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July 24, 2011

"As Criminal Laws Proliferate, More Are Ensnared"

The title of this post is the headline of this new Wall Street Journal piece, which was run with this companion piece headlined "Many Failed Efforts to Count Nation's Federal Criminal Laws."   Both pieces are interesting reads, and here is the start of the main piece:

Eddie Leroy Anderson of Craigmont, Idaho, is a retired logger, a former science teacher and now a federal criminal thanks to his arrowhead-collecting hobby. In 2009, Mr. Anderson loaned his son some tools to dig for arrowheads near a favorite campground of theirs. Unfortunately, they were on federal land. Authorities "notified me to get a lawyer and a damn good one," Mr. Anderson recalls.

There is no evidence the Andersons intended to break the law, or even knew the law existed, according to court records and interviews. But the law, the Archaeological Resources Protection Act of 1979, doesn't require criminal intent and makes it a felony punishable by up to two years in prison to attempt to take artifacts off federal land without a permit.

Faced with that reality, the two men, who didn't find arrowheads that day, pleaded guilty to a misdemeanor and got a year's probation and a $1,500 penalty each. "We kind of wonder why it got took to the level that it did," says Mr. Anderson, 68 years old. Wendy Olson, the U.S. Attorney for Idaho, said the men were on an archeological site that was 13,000 years old. "Folks do need to pay attention to where they are," she said.

The Andersons are two of the hundreds of thousands of Americans to be charged and convicted in recent decades under federal criminal laws—as opposed to state or local laws—as the federal justice system has dramatically expanded its authority and reach.

As federal criminal statutes have ballooned, it has become increasingly easy for Americans to end up on the wrong side of the law. Many of the new federal laws also set a lower bar for conviction than in the past: Prosecutors don't necessarily need to show that the defendant had criminal intent.

These factors are contributing to some unusual applications of justice. Father-and-son arrowhead lovers can't argue they made an innocent mistake. A lobster importer is convicted in the U.S. for violating a Honduran law that the Honduran government disavowed. A Pennsylvanian who injured her husband's lover doesn't face state criminal charges—instead, she faces federal charges tied to an international arms-control treaty.

The U.S. Constitution mentions three federal crimes by citizens: treason, piracy and counterfeiting. By the turn of the 20th century, the number of criminal statutes numbered in the dozens. Today, there are an estimated 4,500 crimes in federal statutes, according to a 2008 study by retired Louisiana State University law professor John Baker.

There are also thousands of regulations that carry criminal penalties. Some laws are so complex, scholars debate whether they represent one offense, or scores of offenses. Counting them is impossible. The Justice Department spent two years trying in the 1980s, but produced only an estimate: 3,000 federal criminal offenses.

July 24, 2011 at 11:38 AM | Permalink


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To the cases mentioned you can add those of George Norris and Krister Evertson. These cases were covered in two very well written articles by Andrew Grossman and Brian Walsh of the Heritage Foundation (not a "Liberal" group my any stretch). Mr. Grossman's , "The Unlikely Orchid Smuggler" relates the story of Mr. Norris and Mr. Walsh's "You're (Probably) a Federal Criminal" that of Mr. Evertson. You can also add the case of race car driver Bobby Unser who strayed onto Federal land while lost in a blizzard. All three of these cases were the subjects in two hearings on overcriminalization held by a House of Representatives judiciary subcommittee. Of course, like most things political, nothing of any consequence has resulted from these hearings. And overcriminalization is unabated.

None of these cases had anything at all to do with "justice". They had to do with a Federal prosecutor going after someone just because they can. I know, I know Bill, Federal prosecutors don't prosecute for the fun of it so don't bother.

Read the Walsh and Grossman articles, they are available at the Heritage Foundation web site.



Also worth the read are the transcripts of the testimony before the Judiciary subcommittee. They are available at the subcommittee web site for hearings held during the 111th Congress.


Posted by: Thomas | Jul 24, 2011 1:07:40 PM

the entire country and them would have been better off if when notified by the "authorities" they had pulled out a weapon and put some lead in the empty head of the "so-called" authority!

Posted by: rodsmith | Jul 24, 2011 1:09:17 PM

Because these laws have no scientific validation, or even mandated follow up studies, they are promulgated in bad faith, to increase lawyer rent seeking. Rent seeking is a synonym for armed robbery and a crime itself.

In Daubert, an expert would set down standards of professional conduct, in a way make law for other professionals to obey in future similar cases. That is very narrow law making. The Supreme Court required a hearing on the validation of such expert testimony. In the case of broader laws, the lack of validation should void the law. Anyone who breaks a law outside of the self-evident and culturally universal FBI Index felonies should demand a Daubert hearing on the law itself.

Example. The aim of the prohibition of downloading of child porn is to reduce child sexual abuse. The claim is that abuse is encouraged by paying for its depictions. In CAnada, written child porn in prohibited. Cross national studies show that legalization of child porn results in a substantial drops in the incidence of child sexual abuse reported to the child welfare authorities. The law itself raises the costs of child porn, and incentivizes criminal syndicated to enter into that business, however repulsive they may find. The law is itself a cause of increased child sexual abuse. The lawyer has immunized itself from any accountability for its negligent law making. However, the proper defendant to sue if one is a victim of child porn sexual abuse is the federal government which subsidizes East European criminal syndicates to produce more child pron, and to sexually enslave more children.

It gets worse. I hadn't seen this girl in 6 months. I asked where she had been. She had been kidnapped, taken across customs to a Central American country, abused sexually, and finally returned to the US. The mother went to the local FBI office, and was thrown out of the office because she had no credibility being an immigrant, without so much as even meeting the girl for one minute.

Posted by: Supremacy Claus | Jul 24, 2011 2:59:05 PM

It is difficult to respect our justice system. Congress passes laws thoughtlessly and they are carelessly prosecuted. We should stop for a moment and decide what kind of country we want for ourselves and our children. Over criminalizing has made our culture very harsh..

Posted by: beth | Jul 24, 2011 9:43:03 PM

Did I break a federal law when I had to relieve myself on a small wetland area on my beach below the historical high water mark. Should I just have gone into the water and relieved myself? Or should I just have let my kidneys explode to remain felon free. if I let my kidneys explode, am I attempting suicide.

The American (especially federal) justice system is a BIG SICK JOKE.

We will withhold Byrne Grants to the states, if they do not aquiesce to our laws (Government bribery should be a crime).

Let them try and get me, the Men in Black that is.

Posted by: albeed | Jul 24, 2011 10:11:40 PM


Bill will NOT answer your very credible substantial comments because he is a legend in his own mind.

Bill, the death penalty is OK if certain minimum standards are observed, like LE cannot lie, crime labs need to be challenged by scientific experts for the defense and confessions are video recorded from beginning to end with no exceptions; for starters.

But we are broke because of lying politicians, overpaid judges, prosecutors and lying LE who are not challenged, and especially by a publically educated dumbed down electorate.

We got what we deserved.

Posted by: albeed | Jul 24, 2011 11:52:29 PM

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