Entries categorized "Overcriminalization"

School is Prison

I always felt that elementary and high schools were like prisons.  Turns out, my perception was right:

Two boys, ages 9 and 10, were charged with felonies and taken away from school in handcuffs, accused of making violent drawings of stick figures.

Here is the picture that prompted school and law enforcement officials to arrest two small children:

Kids_draw_picture_with_knivesBut hey, as long as they do not arrest your kids, who cares, right?

Gangs as Terrorists Organizations

Street gang violence is horrible.  Gangs destroy communities, and indeed, terrorize people.  But should post 9-11 anti-terrorism statutes be applied to them?  Must someone who argues against looking to legislative intent when interpreting statutes merely shrugged his shoulders, or should he be outraged that a law passed for a specific reason is applied beyond the intent of its enactors?

This comprehensive article discusses the recent application of New York's anti-terrorism statutes to gang activity.

Every time Lourdes Morales watches the TV news and sees a story on terrorism, she weeps.

Family members have stopped trying to console her, but they, too, cannot understand why Edgar Morales, the family's youngest son, will see the new year arrive in prison where he is waiting to be tried as a terrorist.

"They are comparing my son to (Osama) bin Laden ... and all those people who used bombs and killed thousands of people at random," said Morales. "They are making him look as if he was this cold-hearted person, and he is not like that."

Morales, 22, was indicted on murder and other charges as acts of terror in May, along with 18 other members of the St. James Boys Gang, a Mexican and Mexican-American street gang. Morales faces the most serious charge of second-degree murder as a terrorist act.

A New York grand jury returned the charges against him in connection with the shooting death of 10-year-old Melanie Mendez, who died from gunshot wounds two years earlier.


If the charges did not include the terrorism stipulation, he would face a sentence of 25 years to life if found guilty. With the stipulation, he faces a mandatory sentence of life in prison without the possibility of parole.


"Gangs are a forum to promote terrorism," said Balboni spokeswoman Lisa Angerame. "Therefore, the anti-terrorism statue would be applicable against them, even if the original intent for this law was not exactly to prosecute them."

Just Following the Rules

Apropos my recent post on overcriminalization, comes now the criminalization of arts and supplies:

A 10-year-old girl was placed in handcuffs and taken to a police station because she took a pair of scissors to her elementary school.

School district officials said the fourth-grade student did not threaten anyone with the 8-inch shears, but violated a rule that considers scissors to be potential weapons.

Administrators said they were following state law when they called police Thursday, and police said they were following department rules when they handcuffed Porsche Brown and took her away in a patrol wagon.

(Via CrimProf Blog).

Cato Book Forum

Today the Cato Institute held a book forum discussing Go Directly to Jail: The Criminalization of Almost Everything, which you can watch in RealAudio here.

Is American Liberty Imperiled?
BOOK FORUM Tuesday, December 14, 2004 12:00 PM (Luncheon to follow)
Judge Andrew P. Napolitano, Senior Judicial Analyst, Fox News, and Author, Constitutional Chaos: What Happens When the Government Breaks Its Own Laws (Nelson Books, 2004); Gene Healy, Senior Editor, Cato Institute, and Editor, Go Directly to Jail: The Criminalization of Almost Everything (Cato Institute, 2004); and moderated by Tim Lynch, Director, Cato's Project on Criminal Justice

If the price of liberty is eternal vigilance, then it is necessary to take a step back from the transient issues of the day, which so often transfix our capital city, and assess the state of liberty in America. According to two new books, liberty in America has been under a relentless, though often subtle, assault. In Constitutional Chaos, Judge Andrew Napolitano maintains that most Americans take their constitutional rights and liberties for granted and are largely ignorant of how the government breaks its own laws and gets away with it. In Go Directly to Jail, Cato Institute senior editor Gene Healy shows how the government has been criminalizing more and more citizen conduct. With more than 4,000 federal offenses on the statute books and thousands more buried in the Code of Federal Regulations, Healy points out that there are good reasons to be alarmed by the government’s perfectly “legal” restrictions, investigations, and prosecutions.

Please join us for a discussion of these disturbing trends and what might be done about them. Cato book forums and luncheons are free of charge.

Go Directly to Jail

GotojailGo Directly to Jail: The Criminalization of Almost Everything

Edited by Gene Healy

  You're an honest businessperson with a strong moral compass. You don't cheat on your taxes, or your spouse. You regularly consult with your attorney to ensure that you're complying with the myriad regulations governing your business. You even go the extra mile, talking with children at "Junior Achievement" programs about how to achieve success. The possibility of a criminal prosecution is the last thing on your mind. "The government only goes after real criminals," you think to yourself.

The latest offering from the Cato Institute says: Think again.

In Go Directly to Jail: The Criminalization of Almost Everything, six essays catalog decent people caught in the indecent web of over 4,000 federal criminal laws. 

In "Overextending the Criminal Law," Professor Eric Luna introduces us to the expanding federal criminal code, which now includes, to the extent that scholars can even count them, over 4,000 crimes. Worse, these crimes have come loose from the common law moorings that punished the evil, and acquitted the good. By eliminating the traditional requirement that a person is guilty only of he commits a guilty act motivated guilty mind, "legislators" are turning traditional "criminal sanctions" into "another tool in their regulatory toolkit." As the book jacket explains, "an unholy alliance of tough-on-crime conservatives and anti-big-business liberals has utterly transformed the criminal law" into a trap for the unwary.

In "The New 'Criminal' Classes: Legal Sanctions and Business Managers" James DeLong discusses the general principles of criminal law that affect all cases, especially the lack of a mens rea requirement in most modern criminal laws. Thus, someone who acts in good faith (even consulting with a lawyer before acting) can end up in prison. Which is what happened to David McNab.

McNab was a seafood importer who shipped undersized lobsters and lobster tails in opaque plastic bags instead of paper bags. These were trivial violations of a Honduran regulation - equivalent to a civil infraction, or at most, a misdemeanor. However, using creative lawyering, a government prosecutor used this misdemeanor offense as the basis for the violation of the Lacey Act, which is a felony. The prosecutor then used the Lacey Act charge as a basis to stack on smuggling and money laundering counts. You got that?

McNab was guilty of smuggling since he shipped lobster tails in bags that you can see through, instead of shipping them through bags that would frustrate visual inspection. He was guilty of money laundering since he paid a crew on his ship to "smuggle the tails." Although it turned out that the Honduran regulation was improperly enacted and thus unenforceable, the government did not relent. A honest businessman lost his property and his freedom: McNab is serving 8-years in prison.

You might be thinking that my summary of the McNab case is fishy. Surely I'm keeping something from you, since no judge would really sentence an honest businessperson so severely. But as Professor Luna details in "Misguided Guidelines: A Critique of Federal Sentencing," prosecutors, not judges, set the terms of sentencing. A judge's hands are tied by the Guidelines. The judge in the McNab case could not weigh McNab's success as a businessperson, his age and family ties and responsibilities, or his lack of any criminal intent. Although McNab was a criminal by accident, not design, the Guidelines required the judge to treat him as a member of La Costra Nostra. Professor Luna ably demonstrates that the Guidelines are not only unconstitutional as a matter of separation of powers, but also as a matter of due process, and more generally, the Guidelines violate any sense of decency.

In "Polluting Our Principles: Environment Prosecutions and the Bill of Rights," Timothy Lynch (Director of the Cato Institute's Criminal Justice Project) talks about the world of environmental enforcement that even Joseph Heller could not have constructed. Lynch shows the irrational world facing a manager whose employee violates an environmental regulation. If an employee violates a law, the manager is liable, his ability to have prevented the illegal act notwithstanding. Yet if the manager does not report the employee (thus subjecting himself to criminal liability), the manager is guilty of a crime. Heads you lose. Tails you lose.

The manager also may not rely on governmental interpretations of the laws as a defense. An environmental enforcement official told one citizen that he could build him home on undeveloped land. One year into the project, the citizen was told that he was breaking the law. You can't rely on those enforcing the law to know the law.

Worst of all is that coming on the wrong side of the flip of an environmental enforcer's whim does not mean you lose a wager. It means you lose your freedom, and your dignity. Environmental laws put people who will be unlikely to defend themselves into prison with the hawks. And even doctors are not immune.

In "HIPAA and the Criminalization of American Medicine," Grace-Marie Turner reports how doctors may find themselves guilty of fraud when their secretaries do nothing more than enter in the wrong billing code out of the tens of thousands of codes to enter. The hundreds of thousands of pages or regulations are literally unknowable, thus subjecting doctors to potential prison sentences. Patients are also hurt, as small-town doctors join larger conglomerates for the additional legal and financial protection. If HIPAA's criminal penalties go unabated, there will be no more Doc. Bakers.

And federal power is growing, as Gene Healy details in "There Goes the Neighborhood: The Bush-Ashcroft Plan to 'Help' Localities Fight Gun Crime." Ignoring principles of federalism and enumerated powers, federal prosecutors, who are always welcome guests at the Federalist Society Annual Convention, are turning even trivial violations of local gun laws into a federal case.

Go Directly to Jail is a must-read for anyone interested in criminal law, as well as doctors and other small business owners, who until recently were more likely to be crime victims rather than criminals. And you don't have to take my word for it. Miguel Estrada (who was filibustered for being too "conservative") endorses the book, writing that "ordinary businesspeople risk being jailed for run-of-the-mill commercial dealings that traditionally have been handled by contract and tort law." Mr. Estrada should know: He represented David McNab.

You can (and dare I say should?) buy Go Directly to Jail here.

New book from the Cato Institute

Go Directy to Jail: The Criminalization of Amost Everything is the title of the Cato Institute's latest work dealing with the weight gain of the federal criminal code.  There are two reasons you should buy this book.  First, Miguel Estrada endorses it. 

The dramatic expansion of federal criminal law in recent decades has made it distressingly easy for prosecutors to ‘make a federal case’ out of matters more properly handled at the state level or by civil remedies. That phenomenon makes it more likely that ordinary businesspeople risk being jailed for run-of-the-mill commercial dealings that traditionally have been handled by contract and tort law. With this timely volume, Cato draws attention to an important—and too often ignored—legal problem.

Second, it has a catchy pitch (emboldened is the coolest freaking expression I've seen in a long time):

At one time, the sanction of the criminal law was reserved for serious, morally culpable offenders. But during the past 40 years, an unholy alliance of tough-on-crime conservatives and anti-big-business liberals has utterly transformed the criminal law. Today, while violent crime often goes unpunished, Congress continues to add new, trivial offenses to the federal criminal code. With more than 4,000 federal offenses on the statute books, and thousands more buried in the Code of Federal Regulations, it is now frighteningly easy for American citizens to be hauled off to jail for actions that no reasonable person would regard as crimes. At the same time, rampant federalization and mandatory minimum sentencing are making America’s criminal justice system ever more centralized and punitive. The result is a labyrinthine criminal code, a burgeoning prison population, and often real injustice. Go Directly to Jail examines those alarming trends and proposes reforms that could rein in a criminal justice apparatus at war with fairness and common sense.

A Good but Broad Law

According to CNN.com, the United States has obtained its first conviction after trial under the amended "sex tourism" law:

An 86-year-old man was found guilty Friday of attempting to travel to the Philippines to sexually molest girls, in violation of a new federal law aimed at fighting sex tourism.

A judge found John W. Seljan guilty of six counts, including attempting to travel for the purpose of having sex with minors and possession of child pornography.

Seljan faces a minimum term of 10 years in prison and a maximum of 270 years when he is sentenced in March. The retired business owner is one of about a dozen men who have been arrested under the Protect Act, which was enacted last year.  The law made it easier to prosecute those who molest children overseas and increased penalties.

Seljan was the first to go to trial on charges brought under the Protect Act, though at least two men have pleaded guilty.

Although the article does not cite the law he was charged under, it's likely that he was convicted under 18 U.S.C. 2423:

(b) Travel with intent to engage in illicit sexual conduct. A person who travels in interstate commerce or travels into the United States, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.

Since Mr. Seljan was going to take a "sex trip" section 2423(b) would seem to cover his conduct.

However, there is one part of the law, added as part of the PROTECT Act, that has gone underreported:

[18 U.S.C. 2423] (c) Engaging in illicit sexual conduct in foreign places. Any United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.

(f) Definition. As used in this section, the term "illicit sexual conduct" means (1) a sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A [18 USCS §§ 2241 et seq.] if the sexual act occurred in the special maritime and territorial jurisdiction of the United States; or (2) any commercial sex act (as defined in section 1591) with a person under 18 years of age.

Although the law was drafted to punish perverts who seek to exploit young girls - indeed 2423(b) does this nicely - the overall law's coverage is much broader.

Notice that 18 U.S.C. 2423(c) makes it a crime to "engage in any illicit sexual conduct" - which means to have sexual conduct with someone under 18 - in a foreign jurisdiction.  A person is liable even if he did not travel with the intent to have sex with a person under 18-years old.  This means that a college kid traveling in Europe commits a sexual offense if he or she has sex with a 17-year old.  It also means our soldiers are at risk, because they could potentially be imprisoned for having consensual sex with a 17-year old.

Putting aside the merts of creating an international crime of statutory rape, that's that law, and it's something to keep in mind during your kid's next vacation. Let's also hope that JAG Officers have informed soldiers deployed abroad about 2423(c).