Prison for unauthorized use of “Smokey Bear” image

by Walter Olson on July 26, 2011

Great WSJ article on the unending proliferation of federal crimes, with appearances by a family that ran into a law making it a felony to dig for arrowheads on federal land, Bobby Unser and his snowmobile-astray ordeal, and a man effectively ruined by the $860,000+ cost of successfully defending himself against a federal charge of violating Russian hunting regulations.

“Most people think criminal law is for bad people,” says Timothy Lynch of Cato Institute, a libertarian think tank. People don’t realize “they’re one misstep away from the nightmare of a federal indictment.”

More: from Tim Lynch, and (via PoL) Josh Blackman, William Anderson/Regulation mag.

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PointOfLaw Forum
07.27.11 at 7:00 am

{ 12 comments }

1 nhrpolitic13 07.26.11 at 12:42 am

While the ever-increasing criminalization of American life is certainly disturbing, I find it strange which individuals are repeatedly chosen to exemplify this trend. Put frankly, Mr. Unser in particular strikes me as an entirely unsympathetic example: yes, Mr. Unser lacked an *intent* to violate the law at issue — but the law at is *is* well known, and was obviously known to Mr. Unser. He violated it, and then created a confrontation over the matter by suggesting that rule-be-darned, he was going to ride that baby back on out. He could have taken his token $75 fine and left it at that (Mr. Unser could clearly have afforded to have the snowmobile removed in a legally compliant manner).

Similar examples, such as the father and son indicted for illegal artifact hunting are sad — and prosecution probably overblown — nonetheless, I wouldn’t consider this law to be a surprise to anyone with passing familiarity with either the national parks/forests or artifact hunting. Ignorance, as they say, is no excuse, and thus I have little sympathy for a pair of artifact hunters ignorant of the relevant (and unsurprising) law.

Overlegalization? A problem, Yes! — but for the love of goodness, can we concentrate on the examples that represent more than ignorance or ego?

2 Jim Collins 07.26.11 at 7:26 am

How can we ignore the examples that represent ignorance, when the people responsible for enforcing these laws don’t know what they are? Let’s face it, the Federal Government has stepped into areas where it has no business being. It has no business extorting States into accepting a 21 drinking age, 0.08 blood alcohol, DUI checkpoints and countless other laws or regulations that it has pushed for over the years.

3 Mark 07.26.11 at 9:23 am

If the citizens of a country do not follow their own laws, why should Americans? Russians do not view the “law” as something that applies to them personally, particularly anything related to the environment. Anyone who has ever traveled in Russia or the former Soviet space knows this. I remember fishing in the Russian Far East a few years back. There was a big sign in the airport about “catch and release” (in English, no less). On the river, we were accompanied by government fish biologists. Their view of “catch and release?” Catch and eat. In the Russian view, anyone who follows such a law or rule is a sap.

4 Clark 07.26.11 at 11:03 am

To nhrpolitic13
One of the points that the article is making is that a reasonably intelligent person can’t help but be ignorant of a law, which they may be violating.
If those that are in charge of enforcing criminal laws can’t even say how many federal criminal laws there are, thus demonstrating their very own ignorance of some laws, then the average citizen couldn’t possibly know all of the behaviors that could result in a criminal prosecution.

5 Mannie 07.26.11 at 12:16 pm

It’s a lottery. If a vast number of things are illegal, and no one knows what they are, then it doesn’t matter what you do. Pi$$ on the law, just don’t get caught.

Only exaggerating a tiny bit.

6 VMS 07.26.11 at 1:44 pm

I always thought it was unconstitutional to have a strict liability offense where the penalty was anything other than a fine or very minor sentence. In particular something is wrong with significant sentences for acts with no mens rea. In fact the Model Penal Code of the American Law Institute has only two categories of strict liability offenses: 1) violations; and 2) statutory rape of a girl under 10.

The Supreme Court in Leocal v. Ashcroft (2004) in fact held that the conviction of the underlying crime of DUI cannot form the basis for deportation because the DUI statute at issue lacks a mens rea component.

SCOTUS will soon revisit whether Missouri v Holland is still good law and whether treaties are really the “supreme law of the land.”

7 Mike 07.26.11 at 2:52 pm

Forgive me for throwing in an Ayn Rand quote,

“There’s no way to rule innocent men. The only power government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.”

8 Ron Miller 07.26.11 at 8:56 pm

“Mr. Unser says he was charged after he went to authorities for help finding his abandoned snowmobile. “The criminal doesn’t usually call the police for help,” he says.”

Actually, the dumb ones do. And he paid a $75 fine. Really? This is criminal law run amok?

PR tip folks: don’t make Unser your poster boy.

9 antiredistributionist 07.27.11 at 1:52 pm

The fact that Unser was threatened with jail time apparently doesn’t bother Mr. Miller. I mean, it’s not like he slipped on a wet spot on a supermarket floor.

10 Ron Miller 07.27.11 at 9:22 pm

How was he threatened? And how do you actually know this? Who threatened him? Where? Was the threat the max penalty of 6 months in jail? (Max penalties are used to help defendants, not hurt them.) If things don’t add up – potential jail time turns into $75 fine – you might want to ask some questions and get some verification.

There are no questions every government in human history has overstepped in bounds and we have to watch them. This will never change. Ever. Anywhere. But if someone dug deeper and told me this Wall Street Journal article had a narrative and ignored the other side of these stories, I would hardly be surprised.

11 antiredistributionist 07.27.11 at 10:24 pm

Watch the piece linked by this site back when the story was first posted.

12 doug 07.28.11 at 6:36 am

Ron, if you follow the links back about Unser, you will read that it is quite possible that Unser was screwed over.

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