Miscounted Fish? Orchid Illegal in Peru? Federal Crimes with Prison Time [2021]
How many languish in federal prisons convicted of miscounting or mismeasuring fish? Of the tens of thousands of regulations that restrict entrepreneurs trying to work each day or build new enterprises in farming, dairy, street-vending, home-baking, most are local and state regulations and can have criminal penalties.
But at the federal level, the Environmental Protection Agency (EPA), along with other federal agencies create thousands (actually hundreds of thousands) of new federal crimes, tripwires for everyday Americans. Take selling orchids, for example. The Unlikely Orchid Smuggler: A Case Study in Overcriminalization (Heritage), and The curious case of orchids and over-criminalization (Villanova):
Norris said of his actions, “We followed the laws where ever they made sense. There were a lot of dumb regulations that were made with no regard to what it took to protect the plants. The federal government just doesn’t belong in the orchid business.”
Many, including Norris, have questioned whether his 17-month federal prison sentence fit the crime.
“I’d have paid a fine or I’d have done probation. You put somebody in prison for flowers? I didn’t do anything to hurt anybody,” said Norris.
Should the Supreme Court defer to Congress, which defers to the EPA on what flower crimes should have federal prison time?
Advocates of Judicial Engagement argue that the federal court system should step in to protect economic liberty, if state legislatures and courts prove unresponsive. Public choice economics explain the problem. To benefit established and concentrated interest groups–from teachers unions to restaurant owners, taxi owners, and professionals in hundreds of fields–lobby state legislatures for ever more complex legal barriers to competition.
New entrepreneurs eager to launch careers or enterprises are unorganized and usually unable to effectively lobby against established interest groups. (The case of Mississippi hair-braiders is a happy and unusual exception.)
How many federal crimes were created by the unelected in federal agencies instead of by Congress? Here’s a short video, Criminalization without Representation, from LearnLiberty.org:
And another short video Overcriminalization in America: The Criminalization of Ordinary Conduct looks at the increase in Federal crimes that do not require evidence of intent to be convicted.
The Manhattan Institute’s Overcriminalization page, and a video More Laws, Less Freedom (with John Stossel):
Below is a YouTube video on the story of EPA vs. U.S.
Cause of Action, joined by Southeastern Legal Foundation and Texas Public Policy Foundation, has filed an amicus brief calling on the Supreme Court to overturn the conviction of a commercial fisherman who was prosecuted under Sarbanes-Oxley’s anti-shredding provision for throwing fish overboard.
Caught with undersized fish, Yates may have had his crew throw some overboard instead of bringing them back to port to be remeasured. Usually catching undersized fish would be a civil issue and result in a fine (which this did). But eager federal prosecutors decided to try a Law and Order stretch of federal regulations and charge Yates with a Sarbanes-Oxley financial crime: “destroying a tangible object, now defined as a fish.” (quote from video).
More on the Yates vs. U.S. case from the Texas Public Policy Foundation:
On Thursday, for the first time, the word “overcriminalization” appeared in the body of a U.S. Supreme Court opinion.
The word — which refers to the tendency to treat ordinary behaviors that traditionally would never have been considered criminal as crimes — is common among lawyers and legal scholars. In the past year alone, the term appeared over 100 times in law review articles.
The Supreme Court, however, had not used the word until last Thursday’s decision in United States v. Yates— colloquially called “the fish case.”
The case concerned John Yates, a Florida fisherman who may have possessed undersized groupers aboard his boat. An inspector said 72 groupers in Yates’s catch of about 3,000 appeared illegally under-sized. When Yates brought the groupers ashore for measurement, the inspector claimed to have counted only 69.
What happened nearly three years later was remarkable. A U.S. attorney charged Yates’s alleged loss of the three fish as a violation of the Sarbanes-Oxley Act, the accounting fraud law.
The Supreme Court’s decision was split, but now the focus was finally on vague and overbroad regulations that prosecutors can stretch to charge everyday people with crimes that carry heavy financial penalties and prison sentences.
The split among the justices concerned a technical question about which part of government — the Supreme Court or Congress — is best-positioned to address the overcriminalization problem presented here. All nine justices, however, agreed that the case presented numerous overcriminalization problems.
Much of the above draws from an earlier post for a past NCFCA topic on federal criminal justice reform.
For the new federal prison reform topic, perhaps there are opportunities for reform where convictions lacking congressional action or stretched by prosecutors (fish-shredding or orchid-selling for example) could be addressed. Or maybe the negative can make the case that federal prison reform is less important than federal bureaucracy criminal justice reform. For the many in federal prisons who are found guilty (almost always by threats and plea bargaining), people whose crimes are against fish, orchids, and federal bureaucracies deserve special care (and perhaps release and compensation).
For more examples, see John Stossel’s One Nation Under Arrest at Stossel in the Classroom, which draws from the 2010 book One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty.
Also on the theme of over-criminalization is this fun talk by Regent Law Professor James Duane, now with over 13 million views.
Highly recommended is James Duane’s 2016 book You Have the Right to Remain Innocent. You can “look inside” on Amazon.
