Ham Sandwich Nation: Due Process When Everything Is a Crime

Glenn Harlan Reynolds, in USA Today, March 29, 2015, article titled You are probably breaking the law right now, begins by noting the traditional legal view that “ignorance of the law is no excuse.” But there are now so many regulations, it is difficult to know what’s illegal:

… While a century or two ago nearly all crime was traditional common-law crime — rape, murder, theft and other things that pretty much everyone should know are bad — nowadays we face all sorts of “regulatory crimes” in which intuitions of right and wrong play no role, but for which the penalties are high.  …

“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a just-published Tennessee Law Review article, suggests that maybe the old presumption that individuals know the law is outdated, unfair and maybe even unconstitutional.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.

The Winter, 2015 Tennessee Law Review article referred to, Rethinking Presumed Knowledge of the Law in the Regulatory Age, is online and the pdf can be downloaded free. The author begins with three cases of breaking the Migratory Bird Act, from a first where the law is broken on purpose to earn money, to a less clear case of violating the regulation, to Billy the accidental lawbreaker:

Billy, a high-school senior who just turned eighteen, finds a red- tailed hawk talon in the parking lot of his school. He has never heard of red-tailed hawks or the Migratory Bird Act, and he does not know that selling dead birds or bird parts can be illegal in some circumstances. Billy’s friend, whose parents own a pet store, is interested in wildlife and collects snakeskins, sharks’ teeth, and various types of animal bones. Billy decides that his friend may be interested in the talon and offers to trade it for a goldfish from the store. Billy’s friend agrees. When a family friend, an agent for the United States Fish and Wildlife Service, sees the talon and inquires, she learns that it came from Billy. Billy is arrested and charged with bartering with migratory bird parts in violation of 16 U.S.C. §§ 703 and 707(a).

Reynolds notes the common law had a common sense way to limit crimes to the narrow band of traditionally crimes:

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. As Cottone asks, “How can people be expected to know all the laws governing their conduct when no one even knows exactly how many criminal laws exist?”

 The solution Reynolds recommends:

To solve this problem we need for judges to abandon the presumption that people know the law, at least where regulatory crimes are concerned, and require some proof that the accused knew or should reasonably have known that his conduct was illegal. Alternatively, Congress should adopt legislation requiring such proof. (And I would favor allowing defendants in any action brought by the federal government — civil or criminal — to have the option of arguing to the jury that the government’s action against them is unfair or biased, with the charges dropped and legal fees being charged to the government if the jury agrees.)

Sounds like a nifty affirmative case for NCFCA debaters: jury trials for “regulatory crimes” (without plea-bargaining treats by EPA prosecutors), require proof the accused knew or “reasonably should have known,” and option for full legal fees being charged to regulatory agency.

Reynolds is the author of Ham Sandwich Nation: Due Process When Everything is a Crime, a 2013 study, University of Tennessee Legal Studies Research Paper No. 206, which looks at overcriminalization and possible reforms.

Reynolds also runs Instapundit, and early and still-popular blog.

It is worth considering too, that EPA regulations like the Migratory Bird Act are often counterproductive. Rather than make it a crime to be found with a protected bird feather, why not reward (compensate) land-owners to increase bird habitat.

Wendy Purnell of PERC has this post “Conservation program pays farmers to create habitat on demand.”

Each year, millions of migratory birds make their trek along the Pacific Flyway, an avian highway stretching from the Bering Strait to South America. Dozens of shorebird species and other waterfowl make the journey, relying on wetlands as rest stops along the way. But due to the recent drought, many of California’s wetlands have dried up.

Early this year, the Nature Conservancy unveiled a plan to create temporary wetlands for these migratory birds. The pilot program, called BirdReturns, creates habitat on demand by paying rice farmers along the flyway to flood their fields when the birds need it most. 

Here’s how it works: Using satellite imagery, the conservancy determines drought conditions and groundwater availability along the birds’ migratory path. With the help of the California Rice Commission, they are able to identify farmers that might be willing to participate. But knowing when and where to pay farmers to flood their fields required a more creative approach.

Description of the program in the post, plus links to various articles on the topic.