Overcriminalization: A Case Study
March 17, 2006
X is a talented and respected businessman, and a member of a local community board. He is not an American citizen.
Politics in his community are vicious. A local gadfly pushed things to the limit for months. One night, while traveling out of state, X does something foolish. He creates an internet account in a false name, and sends the gadfly a frightening and threatening internet message. The gadfly runs to the federal government, and FBI agents connect the threat to X. Before X lawyers up, he admits sending the message and conveys his regret to federal agents.
What crime?
Prosecutors reach out to ask for a waiver of indictment. X is in his forties, has no criminal history, supports seven children, and has a very responsible job. On a plea, he is almost certain to walk.
But the only crime the federal penal code appears to define that fits these facts is a felony, 18 U.S.C. Section 875(c), calling for imprisonment of up to five years for any transmission in interstate commerce of "any communication containing any ... threat to injure the person of another." X cannot plead to this felony, however, without facing deportation to his country of origin.
There is something seriously wrong with this picture. X made a mistake, and admits the error. But should he face deportation, should the seven children he supports be deprived a father, because of an offense that even the prosecution agrees ought not to carry prison time?
The federal penal code is top-heavy. Absent within it is the flexibility of state penal codes, recognizing that some errors should carry minor consequences. It is almost as though Congress does not want to be bothered defining mere misdemeanors.
We have thus far refused to accept a plea to a felony, and have met with senior prosecutors to try to reach a compromise. As yet, all we have found is a state statute defining second degree harassment, a misdemeanor. X would plead to that this moment, if he could get it.
Federal prosecutors have agreed in principle that a felony is too much in this case. We meet again today once more to try to come up with a solution that makes sense. It would be a pity to have to try this case merely because the consequences of a plea are as devastating for X's family as a conviction.