Heritage Report: Overcriminalization and the Constitution

Originally published at The Heritage Foundation by Brian W. Walsh | 4/13/11

Abstract: Although the Constitution’s great structural principles of federalism and separation of powers are designed to guard against the abuse of governmental power and secure individual liberty, Congress routinely flouts these constitutional safeguards by enacting vague, overly broad, and other improper and unconstitutional criminal laws. Thomas Jefferson warned that “concentrating” or combining the powers of the legislative, executive, and judicial branches of government “in the same hands is precisely the definition of despotic government.” Yet overcriminalization invites and effectively requires prosecutors, judges, and even unelected federal bureaucrats to engage in lawmaking to determine the scope and severity of criminal punishment. In order to preserve the rights of innocent Americans, the unbridled and unprincipled growth of federal criminal statutes and regulations must be contained.

Congress’s “tough on crime” rhetoric has almost routinely resulted in the proliferation of vague, overbroad federal offenses that have only theoretical or highly attenuated connections to the federal government’s constitutional powers. This proliferation is a central feature of the “overcriminalization” phenomenon. It undermines justice and destroys the lives of individual Americans—consequences that are often directly related to lawmakers’ disregard for or circumvention of the language and limitations of the U.S. Constitution.

Overcriminalization in Action

The overcriminalization phenomenon is well illustrated by the federal prosecution of Wisconsin civil servant Georgia Thompson.[1] Thompson was charged with federal “honest services” fraud after she awarded a state contract for travel services to the bidder with the best price and second-best service rating.[2] Thompson and her team of decision makers had no financial interest in the winning company and no conflict of interest, and federal prosecutors made no allegations to the contrary. Instead, the U.S. Attorney’s office alleged that the contract award technically violated Wisconsin state procurement rules—an argument that by no means supports the exercise of federal jurisdiction.

Unfortunately for Ms. Thompson, the language of the federal “honest services” fraud statute is an egregious example of overcriminalization.[3] It criminalizes vast swaths of conduct unrelated to any constitutional power or interest. Federal prosecutors thus were able to build their theory of Thompson’s guilt on allegations that the contract she granted made her supervisors look good and thus “improved her job security.”[4] A jury convicted Ms. Thompson under this preposterous theory, and a federal judge sentenced her to four years in federal prison.

By the time a federal court of appeals reversed the conviction of this hard-working civil servant with a previously unblemished record, Ms. Thompson had lost her job, career, and reputation; had fallen into bankruptcy; and had spent four months in a federal prison. Indeed, until the U.S. Supreme Court held that the language of the “honest services” statute is unconstitutionally vague and imposed a limiting construction on it,[5] prosecutors with the U.S. Department of Justice had used it for 23 years to prosecute thousands of individuals, many of whose conduct had no real connection either to the federal interest or to powers defined by the Constitution.

Injustices such as those Georgia Thompson suffered are increasingly common in America[6] and, sadly, unsurprising. Express constitutional provisions, as well as the federal–state governmental structure that the Constitution created, are intended to protect liberty.[7] Over the past several decades, however, federal lawmakers have often circumvented or even disregarded these limitations. Lawmakers who are genuinely concerned about preserving America’s remarkable freedoms and safeguarding individuals’ most basic liberties must take stock of the damage that overcriminalization is doing to the nation’s constitutional structure.

Constitutional Powers and Federalism

The unbridled growth of federal criminal law disrupts the basic balance of constitutional government. First and foremost, unprincipled expansion of federal criminal law runs afoul of the fundamental constitutional principle that the federal government is a government of limited and enumerated powers.[8] Likewise, the development of duplicative and overlapping criminal statutes and regulations at the federal level disregards the proper constitutional equilibrium between state and federal powers.

Constitutional Powers

It is a fundamental constitutional tenet that every law enacted by Congress must be based on one or more of the powers specifically enumerated in the Constitution. In McCulloch v. Maryland,[9] Chief Justice John Marshall described this limitation on federal authority in the following manner:

This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent…. [T]hat principle is now universally admitted.[10]

Marshall’s statement means that Congress does not have a general federal police power to criminalize conduct.[11] As such, Congress lacks constitutional authority over the vast majority of violent, non-economic activity that, in any event, is routinely governed by state criminal law and state law enforcement.[12] Rather than combating street crime or other purely local matters, federal criminal law should address problems reserved to the national government in the Constitution such as treason, currency counterfeiting, military activities, and specific offenses that require proof of an actual (not theoretical or highly attenuated) nexus with interstate commerce.

Unfortunately, recent congressional approaches to federal criminal law have not abided by such limitations. In most cases, Congress never identifies what legislative power, if any, undergirds its exercise of criminal authority. When Congress does expend the time and effort to cite a constitutional provision to justify criminal-law legislation, it most frequently cites to the Constitution’s Commerce Clause (which grants Congress authority to “regulate Commerce…among the several States”[13]) and flatly asserts that the conduct the federal law covers has a constitutionally sufficient nexus to interstate commerce.

Congress then leaves it to the courts to decide whether the federal legislature’s improper, unjustified exercises of its power to criminalize will be held unconstitutional. The lower federal courts almost uniformly refuse to do so, despite some recent precedents from the Supreme Court reaffirming the limits on federal power to criminalize.[14] Over the past century, Congress and the federal courts have relied on expansive and unsound readings of the Commerce Clause to justify the federal government’s broadening of the scope of its limited legislative authority to regulate more and more truly local conduct and also to expand the scope of federal criminal law.

Indeed, the number of federal crimes has increased almost exponentially. The sheer size of the federal criminal law is so great that no one has been able to produce an exact count of the thousands of statutory criminal offenses in federal law. The best scholarly estimates are that by 2008, the U.S. Code included at least 4,450 federal crimes[15] and that the Code of Federal Regulations includes tens of thousands of regulations that can be enforced with criminal penalties.[16] Many of these laws were passed by Congress based upon dubious or, at best, attenuated claims of constitutional authority and are beyond Congress’s enumerated powers.


The current growth of federal criminal law also runs afoul of the fundamental tenets of federalism. Constitutional federalism is no mere theoretical nicety; like all limitations on the power of government, it is a vital safeguard for Americans’ essential rights and liberties. The preeminent Framer, James Madison, writing to explain and defend the Constitution in order to persuade Americans to ratify it, called constitutional federalism a “double security…[for] the rights of the people.”[17] The proliferation of vague and overbroad federal criminal laws that are unconnected to the federal government’s constitutionally defined powers and interests threatens this double security. It circumvents state sovereignty and undermines the authority of state and local law enforcement officials to combat common street crime.

Given that the federal government has no general or plenary police power, it is universally accepted that the power to punish crimes belongs primarily to the states. In fact, criminal justice is at the very core of the governmental powers and responsibilities that are predominately left to the states. The criminal justice burden borne by the 50 states dwarfs the burden undertaken by the federal government.[18] In 2003, state and local governments were responsible for 96 percent of those under correctional supervision—that is, in prison or jails, on probation or parole.[19] Similarly, in 2004, just 1 percent of the over 10 million arrests made nationwide were for federal offenses.[20]

Members of Congress consistently demonstrate a willingness to increase the scope and power of the federal government at the expense of state sovereignty. Whether such practices are the result of a desire to appear “tough on crime” or of a collective mentality that societal harms can be solved only through criminalization, the result is the same: a labyrinthine collection of vague and overbroad statutes and regulations that sometimes duplicate and often conflict with state priorities for criminal law and law enforcement.

Separation of Powers and Overcriminalization

The unchecked growth of the federal criminal code has led to a dangerous reallocation of power from elected representatives in Congress to unelected bureaucrats. For example, in recent decades, an increasing number of criminal regulations have been created by executive agencies composed of unelected political appointees and career bureaucrats. The purported authority for promulgating these regulations is often broad congressional language delegating authority to administrative agency officials to impose criminal sanctions.[21]

While such “delegation” may be politically expedient, it is also a severe abdication of Congress’s authority and leads to the unrestrained and unprincipled use of criminalization as a regulatory mechanism. Although the courts have permitted this sort of delegation in civil matters,[22] it is an especially pernicious trend when Congress’s decisions to delegate its authority to unelected bureaucrats in federal agencies involve criminal offenses and penalties that place Americans’ most basic freedoms and liberties at stake. A proper understanding of the federal legislature’s role would lead Congress to reject these sorts of delegations of its own authority even if the courts do not bind them to do so.

Delegating Power to Federal Prosecutors

Improper delegation is also evident in the manner in which overcriminalization provides federal prosecutors with unfettered control over broad swaths of criminal adjudication and legislative interpretation. The proliferation of vague and overly broad laws has given federal prosecutors the ability to stack criminal charges against defendants in a way that diminishes the likelihood of a criminal trial and increases the probability of either a guilty plea or a jury verdict.

Harvard law professor Bill Stuntz has described charge stacking as the ability “to charge a large number of overlapping crimes for a single course of conduct.”[23] The potential for injustice is heightened when each of the crimes is vague and overly broad. However:

Even if each of these offenses is narrowly defined to cover only serious misconduct, combining crimes enables prosecutors to get convictions in cases where there may be no misconduct at all. When deciding whether to plead guilty, any rational defendant (more to the point, any rational defense lawyer) takes account of the sentence the defendant may receive if he goes to trial and loses.… By stacking enough charges, prosecutors can jack up the threat value of trial and thereby induce a guilty plea, even if the government’s case is weak.[24]

In the federal system, where over 95 percent of defendants already plead guilty, overcriminalization thus gives prosecutors vast latitude to secure guilty verdicts. In the interpretive context, the proliferation of vague and overbroad criminal laws has given federal prosecutors in the U.S. Attorneys’ offices and Department of Justice the ability to apply vague, overly broad criminal laws to a vast array of conduct. The prosecutor essentially becomes a lawmaker, providing meaning and context to an otherwise open-ended statute or regulation.[25] Such a situation runs afoul of the proper assignment of federal power under the Constitution.

Delegating Power to the Judiciary

The unprincipled growth of federal criminal law has also led to the inappropriate delegation of legislative authority to the judicial branch. Judges often must take it upon themselves to create meaning from vague, unbounded criminal offenses such as the “honest services” fraud statute. When “interpreting” the large number of imprecise and unclear mens rea (criminal-intent) requirements in statutory and regulatory criminal offenses, for examplejudges are essentially co-opted into rewriting the laws and “finding” meaning where there is none.

There are judicially created safeguards that federal courts could (and should) apply to grant the benefit of the doubt to a person accused of a vague, ambiguous, or overly broad criminal law. These safeguards include the constitutional void-for-vagueness doctrine that the Supreme Court used to narrow the “honest services” fraud statute as well as the common-law rule of lenity.

Regrettably, overcriminalization often induces the courts to assume instead the responsibilities of the legislature. The Supreme Court pinpointed the hazards arising from this sort of separation-of-powers violation well over a century ago:

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. This would, to some extent, substitute the judicial for the legislative department of the government.[26]

In 1784, Thomas Jefferson warned that “concentrating” or combining the powers of the legislative, executive, and judicial branches of government “in the same hands is precisely the definition of despotic government.”[27] James Madison echoed this same conclusion a few years later.[28]

It is undoubtedly convenient and expedient for Congress to create imprecise, hastily drafted criminal laws and allow prosecutors and judges to interpret them as they will.[29] The same can be said about authorizing unelected bureaucrats in federal agencies to make the crucial criminal-law decisions that will affect Americans’ most fundamental rights and liberties. However, the fundamental duty for full deliberation over and precise crafting of every criminal law belongs to Congress. When Congress carries out this duty in a haphazard, imprecise manner—or expressly delegates it away to federal agencies—both individual Americans and the nation’s system of constitutional government are harmed.


Perhaps the central question that the Framers of the Constitution and Bill of Rights debated—a question to which they gave painstaking consideration—was how best to protect individuals from unfettered government power. They were well acquainted with abuses of the criminal law and criminal process and so endeavored to place in America’s founding documents significant safeguards against unjust criminal prosecution, conviction, and punishment. In fact, the Framers understood so well the nature of criminal law and the natural tendency of government to abuse it that two centuries later, the most important procedural (as opposed to substantive) protections against unjust criminal punishment are derived directly or indirectly from the Constitution itself, notably the Fourth, Fifth, Sixth, and Eighth Amendments.

Despite these protections, the wholesale expansion of federal criminal law—in both the number of offenses and the subject matter they cover—has become a major threat to American civil liberties. When laws are vague, are overbroad, or lack adequate mens rea requirements, the procedural protections of the Bill of Rights are inadequate to protect individual Americans from unjust criminal prosecution and punishment. This inadequacy is evidenced by the terrible toll that overcriminalization has taken on the lives of individuals such as Georgia Thompson,[30] as well as the manner in which the expansion of federal criminal law has eaten away at the wide range of structural constitutional protections put in place by the Framers.

Congress’s overcriminalization expands the power of the federal government beyond its constitutional limits and disrupts constitutional federalism’s proper balance of power between the federal and state governments. The proliferation of vague, overly broad federal criminal laws results in separation-of-powers violations and encroaches upon the rights of innocent Americans. The destructive constitutional implications of overcriminalization are one more compelling reason for Congress to rein in the unbridled and unprincipled growth of federal criminal statutes and regulations.

Brian W. Walsh is Senior Legal Research Fellow and Benjamin P. Keane is a Visiting Legal Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation.


Heritage Report: Overcriminalization: Sacrificing the Rule of Law in Pursuit of “Justice”

Originally published at The Heritage Report | 3/1/2011

Abstract: Those who commit real crimes should be prosecuted and appropriately punished. But the question of what kind of conduct is deserving of criminal punishment has become increasingly muddled in federal law. Although numerous ridiculous crimes that punish relatively trivial wrongs have crept into federal law, the greater danger comes from serious laws that are vague and overbroad. Further, Congress has authorized federal agencies to create tens of thousands of additional crimes that trap Americans by punishing obscure conduct. Federal agencies and prosecutors with inadequate oversight make overly aggressive application of these laws to target Americans who are often unaware their conduct is now illegal. Congress should complete the task it undertook in the 1970s and 1980s to shape the thousands of criminal offenses into a rational, orderly Federal Criminal Code; end its practice of authorizing unelected agency officials to create criminal offenses and penalties; and eliminate laws that rely on tort-law doctrines to allow one person to be punished for the criminal acts of another. The Department of Justice, as well, must exercise more vigorous supervision of its prosecutors and their charging decisions. As part of The Heritage Foundation’s “Preserve the Constitution” series, former U.S. Attorney General Dick Thornburgh explains what should be done to reestablish federal criminal enforcement on its proper moorings in the rule of law.

It is a great privilege to speak to you about the perils of overcriminalization in our society today, and of the need to undertake specific reforms in this area. I have served on both sides of the aisle in criminal cases during my career—as a federal prosecutor for many years and, more recently, as a defense attorney involved in proceedings adverse to the U.S. Department of Justice. These experiences provide me, I believe, with a balanced view of the issues in today’s criminal justice system and can, I hope, provide some insights and ideas to deal with the growing challenge of overcriminalization. Because of the serious corporate scandals we have observed over the past several years, and the recent financial crisis, the public’s attention has been particularly focused on potential criminal sanctions for wrongdoers in the business and financial communities. It is therefore an especially appropriate time to assess the impact of our criminal laws and consider proposals for reform.

The problem of overcriminalization is truly one of those issues on which a wide variety of constituencies can agree—witness the broad support for reform from such varied groups as The Heritage Foundation, the Washington Legal Foundation, the National Association of Criminal Defense Lawyers, the American Bar Association, the Cato Institute, the Federalist Society, and the American Civil Liberties Union. These groups all share a common goal: to have criminal statutes that punish actual criminalacts and that do not seek to criminalize conduct better dealt with through civil and regulatory remedies.

The Criminal Sanction

The criminal sanction is a unique one in American law, and the stigma, public condemnation, and potential deprivation of liberty that go along with that sanction demand, I suggest, that it should be utilized only when specific mental states and behaviors are present.

By way of background, let us briefly remind ourselves of some fundamentals of the criminal law. Traditional criminal law encompasses various acts, which may or may not cause results, and various mental states, which indicate volition or awareness on the part of the actor. These factors are commonly known as the requirements of mens rea and actus reus, or an “evil-meaning mind [and] an evil-doing hand.” Most efforts to codify the criminal law of common-law jurisdictions employ a variety of requisite mental states—usually describing purpose, knowledge, reckless indifference to a consequence, and, in a few instances, negligent failure to appreciate a risk.

With respect to what has now become known as “overcriminalization,” objections are focused on those offenses that go beyond these traditional, fundamental principles and are grounded more on what were historically civil or regulatory offenses that lack the mental-state requirements historically needed for a criminal conviction. The reason for this focus is evident: Without a clear mens rea requirement, citizens may not be able to govern themselves in a way that assures them of following the law, and many actors may be held criminally responsible for actions that do not require a wrongful intent. Such “strict” liability in a criminal action does have a long history—almost three thousand years ago, an Emperor of China decreed that it would be a criminal offense, punishable by death, for a governor of a province to permit the occurrence, within the province, of an earthquake. Even our own imperial Congress has not gone that far…yet!

Our Congress, however, has not been entirely modest. A 2004 Federalist Society report states that federal statutes provide for over a hundred separate terms to denote the required mental state with which an offense may be committed,[1] and The Heritage Foundation has issued a report stating that 17 of the 91 federal criminal offenses enacted between 2000 and 2007 had no mens rea requirement at all.[2] Such trends must not continue, and suggested legislative reform in the nature of a default mens rea requirement when a statute does not require it is worthy of consideration.

The Vast Scope of Federal Criminalization

Many scholars, as well as the Department of Justice, have tried to count the total number of federal crimes, but only well-informed estimates have emerged. The current estimate is a staggering 4,450 statutory crimes on the books with a projected additional 50 per year in years to come. If legal scholars and researchers, and the Department of Justice itself, cannot accurately count the number of federal crimes, how can we expect ordinary American citizens to be able to be aware of them? One criminal law expert stated that we can no longer repeat with confidence the long-standing legal maxim that “ignorance of the law is no excuse,” because the average American citizen cannot know how many criminal laws there actually are. That is why, as my friend and fellow former Attorney General Ed Meese has stated, “Overcriminalization should concern everyone in America, both as citizens and as potential accused.”[3]

Although I could probably spend my whole time citing the often-mentioned, truly absurd examples of federal overcriminalization of trivial wrongs, such as using without authorization the characters of “Smokey Bear” or “Woodsy Owl,” or the latter’s slogan “Give a Hoot, Don’t Pollute,” or even the lesser known but equally absurd prohibition that you cannot “willfully injure” a shrub or a sink in any public building, ground, or park in the District of Columbia.[4] No matter how absurd, the dangers of overcriminalization for more serious offenses are real and impact real people.

Make no mistake: When individuals commit crimes they should be held responsible and appropriately punished. The line has become blurred, however, on what conduct constitutes a crime, particularly in corporate criminal cases, and this line needs to be redrawn and re-clarified. Over-breadth in the criminal law can lead to a near-paranoid corporate culture that is constantly looking over its shoulder for the “long arm of the law” and wondering whether a good-faith business decision will be interpreted as a crime by an ambitious prosecutor armed with an overly broad criminal offense. Perhaps even more significant is the impact on corporate innovation—if an idea or concept is novel or beyond prior models, a company may stifle the idea if it is concerned about potential criminal penalties. This stifling may render some companies unable to compete in a global marketplace just to ensure compliance with domestic laws—certainly a “cutting off of the nose to spite the corporate face.”

The unfortunate reality is that Congress has effectively delegated some of its important authority to regulate crime in this country to federal prosecutors, who are given an immense amount of latitude and discretion to construe federal crimes, and not always with the clearest motives or intentions. As one commentator aptly noted, “To put it bluntly, beat cops do not become homicide detectives by helping little old ladies across the street, and district attorneys are not reelected for dismissing cases or shrugging off acquittals.”[5] However, there may be some hope—in a recent interview with the Financial Times, the United States Attorney for the Southern District of New York responded to the perceived lack of criminal cases resulting from the financial crisis, by simply stating that “not every case is a criminal case,” as he announced the creation of a civil enforcement unit in his jurisdiction.[6] It is to be hoped that other federal prosecutors will take heed of this development.

Rule of Law, Abuse of Law

A striking recent example of overcriminalization is the “honest services” mail and wire fraud statute, 18 U.S.C. §1346, which was addressed recently by the U.S. Supreme Court in the high-profile Skilling v. United States and Black v. United States decisions.[7] This statute was subject to scrutiny because of its expansion from traditional public corruption cases to private acts in business or industry that are deemed to be criminal almost exclusively at the whim of the individual prosecutor who is investigating the case, becoming essentially a “moral compass” statute. The Supreme Court rejected the government’s expansive view of the statute and narrowed the statute to its core purpose—prosecuting kickback and bribery schemes. Interestingly, the Court went a step further and specifically cautioned Congress regarding creating further “honest services” statutes, stating that “Congress would have to employ standards of sufficient definiteness and specificity to overcome due process concerns.” Another commendable decision came recently from a United States District Judge who dismissed an indictment and reminded the government of the court’s purpose: “The Court is not an arbiter of morality, economics, or corporate conduct. Rather, it is an arbiter of the law.”[8] Now, that signals a welcome return to the rule of law.

As I noted, the issue of overcriminalization is especially poignant in corporate crime. In 1909, the Supreme Court held in a railroad regulation case[9] that a corporation could be held criminally liable for the acts of its agents under the civil tort law theory of what is known as respondeat superior, or, in non-legalese, “the superior must answer,” meaning that an employer is responsible for the actions employees perform within the course of their employment.

Since 1909, business entities have routinely been held criminally liable for the acts of their employees as well. In recent history, one of the more significant cases is the prosecution of international accounting firm Arthur Andersen, in which the company effectively received a death sentence based on the acts of isolated employees over a limited period of time. As this case illustrates, this is not a partisan issue— Arthur Andersen was prosecuted under a Republican administration.

In 2007, I gave a speech at the Georgetown Law Center regarding overcriminalization. I mentioned the Arthur Andersen case and referenced a political cartoon, published after the Supreme Court reversed the company’s conviction.[10] In the cartoon, a judge in a black robe was standing by the tombstone of Arthur Andersen and said, “Oops. Sorry.” That apology didn’t put the tens of thousands of partners and employees of that entity back to work. Something like this simply cannot be repeated, and reform is needed to make sure there are no such future miscarriages of justice.

Restoring Justice

What can be done to curb these abuses? I have suggestions for both the long term and the short term. First, I have advocated for many years that we adopt a true Federal Criminal Code. While this may not be the first thing that comes to mind when analyzing the issues of concern in the criminal justice system, it is an important one that should be undertaken without delay. As I mentioned, there are now some 4,450 or more separate criminal statutes—a hodgepodge scattered throughout 50 different titles of the United States Code without any coherent sense of organization. As one distinguished commentator noted, “[O]ur failure to have in place even a modestly coherent code makes a mockery of the United States’ much-vaunted commitments to justice, the rule of law, and human rights.”[11]

There is a template in existence, the American Law Institute’s Model Penal Code, that can act as a sensible start to an organized criminal code. The Model Penal Code has formed the basis for many efforts to establish state criminal codes in this country. What is needed is a clear, integrated compendium of the totality of the federal criminal law, combining general provisions, all serious forms of penal offenses, and closely related administrative provisions into an orderly structure, which would be, in short, a true Federal Criminal Code.

A commission should be constituted, perhaps in connection with Senator James Webb’s proposed National Criminal Justice Commission Act, which passed the House of Representatives in July 2010, to review federal criminal law, collect all similar criminal offenses in a single chapter of the United States Code, consolidate overlapping provisions, revise those with unclear or unstated mens rea requirements, and consider other overcriminalization issues. This is not a new idea—Congress has tried in the past to reform federal criminal law, most notably through the efforts of the “Brown Commission” in 1971. The legislative initiatives based on that commission’s work failed despite widespread recognition of their worth. As Assistant Attorney General in charge of the Criminal Division at the time, I well remember the disappointment felt among Department of Justice leadership over the inability to focus the attention of legislative leaders on this important issue. And thus it has been since. It is therefore doubly incumbent on this Congress to make sense out of our laws and make sure that average ordinary citizens can be familiar with what conduct actually constitutes a crime in this country.

Second, Congress needs to rein in the continuing proliferation of criminal regulatory offenses. Regulatory agencies routinely promulgate rules that impose criminal penalties which have not been enacted by Congress. Indeed, criminalization of new regulatory provisions has become seemingly mechanical. One estimate is that there are a staggering 300,000 federal regulatory violations that may be punished with criminal penalties.[12]

This tendency, together with the lack of any congressional requirement that the legislation pass through judiciary committees, has led to an evolution of a new and troublesome catalogue of criminal offenses. Congress should not delegate such an important function to agencies.

In this area, one solution that a renowned expert and former colleague from the Department of Justice, Ronald Gainer, has advocated is to enact a general statute providing administrative procedures and sanctions for all regulatory breaches. It would be accompanied by a general provision removing all present criminal penalties from regulatory violations, notwithstanding the language of the regulatory statues, except in two instances. The first exception would encompass conduct involving significant harm to persons and property interests, and to those institutions designed to protect persons and property interests—i.e., the traditional reach of criminal law. The second exception would permit criminal prosecution, not for breach of the remaining regulatory provisions, but for a pattern of intentional, repeated breaches. This relatively simple reform could provide a much sounder foundation for the American approach to regulatory crime than currently exists.

Third, Congress should also consider whether respondeat superior should be the standard for holding companies criminally responsible for acts of its employees. The Department of Justice has issued a succession of memoranda from Deputy Attorneys General during the past 10 years, setting forth ground rules for when a corporation should be charged criminally for the acts of its employees. It should be noted that in the most recent memorandum, the government stated that “it may not be appropriate to impose liability upon a corporation, particularly one with a robust compliance program in place, under a strict respondeat superior theory for the single isolated act of a rogue employee.”[13] A law is needed to ensure uniformity in this critical area so that the guidelines and standards do not continue to change at the rate of four times in 10 years. Indeed, if an employee was truly a “rogue,” or acting in violation of corporate policies and procedures, Congress can protect a well-intentioned and otherwise law-abiding corporation by enacting a law that specifically holds the individual rather than the corporation responsible for the criminal conduct without subjecting the corporation to the whims of any particular federal prosecutor.

One other aspect of overcriminalization should not escape our notice. A former colleague of mine at the Justice Department noted that there is something self-defeating about a society that seeks to induce its members to abhor criminality, but simultaneously brands as “criminal” not only those engaged in murder, rape, and arson, but also those who dress up as Woodsy Owl, sell mixtures of two kinds of turpentine, file forms in duplicate rather than triplicate, or post company employment notices on the wrong bulletin boards. The appropriate moral stigma of criminal conviction is dissipated by such enactments, and the law loses its capacity to reinforce moral precepts and to deter future misconduct. Our criminal sanctions should be reserved for only the most serious transgressions. To do otherwise causes disrespect for the law.

While nearly all of the remedies I have suggested today would require legislative action, there are some steps which could be taken by the Department of Justice itself to aid in the process of reducing overcriminalization. Let me mention just three.

First, the Justice Department should require pre-clearance by senior officials of novel or imaginative prosecutions of high-profile defendants. One of Supreme Court Justice Antonin Scalia’s major objections to the “honest services” fraud theory, for example, was its propensity to enable “abuse by headline-grabbing prosecutors in pursuit of [those] who engage in any manner of unappealing or ethically questionable conduct.”[14] A second look before bringing any such proposed charges would, I suggest, be very much in order.

Second, a revitalized Office of Professional Responsibility should help ensure that “rogue” prosecutors are sanctioned for their overreaching in bringing charges that go well beyond the clear intent of the statute involved.

Finally, of course, the Justice Department should actively support, as a matter of policy, the effort to enact a true Federal Criminal Code.


Let me summarize. Reform is needed. True crimes should be met with true punishment. While we must be “tough on real crime,” we must also be intellectually honest. Those acts that are not criminal should be countered with civil or administrative penalties to ensure that true criminality retains its importance and value in our legal system. The Department of Justice must with greater vigor “police” those empowered to prosecute. These are changes that truly merit our attention if we are to remain a government of laws and not of men. And they merit attention by all three branches of government—the legislative, the executive, and the judicial—if productive change is to be forthcoming.

The Honorable Dick Thornburgh is former U.S. Attorney General, and Counsel, K&L Gates, L.L.P., Washington, D.C.


Brian Aitken Pardon Decision Pending

Originally published at Cato Institute | December 15, 2010

Case: Brian Aitken

In a recent post I discussed the plight of Brian Aitken, a New Jersey resident currently serving seven years in prison. Thing is, it’s not clear that Aitken broke the law.

Radley Balko produced an excellent write‐​up of Aitken’s case, and Glenn Reynolds put together a video. Aitken’s conviction is the product of (1) New Jersey’s draconian gun laws; (2) a lack of prosecutorial discretion that should have focused resources on real threats to society; and (3) a judge’s refusal to issue jury instructions on the “moving exception” to New Jersey’s gun laws. The same judge dismissed animal cruelty charges against a police officer that had placed his penis in the mouths of five calves. The judge was serving in a temporary capacity and not reappointed by Governor Christie. This is overcriminalization compounded by incompetence.

New Jersey Governor Chris Christie has said that he intends to make a decision on Aitken’s conviction by Christmas. If you’ve got the time, here is a link to information on joining Aitken’s Facebook campaign for a pardon and a phone number to call the Governor Christie’s office and express your support.


Criminal Law Crisis

Originally published at National Review by Edwin Meese III | 12/13/10

The incoming House majority has promised to change the way that business is done in Washington — to look out for the average American and for small business. It faces one of its first opportunities to do so this month, when the new members select the proposed rules that will govern the House. If the House wants to show that it is not going to perpetuate business as usual in Washington, a good first step would be to adopt a rule requiring every bill that proposes or modifies a federal crime to be referred to the House Judiciary Committee before heading to the floor. This simple, common-sense change would help to curtail the current crisis in federal criminal law — a crisis resulting from the enactment of hundreds of duplicative and, too often, unconstitutional criminal laws that trap average Americans and hurt small businesses.

It would be reasonable to think that all criminal-law proposals already receive judiciary-committee oversight. But in fact, criminal-law proposals are often introduced in the House, reported to the full body for consideration on the floor, and passed with little or no judiciary-committee oversight.

This past May, the Heritage Foundation and the National Association of Criminal Defense Lawyers (NACDL) released a major joint study of the Republican-controlled 109th Congress (2005-2006). The study showed that slightly more than half of the bills adding or modifying non-violent, non-drug criminal offenses in that Congress were not referred to their respective judiciary committee. 

Unsurprisingly, insufficient review by the judiciary committees appears to contribute to substantial quality problems in criminal law. Approximately 60 percent of the criminal offenses studied lacked an adequate criminal-intent (or “guilty mind”) requirement. For centuries, criminal-intent requirements have served to protect those who technically commit an offense but do so without knowing their conduct is unlawful or otherwise wrongful.

Insufficient judiciary committee-review also contributes to criminalization at breakneck pace. The Heritage-NACDL report found, for example, that the 109th Congress introduced more than 200 bills adding or modifying more than 440 non-violent criminal offenses. In a separate study covering all categories of criminal law, law professor John S. Baker Jr. found that from 2000 through 2007 Congress enacted 452 new federal crimes. That is an average of one new crime enacted every week of every year, including when Congress is not in session.

Overcriminalization is not a Republican problem or a Democratic problem — both parties have made substantial contributions to it. Preliminary analysis indicates that the astounding pace of federal criminalization has continued at similar rates throughout the Democratic-controlled 110th and 111th Congresses.

#more#But there was one bright spot in the Heritage-NACDL report: Review and oversight of criminal-law proposals by the House Judiciary Committee had a positive effect on the quality of the legislation in the 109th Congress. The right response, therefore, would be for the new Republican majority to adopt a rule requiring automatic sequential referral to the judiciary committee of any bill that adds or modifies a crime.

Although far too many bills circumvent regular order and are passed and even enacted into law without adequate committee oversight, criminal law is unique. No other law carries with it the potential of depriving an average American of his personal liberty through a prison sentence; destroying his career, livelihood, and reputation; and denying his constitutional rights to vote, to travel, and to keep and bear arms.

And in a time of grave economic instability, overcriminalization often results in too much deterrence of beneficial social and economic conduct that is merely disfavored and is not inherently wrongful. The result is small businesses — the primary engines of American job creation — that are either shuttered or never started in the first place. Today, would-be entrepreneurs wanting to make sure they do not become the target of a government investigation or prosecution must expend far too many resources educating themselves about the thousands of technical violations that could cost them their livelihood or liberty.

Inherent within the power to prosecute and punish is the power to coerce and destroy.  Our nation’s founding generation knew from bitter experience that the proliferation of criminal law and the unprincipled use of criminal punishment pose grave dangers to Americans’ most basic rights and freedoms. 

Millions of conservatives and tea partiers, libertarians and independents, communicated in November that they are deeply unhappy with the federal government’s vast overspending and overreaching. A rule requiring automatic judiciary-committee oversight of all House bills adding or modifying criminal offenses or penalties will not alone solve all of the problems of overcriminalization. But it will set new standards for Congress’s criminalization and demonstrate to both parties that, at least in the House of Representatives, big government as usual is coming to an end.

– Edwin Meese III is a former U.S. attorney general.


Overcriminalization Incentives

Originally published at Cato Institute | December 7, 2010

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.


Overcriminalization Hits the Barbershop

Originally published at National Review by Josh Barro | November 8, 2010

The Orlando Sentinel reports that the Orange County (Florida) Sheriff’s Office has been enforcing Florida’s barber licensing requirements in an unusually aggressive way: conducting armed raids of barbershops, handcuffing barbers while their records are checked, and searching (without warrants) for drugs and other contraband. Adding to the sensitivity of such operations, all the establishments raided to date cater to a primarily black or Hispanic clientele:

In “sweeps” on Aug. 21 and Sept. 17 targeting at least nine shops, deputies arrested 37 people — the majority charged with “barbering without a license,” a misdemeanor that state records show only three other people have been jailed in Florida in the past 10 years.

The operations were conducted without warrants, under the authority of the Department of Business and Professional Regulation inspectors, who can enter salons at will. Deputies said they found evidence of illegal activity, including guns, drugs and gambling. However, records show that during the two sweeps, and a smaller one in October, just three people were charged with anything other than a licensing violation…

[Barbershop owner Brian] Berry said deputies entered his store and told his barbers to stop cutting and put their hands behind their backs. As barbers sat on the ground in handcuffs, he said, deputies removed his customers — including children — from the store, and began searching workstations and checking licenses without explanation.

Barbers and witnesses at several shops told the Orlando Sentinel that deputies shouted and cursed during the raids, demanding the location of illegal drugs, which they searched for extensively. They never found more than misdemeanor amounts of marijuana at eight of the nine shops they raided.

If you were a police detective who wanted to raid my office, you would have to go before a judge and show probable cause to believe that I was committing a crime. But because barbers in Florida (and in most states) are subject to licensing requirements, they must agree to submit to inspections on demand by the Department of Business and Professional Regulation—which can then join up with local law enforcement to conduct warrantless searches that cover matters beyond barber licensing issues. Essentially, to be a barber in Florida, you must agree to give up your Fourth Amendment rights at work.

I’d never heard of a case like this involving barbershops before, though the Orlando Sentinel story talks about similar raids earlier this decade in Moreno Valley, California. Where you most often hear about raids that spill over from licensing issues to more general law enforcement is in bars.

Texas, in particular, has a reputation for aggressively raiding liquor licensees. Starting in 2005, the Texas Alcoholic Beverage Commission would jointly raid a bar along with local law enforcement, with no need for a warrant as the raid is in service of the liquor license. Mostly, the purpose of the raids was to issue citations for overservice and for public intoxication—yes, for the crime of being drunk in a bar. TABC argues that these arrests benefit public safety, as drunk patrons may drive home, though TABC does not have to prove that a person intends to drive before arresting him or her.

TABC drastically scaled back its bar raid program in 2006, as a result of a public outcry. The case that most undermined the TABC’s public position was one woman’s public intoxication arrest at an Irving, Texas hotel bar. Says the Austin American-Statesman:

The arrest arguably did not prevent a DWI; the woman had a room at the hotel that night. The TABC agent contended she was a danger to herself because she had no one to escort her to her room.

The point of this story is that the only brake on the abuse of warrantless bar inspections has been public opinion; TABC is still legally empowered to raid bars at any time for any reason, and continues to do so on a smaller scale. Indeed, an aggressive raid on a gay bar in Fort Worth in 2009 (on the 40th anniversary of the Stonewall Riots, no less) led to another public outcry. As with barbershops, the “license inspection” excuse deprives bar owners, employees and patrons of their Fourth Amendment rights—and they must rely on public opinion to restrain state officials from exploiting this opening.

Debates over business licensing usually weigh the value of protection from unqualified service providers against the cost of erecting barriers to entry. Examined this way, some license requirements look ridiculous even if you assume that licensing officials will act benevolently and efficiently; floristry licenses in Louisiana are a good example.

But it is also important to consider the costs that are likely to arise when a government misuses its license power. Licensing bodies can use their powers to bar qualified operators from entering new markets, to punish politically disfavored individuals or groups, or (as seen in the above cases) to circumvent the Fourth Amendment. The potential for abuse puts another thumb on the scale against business licensing.

The simplest way to stop licensing-related erosion of Fourth Amendment rights is to reduce the number of activities that require a license. Unfortunately, this is inappropriate in some cases, and politically infeasible in others. Personally, I oppose liquor licensing; I believe that liquor sales should be regulated through zoning and generally applicable laws, in the same way that governments regulate most other kinds of retail businesses. But the regime of liquor licensing is politically entrenched and unlikely to go away.

Assuming liquor licensing is retained, the warrantless inspection powers of liquor inspectors should be limited to civil matters, with Fourth Amendment protections preserved for matters such as public intoxication. And meanwhile, Texas should repeal its overbroad public intox law.

But with barbering, the solution is simple: barber licensing should be abolished (as has long been advocated by CAP’s Matt Yglesias). Hell, I’d get rid of the entire Florida Department of Business and Professional Regulation, which also conducts the important business of licensing auctioneers, cosmetologists, interior designers, landscape architects, talent agents and yacht brokers and salespeople, among others.

Barbershops could still be subject to health and safety inspections, much in the way that restaurants are in most jurisdictions—restaurant cleanliness matters, but you don’t need a license to run a restaurant*, nor do you have to put in a certain number of hours at culinary school. And barbershop inspections should be limited to addressing health and safety issues, not enforcing laws more broadly.


Overcriminalization and the Siobhan Reynolds Case

Originally published at Cato Institute | November 3, 2010

Case: Siobhan Reynolds

Building on Ilya Shapiro’s post on the sealed grand jury proceedings against Siobhan Reynolds, founder of the Pain Relief Network, and the sealed Reason Foundation/​Institute for Justice amicus brief, here is some more background on the Wichita witch hunt:

The U.S. Attorney’s Office in Wichita, Kansas, indicted physician Stephen Schneider and his wife, Linda, a nurse, for illegal drug trafficking in December 2007. Reynolds found an eerie parallel between Schneider’s case and the prosecution that denied her husband pain medication, so she took action. Her public relations campaign on behalf of Dr. Schneider so annoyed Assistant U.S. Attorney Tanya Treadway that Treadway sought a gag order to bar Reynolds’s advocacy. The presiding judge denied the gag order.

When the judge denied Treadway’s gag order, Treadway instead subpoenaed Reynolds for records related to Reynolds’s PR campaign against the prosecution of the Scheiders. Ms. Reynolds resisted the subpoena and tried to challenge it in court, but the $200 daily fine intended to ensure compliance with the subpoena has left Reynolds pretty much bankrupt.

This case represents the worst of government excesses in federal overcriminalization and overzealous prosecution. The federal government continues to treat doctors as drug dealers, as Ronald Libby points out in this Cato policy analysis. The grand jury, intended as a check on prosecutorial power, instead acts as an inquisitorial bulldozer that enhances the power of the government. My colleague Tim Lynch examined this phenomenon in his policy analysis A Grand Façade: How the Grand Jury Was Captured by Government.

Cato Adjunct Scholar Harvey Silverglate examined the case of Dr. William Hurwitz in his book, Three Felonies a Day: How the Feds Target the Innocent. The DEA turned a few of Hurwitz’s patients into informants and prosecuted Hurwitz. When Hurwitz shuttered his practice, two of his patients killed themselves because they could not get prescriptions for necessary painkillers. Siobhan Reynolds’s husband, another of Hurwitz’s patients, could not get essential medication and died of a brain hemorrhage, likely brought on by the blood pressure build‐​up from years of untreated pain.

Ninja bureaucrats continue to treat doctors that prescribe painkillers as tactical threats on par with terrorist safehouses. When the DEA raided the office of Dr. Cecil Knox in 2002, one clinic worker “thought she and her husband, who was helping her in the office that day, would be shot. She looked on in horror as an agent put a gun to his head and ordered, ‘Get off the phone! Now!’” Radley Balko chronicles this unfortunate trend in Overkill: The Rise of Paramilitary Police Raids in America, and the Raidmap has a separate category for unnecessary raids on doctors and sick people (sorted at the link).


Heritage Report: Solutions for America: Overcriminalization

Originally published at The Heritage Foundation by Marion Smith | 8/17/10


Federal criminal law has exploded in size and scope—and deteriorated in quality. Honest, hard-working Americans doing their best to be respectable, law-abiding citizens can no longer be assured that they are safe from federal prosecutors. Federal criminal law used to focus on inherently wrongful conduct: treason, murder, counterfeiting, and the like. Today, an unimaginably broad range of socially and economically beneficial conduct is criminalized. More and more Americans who are otherwise law-abiding are being trapped and unjustly punished. Congress must halt its overcriminalization rampage and begin to eliminate vague, overbroad criminal offenses that punish good people who violate one of the tens of thousands of federal criminal offenses without criminal intent.


  • Explosion of Federal Criminal Law. The number of criminal offenses in the U.S. Code increased from 3,000 in the early 1980s to 4,000 by 2000 to over 4,450 by 2008. Moreover, there is no letup in sight; rather, the pace appears to be constant or even accelerating.
  • Criminalization by Bureaucrat. Scores of federal departments and agencies have created so many criminal offenses that the Congressional Research Service itself admitted that it was unable even to count all of the offenses. The Service’s best estimate? “Tens of thousands.” In short, not even Congress’s own experts have a clear understanding of the size or scope of federal criminalization.
  • Deeply Flawed Criminal Offenses. The Heritage Foundation and the National Association of Criminal Defense Lawyers reported in May the results of a joint study finding that three out of every five new nonviolent offenses lack a criminal-intent requirement that is adequate to protect from unjust criminal punishment Americans who engaged in conduct that they did not know was illegal or otherwise wrongful.
  • Breakneck Pace Continues. Despite this rampant overcriminalization, Congress continues to criminalize at an average rate of one new crime for every week of every year (including when its Members are not in session). All inherently wrongful conduct has been criminalized several times over, yet from 2000 through 2007, Congress enacted 452 new criminal offenses.


  • Congress Must Justify All New Criminalization. Because federal law has already criminalized all inherently wrongful conduct many times over, Congress should be required to provide written analysis and justification of every new or modified criminal offense or penalty. The report should include a description of the problem each offense or penalty is intended to redress, any specific cases or concerns motivating the legislation, and a review of any overlaps it will have with existing federal and state law.
Explosive Growth of Federal Criminal Law
  • Congress’s Carelessness Should Not Endanger You. Federal law should codify the Rule of Lenity, thereby ensuring that the benefit of the doubt under vague, overbroad laws goes to the person being prosecuted, not to the government.
  • Honest Mistakes Should Not Result in Prison Time. Every criminal conviction must require proof beyond a reasonable doubt that the person acted with criminal intent. Federal criminal laws should require such proof. The time when a person can be arrested and incarcerated for failing, for example, to affix a federally mandated sticker to an otherwise lawful UPS package must come to an end.
  • Bureaucrats Should Not Be Making New Crimes. Congress should not “delegate” its power to criminalize to unelected officials in the scores of federal departments and agencies that it has created. Both common sense and constitutional principles hold that the decision as to whether something is important enough to send a person to federal prison should be made by the American people’s elected representatives.
  • Repeal Unjust Laws. Congress seems to have forgotten that it can repeal bad laws. It can and should. The worst, most unjust criminal offenses should be thrown into the legislative dumpster. Congress should start with offenses that allow Americans to be punished as criminals even if they did not know that they were doing something unlawful or otherwise wrongful and offenses that are vague, overbroad, or cannot be understood even by lawyers.

Maybe You’re a Criminal and You Don’t Know It

Originally published at Cato Institute by Tim Lynch | December 9, 2009

Cases: Black v. US, Weyhrauch v. US

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 herehere, and here.


Heritage Report: The Unlikely Orchid Smuggler: A Case Study in OverCriminalization

Originally published at The Heritage Foundation by Andrew Grossman | 7/27/09

George Norris, an elderly retiree, had turned his orchid hobby into a part-time business run from the greenhouse in back of his home. He would import orchids from abroad–South Africa, Brazil, Peru–and resell them at plant shows and to local enthusiasts. He never made more than a few thousand dollars a year from his orchid business, but it kept him engaged and provided a little extra money–an especially important thing as his wife, Kathy, neared retirement from her job managing a local mediation clinic.

Their life would take a turn for the worse on the bright fall morning of October 28, 2003, when federal agents, clad in protective Kevlar and bearing guns, raided his home, seizing his belongings and setting the gears in motion for a federal prosecution and jail time.

The Raid

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Around 10:00 a.m., three pick-up trucks turned off a shady cul-de-sac in Spring, Texas, far in Houston’s northern suburbs, and into the driveway of Norris’s single-story home. Six agents emerged, clad in dark body armor and bearing sidearms. Two circled around to the rear of the house, where there is a small yard and a ramshackle greenhouse. One, Special Agent Jeff Odom of the U.S. Fish and Wildlife Service, approached the door and knocked; his companions held back, watching Odom for the signal.

Norris, who had seen the officers arrive and surround his house, answered the knock at the door with trepidation. Odom was matter-of-fact. Within 10 seconds, he had identified himself, stated that he was executing a search warrant, and waved in the rest of the entry team for a sweep of the premises. Norris was ordered to sit at his kitchen table and to remain there until told otherwise. One agent was stationed in the kitchen with him.

As Norris looked on, the agents ransacked his home. They pulled out drawers and dumped the contents on the floor, emptied file cabinets, rifled through dresser drawers and closets, and pulled books off of their shelves.

When Norris asked one agent why his home was the subject of a warrant, the agent read him his Miranda rights and told him simply that he was not charged with anything at this time or under arrest. Norris asked more questions–What were they searching for? What law did they think had been broken? What were their names and badge numbers?–but the agents refused to answer anything. Finally, they handed over the search warrant, but they would not let Norris get up to retrieve his reading glasses from his office; only an agent could do that.

It was as if he were under arrest, but in his own home.

Attached to the warrant was an excerpt of an e-mail message, from two years earlier, in which a man named Arturo offered to have his mother “smuggle” orchids from Ecuador in a suitcase and send them to Norris from Miami. Norris remembered the exchange; he had declined the offer and had stated that he could not accept any plants that were not accompanied by legal documentation.

The agents questioned Norris about the orchids in his greenhouse, asking which were nursery-grown and which were collected from the wild. Norris explained that nearly all of them had been artificially propagated; one agent, knowing little about orchids, asked whether this meant they had been grown from seeds.

The agents boxed and carried out to their trucks nearly all of Norris’s business records, his computer, his floppy disks and CD-ROMs, and even installation discs, and left him a receipt for the 37 boxes that they took. Then they left. Norris surveyed the rooms of his home. In his tiny office, papers, old photographs, and trash were strewn on the floor. Everything was out of place.

His wife arrived home shortly after the agents left. She had panicked when, calling home to talk to her husband, an agent picked up the phone and refused to put him on or answer any questions. It took the two of them hours to clean up the house and try to assess the damage.

A Passion Blossoms

George Norris, now 71 and arthritic, carries his large frame wearily. His gestures are careful, as if held back by pain or fear, and his stride slow and deliberate. And his voice, once booming, is now softer and tentative. Visibly, he is a man who has been permanently scarred by experience.

Yet his mood and movements become animated when he discusses the birth of his passion for orchids. His first was a gift, twice over: A neighbor had received the blooming plant, straight from the store, for Mother’s Day, and she gave it to Norris after the flowers faded. At the time, he had a small lean-to greenhouse and dabbled in horticulture. He put it there and forgot about it. A year later, as he was doing the morning watering, his eyes were drawn to two stunning yellow flowers on stems shooting out of the plant. They were prettier than any other flowers he had ever seen.

He dove into the world of orchids with an unusual passion, reading everything he could find on the subject. One book extolled the diversity of species in Mexico. It was not so far from Houston, and his wife spoke fluent Spanish, so they planned an orchid-hunting trip. In every small town, the locals would point them to unusual plants, often deep in the woods. Norris managed to collect 40 or 50 plants, and their beauty and diversity were stunning. He was hooked.

That was 1977, years before an orchid craze would hit the United States. All of a sudden, Norris found himself part of a small, close-knit community of orchid enthusiasts and explorers committed to finding and collecting the unknown species of Asia, Africa, and South America. They communicated by newsletters and at regional orchid shows. While man had thoroughly covered and mapped the terrain of the world, the world of orchids was still frontier, with exotic specimens being discovered regularly.

Within a few years, orchids were taking up more and more of Norris’s time and attention, and he had become dissatisfied with his work in the construction field. So he quit work and set off to see if he could make a living as a full-time explorer, finding orchids in the wild and introducing them to serious collectors in the U.S.

His new business was not initially a success. It took years to build up a mailing list of customers and credibility in the field. By the mid-1980s, he was beyond the break-even point, and from there, business kept growing. In 2003, revenues topped $200,000–a huge sum considering that most plants sold for less than $15.

Norris, meanwhile, was gaining prominence. Through word of mouth, and after seeing his orchids in collections, more and more enthusiasts wanted to be on his mailing list, and he began using his catalogue as a platform for his views on orchids, the orchid community, and even politics. Orchid clubs all around the South invited him to deliver talks and slideshows.

Norris made a name for himself as one of the few dealers importing non-hybrid plants, known as “species” orchids. He got commissions from botany departments at several universities that needed non-hybrid plants for their research, from botanical gardens, and from the Bronx Zoo when it needed native orchids to recreate a gorilla habitat. Years later, some of those orchids are still a part of the zoo’s Congo Gorilla Forest.

Norris’s work took him to Costa Rica, Peru, Ecuador, Mexico, and other countries where exotic species grew wild. On each trip, he tried to meet local collectors and growers, contacts who could lead him to the best plants. Some of these, in later years, would become his chief suppliers.

Rules at the time were lax. In Mexico, Norris explained, “You could collect as many as you wanted” and get permits for them all. And with that paperwork, importing them into the U.S. was a breeze.

As orchids became more popular, however, that would change.

“The Regulation Is Out of Hand”

Passion for the flower is not enough today to succeed in the orchid business. Moving beyond the standard hybrids sold at big-box stores requires either gaining a detailed knowledge of several complicated bodies of law or hiring attorneys. This is a necessity because not only is the law complicated, but the penalties for getting anything wrong are severe: fines, forfeiture, and potentially years in prison.

Trade in orchids is regulated chiefly by the Convention on International Trade in Endangered Species (CITES), an international treaty that has been ratified by about 175 nations. Though initially conceived to protect endangered animals, the subject matter was expanded to include flora as well.

CITES classifies species, and the limitations on their trade, in three appendices.

  • Appendix I species are the most in danger of extinction; importing or exporting them from any CITES country is prohibited, except for research purposes.
  • The species listed in Appendix II are less endangered and can be traded so long as they are accompanied by permits issued by the exporting country.
  • Appendix III species are listed by individual countries and are subject to the permit requirement only when they originate in the listing country.

Determining the listing of a plant is not always an easy task. Some species of orchids are listed in Appendix I, and so cannot be traded, and Appendix II covers the remainder. Exporters, however, often have a tough time identifying plants, especially those collected from the wild. The result is rampant mislabeling of orchid species. Usually, this has few consequences, because permitting agencies and customs agents, who tend to focus on animals and invasive species, rarely have the expertise to recognize the often subtle differences between varieties of orchids, especially when they are not in bloom.

Making matters even more complicated, CITES contains a major exception to the tough restrictions of Article I. Article I plants that are artificially propagated are deemed to be covered by Article II and so may be traded. But artificial propagation is not simply a matter of ripping a plant from the wild and breeding it in a nursery. To take advantage of the exception, nurseries must be registered with CITES and obtain a permit from their government to remove a small number of plants from the wild for the purpose of propagation. Then there is the difficulty–and often impossibility–of distinguishing Article I plants raised in nurseries from those collected from the wild.

Countries that have joined CITES agree to enforce its requirements within their laws. This means establishing agencies to research domestic wildlife and, when appropriate, grant permits. It also requires close monitoring of imports and exports to ensure that no Appendix I species are traded and that shipments of species listed in Appendix II and Appendix III are properly permitted. While the treaty requires countries to “penalize” improper imports and exports, it does not require any specific penalties; that is left up to each country’s lawmakers.

In the United States, CITES is implemented through both the Lacey Act, a 1900 wildlife protection act that was amended in 1981 to protect CITES-listed species, and the Endangered Species Act (ESA). Both, in their original forms, covered only animals; plants were added later and made subject to the same restrictions as animals. Taken together, these laws prohibit trade in any plants in violation of CITES, as well as possession of plants that have been traded in violation of CITES.

More specifically, federal regulations lay out the requirements for importing plants. Every plant must be accompanied by a tag or document identifying its genus and species, its origin, the name and address of its owner, the name and address of its recipient, and a description of any accompanying documentation required for its trade, such as a CITES permit. The importer is required to notify the government upon the arrival of a shipment. After that, the plants are inspected by the Animal and Plant Inspection Service, a division of the U.S. Department of Agriculture, which checks for possible infestations, banned invasive species, and proper documentation. Any red flags can cause a shipment to be turned back at the port of entry.

Violations also carry severe penalties. Under the ESA, “knowing” violations–that is, ones in which the dealer knew the basic facts of the offense, such as what kind of plant was being imported or that the CITES permit did not match the plant, though not the legal status of the plant, such as whether it was legal to import–can be punished by civil fines of up to $25,000 for each violation, criminal fines of up to $50,000, and imprisonment. The same conduct can also be punished under the Lacey Act, which allows civil penalties of up to $10,000 for each violation, criminal fines of up to $20,000, and imprisonment of up to five years.

Importers also face possible legal penalties under more general federal statutes, such as those prohibiting false or misleading statements to government officials (imprisonment of up to five years); the mail fraud statute (20 years); the wire fraud statute (20 years); and the conspiracy statute (five years).

The result is that minor offenses, such as incorrect documentation for a few plants, are treated the same as the smuggling of endangered animals and can lead to penalties far more severe than those regularly imposed for violent crimes and dealing drugs. Because this legal risk is so great, many orchid dealers have stopped importing foreign plants–even those that can be traded legally– while others have sharply curtailed their imports.

Perversely, the result of this drop in legal imports has been a blossoming in black-market orchids, illegally imported into the country and commanding large premiums due to their rarity and allure. Meanwhile, those who continue to import plants through the proper channels, even if they do so with great care and top-notch legal advice, know that they could be ruined at any time by so much as a single slipup. As one academic ecologist put it, “The regulation is out of hand.”

Worse than that, it’s ineffective. “Habitat destruction poses much more of a threat to [the] survival” of orchid species than collection and trade do, concludes a recent survey of the ecology literature. In Singapore, for example, clearance of old-growth forest caused the extinction of 98 percent of orchid species versus 26 percent of other plants. While there are several examples of collection dealing the final blow to a vulnerable species–for example, the Vietnamese Lady Slipper–the vulnerability in each instance was due to development, particularly rain forest clearance.

CITES strictly regulates trade in orchids but does nothing to address this greater threat. Indeed, some argue that CITES has not protected a single species of orchid from extinction.

It may even have pushed a number of species into extinction. Orchid growers frequently complain that the treaty’s restrictions on collection from the wild restrict preservation efforts in the face of habitat destruction. Under CITES, it is illegal to collect wild orchids for artificial propagation without a permit, but obtaining a permit can take months if it can be had at all. By that time, the point may be moot: The habitat has already been destroyed. And when collection is allowed, it is highly regulated and usually limited to just a few plants. If those plants cannot be propagated, there is no second chance; even if another specimen exists, if it was not legally collected, neither are its offspring.

Further, there is evidence that regulation has served to increase wild collection and smuggling of rare species. Trade in Phragmipediums surged in advance of their Appendix I listing, leading to the loss of several species. After the listing went into effect, black-market prices rose for many species, increasing incentives for smugglers. Growers, meanwhile, struggled to collect species from the wild legally for propagation. In this way, CITES benefits poachers while putting hurdles in the path of legitimate, conservation-minded collectors.

The other group that benefits are the large orchid growers of Germany and the Netherlands, which supply the bulk of the world market. The Dutch, in particular, lobbied for the inclusion of Phrags in Article I, despite little evidence that Phrags were more endangered than other orchids, on the grounds that they were difficult to distinguish from plants from the unrelated Paphiopedilum family. The listing stifled growing competition with European growers in the potted-plant market from lower-cost producers in South America. The respite, however, lasted only a few years–the time it took for dealers to cultivate ties with growers in Southeast Asia, whose output multiplied, and push prices down.

The fundamental problem may be that CITES is simply a poor fit for plants. As originally conceived, the treaty was intended to cover only endangered animals; plants were added toward the end of negotiations. The amendment was crude, doing little more than replacing “animals” in every instance with “animals or plants.” An orchid picked from the wild, which could produce a thousand seedlings in short order, is subject to the same regulation as an elephant, a female of which species will produce fewer than 10 offspring in its decades-long lifespan. And by extension, that orchid and elephant are subject to the same means of criminal enforcement in the United States.

The difference, needless to say, is that elephant poaching may lead to that species’ extinction, while picking the orchid will more likely lead to its species’ preservation in the face of widespread habitat destruction. It is truly a perverse result that furthering the ends of CITES and U.S. environmental law carries the same massive penalties as frustrating them.

Business as Usual

George Norris was among that group of legal importers, counting on his common sense and understanding of orchids to see him through any legal risks. That would be his downfall.

Over the years, he had built relationships with orchid gatherers and growers around the world, and many became his suppliers. He worked the most with Manuel Arias Silva, who operated several nurseries in Peru and was known for cultivating the toughest species from the wild that few others could persuade to grow.

Norris had met Arias in the late 1980s, when Arias had just started his export business and was looking to build a customer base in the United States. The two hit it off immediately, and in 1988, Norris spent two weeks in Peru with Arias, collecting plants and surveying Arias’s operations.

Their families also grew close. After meeting Arias’s relations, Norris and his wife offered to take in two of Arias’s sons, Juan Alberto and Manolo, who were badly scarred about their hands and faces from a fire years earlier, and to arrange plastic surgery for them. Kathy Norris persuaded a local hospital to donate its facilities, and Dr. David Netscher, a prominent surgeon and professor at the Baylor College of Medicine, agreed to do the work for $1,500 per child, barely enough to cover his expenses.

In 1993 and 1994, first Manolo and then Juan Alberto spent six months with the Norrises undergoing surgery, follow-up care, and recuperation. After that experience, the Norrises and the Arias family were in regular contact, exchanging family photographs and visiting from time to time.

Norris had other suppliers. One was Raul Xix, a native Maya in Belize who supported his 11 children and wife through odd jobs: building homes, tapping chicle trees, and collecting orchids from the jungle. Norris had befriended Xix on a trip and encouraged him to try his hand at exporting plants, a potentially more lucrative and dependable source of income.

Xix, Norris soon learned, had no business experience, could barely read and write, and knew little about exotic orchids. He would ship boxes loaded with all manner of flora, some not even orchids and many infested with ants, and though bearing CITES permits from Belize, few plants were correctly identified–not that it ever mattered.

Norris, charmed by Xix and admiring his work ethic, decided that he would be a regular customer and use their interactions to teach Xix the ins and outs of the business. Keeping that commitment was a challenge: Xix’s first few shipments were a total loss, and others were turned back at the port of entry because of poor packing and infestations. But slowly, Xix did become more reliable.

For Xix and Norris’s other suppliers, paperwork was more of a hassle than growing or gathering orchids. In most developing nations, months pass between applying for and receiving a CITES permit. To compensate, orchid exporters request permits early, long before the plants are ready to sell. In that gap between applying for a permit and receiving it, some plants die and others thrive. Or a big shipment comes in from the countryside. Or a new family or species comes into fashion overseas.

And then the permits arrive, and the plants are ready to ship. Because of the delay, only rarely does the permit perfectly match the merchandise. There are always at least a few discrepancies. Going strictly by the book would mean giving up the lucrative foreign markets that account for nearly all profits.

Importers face a similar dilemma. Fashionable plants come from foreign soil, and without imports, no boutique could attract collectors–that is, anyone willing to pay more than fifteen or twenty dollars for a flower.

In the 1990s, what these collectors wanted were Phragmipediums, better known as tropical lady slippers. Phrags became popular in the early 1990s after all of the species in the family were uplisted to CITES Article I, a move that many in the orchid business attribute to commercial rather than preservationist motives. Demand for the flowers surged.

Arias had been breeding Phrags for years from plants that he had legally taken from the wild. But in Peru, Phrags were common and almost worthless. So in 1998, he turned to the export market. It would be months or even years, Arias guessed, before he was approved to have all of them listed on his permits.

Arias began including Phrags in the price sheets that went to his best foreign customers. Norris ordered a few, along with hundreds of other plants. On the forms, they were described as Maxillarias, a type of orchid that Arias had cleared for export. Per usual industry practice, he received a separate letter matching the names on the permit with the plants’ real identities.

Over time, Arias’s nurseries received permits and CITES registration to grow many of the Phrags he had previously shipped under other names, and as that happened, he began labeling them properly in his shipments. But there were always at least a few in each shipment that were mislabeled because he had not yet received the proper permit.

But it was a flower that Norris never actually imported that would lead to the investigation and his arrest.

If there is a rock star of the orchid world, it is the Phragmipedium kovachii. James Michael Kovach discovered the flower while on an orchid-hunting trip to the Peruvian Andes in 2002 and sneaked it back into the United States without any CITES documentation to have it catalogued by Selby Botanical Gardens’ Orchid Identification Center, a leader in identifying and publishing new species. Two Selby staff members, recognizing the importance of the discovery, rushed out a description of the new flower, christening it kovachii, after Kovach, and barely beating into print an article by Eric Christensen, a rival researcher who had been working from photos and measurements taken in Peru.

The most striking thing about the kovachii is its size. The plants grow thick leaves up to two feet in length. Flower stalks shoot up from the plant, rising two feet or more. But the real stunner is the flower: It is velvety, a rich pink-purple at the tips of its petals, brilliant white in the center. And the size! Some measure more than 10 inches across. The flower is a rare combination of grace and might, a giant unrivalled in its delicacy and elegance. Lee Moore, a well-known collector, dubbed it “the Holy Grail of orchids.”

Pictures circulated on orchid mailing lists and discussion reached a fever pitch. “People decided they would become excited beyond all reason,” said one orchid dealer. “Everyone wanted it. It was a meteoric plant.” According to rumors, black-market specimens had sold for $25,000 or more.

The orchid fever was only heightened by the legal drama that had engulfed Selby Gardens and Kovach as a result of the find. The Peruvian government caught wind of the frenzy over the flower and, irked that its country had lost out on the honor of identifying the plant, pressed U.S. authorities to investigate for CITES violations. Eventually, criminal charges were brought against Kovach, Selby Gardens, and its chief horticulturalist, Wesley Higgins. All pleaded guilty, receiving probation and small fines.

Right after he heard about the kovachii, Norris contacted Arias to press for information about the flower, especially when they would be available for sale. With illegal trade in the flower already flourishing, Arias figured that he could get the right permits to collect a few from the wild for artificial propagation. Breeding the flower would not be easy–Phrags have a reputation for being difficult plants, and that is especially true of the rarer ones–but he had succeeded before with other tough plants and had a high-altitude greenhouse that would be perfect for the kovachii. Doing it legally could take a year or two, maybe even three.

Norris was more optimistic and ran with the information in his next catalog, boasting that he would have legal kovachiis for sale in a year, perhaps less–far sooner than anyone else thought possible. That caught the attention of an orchid researcher who had long believed that the U.S. orchid trade was overrun with illegal plants, threatening the survival of many species in the wild. Enforcement was a joke; there had been only one prosecution to date for dealing in illegal orchids. He decided to take a closer look at Norris’s spring orchid specialties and brought Norris to the attention of the U.S. Fish and Wildlife Service.

Around that time, a new customer placed an order for four Phrags and specifically asked Norris to include the CITES permits for the flowers. It was an unusual request. Usually, the Department of Agriculture inspectors took the permits at the port of entry for their records. Except for the few times that shipping brokers made copies, Norris hardly ever received them with plant shipments. Assuming that the request was just a misunderstanding, he shipped the plants with a packing list but no permits.

Several days after the orchids were delivered, Norris received another e-mail from the buyer, asking again for the permits. The Department of Agriculture had them, Norris responded, but he would try to get a copy. That, thought Norris, was the end of the matter. The buyer made another order for more Phrags a year later and again asked for the permits. Once again, Norris shipped the flowers without them.

Unknown to Norris, the buyer in these transactions was working with Fish and Wildlife Service agents. Because of the controversy over the kovachii, the Service had a newfound interest in orchids. A few prominent prosecutions would serve as a warning to the rest of the tight-knit orchid community.

That informant’s two transactions with Norris would serve as the basis for the raid on Norris’s home.

The Prosecution

The raid occurred in October 2003, but George Norris was uncertain of his fate for the next five months, receiving no communications from the government. On the advice of friends, he wrote a letter to the Miami-based prosecutor who was probably overseeing the case, explaining that he had never imported kovachiis–this was at the time that others were being charged for importing the flower–and asking for a meeting to answer any questions. At the very least, he asked, could the government tell him what he was suspected to have done? After a few weeks, his computer was returned, broken, and Norris resumed business as best he could, taking orders and showing off his plants at shows.

Meanwhile, Fish and Wildlife Service Agents were poring over the records retrieved from Norris’s home, as well as others obtained from the Department of Agriculture. There was no evidence that Norris had ever obtained or sold a kovachii, but the agents did notice minor discrepancies in the documents. Some of the plants Norris had offered for sale were not listed on any CITES permits. Among those missing were three of the 10 Phrags in the informant’s second order. The agents also found Norris’s correspondence with Arias and Xix, which seemed to confirm their hunch: Norris had been engaged in a criminal conspiracy to skirt CITES and violate U.S. import laws.

Norris’s business slowly recovered but suffered a devastating blow when Manuel Arias Silva was arrested in Miami one day before the Miami Orchid Show in March 2004. After that, everyone assumed that Norris would be next. Norris and his wife scrambled to sell Arias’s flowers (mostly Phrags, by now properly permitted) at the show, earning just enough to pay his expenses and get him out of jail. With no one else to step in, they guaranteed Arias’s $25,000 bail and $175,000 personal surety bond: He was now their responsibility. Rumors raged that Norris would be arrested on the floor of the show.

But it was another week before Norris was indicted. There were seven charges: one count of conspiracy to violate the Endangered Species Act, five counts of violating CITES requirements and the ESA, and one count of making a false statement to a government official, for mislabeling the orchids. Arias faced one additional false-statement charge.

On March 17, 2004, Norris and his wife flew to Miami, where he voluntarily surrendered to the U.S. marshals. The marshals put him in handcuffs and leg shackles and threw him in a holding cell with three other arrestees, one suspected of murder and two suspected of dealing drugs. Norris expected the worst when his cell mates asked him what he was in for. When he told them about his orchids, they burst into laughter. “What do you do with these things, smoke ’em?” asked one of the suspected drug dealers.

The next day, Norris pleaded not guilty, and a day after that, he was released on bail. The Norrises returned to Spring, Texas, to figure out their next steps. Their business was destroyed; their retirement savings and home were on the line for the Peruvian orchid dealer who was now living in the spare bedroom; and Norris, 67 and in frail health, faced the prospect of living out his days in a federal prison. Still, Norris believed he had not done anything wrong and would win out in the end.

So they made a go of fighting the charges. Norris hired an attorney who, with most of his experience at the state or county level, quickly found himself in over his head with the complexities of international treaties, environmental law, and the intricacies of a federal prosecution.

In April, the attorney accompanied Norris to what turned out to be a proffer meeting, at which defendants are typically offered the opportunity to cooperate with the government in exchange for leniency. Norris had not been told what to expect and did not have anything to say when prosecutors asked what he was willing to admit. They peppered him with names of other orchid dealers, but Norris was not inclined to inform on them–not that he knew enough about their operations, in any case, to offer anything more than speculation.

After that, Norris got a more experienced–and much more expensive–attorney. With bills piling up and the complexity of the case and the resulting difficulty of mounting a defense finally becoming apparent, Norris took the step he had been dreading: changing his plea to guilty. “I hated that, I absolutely hated that,” said Norris. Five years after the fact, the episode still provokes pain, his face blushing and speech becoming softer. “The hardest thing I ever did was stand there and say I was guilty to all these things. I didn’t think I was guilty of any of them.”

While Norris and his wife were focused on his case, Manuel Arias Silva was plotting his own next moves. By mid-May, he had managed to obtain a new passport and exit visa from the Peruvian Consulate. On May 19, soon after they had returned to Texas from a hearing in Miami, Kathy Norris received a call from Juan Silva, in Peru, who was in tears. His father, he explained, had returned home to evade the charges against him in the United States. The Norrises would be on the hook for Arias’s bail and bond–nearly $200,000.

Based on Norris’s transactions with Arias, as well as those with Xix, the government recommended a prison sentence of 33 to 41 months. Such a lengthy sentence was justified, according to the sentencing memorandum, because of the value of the plants in the improperly documented shipments. Two choices pushed the recommended sentence up.

First, the government used Norris’s catalog prices to calculate the value of the plants rather than what he had paid for them.

Second, it included all plants in each shipment in its calculations, reasoning that the properly documented plants–by far the bulk of every shipment–were a part of the offense because they were supposedly used to shield the others.

On October 6, Norris was sentenced to 17 months in prison, followed by two years of probation. In the eyes of the law, he was now a felon and would be for the rest of his life. The sentencing judge suggested to Norris and his wife that good could come of his conviction and punishment:

Life sometimes presents us with lemons. Sometimes we grow the lemons ourselves. But as long as we are walking on the face of the earth, our responsibility is to take those lemons and use the gifts that God has given us to turn lemons into lemonade.

Norris reported to the federal prison in Fort Worth on January 10, 2005; was released for a year in December 2006 while the Eleventh Circuit Court of Appeals considered a challenge to his sentence; and then returned to prison to serve the remainder of his sentence. Prison officials, angered by Norris’s temporary reprieve, threw him in solitary confinement, where he spent a total of 71 days. He was released on April 27, 2007.

The Aftermath

George Norris has lost his passion for orchids. The yard behind their home is all dirt and grass, nothing more. The greenhouse is abandoned. Broken pots, bags of dirt, plastic bins, and other clutter spill off its shelves and onto the floor. The roof is sagging. A few potted cacti are the only living things inside it, aside from weeds.

A dozen potted plants grace the Norrises’ back porch; three or four are even orchids, though none are in bloom. Kathy waters them. “They’re the ones I haven’t managed to kill yet,” she says.

The couple’s finances are precarious. Following the flood of 1994, Norris rebuilt most of their home himself, but they had to refinance the house to pay for materials. Kathy had to make those payments and all the others while Norris was in prison, relying on her salary as director of Montgomery County’s Dispute Resolution Center, which she ran on a shoestring budget. The same discipline now reigns at home. “I figured out how to live on as little as it’s possible to live on and still keep the house,” says Kathy.

Neither Norris nor his wife knows how they will face retirement with all of their savings used to pay legal expenses. Arias’s bond hangs over their heads as well, and the government has said that it will seek to enforce it. That threat keeps Kathy up at nights. She doesn’t know what else they could give up, other than the house, or how they could possibly come up with the $175,000 still owed.

Norris has already suffered the indignity of his grandchildren knowing that he spent over a year in federal prison and is a convicted criminal. What hurts him now is that he cannot introduce them to the hunting tradition–small game, squirrels, and rabbits–that has been a part of his family, passed from generation to generation. As a felon, he cannot possess a firearm. They sold off and gave away his grandfather’s small gun collection, which he had inherited. In poor health and unarmed, Norris fears that he cannot even defend his own family.

But the hardest blow, explains Kathy, has been to their faith in America and its system of criminal justice:

I got raised in a country that wasn’t like this. I grew up in a reasonably nice part of Dallas, I came from a family where nobody had been indicted for anything, and so had George. And the government didn’t do this stuff to people. It wasn’t part of anything I ever got taught in my civics books.

That lack of faith is almost visible in George Norris’s frailty and fear. “I hardly drive at all anymore,” he explained. “The whole time I’m driving, I’m thinking about not getting a ticket for anything…. I don’t sleep like I used to; I still have prison dreams.” He pauses for a moment to think and looks down at the floor. In a quiet voice, he says, “It’s utterly wrecked our lives.”


Probably any dealer in imported plants could have been prosecuted for the charges that were brought against George Norris. His crime, at its core, was a paperwork violation: He had the wrong documents for some of the plants he imported but almost certainly could have obtained the right ones with a bit more time and effort. Neither he nor other dealers ever suspected that the law would be enforced to the very letter so long as they followed its spirit.

Norris was singled out because he was in the wrong place at the wrong time. As controversy roared over the kovachii and prosecutors were gunning for a high-profile conviction to tamp down sales in truly rare and endangered plants, Norris bragged that he would soon have the extraordinary flower in stock.

To this date, he has never seen one.

Armed with overly broad laws that criminalize a wide range of unobjectionable conduct, prosecutors could look past that fact. Burrowing through Norris’s records, they found other grounds for a case. One way or another, they would have their poster child.

This is the risk that all American entrepreneurs face today. Enormously complex and demanding regulations are regularly paired with draconian criminal penalties for even minor deviations from the rules. Minor violations from time to time are all but inevitable because full compliance would be either impossible or impossibly expensive. Nearly every time, nobody notices or cares, but all it takes is one exception for the hammer of the law to strike.


Overcriminalization of Conduct & Overfederalization of Criminal Law

Originally published at Cato Institute by Tim Lynch | July 22, 2009

Case: Thorpe v. Florida

My name is Tim Lynch. I am the director of the Cato Institute’s Project on Criminal Justice. Before I get into some of the nitty‐​gritty details of legal doctrine, let me begin by thanking you for the invitation to testify this afternoon. Although I believe the problems of Over‐​Criminalization of Conduct andOver‐​Federalization of Criminal Law are among the most serious problems facing the Congress today,1 my role this afternoon, as I understand it, is to highlight a related trend in the law‐​and that is the drift away from the idea of blameworthiness as a first principle ofAmerican criminal justice. That is, too often the government seeks to deny the proposition that it is unjust to inflict criminal punishment on people who are not blameworthy. My remarks will thus focus on that particular subject.

I. Introduction and Background

My approach to the criminal law begins with three basic propositions. First, the power that is wielded by police and prosecutors is truly immense. A dramatic raid, arrest, or indictment can bring enormous damage to a person’s life‐​even before he or she has an opportunity to mount a defense in court. Second, the term “criminal” carries a stigma. It implies that the culprit has done something that is blameworthy. Third‐​and relatedly‐​it is important to keep a close eye on the manner in which the government creates and defines “criminal offenses.” For as Harvard LawProfessor Henry Hart once noted, “What sense does it make to insist upon procedural safeguards in criminal prosecutions if anything whatever can be made a crime in the first place?“2 In my view, all persons of good will ought to be disturbed by the fact that the government is now bypassing the procedural protections of the Bill of Rights and attaching the “criminal” label to people who are not truly blameworthy.

Let me begin by trying to clarify some terminology. In our law schools today, the terms “intent” and “mens rea” are commonly used in a very broad manner‐​as concepts that include a spectrum of mental states (ranging from purposeful conduct to strict or vicarious liability) to be defined in statutes by policymakers. But for purposes of my testimony today, I will be using those terms in a more narrow sense. As Justice PotterStewart once observed, “Whether postulated as a problem of’ mens rea,’ of ‘willfulness,’ of ‘criminal responsibility,’ or of ‘scienter,’ the infliction of criminal punishment upon the unaware has long troubled the fair administration of justice.“3 Today I want to advance the claim that it is wrong to criminally punish those who were “unaware” of the facts or rules that made their conduct unlawful. The remainder of my testimony will pinpoint the areas of our law where this problem is especially acute.

II. The Problem Areas

A. Ignorance of the Law is No Excuse

The sheer volume of modern law makes it impossible for an ordinary American household to stay informed. And yet, prosecutors vigorously defend the old legal maxim that “ignorance of the law is no excuse.“4 That maxim may have been appropriate for a society that simply criminalized inherently evil conduct, such as murder, rape, and theft, but it is wholly inappropriate in a labyrinthine regulatory regime that criminalizes activities that are morally neutral. AsProfessor Henry M. Hart opined, “In no respect is contemporary law subject to greater reproach than for its obtuseness to this fact.“5

To illustrate the rank injustice that can and does occur, take the case of Carlton Wilson, who was prosecuted because he possessed a firearm. Wilson’s purchase of the firearm was perfectly legal, but, years later, he didn’t know that he had to give it up after a judge issued a restraining order during his divorce proceedings.When Wilson protested that the judge never informed him of that obligation and that the restraining order itself said nothing about firearms, prosecutors shrugged, “ignorance of the law is no excuse.“6 Although the courts upheld Wilson’s conviction, Judge Richard Posner filed a dissent: “We want people to familiarize themselves with the laws bearing on their activities. But a reasonable opportunity doesn’t mean being able to go to the local law library and read Title 18​.It would be preposterous to suppose that someone from Wilson’s milieu is able to take advantage of such an opportunity.“7 Judge Posner noted thatWilson would serve more than three years in a federal penitentiary for an omission that he “could not have suspected was a crime or even a civil wrong.“8

It is simply outrageous for the government to impose a legal duty on every citizen to “know” all of the mind‐​boggling rules and regulations that have been promulgated over the years. Policy maker scan and should discard the “ignorance‐​is‐​no‐​excuse” maxim by enacting a law that would require prosecutors to prove that regulatory violations are “willful” or, in the alternative, that would permit a good‐​faith belief in the legality of one’s conduct to be pleaded and proved as a defense. The former rule is already in place for our complicated tax laws‐​but it should also shield unwary Americans from all of the laws and regulations as well.9

B. Vague Statutes

Even if there were but a few crimes on the books, the terms of such laws need to be drafted with precision. There is precious little difference between a secret law and a published regulation that cannot be understood. History is filled with examples of oppressive governments that persecuted unpopular groups and innocent individuals by keeping the law’s requirements from the people. For example, the Roman emperor Caligula posted new laws high on the columns of buildings so that ordinary citizens could not study the laws. Such abominable policies were discarded during the Age of Enlightenment, and a new set of principles‐​known generally as the “rule of law”-took hold. Those principles included the requirements of legality and specificity.

“Legality” means a regularized process, ideally rooted in moral principle, by which crimes are designated and prosecuted by the government. The Enlightenment philosophy was expressed by the maxim nullum crimen sine lege (there is no crime without a law).In other words, people can be punished only for conduct previously prohibited by law. That principle is clearly enunciated in the ex post facto clause of the U.S. Constitution (article I, section 9).But the purpose of the ex post facto clause can be subverted if the legislature can enact a criminal law that condemns conduct in general terms, such as “dangerous and harmful” behavior. Such a law would not give people fair warning of the prohibited conduct. To guard against the risk of arbitrary enforcement, the Supreme Court has said that the law must be clear:

A criminal statute cannot rest upon an uncertain foundation. The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue. Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizen may act upon the one conception of its requirements and the courts upon another.10

The principles of legality and specificity operate together to reduce the likelihood of arbitrary and discriminatory application of the law by keeping policy matters away from police officers, administrative bureaucrats, prosecutors, judges, and members of juries, who would have to resolve ambiguities on an ad hoc and subjective basis.

Although the legality and specificity requirements are supposed to be among the first principles of American criminal law, a“regulatory” exception has crept into modern jurisprudence. TheSupreme Court has unfortunately allowed “greater leeway” in regulatory matters because the practicalities of modern governance supposedly limit “the specificity with which legislators can spell out prohibitions.“11 During the past 50 years, fuzzy legal standards, such as “unreasonable,” “unusual,” and “excessive,” have withstood constitutional challenge.

The Framers of the American Constitution understood that democracy alone was no guarantor of justice. As James Madison noted, “It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.“12Unfortunately, Madison’s vision of unbridled lawmaking is an apt description of our modern regulatory state.13 For example, the EnvironmentalProtection Agency received so many queries about the meaning of theResource Conservation and Recovery Act that it set up a special hotline for questions. Note, however, that the “EPA itself does not guarantee that its answers are correct, and reliance on wrong information given over the RCRA hotline is no defense to an enforcement action.“14 The situation is so bad that even many prosecutors are acknowledging that there is simply too much uncertainty in criminal law. Former Massachusetts Attorney GeneralScott Harsh barger concedes, “One thing we haven’t done well in government is make it very clear, with bright lines, what kinds of activity will subject you to … criminal or civil prosecution.“15

The first step toward addressing the problem of vague and ambiguous criminal laws would be for the Congress to direct the courts to follow the rule of lenity in all criminal cases.16 Legal uncertainties should be resolved in favor of private individuals and organizations, not the government.

C. Strict Liability

Two basic premises that undergird Anglo‐​American criminal law are the requirements of mens rea (guilty mind) and actus reus (guilty act).17 The first requirement says that for an act to constitute a crime there must be “bad intent.” Dean RoscoePound of Harvard Law School writes, “Historically, our substantive criminal law is based upon a theory of punishing the vicious will​.It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.“18 According to that view, a man could not be prosecuted for leaving an airport with the luggage of another if he mistakenly believed that he owned the luggage. As the Utah Supreme Court noted in State v. Blue(1898), mens rea was considered an indispensable element of a criminal offense. “To prevent the punishment of the innocent, there has been ingrafted into our system of jurisprudence, as presumably in every other, the principle that the wrongful or criminal intent is the essence of crime, without which it cannot exist.“19

By the same token, bad thoughts alone do not constitute a crime if there is no “bad act.” If a police officer discovers a diary that someone mistakenly left behind in a coffee shop, and the contents include references to wanting to steal the possessions of another, the author cannot be prosecuted for a crime. Even if an off‐​duty police officer overhears two men in a tavern discussing their hatred of the police and their desire to kill a cop, no lawful arrest can be made if the men do not take action to further their cop‐​killing scheme. The basic idea, of course, is that the government should not be in the business of punishing “bad thoughts.”

When mens rea and actus reus were fundamental prerequisites for criminal activity, no person could be branded a“criminal” until a prosecutor could persuade a jury that the accused possessed “an evil‐​meaning mind with an evil‐​doing hand.“20 That understanding of crime‐​as a compound concept‐​was firmly entrenched in the English common law at the time of the AmericanRevolution.

Over the years, however, the moral underpinnings of theAnglo‐​American view of criminal law fell into disfavor. The mens rea and actus reus requirements came to be viewed as burdensome restraints on well‐​meaning lawmakers who wanted to solve social problems through administrative reg​u​la​tions​. As Professor Richard G. Singer has written, “Criminal law … has come to be seen as merely one more method used by society to achieve social control.“21

The change began innocently enough. To protect young girls, statutory rape laws were enacted that flatly prohibited sex with girls under the age of legal consent. Those groundbreaking laws applied even if the girl lied about her age and consented to sex and if the man reasonably believed the girl to be over the age of consent. Once the courts accepted that exception to the mens rea principle, legislators began to identify other activities that had to be stamped out‐​even at the cost of convicting innocent‐​minded people.

The number of strict liability criminal offenses grew during the20th century as legislators created scores of “public welfare offenses” relating to health and safety. Each time a person sought to prove an innocent state‐​of‐​mind, the Supreme Court responded that there is “wide latitude” in the legislative power to create offenses and “to exclude elements of knowledge and diligence from[their] definition.“22 Those strict liability rulings have been sharply criticized by legal commentators. Professor HerbertPacker argues that the creation of strict liability crimes is bothinefficacious and unjust.

It is inefficacious because conduct unaccompanied by an awareness of the factors making it criminal does not mark the actor as one who needs to be subjected to punishment in order to deter him or others from behaving similarly in the future, nor does it single him out as a socially dangerous individual who needs to be incapacitated or reformed. It is unjust because the actor is subjected to the stigma of a criminal conviction without being morally blameworthy. Consequently, on either a preventative or retributive theory of criminal punishment, the criminal sanction is inappropriate in the absence of mens rea.23

A dramatic illustration of the problem was presented in Thorpe v. Florida (1979).24 John Thorpe was confronted by a thief who brandished a gun. Thorpe got into a scuffle with the thief and wrested the gun away from him. When the police arrived on the scene, Thorpe was arrested and prosecuted under a law that made it illegal for any felon to possess a firearm. Thorpe tried to challenge the application of that law by pointing to the extenuating circumstances of his case. The appellate court acknowledged the “harsh result,” but noted that the law did not require a vicious will or criminal intent. Thus, self‐​defense was not “available as a defense to the crime.“25

True, Thorpe was a state case from 1979. The point here is simply to show the drift of our law. As Judge Benjamin Cardozoonce quipped, once a principle or precedent gets established, it is usually taken to the “limit of its logic.” For a more recent federal case, consider what happened to Dane Allen Yirkovsky. Yirkovsky was convicted of possessing one round of .22 caliber ammunition and for that he received minimum mandatory 15‐​year sentence.26 Here are the reported circumstances surrounding his “crime.”

In late fall or early winter of 1998, Yirkovskywas living with Edith Turkington at her home in Cedar Rapids, Iowa.Instead of paying rent, Yirkovsky agreed to remodel a bathroom at the home and to lay new carpeting in the living room and hallway.While in the process of removing the old carpet, Yirkovsky found aWinchester .22 caliber, super x, round. Yirkovsky put the round in a small box and kept it in the room in which he was living in Turkington’s house.

Subsequently, Yirkovsky’s ex‐​girlfriend filed a complaint alleging that Yirkovsky had [some of] her property in his possession. A police detective spoke to Yirkovsky regarding the ex‐​girlfriend’s property, and Yirkovsky granted him permission to search his room in Turkington’s house. During this search, the detective located the .22 round. Yirkovsky admitted to police that he had placed the round where it was found by the detective.27

The appellate court found the penalty to be “extreme,” but affirmed Yirkovsky’s sentence as consistent with existing law.28

Strict liability laws should be abolished because their very purpose is to divorce a person’s intentions from his actions. But if the criminal sanction imports blame‐​and it does‐​it is aper version to apply that sanction to self‐​defense and other acts that are not blameworthy. Our criminal law should reflect the oldLatin maxim, actus not facit reum nisi mens sit rea (an act does not make one guilty unless his mind is guilty).29

D. Vicarious Liability

Everyone agrees with the proposition that if a person commands, pays, or induces another to commit a crime on that person’s behalf, the person should be treated as having committed the act.30 Thus, if a husband hires a man to kill his wife, the husband is also guilty of murder. But it is another matter entirely to hold one person criminally responsible for the unauthorized acts of another.“Vicarious liability,” the legal doctrine under which a person maybe held responsible for the criminal acts of another, was once“repugnant to every instinct of the criminal jurist.“31 Alas, the modern trend in American criminal law is to embrace vicarious criminal liability.

Vicarious liability initially crept into regulations that were deemed necessary to control business enterprises. One of the key cases was United States v. Park (1975).32 John Park was the president ofAcme Markets Inc., a large national food chain. When the Food andDrug Administration found unsanitary conditions at a warehouse inApril 1970, it sent Park a letter demanding corrective action. Park referred the matter to Acme’s vice president for legal affairs.When Park was informed that the regional vice president was investigating the situation and would take corrective action, Park thought that was the end of the matter. But when unsanitary warehouse conditions were found on a subsequent inspection, prosecutors indicted both Acme and Park for violations of theFederal Food, Drug and Cosmetic Act.

An appellate court overturned Park’s conviction because it found that the trial court’s legal instructions could have “left the jury with the erroneous impression that [Park] could be found guilty in the absence of ‘wrongful action’ on his part” and that proof of that element was constitutionally mandated by due process.33 The Supreme Court, however, reversed the appellate ruling. Chief Justice Warren Burger opined that the legislature could impose criminal liability on“those who voluntarily assume positions of authority in business enterprises” because such people have a duty “to devise whatever measures [are] necessary to ensure compliance” with regulations.34Thus, under the rationale of Park, an honest executive can be branded a criminal if a low‐​level employee in a different city disobeys a supervisor’s instructions and violates a regulation‐​even if the violation causes no harm whatsoever.35

In 1994, Edward Hanousek was employed as a road master for a railroad company. In that capacity, Hanousek supervised a rock quarrying project near an Alaska river. During rock removal operations, a backhoe operator accidentally ruptured a pipeline‐​and that mistake led to an oil spill into the nearby river. Hanousek was prosecuted under the Clean Water Act even though he was off duty and at home when the accident occurred. The case promptedJustice Clarence Thomas to express alarm at the direction of the law: “I think we should be hesitant to expose countless numbers of construction workers and contractors to heightened criminal liability for using ordinary devices to engage in normal industrial operations.“36

Note that vicarious liability has not been confined to the commercial regulation context.37 Tina Bennis lost her car to the police because of the actions of her husband. The police found him in the vehicle with a prostitute.38 Pearlie Rucker was evicted from her apartment in a public housing complex because her daughter was involved with illicit drugs. To crack down on the drug trade,Congress enacted a law that was so strict that tenants could be evicted if one of their household members or guests used drugs. The eviction could proceed even if the drug activity took place outside the residence. Also under that federal law, it did not matter if the tenant was totally unaware of the drug activity.39

Further, in some jurisdictions, the drivers of vehicles are exposed to criminal liability if any passenger brings contraband‐​such as a marijuana joint‐​into an automobile even if there is no proof that the driver was aware of the contraband’s existence.40

III. Conclusion

The federal criminal code has become so voluminous that it not only bewilders the average citizen, but also the most able attorney. Our courthouses have become so clogged that there is no longer adequate time for trials. And our penitentiaries are now operating well beyond their design capacity‐​many are simply overflowing with inmates. These developments evince a criminal law that is adrift. To get our federal system back “on track,” Congress should take the following actions:

  • Discard the old maxim that “ignorance of the law is no excuse.“Given the enormous body of law presently on the books, this doctrine no longer makes any sense.
  • Minimize the injustice of vaguely written rules by restoring traditional legal defenses such as diligence, good‐​faith, and actual knowledge.
  • Restore the rule of lenity for criminal cases by enacting a statute that will explicitly provide for the “strict construction“of federal criminal laws.
  • Abolish the doctrine of strict criminal liability as well as the doctrine of vicarious liability. Those theories of criminal liability are inconsistent with the Anglo‐​American tradition and have no place in a free society.

As noted earlier, these reform measures should be only the beginning of a fundamental reexamination of the role of the federal government, as well as the role of the criminal sanction, inAmerican law.

1 For a detailed discussion of these issues, see Task Force on Federalization ofCriminal Law, The Federalization of Criminal Law (Chicago:American Bar Association, 1998); John Baker, “Measuring theExplosive Growth of Federal Crime Legislation,” (The FederalistSociety for Law and Public Policy Studies (May 2004)); John Baker,“Nationalizing Criminal Law: Does Organized Crime Make It Necessary or Proper?” Rutgers Law Journal 16 (1985): 495; BrianWalsh, “Doing Violence to the Law: The Over‐​Federalization ofCrime,” Federal Sentencing Reporter 20 (June 2008): 295;Erik Luna, “The Overcriminalization Phenomenon,” AmericanUniversity Law Review 54 (2005): 703.

2 Henry M. Hart,Jr., “The Aims of the Criminal Law,” reprinted in In the Name of Justice (Washington, D.C.: Cato Institute, 2009), p. 6.

3 UnitedStates v. International Minerals & Chemical Corp., 402U.S. 558 (1971) (Stewart, J., dissenting).

4 See TimothyLynch, “Ignorance of the Law: Sometimes a Valid Defense,” LegalTimes, April 4, 1994.

5 Hart, “The Aims of the Criminal Law,” p. 19.

6 UnitedStates v. Wilson, 159 F.3d 280 (1998).

7 Ibid., p. 296(Posner, J., dissenting).

8 Ibid. TheWilson prosecution was not a case of one prosecutor using poor judgment and abusing his power. See, for example, UnitedStates v. Emerson, 46 F.Supp. 2d 598 (1999).

9 See, generally,Ronald A. Cass, “Ignorance of the Law: A Maxim Reexamined,“William and Mary Law Review 17 (1976): 671.

10 Connally v. General Construction Company, 269 U.S. 385, 393 (1926)(internal quotation marks omitted).

11Papachristou v. City of Jacksonville, 405 U.S. 156,162–163 (1972).

12 JamesMadison, “Federalist Paper 62,” in The Federalist Papers, ed. Clinton Rossiter (New York: New American Library, 1961), p.381.

13 See Robert A.Anthony, “Unlegislated Compulsion: How Federal Agency GuidelinesThreaten Your Liberty,” Cato Institute Policy Analysis no. 312,August 11, 1998.

14 William L.Gardner and Adam H. Steinman, “ ‘Knowing’ Remains the Key Word,“National Law Journal, September 2, 1991, p. 28.

15 Quoted inWilliam P. Kucewicz, “Grime and Punishment,” ECO(June 1993): 54.

16 Pennsylvaniahas protected its citizens from overzealous prosecutors with such a law for many years. See 1 Pa.C.S.A. 1208.

17 Wayne R.LaFave and Austin W. Scott Jr., Criminal Law, 2nd. ed.(St. Paul, MN: West Publishing Co., 1986), pp. 193–94.

18 Quoted in Morissette v. United States, 342 U.S. 246, 250 n. 4(1952).

19 Utah v. Blue, 53 Pac. 978, 980 (1898).

20Morissette v. United States, 342 U.S. 246, 251 (1952).

21 Richard G.Singer, “The Resurgence of Mens Rea: III‐​The Rise and Fall of Strict Criminal Liability,” Boston College Law Review30 (1989): 337. See also Special Report: FederalErosion of Business Civil Liberties (Washington: WashingtonLegal Foundation, 2008).

22 Lambertv. California, 355 U.S. 225, 228 (1957).

23 HerbertPacker, “Mens Rea and the Supreme Court,” Supreme CourtReview (1962): 109. See also Jeffrey S. Parker, “The Economics of Mens Rea,” Virginia Law Review 79 (1993): 741; Craig S.Lerner and Moin A. Yahya, “ ‘Left Behind’ After Sarbanes‐​Oxley,“American Criminal Law Review 44 (2007): 1383.

24 Thorpe v. Florida, 377 So.2d 221 (1979).

25 Ibid., p.223.

26 SeeUnited States v. Yirkovsky, 259 F.3d 704 (2001).

27 Ibid., pp.705–706.

28 In my view,Congress should not stand by secure in the knowledge that such precedents exist. Justice Anthony Kennedy has made this point quite well: “The legislative branch has the obligation to determine whether a policy is wise. It is a grave mistake to retain a policy just because a court finds it constitutional…. Few misconceptions about government are more mischievous than the idea that a policy is sound simply because a court finds it permissible.A court decision does not excuse the political branches or the public from the responsibility for unjust laws.” Anthony M.Kennedy, “An Address to the American Bar Association AnnualMeeting,” reprinted in In the Name of Justice (Washington,D.C.: Cato Institute, 2009), p. 193.

29 See Wayne R.LaFave and Austin W. Scott Jr., Criminal Law, 2nd. ed.(St. Paul, MN: West Publishing Co., 1986), p. 212.

30 Francis Bowes Sayre, “Criminal Responsibility for the Acts of Another,“Harvard Law Review 43 (1930): 689, 690.

31 Ibid., p.702.

32 UnitedStates v. Park, 421 U.S. 658 (1975). Although many state courts have followed the reasoning of the Park decision with respect to their own state constitutions, some courts have recoiled from the far‐​reaching implications of vicarious criminal liability. For example, the Pennsylvania Supreme Court has held that “a man’s liberty cannot rest on so frail a reed as whether his employee will commit a mistake in judgment.” Commonwealth v. Koczwara, 155 A.2d 825, 830 (1959). That Pennsylvania ruling, it must be emphasized, is an aberration. It is a remnant of the common law tradition that virtually every other jurisdiction views as passe´.

33 United States v. Park, 421 U.S. 658, 666 (1975).

34 Ibid., p.672.

35 “[T]he willfulness or negligence of the actor [will] be imputed to him by virtue of his position of responsibility.” United States v. Brittain, 931 F.2d 1413, 1419 (1991); United States v.Johnson & Towers, Inc., 741 F.2d 662, 665 n. 3 (1984). Seegene rally Joseph G. Block and Nancy A. Voisin, “The ResponsibleCorporate Officer Doctrine‐​Can You Go to Jail for What YouDon’t Know?” Environmental Law (Fall 1992).

36 Hanousekv. United States, 528 U.S. 1102 (2000) (Thomas, J., dissenting from the denial of certiorari).

37 See Susan S.Kuo, “A Little Privacy, Please: Should We Punish Parents forTeenage Sex?” Kentucky Law Journal 89 (2000): 135.

38 Bennis v. Michigan, 516 U.S. 442 (1996).

39Department of Housing and Urban Development v. Rucker, 535U.S. 125 (2002).

40 See e.g.Maryland v. Smith, 823 A.2d 644, 678 (2003) (“[T]he knowledge of the contents of the vehicle can be imputed to the driver of the vehicle.”).


Subcommittee on Crime, Terrorism, and Homeland Security
Judiciary Committee
United States House of Representatives


Heritage Report: When Art Becomes a Crime: A Case Study in OverCriminalization

Originally published at The Heritage Foundation by Andrew Grossman | 3/24/09

When Steven Kurtz awoke one morning in his Buffalo home to find his wife, Hope, unresponsive, he rushed to dial 911 and summon paramedics. It was May 11, 2004. He had no reason to expect that his wife’s fatal heart attack and his call to the authorities would mark the beginning of a four-year odyssey to the belly of the criminal-justice system.

The paramedics and police detectives who arrived at Kurtz’s home that morning to tend to his wife found more than they expected. Off the upstairs bedroom was a small table on which was arranged a home laboratory containing Petri dishes and various items of lab equipment. The detectives spent hours– nearly the entire day–interrogating Kurtz about the equipment and his relationship with his wife and then called in local health department officials, who ran tests on the cultures in the Petri dishes. They were harmless.

Unsatisfied with Kurtz’s answers, however, and still suspicious of the lab, the police decided to call in federal authorities. The next day, three or four vehicles came screeching up to Kurtz as he walked across a funeral home’s parking lot, intending to make arrangements for his wife’s cremation. It was the FBI. Kurtz was detained on suspicion of bioterrorism and held for 22 hours.

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While Kurtz was being questioned in a downtown Hyatt, his home was being ransacked. Agents from the FBI, the Joint Terrorism Task Force, the Department of Homeland Security, and the Department of Defense, as well as officers from the local police and fire departments and the state marshal’s office, arrived on the scene and cordoned off the entire block with crime-scene tape. As the TV cameras looked on, federal agents wearing hazmat suits and bearing guns entered Kurtz’s home and seized all of his equipment, as well as books, personal papers, and his computer. Authorities went door-to-door, questioning Kurtz’s neighbors about his habits and their impressions of him.

Nine-Day Ordeal

Their search went on nine days, and the authorities even seized his dead wife’s body, despite the fact that the local coroner had already determined that her death was due to natural causes. Then federal officials announced triumphantly that they had thwarted a major bioweapons manufacturing plot.

But Steven Kurtz, a professor of visual studies at the University of Buffalo, was no terrorist, “homegrown” or otherwise. He is an artist and activist who works in unusual media. As a review of one of his recent exhibits explains, “Kurtz has never been shy about challenging the establishment, using a blend of performance art and science with his Critical Art Ensemble to stir debate about such things as genetically modified crops and germ warfare.”

The CAE, which Kurtz co-founded in 1987, is an art ensemble that produces Web projects, books, and gallery shows intended to engage viewers on the impact of technology on modern life. Its exhibits regularly include computers and electronics, as well as cultured bacteria, which are sometimes thrown at audience members. According to one of the collective’s members, “We’re…tactical media. We’re mainly interested in how issues of cultural representation, how things are represented to the public, and what’s the ideology and the subtext to how something is being represented.”

At the time of his wife’s death, Kurtz had been at work on three projects. The small laboratory was intended for an exhibit on genetically modified organisms contained in store-bought foods at the Massachusetts Museum of Contemporary Art. Most of the Petri dishes and harmless bacteria growing in them were meant for an exhibit called “GenTerra,” the subject of which was the genetic engineering of organisms. The rest of the Petri dishes, as well as many books and papers, were part of Kurtz’s early research for “Marching Plague,” a project critical of the development and use of biological weapons agents. Those bacteria, as well, were harmless.

Claims Unravel, but Investigation Continues

After more than a week of searches and analysis, the FBI determined that Kurtz’s home presented no public health risk–and never had. The agency further confirmed that his wife’s death had nothing to do with anything Kurtz might have done in his lab. Kurtz returned home to find the place ransacked, the detritus of a rushed investigation–stacks of pizza boxes and piles of sports drink bottles, discarded hazmat suits, used chemical test-kits– strewn throughout. Many possessions were missing–apparently confiscated–including a draft manuscript for his book on biowarfare.

The authorities’ initial terrorism claims unraveled almost immediately, but the federal investigation dragged on for weeks, with FBI agents questioning museum curators and university administrators with ties to Kurtz’s art collective. Agents issued 10 subpoenas to shocked guests at the opening reception for the CAE’s Mass MoCA exhibit, which the artists had had to cobble together from materials that had not been seized from Kurtz’s home. One CAE member was subpoenaed on the street by an FBI agent and made to appear before a federal grand jury for an inquiry into a possible charge of “possession of biological agents,” a criminal offense created by the Patriot Act. The offense prohibits the possession of “any biological agent…that, under the circumstances, is not reasonably justified by a prophylactic, protective, bona fide research, or other peaceful purpose.”

Kurtz and his allies believed he had two sure-fire defenses to that charge that would keep him from being indicted.

First, the bacteria were completely harmless. Indeed, their safety had been an essential component of the planned exhibit. “We were kind of demystifying the whole procedure and trying to alleviate inappropriate fear of transgenic science and redirect concern toward the political implications of the research,” one CAE member told The New York Times. As one leading biochemist explained in a letter to the lead prosecutor, the bacteria found in Kurtz’s home “are so safe that they are cultured on open lab benches and used in public education.” He continues: “You have more dangerous organisms likely growing on soft cheeses in your refrigerator.”

Second, the work done by Kurtz and his allies clearly fit into the “peaceful purpose” exception in the statute–after all, they were artists, not belligerents, and their work was actually critical of bioweapons.

The Indictment

It was a surprise, then, when nearly two months after the death of Kurtz’s wife, a federal indictment came down: Steven Kurtz and Robert Ferrell, a CAE associate who researches genetics at the University of Pittsburgh, were charged not with possessing biological agents, but with mail fraud and wire fraud. According to the indictment, Kurtz had used Ferrell to purchase several strains of bacteria from an academic supplier, American Type Culture Collection (ATCC), in violation of ATCC’s terms of sale: that its customers be associated with an approved lab or business, use the bacteria for research purposes only, and not distribute or transfer the bacteria.

The “crime,” in other words, was breaking the terms of a private contract. Scheming to violate these contractual terms, under the prosecution’s theory, was fraud, and both ATCC and the University of Pittsburgh were victims. And since Kurtz and Ferrell had discussed the matter over e-mail and the bacteria were shipped by mail, they could be prosecuted under the federal wire fraud and mail fraud statutes.

Just because the grand jury had declined to approve the charge that they had feared most– possession of biological agents–did not mean that Kurtz and Ferrell would get off easily. The fraud charges carried penalties of up to 20 years in jail and potentially $1 million in criminal fines apiece.

Kurtz and Ferrell vowed to fight the charges and were better positioned than most to do so. Their friends had established a defense fund to pay legal expenses, which would ultimately top $250,000, and the art world rallied on their behalf. Dozens of newspapers and magazines ran articles and columns on the case, most of them critical of the prosecution. Both of their universities stood by them. Few defendants in their position, Kurtz explains, would have the connections that they did and the resources and support needed to fight such a prosecution.

A Reputation Ruined

Even so, the pressure and uncertainty eventually proved too much for Ferrell. The prosecution put a major blot on what had been a long and outstanding career during which he had contributed over 200 articles on the causes of diseases such as schizophrenia, muscular dystrophy, and diabetes. With criminal charges and the possibility of jail time hanging over his head, Ferrell, 64, was forced to curtail much of his research.

The prosecution also took a toll on his health. Previously diagnosed with non-Hodgkin’s lymphoma, an incurable disease, Ferrell had undergone a bone-marrow transplant shortly after the indictment came down. The stress of the case contributed to a series of strokes, further weakening him.

In October 2007, Ferrell reached a deal with prosecutors and, in exchange for avoiding a prison sentence that would probably kill him, pleaded guilty to a single misdemeanor count of mailing the bacteria to Kurtz. Ferrell was sentenced to a year of unsupervised release and a $500 fine. At Ferrell’s sentencing hearing, the judge almost apologetically explained that this was “the most lenient sentence that I could give” under law.

Kurtz, however, declined to plead guilty to a lesser charge and insisted that the government take the case to court. He argued that the indictment was defective because it failed to allege several elements of fraud: that the alleged victims–ATCC and the University of Pittsburgh–had been deprived of property and that he had intended to commit fraud. According to Kurtz, the prosecution had simply failed to demonstrate, even assuming the truth of the facts in the indictment, that he had done anything amounting to a crime under either of the fraud statutes.

Two Theories of Fraud

Chief Judge Richard Arcara of the Western District of New York heard oral arguments on Kurtz’s motion to dismiss the charges in late 2007 and early 2008, at which the prosecution put forward two theories of the fraud committed.

The first theory was plain fraud. ATCC and the university, prosecutors argued, were each deprived of two types of property–the bacteria and intellectual property rights in the bacteria–through Kurtz and Ferrell’s scheme.

In a crisp page of analysis in its April 2008 opinion, the court rejected these arguments out of hand. ATCC, the court observed, “was in the business of selling biological agents in exchange for money, and in this case it got what it bargained for. Ferrell, using the [University of Pittsburgh] account, paid ATCC for the biological agents. Therefore, ATCC was not deprived of the biological agents–it simply sold them.”

As for the intellectual property, the court observed that “it is not clear what this allegation even means” and that it “appear[s] to be simply another way of saying that the defendant sought to obtain the biological agents from ATCC.” Again, however, there was no evidence that Kurtz did anything to deprive ATCC of its intellectual property rights, such as reproducing the bacteria and selling them.

Finally, the University of Pittsburgh could not be a victim of fraud, since it never possessed the bacteria or had any property interest in them and, in any case, the indictment did not allege any type of fraudulent conduct directed toward the university.

Recognizing the weakness of its charges, the government belatedly put forward a “no-sale” theory of fraud as well. Under this theory, ATCC simply would not have sold the bacteria to Ferrell if he had not misrepresented the use to which they would be put–in other words, he and Kurtz used fraud to induce ATCC to make a sale it would not otherwise have made.

The court, relying on reasoning from a recent appeals court opinion, drew a distinction between “schemes that do no more than cause their victims to enter into transactions they would otherwise avoid,” which are not crimes, and “schemes that depend for their completion on a misrepresentation of an essential element of the bargain,” which are.

The distinction can sometimes be difficult to draw. False claims made by a distributor to a manufacturer of military goggles that its products would not be sold to restricted nations “went to an essential element of the bargain between the parties” because illegal exports would have dire consequences for the manufacturer, and so could be criminally charged; but falsely claiming that one had been referred by a friend of a potential customer is not criminal fraud, because the misrepresentation “was not directed to the quality, adequacy or price of goods to be sold.” In short, the false claims, to be chargeable as wire fraud or mail fraud, must have “relevance to the object of the contract.”

In Kurtz’s case, the inquiry was relatively straightforward. The prosecution, ruled the court, did not make a proper “no-sale” claim because it did not present any evidence that ATCC’s terms of sale were an essential part of the sales agreement or that Kurtz and Ferrell had intended to violate the terms and thereby defraud ATCC. Indeed, the court observed, “the indictment does not allege that either [Kurtz] or Ferrell even knew about the transfer restriction” in the terms of sale.

The indictment, concluded Judge Arcara, did not spell out any scheme that actually amounted to a crime. He dismissed all charges against Kurtz.

A Bittersweet Victory

For Kurtz, the victory was bittersweet. Though he was ultimately exonerated, the government’s misguided prosecution imposed enormous costs on him, Ferrell, and many other artists and scientists. Kurtz, in particular, remains angry that he was denied the opportunity to mourn for Hope, his wife and artistic partner of 20 years, whose death launched the strange series of events that consumed him for four years. “I think all adults know the feelings of intense grief and depression that are brought about by the loss of a loved one,” Kurtz told writer Ken Goffman. “But when you spice it up with the adrenalin and the hyperanxiety of being attacked by the full weight of federal forces, which in turn causes all your survival instincts to really kick in, you have a bad trip from which you are not going to come down for a long time.”

Dr. Patrick Moore, a professor of genetics at the University of Pittsburgh who has received many awards for his cancer research, laments the effect that the prosecution has had on his and his colleagues’ research. Foreign collaborators, he writes, “have described to me their befuddlement over the Ferrell-Kurtz case,” and this apprehension has stymied his labs’ efforts to recruit foreign scientists to conduct genetic research in the United States. The case, he believes, “marks a low-tide for American scientists.”

Moreover, the prosecution has impeded his research because shipments from biological agent suppliers are now reviewed multiple times and delayed out of the fear of criminal liability. In a letter to the prosecution, Moore is especially blunt: “You are interfering with my work on finding the cause of a cancer because of your prosecution.”

Other cancer researchers found the Kurtz prosecution unsettling. One prominent government scientist, who asked not to be identified, explained that “We share cells every day as a part of our research…. We couldn’t replicate experimental results if we didn’t.” Further, “The suppliers are aware of it” but don’t mind, because the purpose of transfer agreements is to prevent labs from competing against suppliers, not to keep them from sharing cells with other scientists engaged in the same work. If transfer agreements were enforced in that way, she said, basic research “would grind to a halt.”


Despite everything, Kurtz is proud that he was able to fight the charges against him and prevent the government from establishing a precedent that exchanging harmless biological agents and running afoul of other contractual terms are criminal offenses:

[W]hat we were most worried about and why I wanted to fight this case to the end was this precedent, as we were talking about earlier. What should have been at best a civil suit, and it wasn’t even that, the Department of Justice wanted to be able to say, “You know, whenever there’s a contract dispute that involves the mail or internet”–and what contract dispute doesn’t?–“we’re going to have the right to come in and decide whether or not it’s a civil case or, if we wanted to be, however arbitrary, a criminal case. And then we are going to prosecute it as a criminal case….” So, you know, if you filled out a warranty card wrong and mailed it in, that could now be a twenty-year jail sentence. That’s what they were after, and happily the judge ruled against them and said this is an abuse of the law and that mail fraud cannot be used this way. So the precedent went our way and narrowed the law instead of expanding it.

The law, however, remains almost unimaginably broad. Despite Kurtz’s successful defense, prosecutors continue to abuse the federal mail and wire fraud statutes to go after contractual violations, local-government patronage politics, minor regulatory violations, and other conduct that may not warrant civil lawsuits, let alone criminal prosecution. In one recently prominent case, a prosecutor brought charges based on a violation of a Web site’s terms of service–terms that many courts refuse to enforce in contract lawsuits.

In short, prosecutors still wield the unbridled discretion to bring criminal charges against almost any individual, whether or not he or she has done anything typically regarded as a crime. Most of these defendants, like Dr. Ferrell, accept plea bargains to avoid the risk of lengthy sentences. A few, like Kurtz, have the resources and stamina to fight the charges, at great personal expense, and actually win–but they are the rare exception that proves the rule.

Andrew M. Grossman is Senior Legal Policy Analyst in the Center for Legal and Judicial Studies at The Heritage Foundation.


Zero Common Sense

Originally published at National Review by Paul Rosenzweig | 9/8/04

In January, Adam Liston made a serious mistake. Liston, 18, a senior at Davis (Calif.) High School, dropped off a few friends at school on his way to the gun range with a new shotgun in his gun rack. Someone reported seeing the gun, and the next day, the vice principal asked to search Liston’s Ford F-250 truck. Liston readily agreed.

#ad#Six police cars arrived and officers swarmed the truck. As they searched, his heart sank. He realized he had forgotten to remove the shotgun, unloaded and still in its original box, from his truck after target shooting. Liston broke down in tears as officers confiscated the gun and arrested him. He was handcuffed and taken to the Yolo County Jail.

Police charged Liston with two felony violations of California Penal Code § 626.9, for possessing a firearm within 1,000 feet of a school: one for when he dropped off his friends, the other for when he returned the next day. He was released on $25,000 bail. In February, the school board voted 3-1 to expel him from Davis High.

The Sacramento Bee pointed out that Liston “had been a model citizen since the first grade” and printed several letters expressing the community’s outrage. Liston “had never been a discipline problem in school and … never had a run-in with the law,” the paper stated. He maintained good grades and already had college plans. His mother was president of the PTA.

No matter. Administrators, police, prosecutors, and lawmakers used mindless “zero tolerance” policies to throw the book at him.

The American Bar Association says the modern zero-tolerance-for-children movement is a response to the school shootings of the 1990s. No one doubts the good intentions of those who pushed for these policies; it’s the enforcement that has raised concern. And Liston is far from the only victim of this noxious over-criminalization:

‐ In New Jersey, Hamadi Alston, 8, found an L-shaped piece of paper in a schoolbook. He used it as many 8-year-olds would–in a game of “cops and robbers” at the next recess, after which he was taken to the school office, interrogated to tears, then turned over to police for “threatening to kill other students” for saying “pow pow” during the playground game. He spent five hours in police custody and had to make two court appearances before charges were dropped.

‐ In Alabama, Austin Crittenden, 9, was suspended for “possession of a weapon–firearm replica” when he brought a tiny plastic G.I. Joe handgun to his elementary school. The third grader’s principal “had to tape the gun to a piece of paper to keep from losing it,” Austin’s grandmother reported.

‐ In Georgia, a 5-year-old kindergarten student was suspended for bringing a plastic gun the size of a quarter to school. The principal backed down when a local TV station inquired about the suspension.

‐ In Spokane, Wash., an eight-year-old was suspended for having two tiny plastic G.I. Joe guns at school.

At another Alabama school, two boys were suspended for playing with toy guns that one had brought in for a school project.

And those are just the school punishments. A nine-year-old in Martin County, Fla., was arrested for aggravated assault and disrupting a school function for playing with his toy gun as he left school at the end of the day. A ten-year-old in Alabaster, Ala., was arrested for supposedly engaging in threatening behavior with a toy gun.

A 12-year-old boy in Louisiana with hyperactivity disorder was arrested for making a terrorist threat after he told students ahead of him in the lunch line to leave some potatoes, or “I’m going to get you.” He spent two weeks in jail awaiting a hearing.

Zero-tolerance policies mock the legacy of Anglo-American jurisprudence. As Roscoe Pound, a preeminent legal scholar of the early 20th century, explained, “Criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.”

Does anyone believe these children chose freely to do wrong? Perhaps it’s time we penalize overzealous adults who don’t check their predilections for over-criminalization at the door of common sense.

–Paul Rosenzweig is senior legal research fellow in the Center for Legal and Judicial Studies at the Heritage Foundation and adjunct professor of law at George Mason University. Trent England is a legal policy analyst in the Center. Read more about these issues at


Burning Bushes

Originally published at National Review by Paul Rosenzwieg and Trent England | 12/8/03

Law gets out of hand.

Palo Alto means “tall tree” in Spanish, but Kay Leibrand knows that tall trees can be a crime in the California city. Leibrand, a 61-year old grandmother, breast-cancer survivor, and former software engineer, was arrested and nearly went to jail because her hedge of xylosma bushes was more than two-feet tall.

#ad#As part of a “visibility project,” Palo Alto has a law making it a misdemeanor to have plants more than two feet tall in the strip between the curb and the sidewalk. The city almost never enforces this ordinance. In fact, Leibrand is the only person ever arrested for it, despite the fact that her well-pruned hedge left visibility unimpeded along her street. Meanwhile, numerous wrongful rhododendrons and criminal crabapples can be spotted around the city.

Leibrand and her husband have lived in their earth-toned bungalow on the corner of Waverly Street and El Dorado Avenue since 1966. A few years after moving in, Mrs. Leibrand planted xylosma seedlings between the sidewalk and the Waverly Street curb to beautify the neighborhood and help muffle the road noise. Soon she had a healthy line of neatly pruned bushes with shiny evergreen leaves to shelter her backyard from the sights and sounds of traffic.

The Leibrands enjoyed their corner lot, and Mrs. Leibrand especially enjoyed her gardening. There were neither complaints about visibility nor any accidents at their intersection. Still, in September 2001, the Leibrands received a “Notification of Violation” from the city. They were told to cut back the bushes or pay a $500 fine (presumably to the city’s hedge fund). Mrs. Leibrand quickly responded with her pruning shears.

The next month, a certified letter informed Mrs. Leibrand that the bushes remained in violation of the city’s municipal code. She had to chop the plants to two-feet tall or face “enforcement action.”

Mrs. Leibrand didn’t want to be a scofflaw. But she also didn’t want to mow down her hedge. So she made sure the hedge and the rest of her plants were neatly pruned. Leibrand carefully checked the visibility at the intersection and found it unimpeded by the plants. She contacted the code enforcement officer and asked him to come verify the bushes posed no threat to visibility or safety. The officer refused. He told her to chop down her bushes or else.

In a series of letters, Leibrand tried in vain to negotiate and reason with city officials. But to the city, apparently, the green-thumbed grandmother was just another garden-variety crook. On April 3, 2002, the city dispatched two police officers to arrest Leibrand in her home.

Eventually, Palo Alto settled with Leibrand rather than take the case to a jury. To avoid going to jail, Leibrand made a donation to a local tree-planting organization. Now, instead of an attractive row of bushes along Waverly Street, there are little clumps of xylosma stumps.

Mrs. Leibrand’s case highlights a troubling trend: the expansion of criminal law far beyond its historically accepted limits. Throughout English and American legal history, criminal laws were limited to intentional acts that caused or attempted to cause real injury. The bad intent (mens rea) and the harmful act (actus reus) were essential, fundamental elements of a crime. In areas beyond the reach of the criminal law, civil law remained free to protect people from negligence and nuisances.

The tendency to criminalize all kinds of activity also overburdens our criminal-justice system. Making trivial offenses, such as “felony failure to garden,” into criminal acts further strains an already overworked system. Police officers who are dutifully arresting grandma for inadequate pruning aren’t available to track down car thieves or investigate homicides.

Overcriminalization also leads to selective enforcement and unfair prosecution. Police and prosecutors generally exercise their discretion to focus resources on enforcing more serious and reasonable criminal laws. But selective enforcement of bad laws leaves the problem festering beneath the surface until some disgruntled neighbor or overzealous prosecutor decides to ruin someone’s life. And Leibrand’s case is hardly unique: More examples are on the website

The city of Palo Alto decided that general enforcement of its hedge-height law would be too burdensome, so it created a complaint-based system. This kind of enforcement, empowering single anonymous complainers, inevitably results in biased, vindictive prosecution.

That’s what happened to Leibrand. Her battle is over; the xylosma bushes are gone. While she won her fight with cancer, she couldn’t prevail over city hall. She shouldn’t have even had to try.

–Paul Rosenzweig is a senior legal research fellow and Trent England is a legal-policy analyst in the Center for Legal and Judicial Studies at the Heritage Foundation.