Overcriminalization at the Airport

Originally published at Cato Institute by Jonathan Blanks | April 13, 2016

Case: US v. Metcalf

People who fly a lot will invariably have a bad experience at the airport, sooner or later. Delays, cancellations, huge lines, and overbooked flights can wear on people, and sometimes individuals take their frustrations out on an airline employee. And, once in a while, the person goes too far and crosses the line into assaulting that employee.

In no airport in America is assaulting an airline employee legal under state law. The laws against simple assault—that is, unwanted physical contact, often without injury—apply just as much at the terminal gate as they do at your local bar or walking down the street. But, as with seemingly every bad thing that happens, someone wants to make a federal case out of it. Literally.

Senator Maria Cantwell (D‑WA) introduced an amendment to a bill before the Senate to make the simple assault of an airline employee punishable up to ten years in federal prison. This is a problem for a bunch of reasons, but here are two that stick out.

First, the crime lacks what criminal justice folks call a “nexus” to a federal interest. That is, unlike disrupting a flight while on board a plane—which is regulated by federal law and the Federal Aviation Administration—or interfering with a federal government employee—such as a TSA agent or air marshal—there is no particular reason a simple assault of a private business employee triggers federal involvement. If a ticket agent is spat upon or touched without consent by a would‐​be traveler, that agent has every right to call the local (or airport) police and file charges if he chooses. For these reasons, the law is duplicative and unnecessary.

Second, the possibility of ten years in prison is too much for contact without injury. The statute that would be amended included an enhanced penalty to protect TSA employees who are charged with keeping America’s skies safe from would‐​be terrorists. One could argue—indeed, I would—that the original statute includes a penalty too stiff relative to the crime. Most simple assault statutes in the federal code include sentence maximums between six months and one year. It’s hard to understand how an angry person grabbing the arm of a ticket agent walking away from them potentially carries ten times the maximum sentence if that person had instead shoved a member of Congress. (see 18 U.S.C. § 351 (e))

A skeptic might say that, in practice, no one will get ten years for petty actions. Perhaps that’s true, but then why should we make such a sentence possible in the first place?

No one should shove a member of Congress or assault an airline employee, period. Simple assault is a crime already, as well it should be. But as the conversation about mass incarceration and sentencing propriety continues on Capitol Hill, legislators should internalize the lessons learned from years of disproportionate sentencing and overcriminalization.

The federal criminal law should be limited to those crimes that properly fall under federal jurisdiction, demonstrate a particular need that is not being met by local authorities, and, when needed, provide sentences proportionate to the severity of the given crime. This proposed amendment failed all of these aims.


Heritage Report: Shining a Light on Over-Criminalization

Originally published at The Heritage Foundation by Jordan Richardson | June 1, 2015

Overcriminalization—the overuse or misuse of the criminal law to address societal problems—is a troubling phenomenon that touches every segment of society.[1] It manifests itself in a variety of ways, including overly broad definitions of criminal acts, excessively harsh sentencing, and criminal sanctions for simple mistakes or accidents under a theory of strict liability.[2]

However, overcriminalization has a more tangible aspect beyond legislation and legal theory: For every problematic law or criminal procedure, there is a victim with a story to tell. Those victims include three fishermen in Florida who were sentenced to over six years in prison for importing lobsters packed in plastic rather than paper,[3] a North Carolina man who was jailed for 45 days for selling hot dogs without a license,[4] and an autistic teenager from Pennsylvania who was threatened with wiretapping charges after he recorded being bullied in school by his classmates.[5] American citizens all too often find themselves trapped by the very system that they assumed existed for their protection and prosecuted for crimes that most people would not even recognize as criminal offenses.

The Heritage Foundation has made it a priority to report instances of overcriminalization and provide solutions to the root causes of this issue. One of the more effective ways to explain the importance of reform is by telling the stories of people who have been hurt by abuse of the criminal law.[6] It is common to discuss changes in the system in terms of legislation or arcane legal concepts, but seeing the human side of overcriminalization is much more powerful.

Public Pressure

Reporting stories of people who have been needlessly and callously caught up in the criminal justice system has a two-fold benefit: First, it informs the public of the serious nature of overcriminalization and how it could equally harm them too; second, it exposes public officials and law enforcement officers who engage in misbehavior or exercise terrible judgment. The latter effect, especially, could help both to alter outcomes for individuals who are victimized by overcriminalization and to provide a catalyst for change.

During the past year, The Heritage Foundation has recounted the stories of people who were victims of overcriminalization. In several of these cases, positive outcomes ensued, in all likelihood as a result of the public ridicule that such injustices received. Although there is no quantifiable method to determine whether media pressure was the deciding factor that influenced public officials to reverse course after pursuing charges or fines against these individuals, it is wise to heed former Supreme Court Justice Louis Brandeis’s wisdom: “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”[7]

The following examples are illustrative:

  • Lazaro Estrada was arrested and charged with obstruction of justice for simply filming a Miami police officer who arrested his friend.[8] Despite the fact that citizens should be presumptively free under the First Amendment to film officers in public places,[9] Estrada faced significant punishment for turning on his camera. After his video of the incident went viral, the charges against Estrada were dropped.
  • Shaneen Allen, a single mother from Pennsylvania, was arrested after being pulled over for a traffic violation and the officer was informed that she had a handgun in her car.[10] Allen legally registered the gun in her home state and mistakenly assumed that it was legal for her to travel with it for protection across state lines. Her mistake could have sent her to prison for three years. After immense media pressure, the prosecutor allowed Allen to enter a diversion program, and New Jersey Governor Chris Christie subsequently pardoned her.
  • Arnold Abbott, a 90-year-old charity worker from Fort Lauderdale, Florida, was threatened with arrest and a $500 fine for feeding homeless people in the local city park.[11] A city ordinance required Abbott to comply with strict food handling and facility regulations—a mandate that would have made it nearly impossible to feed hungry people. Publicity from major news outlets soon prompted city officials to allow Abbott to continue his charitable works.

Examples of government overreach extend beyond criminal charges. In several instances, local governments have attempted to enforce inapplicable or obscure regulations that essentially prohibit ordinary behavior.

  • Spencer Collins, a nine-year-old boy from Leawood, Kansas, built a miniature library box in his front yard as a Mother’s Day gift. Local authorities levied a $500 fine against Spencer’s family and threatened to tear down the library because the box supposedly violated an ordinance against freestanding structures. Public outrage forced the city to reconsider, and the ordinance was amended to allow citizens to build little libraries.[12]
  • Tiffany Miranda, a 10-year-old girl who suffers from a serious and incurable disease called Lennox-Gastaut syndrome, received her very own playground from the Make-A-Wish Foundation. The city government of Santa Fe Springs, California, ordered Tiffany’s parents to tear down the playground because, in their estimation, it was a “public nuisance.” After facing an intense media backlash for trying to crush the dreams of a little girl with a serious illness, city officials quickly backtracked and allowed the playground to stay.[13]

Stories like these illustrate both the human cost of overcriminalization and the absurd but all too real instances of governmental overreach in general. In all of the cases mentioned here, media and news reports informed the public about how law enforcement officials were unfairly or wrongly targeting their fellow citizens. As a result, public pressure was the catalyst to convince the authorities to reverse course. Awareness precedes reform.

Reform Is Needed

The sobering reality of overcriminalization is that there are many more stories of victims that have not received media attention. Although we should applaud the decision of public officials who eventually recognized that they had overstepped their authority and reversed course, there is still much more to be done. Shaneen Allen, the single mother who faced three years in prison, now has her life back after receiving a pardon from a governor, but not everyone is so fortunate as to have a high-level official intervene in his or her case. Many voices go unheard.

If overcriminalization is left unchecked, it will continue to be a problem. Our Founders warned us long ago about the dangers of an expansive legal system that arbitrarily creates and enforces numerous criminal laws. James Madison, writing in the Federalist Papers, stated:

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 to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?[14]

When ordinary people are turned into criminals for engaging in morally blameless behavior, the legitimacy of the justice system is undermined. Serious reform is essential.


Criminal justice reform is about more than policy debates in Congress or legal procedure; it is about how the lives and fortunes of ordinary Americans are threatened by abuse of the law. The criminal justice reform movement should focus on telling the stories of those who are affected by an overly zealous government and the excessive power of the state.

Only by identifying the problem and highlighting why it matters will any meaningful change take place. Overcriminalization is not an easy problem to solve, but it is one that demands our attention.

—Jordan Richardson is a former Visiting Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.


Baltimore’s Problem, and America’s

Originally published at National Review by Conrad Black | May 6, 2015

The criminal-justice system is a disaster.

It would be ungracious of me not to acknowledge with gratitude the column on Sunday of my old friend Fareed Zakaria, citing several sources, including me, as he recounts the almost unmitigated moral bankruptcy of the U.S. criminal-justice system. As the Freddie Gray riots and indictments in Baltimore continue the fortnightly spectacles of fatal police excess that, with the eager amplification of the media, are creating the world-wide and not entirely false impression that American law enforcement is conducting a sea-to-sea shooting gallery, it is timely to review these problems, which are now decried from right (e.g., George Will) to left (e.g., Katrina vanden Heuvel). They extend from undisciplined police, through a rogue prosecutocracy infested with Torquemadas who can smoke anything past the constitutional heirloom of the grand jury and convict almost anybody by intimidating witnesses to inculpate the targets (with the choice between threats of prosecution themselves and promises of immunity for perjury), to mainly elected state judges dispensing draconian sentences and pandering to the law-and-order lynch mobs, to overstuffed prisons staffed by under-supervised unskilled labor who kill an inordinate number of prisoners in unconstitutionally bestial conditions. This is American justice today, unsuspected by Norman Rockwell, triumphantly championed by morons like Nancy Grace; it is the still largely unnoticed tragedy of many millions of ruined American lives.  TOP ARTICLES1/5READ MORESanders Invokes Obama’s Praise forCuban Education in Defending His Castro Comments

RELATED: Injustice System: Today’s America Is a Landscape of Legal Abuses

In the modern United States, the only reforms are those demanded by adequately large numbers of voters or adequately rich interests. There are 48 million convicted felons in the U.S., and they have tens of millions of relatives and friends, and while most of them are relatively unconnected and demoralized by stigmatization, or just relieved that their legal problems were long ago and they have partly or wholly surmounted them, those suffering the sting of injustice aggravated by gelatinously negative public complacency about the injustice of the system are very numerous and righteously upset. They cannot be far from where the previous waves of mass reform jumped off. Prior to smashing the barricades that restrained them, “uppity n*****s” and “mouthy women” and “angry gays” were starting to chin themselves on the need for militancy, no matter how personally risky, or at the least embarrassing, it might be. Of course, a large number of convicted people were actually guilty of something, unlike, simply by virtue of what they were, African Americans, women, and gays, but many innocent people have been convicted, and most have been over-sentenced, and all who have served their sentences are entitled to be heard about the systematic mistreatment that is so widespread in the U.S. justice system.

This is American justice today, unsuspected by Norman Rockwell, triumphantly championed by morons like Nancy Grace; it is the still largely unnoticed tragedy of many millions of ruined American lives.

Fareed Zakaria outlined the obvious proportions of the problem in his column: The United States has 5 percent of the world’s population, 25 percent of its incarcerated people, and 50 percent of its lawyers (who account for about 10 percent of the country’s GDP). Prosecutors win 99.5 percent of their cases, about 97 percent without a trial, and the country has six to twelve times as many incarcerated people per capita as comparably prosperous large democracies: Australia, Canada, France, Germany, Japan, and the United Kingdom. No sane, conscientious American citizen can be comfortable with these figures and their implications. In a word, the United States, the people that ordained for itself the Constitution that contains the Bill of Rights, has a somewhat tenuous claim to be a country subject to the rule of law, at least in criminal matters. And crimes include thousands of offenses, including, as George Will pointed out in a column in April, picking up arrowheads on federal lands or driving a snowmobile accidentally onto land protected by the Wilderness Act. Given the innumerable statutes and regulations with criminal sanctions, the mens rea element of guilt has faded and the old principle that ignorance of the law is not an excuse would not now be equitable in many cases.

RELATED: America Desperately Needs to Fix Its Overcriminalization Problem

For obvious reasons, there is a tendency to view the recent interracial police-inflicted fatalities as another manifestation of longstanding African-American grievances. But three times as many white Americans are killed by police and prison employees as non-whites, which confirms that minorities suffer proportionately more abuse from law enforcement, but African Americans and other minorities would short-change themselves, and be unjust to others, if they did not recognize this as an almost equal-opportunity problem, in which the constabulary, justice, and custodial systems disserve everyone, and no one is safe from such abuse. Nor will it quite do to sound the same old note of white insensitivity in high places in the Freddie Gray tragedy in Baltimore. That is a city where the majority in the city proper is African-American, where African Americans are in charge as mayor and chief of police, and majorities of city officials, elected and appointed, are African American. Whatever is judged to have happened in this case, it was not whites killing a non-white. No doubt, that is a factor in some incidents, but it would minimize the proportions of this immense and extremely dangerous problem to see it in these terms only, or even principally.

The whole U.S. criminal-justice system is now an immense problem and it gnaws, every day, at the soul of America.

Americans are promised their day in court, but, because of the public-policy adoption of a goal of unheard-of levels of imprisonment (advocated as passionately by such liberals as Robert Kennedy, Nelson Rockefeller, and Bill Clinton as by such conservatives as Richard Nixon and Ronald Reagan), the system could not possibly try a serious number of these cases, as opposed to just terrorizing defendants into pleading guilty and taking a dive, without completely clogging the system. There has been very little reform legislation in the federal government in recent decades in any field that is based on the traditional motive of people like Theodore Roosevelt and Woodrow Wilson, simply to make things work better (like TR’s Pure Food and Drug Act). Reform is demanded by groups too large or rich to be ignored. Victims of the excesses of the justice system certainly are such a group, but to avoid provoking a schismatic reaction in the country, they must cross all racial and ethnic lines and make it clear that they are not mollycoddlers of crime, and are not calling for indulgence of violent crime, but seek restoration of the Bill of Rights guarantees of due process, the grand jury as a serious filtration process, no seizure of property without just compensation, access to counsel, an impartial jury, prompt justice, and reasonable bail. The plea-bargain system will have to be drastically reformed and cooperating witnesses must not be immune to apparently well-founded perjury claims, and criminal cases should not be heard by elected judges. While this cannot be legislated, the media should rub the sleeping knots of 50 years from their eyes and go back to serving the country — by deploying a free press in service of free institutions, and not competing to lead the lynch mob every time there is a publicized offense.

RELATED: Annals of Injustice: The Libby Case and Other Horrors

Most trial judges should not be ex-prosecutors. Nor should prosecutors have an absolute immunity. The Thompson case, in which a falsely accused man was left in death row for 14 years to the full knowledge of prosecutors, who were ultimately excused from heavy sanctions by a majority on the Supreme Court, was an especially extreme case of this. So was the case against Senator Ted Stevens (R., Alaska), who was electorally defeated on a prosecution the Justice Department knew to be false, and the only serious penalty paid was by a prosecutor who committed suicide. The egregious Patrick Fitzgerald should not get a free pass for securing a conviction of former vice president Richard Cheney’s chief of staff Lewis “Scooter” Libby by misshaping the evidence of Judith Miller.

Sentences should be reasonable and some sort of commission should regularly sift through all the laws and regulations with heavy sanctions, cull and consolidate them, and attach to them penalties that are appropriate and are not just bludgeons used by prosecutors to extort false confessions of guilt and Stalinesque allocutions of self-condemnation. The entire process has become a national degradation that cheapens the value of American citizenship and disgraces the country and its fine traditions, and threatens everyone in the United States, or reachable by its authorities, even though in other countries.

#related#Not the least of the excesses of this careening juggernaut grinding people almost indiscriminately to powder has been its extraterritorial application, in which the State Department frequently gets behind the Justice Department and tries to muscle foreign jurisdictions. A striking example of this was the recent effort, clearly inspired by foreign-policy considerations, to extradite Ukrainian billionaire Dmytro V. Firtash from Austria for alleged bribery in India in a titanium deal that never occurred, but in fact because of his political activities in Ukraine. The indictment coincided with the visit to Ukraine by assistant secretary of state Victoria Nuland, to try to persuade Firtash’s friend, former Ukrainian president Viktor Yanukovych, not to abandon a close political and trade agreement with the European Union. The State and Justice departments denied any such motive, but the Austrian judge found otherwise, and ordered the release of Mr. Firtash, who had posted $130 million. The judge ruled the attempted extradition and trial a spurious abuse of justice and of the reputation of the United States as a civilized and law-abiding country. No one is claiming Firtash has an uncontroversial record in the Ukrainian natural-gas business, but there is no obvious U.S. claim against him.

The whole U.S. criminal-justice system is now an immense problem and it gnaws, every day, at the soul of America. Where has the Supreme Court, the ultimate and always sanctimonious guardian of the Constitution, been while the rights of the people have been gutted? Generations of its justices do not have the excuse of having to face voters whipped up by tele-demagogues and gimcrack politicians. They don’t have any excuse.

— Conrad Black is the author of Franklin Delano Roosevelt: Champion of Freedom and Richard M. Nixon: A Life in Full. He can be reached at [email protected]


Heritage Report: When Fighting Crime Becomes Piling On: The Over-Criminalization of Fraud

Originally published at The Heritage Foundation by Paul J. Larkin, Jr | 1/9/12

Abstract: Are maple syrup felons sufficiently heinous that they should be imprisoned for perhaps as long as 45 years? Some members of the U.S. Senate seem to believe the answer is yes: How else to explain the provisions of the Maple Agriculture Protection and Law Enforcement Act of 2011? This bill, known as the MAPLE Act, would make it a “federal crime…for anyone knowingly and willfully to distribute into interstate commerce a product that is falsely labeled as maple syrup.” While falsely labeling a product should not go unpunished, there are ample criminal laws on the books to deal with the false labeling of maple syrup. The real threat raised by the MAPLE Act is not that of a shadowy syrup syndicate, but a U.S. Congress determined to expand the federal criminal law well beyond its intended limitations—the phenomenon known as overcriminalization.

Three months ago, the Maple Agriculture Protection and Law Enforcement Act of 2011 (MAPLE Act) was introduced in the Senate. The bill would make it a federal crime, punishable by up to five years’ imprisonment, for anyone knowingly and willfully to distribute into interstate commerce a product that is falsely labeled as maple syrup. Although punishing offenders for genuine fraud is a reasonable policy, this bill does not materially advance that policy—at least not at a reasonable cost. Instead, it amounts to piling on.

The MAPLE Act is an innocuous-looking bill. No one would contend that falsely labeling a product should go unpunished in some way or other. For example, a party injured by fraud can seek relief under the law of torts, contracts, and restitution.[1] Because “all civil penalties have some deterrent effect,”[2] private civil actions also can discourage other parties from committing fraud and therefore serve a valuable public interest. Fraud also is punished under the criminal law: Fraud has been a crime at common law in some form or another for more than 300 years;[3] the states outlaw fraud;[4] and numerous statutes make fraud a federal offense.[5]

Such redundant criminalization, however, is the problem. The type of fraud at which the MAPLE Act is aimed already is outlawed by one or more federal criminal laws, to say nothing of state criminal laws and state tort law. Indeed, there are dozensof federal statutes making fraud a crime.

Even considering only the two most widely used federal antifraud laws—the mail fraud and wire fraud acts[6]—there is no reason to believe that any large-scale fraud in the marketing or sale of maple syrup is not already a crime. After all, the parties who commit such fraud need to use the mails or telecommunications facilities to advertise, to ship their goods, to be paid, or for other reasons. One or the other (or both) of those laws should do the trick. To be sure, neither statute may reach someone who sells falsely labeled maple syrup at a roadside stand for cash,[7] but how many such cases are there? In fact, how many cases are there altogether involving the false labeling of maple syrup? And why should state or local law enforcement authorities not be responsible for such (to mix metaphors) small-potatoes cases?

True, there are times in which development of a new technology (e.g., cars, aircraft, or telephones) might require Congress to adopt a new law specifically focused on the use of that invention to commit a crime, but maple syrup is hardly a 21st century creation. It also is true that there are times when a new societal consensus develops regarding conduct that already is a crime yet justifies harsher treatment of offenders (e.g., spousal abuse), but there is no such justification driving the MAPLE Act. The people who make, market, and sell genuine maple syrup, as well as the people who enjoy that product, are in the same position that they always have been and are not more hurt by fraudulent sales today than they were 20 or 30 years ago. As a result, it is quite difficult to see what good this new fraud statute could accomplish other than giving those in the maple syrup industry a federal fraud statute of their own.

Is that a sufficient reason for another dose of punishment? The answer is “No.” There are ample criminal laws on the books to deal with this problem. Adding this new one is just overkill.[8] If this were football, the referee would throw a penalty flag for unnecessary roughness. Keep in mind that the punishments imposed under this statute would enhance the penalties that can be imposed on offenders today: The sentence for this crime can be tacked onto the sentence for mail fraud (up to 20 years’ imprisonment) and wire fraud (up to 20 years’ imprisonment) and whatever else the prosecutor can charge.[9] Are maple syrup felons sufficiently heinous that they should be imprisoned for perhaps as long as 45 years?

Finally, consider the example that this bill would create. As the late Professor William Stuntz has explained, legislators and prosecutors like to double up on the penalties for the same conduct and, to do so, prefer to use existing laws as precedents for future ones.[10] Consider, then, the new raft of statutes that this legislation could spawn: False labeling of Iowa corn, Virginia peanuts, or Coney Island hot dogs soon could become separate federal offenses. Selling phony replicas of the Statue of Liberty, Wrigley Field, the Golden Gate Bridge, the St. Louis Arch, the Louisiana Superdome, and a host of other replicas each could be made its own crime.

Of course, fraudulent conduct should be deterred or punished, even stopped if possible; no one would disagree. But is a sledgehammer needed to accomplish that goal? Put aside the harm done to the offender and his family (an unfortunate, but nonetheless inevitable, example of the collateral damage done by criminal sentencing). What marginal retributive or deterrent benefits do such new criminal laws provide? If the answer is none—and it most likely is—then such laws would be all cost and no benefit.

—Paul J. Larkin, Jr., is Senior Legal Fellow and Manager of the Overcriminalization Initiative in the Center for Legal and Judicial Studies at The Heritage Foundation.


Overcriminalization and the Tragic Case of Aaron Swartz

Originally published at National Review by Ammon Simon | 1/15/13

On Friday, 26-year-old internet activist Aaron Swartz—who was facing 13 federal charges, along with a potential $1 million fine and 35 years in prison—committed suicide. Federal prosecutors had charged Swartz with using an unlocked MIT computer closet to download, for free, articles from subscription-based academic service JSTOR. Unfortunately, this tragedy is one more example of the increasing problem of over-criminalization. 

I don’t have the technical expertise to tell you exactly what Swartz did or if it violated federal law. Swartz’s expert witness, Alex Stamos, says that it did not, while Professor Orin Kerr disagrees

However, assuming Swartz did break the law, did he really deserve to face 35 years in federal prison for his actions? ThinkProgress Justice (not usually my main source for legal news) lists lesser-punished federal crimes, including (1) bank robbery, (2) selling child pornography, (3) knowingly spreading AIDS, (4) selling slaves, (5) genocidal eugenics, and (6) helping al-Qaeda develop a nuclear weapon. 

In Jacksonville, gang members that “committed a series of violent felonies and crimes, including an extortion that left one man nearly dead; the choking of a young woman until she passed out; armed bank robberies; armed home invasions; daily cocaine and opiate sales; and theft of thousands of dollars’ worth of merchandise from local stores,” received a lesser federal sentence of 30 years in prison.

As Jonathan Blank argues:

Mr. Swartz may have done wrong by JSTOR, and perhaps he even deserved to pay a fine for his misdeeds, but a two year federal investigation and the threat of putting a young man in prison for the rest of his life was a despicable and wasteful effort by the federal government.  Unchecked and vindictive prosecutions ruin lives..

Lest there be any doubt about prosecutor’s overreach, even JSTOR settled their civil claims against him in June 2011, and released the following statement after Swartz’s death:

We have had inquiries about JSTOR’s view of this sad event given the charges against Aaron and the trial scheduled for April. The case is one that we ourselves had regretted being drawn into from the outset, since JSTOR’s mission is to foster widespread access to the world’s body of scholarly knowledge. At the same time, as one of the largest archives of scholarly literature in the world, we must be careful stewards of the information entrusted to us by the owners and creators of that content. To that end, Aaron returned the data he had in his possession and JSTOR settled any civil claims we might have had against him in June 2011.

 Ted Frank has a useful compilation of links on this story, along with other examples of over-criminalization


The Foreign Corrupt Practices Act: Clarification Is Not Enough

Originally published at Cato Institute by Walter Olson | November 11, 2011

The Foreign Corrupt Practices Act, enacted in 1977 and the subject of a high‐​profile federal enforcement campaign in recent years, is a feel‐​good piece of overcriminalization that oversteps the proper bounds of federal lawmaking in at least four distinct ways, any of which should have prevented its passage. It is extraterritorial, purporting to punish overseas misdeeds which deprive no Americans of liberty or property and whose punishment is better left in the hands of authorities elsewhere. It is vicarious, inflicting massive liability on businesses and unknowing higher‐​ups over the actions of rogue local subsidiaries, salespeople and facilitators. It is punitive, menacing its targets with twenty‐​year prison terms and inflicting huge penalties over less‐​than‐​huge misbehavior. And finally, it is vague, leaving companies to guess at the proper line between tolerated payments (e.g., gratuities to speed up visa and license issuance in developing countries) and improper “bribes,” and even such basic questions as who counts as an “official.” In the face of a mounting outcry from the business community, the Obama administration has now finally conceded that there is some validity to this last point, and Criminal Division chief Lanny Breuer says the Department of Justice will develop guidelines to provide greater clarity as to what it believes the law does and does not forbid. Better than nothing, but why not consider the case for wider reform or even repeal?

To begin with, it’s hardly as if the law has succeeded in cleaning up the climate of official corruption that afflicts so many ill‐​governed countries around the globe. It does, however, confer a huge competitive advantage on companies not within the reach of the U.S. Department of Justice, above all those of China, which does not even pretend to apply similar rules to its overseas enterprises, and also including Europe, which has mostly chosen to address the problem in less adversarial ways. (See, for example, this Economist editorial on Britain’s FCPA‐​equivalent.)

Chicago‐​Kent law professor Andy Spalding has argued that the FCPA in fact amounts to a form of unintended economic sanctions against developing countries, sometimes with “tragic” and anti‐​humanitarian results. Guest‐​posting at PrawfsBlawg, Spalding offered the example of India, where a poor rural population stands in desperate need of roads:

India lacks the financial and administrative (or authoritarian?) capacity to build the needed roads, so it has aggressively solicited outside investors. Nonetheless, of all public requests for road construction proposals in India, almost half receive absolutely no bids. No one is willing to build these roads, at any price. Why aren’t more U.S. construction companies seizing this profit opportunity? Answer: corruption. The infrastructure sector is notoriously corrupt; the FCPA risks are far too high.

Query: if the criminal penalties now associated with FCPA enforcement have made the costs of building roads in developing countries prohibitive, such that roads aren’t built, farmers can’t sell, and kids can’t eat, have we done the right thing?

More on FCPA at Overlawyered and at my former website Point of Law.