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July 23, 2009 – Comments (10)

The Link

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 wrongful conviction.

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 purchaser.

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 retirement.

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.

Brian W. Walsh is Senior Legal Research Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation

10 Comments – Post Your Own

#1) On July 23, 2009 at 10:30 AM, catoismymotor (< 20) wrote:

The more corrupt the state, the more it legislates. – Tacitus

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#2) On July 23, 2009 at 10:54 AM, SolarisKing (< 20) wrote:

I believe a juror has the right to veto use of a law. Many jurors are not informed of this, and think they are required to convict.   Fully Informed Jury Association

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#3) On July 23, 2009 at 11:24 AM, ReadEmAnWeep (85.68) wrote:

Those are sad stories, but you would think that guy would look into hazardous waste laws more carefully since he was able to see first hand how crazy the fed was about it, and since apparently dealing with this material was his life since highschool.

 It is a sad story like I said but I am sure there is more to it than what is reported.

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#4) On July 23, 2009 at 11:38 AM, Predaking (27.72) wrote:

Jury Nullification - the jury can override any law they feel is unjust.

However, a judge can ultimately throw out a jury's decision. It's a really stupid process.

Plus, the adverserial judicial system was set-up with the goal of reaching the "truth" but has morphed into a game concerned with winning, not what is right. Prosecutors are concerned with their conviction rate statistics, defense attorney's are paid to get their clients off despite their guilt.

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#5) On July 23, 2009 at 12:25 PM, robstuck (< 20) wrote:

maybe the guy was really doing something wrong.. who knows? what an outlandish, exotic story...

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#6) On July 23, 2009 at 12:26 PM, jstegma (28.42) wrote:

Great post.  This is a problem that is definitely happening.  The creation of the problem was accidental in my opinion when Congress started passing thousand page laws that include various criminal provisions of this sort.  Then leave it to prosecutors to come up with creative ways to apply them.  It's mostly a function of the fact that there is so much federal law out there.  Hundreds of thousands of pages that no one, including Congress, has time to read.  It's really Kafka-esque.

"Making a false statement" is one of their favorites.  Not perjury.  Just saying something that turned out not to be true.  You hear about a lot of people being convicted of that.  This catch-all sort of law got started because of the Al Capone case.  They couldn't get him for anything but mail fraud which was easy to prosecute and carried a huge possible sentence.  

Another interesting area is drug laws.  Smoking a joint?  Probably carries 10 years.  The same crime goes from any amount up to 1000 kg.  So if you were smoking a joint and the feds wanted to get you, you'd get the same thing as people smuggling millions of dollars worth of the stuff.

The other thing the feds invented was the "person of interest".  Not a suspect.  Suspects have rights.  A person of interest is just someone they think did something but they don't want them to be able to lawyer up. 


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#7) On July 23, 2009 at 2:21 PM, whereaminow (< 20) wrote:

Chicken hawks and wimps make the laws.  Sickos carry them out.  The brave fight back.

David in Qatar

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#8) On July 23, 2009 at 2:29 PM, VintageCat (< 20) wrote:

One of the most egregious examples recently passed, the Consumer Product Safety Improvement Act (CPSIA 2008) criminalizes mom and pop home crafters that make toys, clothing, essentially anything for use by children under the age if 13 (and anyone that imports or sells/resells such items willfully or  unintentionally with or without injury or incident) that have not under gone rigorous testing for lead and phalates even though the raw materials that they are using to to produce such items are known to be free of such substances.  

The law was intended to prevent abuses such as lead contaminated toys and jewelry from China that killed a few children a few years ago but the overarching legislation passed in 2008, effective 2/09 created a situation where little old ladies knitting perfectly safe booties for babies for a few coins are now criminals, as are the families that sell their children's outgrown clothing at yard sales if one button, zipper, rhinestone, painted design contains lead/phalates over the extremely low limits set by this law.  

The open ended criminal and civil penalties are draconian and will break most of the unknowing and innocent caught in the act.  Unfortunately a few extremist consumer advocate groups have stated that they plan to"make examples" to ensure that the law is rigorously enforced.  What started out as probably good intention has made potential criminals of nearly every working/middle class parent that has held a yard sale with their kid's cast offs, charity organization, ebayer, resale shop that sells children's items and handcrafters that continue to make children's things.   

Further this law is not well known even by the cottage children's item and resale industry.  Ignorance of the law will be no excuse.  I am concerned for my country.  This blog has the situation in the USA dead to rights.  Any small business owner should be very concerned because the multitude of laws governing practically any aspect of record keeping, inventory control, compliance regulations, taxes are many, the penalties huge and life altering and the dissemination of information regarding legal requirements spotty at best.  

 Good post. 1 rec. 

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#9) On July 23, 2009 at 2:29 PM, JohnnyAngel33 (24.20) wrote:

I'm sure I'm already on the fed's list to get arrested...I'm a conservative.

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#10) On July 23, 2009 at 3:07 PM, NOTvuffett (< 20) wrote:

You don't have to get thrown in jail for the feds to mess up your day.  One of my customers improperly shipped 1 quart of a chemical via air freight and was fined over $25,000. (It was a new employee that confused the hazard class with a different product).

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