Restore the Law’s FOCUS

Originally published at National Review by Paul Larkin Jr. | 5/7/12

Senator Rand Paul (R., Ky.) and Representative Paul C. Broun (R., Ga.)

Striking a blow against overcriminalization

You’ve been invited to participate on a new game show called Do You Know the Law? Two wrong answers eliminate you.

“Why not?” you say to yourself. “I know as much law as the next person. What’s the worst that could happen: embarrassment?”

The first panelist correctly answers the question, “Can you steal your neighbor’s car?” The second aces the query, “Can you lie on a loan application?” You, however, get the question, “Do you import spiny lobster from Honduras in a plastic bag or a cardboard box?”

You are flummoxed, though not alone. (It turns out that a lawyer and a judge on earlier shows got it wrong, too.) After guessing “plastic” and not hearing applause, you figure that at least all the tough questions are behind you. But on your next turn, you hear, “What is the minimum-size lobster that you can import from Honduras, 5 inches or 5.5?” Guessing incorrectly again, you are whisked away bemoaning the unfairness of being asked questions that no reasonable person could answer correctly.

#ad#But the feds expect everyone to get those questions right. Just ask Abner Schoenwetter. He was charged under a law called the Lacey Act with precisely those “heinous” crimes: importing lobsters that, supposedly in violation of Honduran law, were too small to be taken and should have been packed in boxes, not clear plastic bags. Turns out, the law was void. But the U.S. Justice Department prosecuted him anyway, and the federal courts upheld his conviction.

Unfortunately for Abner, he wasn’t just asked to leave the courtroom empty-handed. He spent five-plus years in federal prison for getting those two questions wrong. True story. And if you find it startling, disturbing, and outrageous, you’re not alone.

Welcome to the world of overcriminalization — the overuse and misuse of the criminal law. Congress enacted the Lacey Act in 1900 as a modest way to protect states against poachers who fled across state lines. Today, however, the Lacey Act makes it a federal crime to import fish, wildlife, or plants in violation of any foreign law adopted in any form by any foreign nation, irrespective of the reasonableness of a person’s conduct. The result, predictably, has been miscarriages of justice, because it is utterly unreasonable to hold someone criminally liable for violating another nation’s law.

Anglo-American law presumes that every person knows what the criminal code forbids. That proposition made sense at common law, when a crime against God also was an offense against the King. Today, however, that proposition is (at best) a fiction. The criminal law now is used not just to condemn inherently nefari­ous acts (e.g., murder), but also to reg­ulate conduct that is a crime only because Congress says so. And Congress says so often.

There are more than 4,500 federal criminal statutes, and hundreds of thousands of implementing regulations. No one could know everything in the federal criminal code, and anyone who claims that he does is a liar or a lunatic. But even if someone managed that feat, he still would not be home safe. The Lacey Act demands that you also know every law — civil and administrative as well as criminal — of every foreign land.

Foreign laws can be just as intricate as ours, and even less accessible, less reflective of our mores and values. They might not even be written in English. Requiring someone to know them all is unreasonable, and even silly.

But there is hope. Senator Rand Paul (R., Ky.) and Representative Paul C. Broun (R., Ga.) have introduced companion bills in the Senate and House to prevent such miscarriages of justice as befell Abner Schoenwetter. The Freedom from Over-Criminalization and Unjust Seizures Act of 2012, S. 2062 and H.R. 4171, would make the Lacey Act enforceable only through civil process.

“Odd bedfellows” from the Heritage Foundation, the Manhattan Institute, and the Washington Legal Foundation to the National Association of Criminal Defense Lawyers and the ACLU have expressed the need to reform the Lacey Act to eliminate the possibility of unjust criminal prosecution. A subcommittee of the House Natural Resources Committee has scheduled a hearing on H.R. 4171 for Tuesday, May 8.

Unfortunately for the Abner Schoenwetters of America, federal courtrooms are not as hospitable as game-show soundstages. As long as the Lacey Act criminalizes everyday actions that unintentionally offend some obscure foreign regulation, courtroom “contestants” can walk away with serious jail time, a decidedly un-lovely — and unjust — parting gift.

— Paul J. Larkin Jr. is senior legal fellow and manager of the Overcriminalization Project at the Heritage Foundation’s Center for Legal & Judicial Studies.