Brian Walsh's chief complaint is that federal law unfairly criminalizes environmental offenses and other regulatory violations. His complaints about the overbreadth of federal criminal law, while in some respects just, are supported by arguments that are themselves overbroad.
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.
Walsh cites as examples an unsuccessful prosecution for delivering hazardous waste without affixing a required warning sticker, and a subsequent prosecution of the same offender for abandoning the hazardous waste -- one that resulted in a conviction and nearly two years behind bars. Walsh may be correct that the defendant's actions didn't deserve a criminal sanction. Nonetheless, the notion that it is not "inherently wrongful" to violate regulations that protect others from unwitting exposure to hazardous waste is unconvincing.
In addition, the complaint that "intent to commit a bad act" isn't always an element of regulatory offenses ignores the context of those laws. Strict liability regulatory offenses are typically aimed at business that should be aware of the laws governing their actions. Regulatory offenses usually carry much more lenient sentences than crimes like murder, rape, and robbery -- a fact that courts often cite as justification for dispensing with the requirement that the defendant acted with the intent to do wrong. If the defendant cited in Walsh's article doesn't fit into the category of a business owner who didn't bother to learn about the laws governing his business, the injustice of his plight is more the fault of the prosecutor who charged him or the judge who sentenced him to prison than the law itself.
Although he's vague about the details of the offense, Walsh cites the prosecution of an orchid grower who "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." It's a valid complaint that federal criminal laws governing the import and export of fish and wildlife are confusing. They often ensnare individuals who try to bring something like a stuffed bird into the country that turns out to have been protected as an endangered species by federal law or by the law of another nation. Jeralyn's post a few years ago about the lobster police is a prime example of a misguided federal prosecution for a trivial regulatory foul-up.
Still, Walsh early in his article complains about these "new laws" while the last complaint demonizes the Lacey Act, an important law that was enacted in 1900. Individuals who innocently and unwittingly violate the Lacey Act should be subjected to civil monetary penalties, not criminal prosecutions, but Walsh goes too far by claiming that "the Lacey Act is an example of the dangerous overbreadth of federal criminal law." Again, the better argument would be that federal prosecutors are too often willing to prosecute individuals who don't deserve to be prosecuted under a law that appropriately targets international or interstate smugglers whose actions encourage the slaughter of endangered species. In that sense, his overcriminilization argument has merit, although it may be more accurately framed as an argument against overprosecution.
A more convincing argument for "a more reasonable, limited and just federal criminal law" would focus on the congressional tendency to federalize crimes that are traditionally punished by state law. Examples of the federalization of local crime include laws (enacted or proposed) targeting sex offenders and drug distributors and hate crimes, to name but a few. These are crimes already addressed by state law, involving no federal funds and having little or no impact on interstate commerce. A more reasonable and just approach to federal crime would recognize that crimes having a local impact should be enacted and prosecuted by local authorities, not by the federal government.
In his eagerness to condemn regulatory crimes and the prosecution of businesses, Walsh misses the bigger picture. To his credit, however, Walsh (on behalf of The Heritage Foundation) is on record as opposing the federalization of local crime, as Jeralyn noted here. So should we all.
