Tag: overcriminalization

Without Intent

One of the major problems with the growing body of federal crimes – over 4,500 and counting, expanding at the rate of 500 each decade – is that many lack the traditional requirement that the defendant has acted with a guilty mind, or mens rea. Highlighting the overcriminalization of nearly everything is necessary to educate the citizenry and put pressure on politicians not to pass overbroad and ill-defined criminal offenses. At some point, however, Congress must act to address the existing flawed statutes and put procedural barriers between bad ideas and the federal criminal code.

Enter the Heritage Foundation and the National Association of Criminal Defense Lawyers with their groundbreaking report, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law.

The report studies the legislation proposed or passed by the 109th Congress (2005-2006) and finds that a majority lacked an adequate mens rea requirement. The report closes with a strong case for several fundamental changes in the way that Congress creates criminal laws:

  • Enact default rules of interpretation ensuring that guilty-mind requirements are adequate to protect against unjust conviction.
  • Codify the rule of lenity, which grants defendants the benefit of the doubt when Congress fails to legislate clearly.
  • Require adequate judiciary committee oversight of every bill proposing criminal offenses or penalties.
  • Provide detailed written justification for and analysis of all new federal criminalization.
  • Redouble efforts to draft every federal criminal offense clearly and precisely.

This report is indicative of a broad effort developing across the political spectrum to fix a federal criminal code that has become disconnected from traditional notions of punishing blameworthy conduct. Northwestern Law’s Searle Center on Law, Regulation and Economic Growth held its 2009 Judicial Symposium on Criminalization of Corporate Conduct.

The Heritage Foundation is hosting an event highlighting the findings of Without Intent on Monday, May 24 that can also be viewed online.

The Crusade against Sexting

As my colleague Tim Lynch pointed out in this post, the Third Circuit recently upheld an injunction against a prosecutor who threatened charges against teenagers who engaged in “sexting.” A conviction would have turned these minors into registered sex offenders for flirting via cellphone. Professor Eugene Volokh has more on the decision.

“Sexting” is sending an explicit photo of yourself to your significant other, and is an increasingly common occurrence with high school–aged teens. It’s dumb — those digits don’t ever go away, and they can come back to embarrass you — but it shouldn’t make you a sex offender.

Unfortunately, the laws don’t reflect this sensible distinction between poor teenage judgment (but I repeat myself) and intentional criminality. I don’t think this guy is a threat to society, but he’s a registered sex offender now.

Even staunch conservative Andy McCarthy expressed concern about the heavy mandatory minimums for possession of child pornography over at The Corner. First-time offenders can get 15-year minimum sentences, more than some of the mobsters that McCarthy prosecuted as an assistant U.S. attorney. As McCarthy puts it:

I think that’s nuts. And mind you, compared to the average person (and even the average prosecutor), I am Atilla the Hun: I would not have the slightest problem imposing capital punishment on the people who actually produce and “perform” in these depictions in which young children are sexually abused…

But the mandatory minimums have to be sensible — “Doing it for the children” is not a rationale for failing to distinguish the truly evil from the venial.

This is why Vermont legislators carved out an exemption for sexting so that teens would not be charged as child pornographers and registered as sex offenders. The video at the link shows Vermont State Senator John Campbell making the case for such a legal distinction:

If a 14- or 15-year old girl, let’s say, decides to send a photograph of her breast to her boyfriend who is 15, she has just then become a transmitter of child pornography and he is in possession of child pornography, and as such, then they are now on the lifetime registry, the sex offender registry. So take that a little bit further, and see what’s going to happen. We have a child who now, as a registered sex offender, if they are lucky to get into college, because they have to register when they get to college. If they’re fortunate enough to get there, and they want to, let’s say, go into a teaching profession. Do you think that they’re going to be hired as a teacher when they have been charged with possession of child pornography? The answer is probably not.

Internet safety advocate Donna Rice Hughes responds: “They don’t have to go into a sex offender registry. There is prosecutorial discretion currently in the child pornography laws.”

We should not create a criminal code broad enough to give prosecutors the ability to charge anybody with something, and then leave it to the prosecutors’ good sense to rein themselves in.

It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.”

— Chief Justice Morrison Waite, United States v. Reese, 92 U.S. 214, 221 (1875)

The problem goes beyond sexting. Last year the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on “cyberbullying” legislation that would have criminalized using the internet to hurt someone else’s feelings. Setting aside the First Amendment issues with such a concept, this was a bill directed at making a federal felony out of teenagers’ rude conduct, in spite of the fact that there are no federal juvenile detention facilities to deal with this newly criminalized class of citizens.

Vermont’s sexting fix is a good start, but we have a long way to go before our laws again reflect traditional notions of criminal justice.

Felony Charges for Recording a Plainclothes Officer

Yesterday I wrote about the University of Maryland student beaten by police and falsely charged with assault during a post-game celebration. I concluded with a warning that a law barring citizens from taking photos or videos of law enforcement officers (such as those in force in Great Britain) would have prevented the false charges and beating from coming to light.

I did not know that Maryland was already heading that direction. Video:

Anthony Graber was riding his motorcycle on I-95 in Maryland, speeding and popping wheelies and recording the experience with a helmet cam. An unmarked car cuts him off as he slows for traffic, and a man in a hoodie and jeans jumps out with a gun in his hand. Five seconds after the armed man has exited his vehicle and approached Graber, he identifies himself as a Maryland State Trooper. Graber accepts a speeding ticket and posts video of the experience on YouTube. (HT Armed Liberal)

If that were the end of it – a law enforcement officer recklessly creates a situation that could prompt a firefight by provoking a law-abiding citizen with a concealed carry permit (because the officer’s outward appearance suggested a criminal attack was underway) – I wouldn’t be writing this. But the Maryland State’s Attorneys are now charging Graber with unlawfully recording the incident. Police have seized his computer and he faces felony charges.

Maryland is working hard to justify its status as least-free state in the union. Find your state’s ranking here.

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.

Are You a Criminal? Maybe You Are and Don’t Know It

Yesterday, Michael Dreeben, the attorney representing the U.S. government, tried to defend the controversial “honest services” statute from a constitutional challenge in front of the Supreme Court.  When Dreeben informed the Court that the feds have essentially criminalized any ethical lapse in the workplace, Justice Breyer exclaimed,

[T]here are 150 million workers in the United States.  I think possibly 140 [million] of them flunk your test.

There it is.  Some of us have been trying to draw more attention to the dangerous trend of overcriminalization.  Judge Alex Kozinski co-authored an article in my book entitled “You’re (Probably) a Federal Criminal.”  And Cato adjunct scholar, Harvey Silverglate, calls his new book, Three Felonies a Day to stress the fact that the average professional unknowingly violates the federal criminal law several times each day (at least in the opinion of federal prosecutors).  Not many people want to discuss that pernicious reality. To the extent defenders of big government address the problem at all, they’ve tried to write it all off as the rhetoric of a few libertarian lawyers.  Given yesterday’s back-and-forth at the High Court, it is going to be much much harder to make that sort of claim.

For more on this subject, go here, here,  and here.

Federal Cyberbullying Law: ‘Worth a Try’?

On Wednesday the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on the proposed cyberbullying legislation I mentioned in this post. Cato adjunct scholar Harvey Silverglate testified at the hearing, and his written testimony is available here.

Silverglate highlighted the pernicious potential of this law, which sits at the nexus of his two books. The Shadow University highlights how speech codes have impaired free expression on college campuses nationwide. Three Felonies a Day shows how federal criminal law has expanded to define various innocuous activities as federal felonies. Put the two together and a federal cyberbullying law is what you get. Silverglate’s recent podcast is available here, and he recently appeared at a Cato book forum.

The proposed cyberbullying law would impose a federal felony (two-year maximum sentence) upon anyone who uses electronic means to communicate a message intended to “coerce, intimidate, harass, or cause substantial emotional distress to a person.” Under this law, rude emails, texts, or blog posts can all subject someone to hard time as long as a receiving party alleges “substantial emotional distress.”

The Committee expressed constitutional concerns over this proposal. Chairman Bobby Scott (D-VA) pointed out the potential chilling effect that this could have on lawful but provocative speech. Ranking Member Louie Gohmert (R-TX) highlighted the unintended consequences that this bill could have — though intended to protect teens from online bullying, Gohmert said it could prompt prosecution of political opponents who had posted offensive things about him on a blog. There is no limiting language in the statute to prevent such a result. Gohmert said that while this would be satisfying, it would also be unconstitutional and among the reasons not to endorse the legislation.

Other problems plague the proposed statute. A Congressional Research Service report highlights some of the constitutional issues, but the discussion at the hearing brought others to the fore. States that have passed their own cyberbullying sanctions have overwhelmingly done so with misdemeanor, not felony, charges. The felony problem is compounded by the fact that this is a statute intended to apply largely to the conduct of teenagers. A felony charge is both excessive and complicated by the fact that there are no long-term federal juvenile detention facilities — they are referred to state facilities instead.

University of Virginia law professor (and former university president) Robert O’Neil said, in spite of all those concerns, that the proposed law could be tweaked to avoid the feared demerits. In his written testimony, O’Neil notes the difference between offensive political speech and “true threats,” the latter not receiving constitutional protection. He proposes using Intentional Infliction of Emotional Distress (IIED), a traditional state tort claim, as the legal basis for justifying the proposed law. This is an odd foundation for a federal criminal law — no state defines IIED as a crime, and many states require a showing of physical harm for a plaintiff to recover. When Rep. Gohmert pressed him on this, O’Neil said that in spite of the lack of legal foundation for a federal crime based on IIED, it was “worth a try.”

No thanks. Let’s not try. Let’s keep our liberties intact and not do further damage to the law.

Cyberbullying Bill on the March

Federal prosecutors moved to criminalize internet harassment last year by prosecuting Lori Drew. Lori Drew, as you may recall, is a Missouri woman who created a fictional MySpace profile named “Josh” and started an online relationship with Megan Meier, a teenage girl who may have spread gossip about Drew’s daughter at the local high school. After “Josh” broke up with her, Megan Meier killed herself.

While this is despicable conduct, Missouri prosecutors found that Drew had broken no criminal statute and could not be prosecuted.

Enter Thomas O’Brien, U.S. Attorney for the Central District of California. O’Brien filed charges against Drew based on alleged violations of the Computer Fraud and Abuse Act (CFAA). O’Brien alleged that by violating MySpace’s policy requiring factual information in the user profile and affirming the click-to-agree contract, Lori Drew had committed a crime akin to hacking or unauthorized access of computer data. Because of MySpace’s ties to the Central District of California, Lori Drew was haled into court halfway across the country.

Though the jury convicted Drew and reduced the felony charges to misdemeanors, District Judge George Wu threw out the conviction because the statute would allow the prosecution of nearly anyone on the internet. The decision is available here. The government has since filed a notice of appeal. Orin Kerr notes that the appeal may face additional hurdles – the line of cases that the government used to interpret the statute so broadly has been overturned by the Ninth Circuit.

Several members of Congress have since jumped on the Named Victim Act bandwagon, sponsoring the Megan Meier Cyberbullying Prevention Act. The Act goes far beyond the issue of unauthorized access, criminalizing any rude speech delivered via the internet, cell phone, or text message:

‘(a) Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.

‘(b) As used in this section–

‘(1) the term ‘communication’ means the electronic transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received; and

‘(2) the term ‘electronic means’ means any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages.’.

The scope of this law is breathtaking. Had a rough breakup with your significant other? Engaged in a flame war on a website’s comment section? We’ve got a law against that, you know.

The House Judiciary Committee will be holding a hearing on this law tomorrow. Cato Adjunct Scholar Harvey Silverglate, author of Three Felonies a Day: How the Feds Target the Innocent, will be testifying. Silverglate will also be at a book forum on Thursday at Cato, which can be watched live here.