knocking.

Some gunbloggers wondered a while back about a federal website soliciting contracts to provide short-barreled shotguns for the Department of Education (H/T Uncle and Tam). Now we know what they’re intended for, and it’s incompatible with a free society.

The Supreme Court and the California Prison System

This morning the Supreme Court issued a remarkable ruling [pdf] concerning California’s prison system.   Because of years of pervasive overcrowding, there have been systemic violations of the Constitution’s ban on Cruel and Unusual Punishments.  To remedy those violations, the Court affirmed a lower court order to reduce the prison population.  I was not surprised to learn that Justice Anthony Kennedy authored the majority opinion in this case, Brown v. Plata. In a 2003 speech to the American Bar Association (reprinted in my book In the Name of Justice), Kennedy tried to raise more awareness about America’s prison system.  He made the point that every citizen ought to take an interest in the prison system–it is not just the realm of correctional personnel.  Here’s an excerpt from Kennedy’s speech:

The subject [of prisons] is the concern and responsibility of every member of [the legal] profession and of every citizen.  This is your justice system; these are your prisons. … [W]e should know what happens after the prisoner is taken away.  To be sure, the prisoner has violated the social contract; to be sure he must be punished to vindicate the law, to acknowledge the suffering of the victim, and to deter future crimes.  Still, the prisoner is a person; still, he or she is part of the family of humankind.

Were we to enter the hidden world of punishment, we should be startled by what we see. Consider its remarkable scale.  The nationwide inmate population today is about 2.1 million people.  In California … this state alone keeps over 160,000 persons behind bars.  In countries such as England, Italy, France, and Germany, the incarceration rate is about 1 in 1,000 persons.  In the United States it is about 1 in 143.

The numbers are only the beginning of the story.  Do not assume that the government has the facilities to house the prisoners that are sentenced.  California is housing far beyond the design capacity of its prisons–double. That is, it has designed a system for 80,000 but has stuffed 160,000 into the buildings.  The sheer number of inmates has overwhelmed the facilities and staff. Kennedy’s opinion details the abysmal conditions, but I will mention a few:

  • In one prison, 54 men share one toilet
  • medical staff sometimes use closets and storage rooms for ill patients-rooms without adequate ventalition.
  • exam tables are not disinfected after use by prisoners with communicable diseases
  • men held for hours and hours in telephone booth sized cages with no toilet
  • California’s prison system averages one suicide a week (80% higher than the national average)
  • Men with medical problems go untreated and die.  These are not cancer patients.  These are preventable deaths.  For example, a man with stomach pain goes five weeks without medical treatment and dies.

A corrections official from Texas toured California’s facilities and he testified that he has been in the field 35 years and was just appalled.  He’d “seen nothing like it.”

Four conservative justices–Scalia, Thomas, Roberts and Alito–dissented from the ruling.  Scalia said the outcome was “absurd” – “perhaps the most radical injunction issued by a court in our Nation’s history.”  Justice Alito said the Constitution “imposes an important–but limited–restraint on state authority in [the prison] field.  The Eighth Amendment prohibits prison officials from depriving inmates of ‘the minimal civilized measure of life’s necessities.’”  The conservatives concede, as they must, that the California prison system is really bad, but they argue that it is not yet so awful so as to warrant judicial intervention and a population reduction order.  Kennedy and the liberals in the majority (Breyer, Ginsburg, Sotomayor, and Kagan) make a persuasive case that California’s elected officials have had ample opportunity to address the systemic problems, but have let them fester year after year.

For related Cato work, go here and here.

Libertarianism Happens to People

You are probably familiar with the story of Brian Aitken, the responsible gun owner wrongly convicted of violating New Jersey’s draconian gun laws. Governor Chris Christie commuted Aitken’s sentence, and his appeal is still pending.

As Radley Balko often says, libertarianism happens to people. It happened to Brian Aitken:

Aitken never thought of himself as a libertarian, but two years in the clutches of the state system has changed him completely. Before the arrest, the young, apolitical entrepreneur was on his way to a successful career in digital marketing.

“I never considered myself a person who is really interested in politics,” Aitken says. “But after all this happened I am definitely a hardcore libertarian now.”

Read the whole thing.