In Jail for Backed-Up Toilets

Originally Published at National Review by Shannen W. Coffin December 12 2011

The Wall Street Journal has a powerful illustration today (subscription required) of the problem of overcriminalization of federal law and the related problem of strict liability crimes. It tells the story of Lawrence Lewis, a maintenance engineer at a military retirement home in D.C., who pled guilty to misdemeanor violations of the Clean Water Act and its implementing regulations — all for discharging a backed-up sewer line into a city storm drain to prevent flooding in an area on the property where, according to the story, the sickest residents lived. Lewis mistakenly thought the storm drain emptied into the D.C. sewer system, when in fact it emptied into Rock Creek, a tributary of the Potomac River. 

Since the government is not required to prove guilty intent (mens rea) as part of its case for this regulatory violation, Lewis’s good faith was no defense to his “crime.” (The government’s own pleadings in his case admitted that Lewis did not knowingly dump waste into the creek). So, like many faced with the weight of a federal prosecution, he decided that taking a plea was the better course.

After a fine and probation, Lewis now has a criminal record for the first time in his 60 years (an assault arrest in his youth did not result in a conviction). He summed it up best in describing his incredulousness at being booked from such an insignificant and unintended federal crime:  “Imagine what I looked like. ‘What you in for? Backed up toilets.’”