July 28, 2009
By Brian W. Walsh
Federal law now criminalizes activities that the average person
would never dream would land him in prison. Consequently, every
year, thousands of upstanding, responsible Americans run afoul of
some incomprehensible federal law and end up serving time in
With all the attention that's been paid lately to long federal
sentences for drug offenders, it's surprising that a far more
troubling phenomenon has barely hit the media's radar screen. Every
year, thousands of upstanding, responsible Americans run afoul of
some incomprehensible federal law or regulation and end up serving
time in federal prison.
What is especially disturbing is that it could happen to anyone
at all--and it has.
We should applaud Reps. Bobby Scott (D-Va.) and Louie Gohmert
(R-Texas), then, for holding a bipartisan hearing today to examine
how federal law can make a criminal out of anyone, for even the
most mundane conduct.
Federal law in particular now criminalizes entire categories of
activities that the average person would never dream would land him
in prison. This is an inevitable result of the fact that the
criminal law is no longer restricted to punishing inherently
wrongful conduct--such as murder, rape, robbery, and the like.
Moreover, under these new laws, the government can often secure
a conviction without having to prove that the person accused even
intended to commit a bad act, historically a protection against
Laws like this are dangerous in the hands of social engineers
and ambitious lawmakers--not to mention overzealous
prosecutors--bent on using government's greatest civilian power to
punish any activity they dislike. So many thousands of criminal
offenses are now in federal law that a prominent federal appeals
court judge titled his recent essay on this overcriminalization
problem, "You're (Probably) a Federal Criminal."
Consider small-time inventor and entrepreneur Krister Evertson,
who will testify at today's hearing. Krister never had so much as a
traffic ticket before he was run off the road near his mother's
home in Wasilla, Alaska, by SWAT-armored federal agents in large
black SUVs training automatic weapons on him.
Evertson, who had been working on clean-energy fuel cells since
he was in high school, had no idea what he'd done wrong. It turned
out that when he legally sold some sodium (part of his fuel-cell
materials) to raise cash, he forgot to put a federally mandated
safety sticker on the UPS package he sent to the lawful
Krister's lack of a criminal record did nothing to prevent
federal agents from ransacking his mother's home in their search
for evidence on this oh-so-dangerous criminal.
The good news is that a federal jury in Alaska acquitted Krister
of all charges. The jurors saw through the charges and realized
that Krister had done nothing wrong.
The bad news, however, is that the feds apparently had it in for
Krister. Federal criminal law is so broad that it gave prosecutors
a convenient vehicle to use to get their man.
Two years after arresting him, the feds brought an entirely new
criminal prosecution against Krister on entirely new grounds. They
used the fact that before Krister moved back to Wasilla to care for
his 80-year-old mother, he had safely and securely stored all of
his fuel-cell materials in Salmon, Idaho.
According to the government, when Krister was in jail in Alaska
due to the first unjust charges, he had "abandoned" his fuel-cell
materials in Idaho. Unfortunately for Krister, federal lawmakers
had included in the Resource Recovery and Conservation Act a
provision making it a crime to abandon "hazardous waste." According
to the trial judge, the law didn't require prosecutors to prove
that Krister had intended to abandon the materials (he hadn't) or
that they were waste at all--in reality, they were quite valuable
and properly stored away for future use.
With such a broad law, the second jury didn't have much of a
choice, and it convicted him. He spent almost two years locked up
with real criminals in a federal prison. After he testifies today,
he will have to return to his halfway house in Idaho and serve
another week before he is released.
The other hardened criminal whose story members of Congress will
hear today is retiree George Norris. A longtime resident of Spring,
Texas, Norris made the mistake of not knowing and keeping track of
all of the details of federal and international law on endangered
species--mostly paperwork requirements--before he decided to turn
his orchid hobby into a small business. What was Norris's goal? To
earn a little investment income while his wife neared
The Lacey Act is an example of the dangerous overbreadth of
federal criminal law. Incredibly, Congress has made it a federal
crime to violate any fish or wildlife law or regulation of any
nation on earth.
Facing 10 years in federal prison, Norris pled guilty and served
almost two. His wife, Kathy, describes the pain of losing their
life savings to pay for attorneys and trying to explain to
grandchildren why for so long Poppa George couldn't see them.
Federal criminal law did not get so badly broken overnight, and
it will take hard work to get it fixed. It is encouraging that
members of Congress such as Reps. Scott and Gohmert are now paying
attention to the toll overcriminalization takes on ordinary
Americans. Congress needs to begin fixing the damage it has done by
starting to restore a more reasonable, limited and just federal
criminal law. Today's hearing is an excellent first step.
Walsh is Senior Legal Research Fellow in the Center for Legal
and Judicial Studies at The Heritage Foundation.
First Appeared on Fox News
Federal law now criminalizes activities that the average person would never dream would land him in prison. Consequently, every year, thousands of upstanding, responsible Americans run afoul of some incomprehensible federal law and end up serving time in federal prison.
Rule of Law Initiative of the Leadership for America Campaign
Brian W. Walsh
Senior Legal Research Fellow
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