Via Walter Olson at Overlawyered, the Heritage Foundation has joined in the effort to put a stop to Congress’ finding a crime under every rock, according to the DC Examiner.  While it’s a truism that politics makes strange bedfellows, it’s heartwarming to see that even groups with such fundamental disagreements as the National Association of Criminal Defense Lawyers and the uber-conservative Heritage Foundation can join together to attack this danger.

To its great credit, the Heritage Foundation’s purpose is to stave the criminalization of regulatory conduct that was caught up in the “tough on crime” zeal when politicians ran out of real crimes to create.

“Our ultimate goal,” he said, “is to restore the criminal law to what it has traditionally been used for. That is, to protect the public safety and to deal with real crime – and to avoid what has occurred, which is the multiplicity of laws and regulations that carry criminal penalties which have ensnared ordinary, law-abiding citizens in the criminal process for things that nobody would anticipate are actually crimes.”

“What has happened,” he continued, “is that a lot of special interest groups have urged Congress to attach criminal penalties to regulatory legislation to, quote, ‘show its importance.’… Therefore the criminal process is being abused when normal civil proceedings or administrative actions would suffice to protect public health and safety.”

For those doing white collar criminal defense, we realize how bizarre real this has become.  America has a regulation for just about everything.  Often, the regulation has a sound reason for its existence, and is a well-intended effort to protect the public.  The problem is that regulatory violations sometimes result in fines and orders to change procedures, but other times result in criminal prosecutions resulting in extraordinarily harsh prison sentences for people who make a business mistake.  Neither malice, nor even gain, need necessarily be involved.  Some of these prosecutions will blow your mind.  I know that the defendants prosecuted can’t fathom their reality.

There was the case where seafood importers spent eight years in jail because their lobsters were improperly packed in plastic rather than cardboard. “Zero tolerance” policies that land children in jail for making paper guns in school or having small knives in the trunk of their cars on campus after moving some boxes that needed opening. The 61-year-old cancer patient sent to jail because her hedges were too high. Law enforcement run amok, again and again and again.

Most of the public applauds criminalization under the misguided belief that if the government calls something a crime, then a crime it must be and a criminal its perpetrator is.  And every criminal must go to prison.  But the criminalization of these regulatory crimes, utterly malum prohibitum and almost invariably lacking in mens rea, save no one and create a class of “criminal” from businesspeople who do no more than make a mistake.  Yes, harm can sometimes occur as a by-product of a business mistake, but that doesn’t convert the businessman to a criminal unless that was his purpose.  But more often, no harm ensues and the violation is purely technical.  No one is saved, but someone spends years in prison and the upstanding people next door suddenly find themselves a felon’s family.

As the Heritage Foundation says, let’s return criminal law to what it was always meant to be, and stop creating a crime for everything.