Overlawyered: Chronicling The High Cost Of Our Legal System

“You are probably breaking the law right now”

Glenn Reynolds on overcriminalization and regulation [USA Today]:

Regulatory crimes” of this sort are incredibly numerous and a category that is growing quickly. They are the ones likely to trap unwary individuals into being felons without knowing it. That is why Michael Cottone, in a just-published Tennessee Law Review article, suggests that maybe the old presumption that individuals know the law is outdated, unfair and maybe even unconstitutional. “Tellingly,” he writes, “no exact count of the number of federal statutes that impose criminal sanctions has ever been given, but estimates from the last 15 years range from 3,600 to approximately 4,500.” Meanwhile, according to recent congressional testimony, the number of federal regulations (enacted by administrative agencies under loose authority from Congress) carrying criminal penalties may be as many as 300,000.

And it gets worse. While the old-fashioned common law crimes typically required a culpable mental state — you had to realize you were doing something wrong — the regulatory crimes generally don’t require any knowledge that you’re breaking the law. This seems quite unfair.

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One Comment

  • http://www.crimeandfederalism.com/2004/07/debate_over_the.html

    [edited] David McNab is in prison for 8 years. He imported lobster tails using plastic bags. Some importation regulations mandated that he use paper bags. McNab did not know this was a crime: It violated an act of Congress whereby the violation of foreign law is made a violation of federal law. It didn’t matter, though, because it was a strict liability crime. In any event, it was only a misdemeanor.

    However, AUSA used this misdemeanor offense as a basis to charge him with smuggling and money laundering – two major federal crimes, replete with civil forfeiture provisions. They said that since he brought the lobsters in opaque bags (rather than paper bags you can’t see through), he was smuggling. He used money to buy the lobster tails and pay for fuel and maintanence for his boat. AUSA said that was laundering money. (The money laundering statute is really a money spending statute. If you spend $10,000 or more gained from illegal activites, you are guilty of money “laundering.”)

    Honduras said that they didn’t have any such regulation regarding lobster tails. Didn’t matter. DOJ attorneys still fought successfully to have him sent to prison, where he will set for the next 8 years.

    So, the opaque plastic bags were cited as a Federal violation of law, although a misdemeanor. This elevated his illegal lobster importation to the level of “smuggling” rather than a fishing violation. McNab was breaking the law, but was the proper punishment 10 years in Federal prison?