When Harvey Silverglate, notorious civil rights lawyer, says we commit three felonies a day, only those of us who appreciate what he’s saying nod our heads. But when that arch bastion of civil liberties, the Wall Street Journal agrees, the message gets out.
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.
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.
US Attorney Olson is so right, folks do need to pay attention to where they are. They’re in the United States of America, where a very hard working Congress has created so many crimes, many of which are so trivial in nature, that no one can provide an accurate count.
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.
This won’t come as surprise to regular readers, but it raises an issue that may play a significant role going forward. A fundamental axiom is that ignorance of the law is no excuse. Not that every citizen is supposed to keep a set of Title 18 of the United States Code on his bookshelf (with pocket parts), as if any lawyer has read it cover to cover, but that the proliferation of criminal sanctions as the backside of regulation makes the axiom absurd.
On the one hand, it’s the fist in the legislative scheme, that for every bit of conduct Congress would have us perform or not, the flip side is a penalty for our failure to adhere. Without it, regulations would be toothless, and violations of regulation, intentional and malevolent, would be meaningless.
Of course, the need for a criminal sanction rather than a civil one can’t quite be explained this way, but then what would legislators have to say when it came time for re-election? Indeed, the WSJ articles provides a wealth of examples of facially ridiculous “crimes” that turned unsuspecting people, from lobster importer Abner Schoenwetter (sentenced to 69 months) and auto racing legend and snowmobile challenged Bobby Unser (sentenced to $75 fine), into criminals. No doubt somebody crowed about how his legislation saved us from their heinous acts.
When it comes to financial and corporate crime, the government has undertaken to qualify the business judgment of corporate executives by the sensibilities of young lawyers and special agents who have never spent a day working in any industry whatsoever. For such amorphous concepts as fraud, effectively defined as doing things differently than an AUSA thinks you should, even if they made money for the corporation, saved money for the clients or were consistent with centuries old business practices, the penalties are monumentally harsh following the public’s outcry after Enron. Ever wonder why the government bought 54 $600 toilet seat shrouds? This is what happens when slavish adherence to regulation replaces thought. This is how the government expects us all to conduct ourselves, upon penalty of imprisonment.
That the Wall Street Journal thought to highlight this issue is the sort of thing that carries the potential of turning heads. The glaring failure of Congress’ use of criminal sanctions to regulate conduct that otherwise bears no blameworthiness, and the fallacy that it’s needed or no one would follow the law, is well noted in the article.
But as long as people keep screaming that we need another law in order to achieve a perfect society, no matter that Casey Anthony’s acquittal isn’t a regular occurrence, we will not only continue to suffer a never-ending increase in criminalization, but watch as laws meant to solve one crisis put unintended people in prison.
So does the axiom that ignorance of the law is no excuse merit continued vitality? What of the maxim, de minimus non curat lex? What about the requirement that criminal laws provide fair notice of what they prescribe, when Supreme Court justices can’t agree whether certain conduct is criminal, yet its sufficient to put you or I in prison? What about the fact that there are so many federal criminal laws that nobody, nobody, knows how many?
It would be easy for a defendant to claim, “but I didn’t know,” every time some malum prohibitum regulation was violated, and this would wreak havoc with the existing approach to the government’s regulatory scheme. Prosecutors might contend that we can trust them to exercise restraint in the prosecution of otherwise nice, law-abiding folks, but the examples in the article clearly demonstrate the contrary.
I countered Harvey’s three felonies a day with three felonies by coffee break, not as catchy a title but probably more accurate. Maybe the answer is that our inability to know whether conduct is criminal can no longer be captured by the notion of presumptive ignorance, but rather by the need for notice?
When we hit 5000 federal crimes, the burden should shift to the government to tell us first that we can’t do something before we become criminally liable for it. If Congress doesn’t like this idea, there’s always an alternative: Stop creating crimes.
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Not only that but there are hundreds of potential consequences of those convictions – removal from the United States, loss of benefits, loss of employment and licenses, loss of civil rights, etc … etc…
I met a small time Ohio farmer (with no priors) who did 60 days in federal prison for spilling “whey” (non-toxic milk by-product)from a broken feed line at his pig farm.
But if they’re criminals, there has to be consequences. Lots and lots of consequences.
This is all well and good but how do we get federal trial judges to finally say “Not everyone is presumed to know the law in these general intent crimes.”
Courts used to adhere to the proposition that if an administrative agency wanted certain conduct to be a crime the criminal conduct should be very explicit so the person knew what conduct was the crime.
Judges just look dumb-founded when I have pulled one of those old cases out (not overruled)
What cowards we have ruling over us that allow for these so-called minor offences to become something that can harm an individual by imprisonment or a fine or both. The evil actions of this so-called government are coming to a head and about to burst which would be good for all of us. When that should happen, then hopefully we will see all of these criminals in Washington behind the bars that they should be behind today. No need for me to mention what those crimes are. If you have read this article, then you are well aware of what I am talking about.
This is going on not just at a Feral I mean Federal level, but also at a State level as well.I was talking to a traffic cop one time and he boasted that he can follow any car 5 miles and find at least one traffic violation to pull him over for. In such a situation, what good is the term “probable cause”?
In a free society, laws are few and easily understood. The more tyrannical a government becomes, the more numerous, the more vague, the more complex, incomprehensible, and contradictory the laws.
The laws in this country today have become SO numerous, SO Complex, SO vague, incomprehensible, and contradictory that lawyers — legal professionals — have to specialize!
And there are around SIXTY different specialities of law.
That old, “ignorance of the law is no excuse” saw just won’t cut it any more.
There are 1,337 words in the Declaration of Independence — and 11,000 words in federal laws “regulating” the sale of cabbages!
5 miles? Not a very observant cop. I recently learned (after 34 years of practice) that is it a violation of the VTL (375.1.b) to have a sticker on one’s rear window. I learned this the easy way – representing a teenager (HS senior on his way to prominent west coast university with large financial aid package) stopped for driving his parents car which proudly displayed his college sticker on the rear window – 1 inch wide by 18 inches long, and transparent except for the letters in school colors. That of course led to the invasive search and discovery of shrooms – C felony. Now I know that the year I spent driving my son’s beat up Subaru Impreza hatchback, festooned with stickers from every ski area he visted, the largest ball of twine, wall drugs, the jam bands he followed, the sports palaces and their teams, field of dreams and cooperstown, the teams he roots for, as well as his political commentary via bumper sticker, – many of which were on the rear and side windows, could have given the local jarndarmes the right to pull me over at any time. Have a NY (yankees or mets) or (heaven forbid) a ‘sox’ sticker on the window? Giants or Jets? College? How about an “NRA and I vote”. In NY at least you are inviting police intervention. So my question is: if it is violation of law to have such stickers on the rear window, can the cops go after the seller’s of such ‘artifacts’ as co-conspirators?
The article understates the scope of the problem by failing to address state, county, city,and village “crimes”. And, that in many cases the court is but a kangaroo court headed by and administrative judge who always sides with the government.
Heres another crime. Watering your lawn using your well at any time of the year unless approved by local government which can allow zero time to 4 late night hours twice per week. Or, parking your boat trailer with boat in your driveway at any time in a community that boasts it is boater friendly. (hate to think if they were not– maybe law breakers would get life.)
I’m working up an article about how cities and counties, all strapped for cash now, can make up a good part of the shortfall by simply addressing technical violations of motor vehicle laws.
As you noted, stickers on the rear window will serve: It’s a $300 fine where I live. That license plate frame that touts the car dealer, your sports team, or your university? “Obstructed license plate”… $500.
Do you have a GPS unit stuck to your windshield via the handy suction cup? Perhaps a rosary or fuzzy dice hanging from your rear view mirror? Both are violations, each worth $300.
Did you turn right into the second lane from the right hand curb? That’s only $150. The law says you must turn into the rightmost lane. [Turning left, you can go wherever you want, if you can do it safely.]
Do we want to fix our local government budgets? There’s an easy solution: Unleash the dogs driving cruisers!
And, as you further suggest, each of these violations provides at least an argument of PC. The doors are open for any sort of abuse, usually condoned by the judges.
I’m not in any way, shape, or form anti-cop. I am, in every way, anti the abuse of legal process. Without looking for it, I see it increasingly and in every direction. It’s enough to make one a gun-toting libertarian looking for the smallest possible government with the most limited powers possible.
If you could get away with committing one crime, what would you do?
But Vimes was a policeman. No one lived a completely blameless life. It might be just possible, by lying very still in a cellar somewhere, to get through a day without committing a crime. But only just. And, even then, you were probably guilty of loite…
Politicians just want to be reelected, so they create legislation for that purpose, without much thought of how this may affect individual citizens, like Mr. Anderson who was clearly not intending nor aware he was committing a felony. They are people pleasers, which is not what we need right now in our over-burdened criminal justice system.