Go Directly to Jail: The Criminalization of Almost Everything

194 Pages·2004·1.77 MB·English

by  Gene Healy

U.S. $17.95
Contributors include
GO DIRECTLY TO JAIL
Erik Luna,Associate Professor of Law, University of
Utah The Criminalization of
James V. DeLong,Senior Fellow, Progress &
Almost Everything
Freedom Foundation
G
Timothy Lynch,Director, Cato Institute’s Project on
“Watch out, Mr. or Ms. Businessperson! The federal govern- edited by Gene Healy
Criminal Justice
O
Grace-Marie Turner,Founder and President, ment can regulate you right into the poorhouse or a jail cell.
Galen Institute If you are looking for a scholarly and comprehensive exami- A
t one time, the sanction of the
nation of why every businessperson needs to look for a D
lawyer before seeking custome(cid:2) rs, this is it.” criminal law was reserved for
About the Editor I
serious, morally culpable offend-
R
—Judge Andrew P.Napolitano, Senior Judicial ers. But during the past 40 years, an
Gene Healy is senior E
editor at the Cato Analyst, Fox News Channel unholy alliance of tough-on-crime con-
Institute. He holds a C servatives and anti-big-business liberals
J.D. from the
T has utterly transformed the criminal
University of Chicago “The dramatic expansion of federal criminal law in recent
law. Today, while violent crime often
Law School and is a decades has made it distressingly easy for prosecutors to L
member of the Virginia ‘make a federal case’ out of matters more properly handled Y goes unpunished, Congress continues to
and District of at the state level or by civil remedies. That phenomenon add new, trivial offenses to the federal

Columbia bar associa-
makes it more likely that ordi(cid:2)nary businesspeople risk being T criminal code. With more than 4,000
tions. His articles have
jailed for run-of-the-mill commercial dealings that tradi-
federal offenses on the statute books,
been published in the O
tionally have been handled by contract and tort law. With
Los Angeles Times, the and thousands more buried in the Code
this timely volume, Cato draws attention to an important—
Chicago Tribune, and elsewhere. He resides in of Federal Regulations, it is now fright-
and too often ignored—legal problem.” J
Washington, D.C.
A eningly easy for American citizens to be
—Miguel Estrada, Co-Chair, Appellate and I hauled off to jail for actions that no
Also available from the Cato Institute:
Constitutional Law Practice Group, L reasonable person would regard as
Gibson, Dunn, and Crutcher crimes. At the same time, rampant fed-
Ten Thousand Commandments: An Annual
Snapshot of the Regulatory State by Clyde eralization and mandatory minimum
Wayne Crews Jr. • sentencing are making America’s crimi-

nal justice system ever more centralized

You Can’t Say That! The Growing Threat to
and punitive. The result is a labyrin-
Civil Liberties from Antidiscrimination Laws H
thine criminal code, a burgeoning
by David E. Bernstein e
a prison population, and, often, real
l
y
Shakedown: How Corporations, Government, injustice. Go Directly to Jail examines
and Trial Lawyers Abuse the Judicial Process those alarming trends and proposes
by Robert A. Levy
reforms that would rein in a criminal
Distributed to the trade by
National Book Network justice apparatus at war with fairness
James Madison and the Future of Limited
www.nbnbooks.com
and common sense.
Government, edited by John Samples
Cato Institute Cato Institute
1000 Massachusetts Ave., N.W. 1000 Massachusetts Avenue, N.W.
Washington, D.C. 20001 Washington, D.C. 20001
www.cato.org
www.cato.org
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GO DIRECTLY
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GO DIRECTLY
TO JAIL
THE CRIMINALIZATION
OF ALMOST EVERYTHING
●
Edited by
G E N E H E A LY
Washington, D.C.
Copyright © 2004 by Cato Institute.
All rights reserved.
Second Printing: December 2004
Library of Congress Cataloging-in-Publication Data
Go directly to jail : the criminalization of almost everything /
edited by Gene Healy.
p.cm.
Includes bibliographical references and index.
ISBN 1-930865-63-5 (alk. paper)
1. Criminal law—United States. 2. White collar crime—United
States. I. Healy, Gene, 1970— II. Title.
KF9223.G57 2004
346.7304’8—dc22
2004058470
Cover design by Parker Wallman.
Printed in the United States of America.
CATOINSTITUTE
1000MassachusettsAve.,N.W.
Washington,D.C.20001
www.cato.org
81747$CHFM 12-17-0410:01:27 CATO
Contents
INTRODUCTION vii
Gene Healy
1. OVEREXTENDINGTHECRIMINALLAW 1
Erik Luna
2. THENEW ‘‘CRIMINAL’’ CLASSES: LEGALSANCTIONSAND 9
BUSINESSMANAGERS
James V. DeLong
3. POLLUTINGOURPRINCIPLES: ENVIRONMENTALPROSECUTIONS 45
ANDTHEBILLOFRIGHTS
Timothy Lynch
4. HIPAAANDTHECRIMINALIZATIONOFAMERICANMEDICINE 73
Grace-Marie Turner
5. THEREGOESTHENEIGHBORHOOD: THEBUSH-ASHCROFT 93
PLANTO‘‘HELP’’LOCALITIESFIGHTGUNCRIME
Gene Healy
6. MISGUIDEDGUIDELINES: ACRITIQUEOFFEDERALSENTENCING 119
Erik Luna
CONTRIBUTORS 161
INDEX 163
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Introduction
Gene Healy
The criminal law is a powerful weapon: In the right hands,
wielded for the right ends, it is an indispensable instrument of
justice.Inthewronghands,wieldedindiscriminately,itcanbecome
an agent of appalling injustice.
Forthatreason,thelegalreformersofAmerica’sfoundinggenera-
tionreservedthecriminalsanctionmainlyforserious,morallyculpa-
ble offenses. In his History of American Law, Lawrence Friedman
notesthattheAmericanRevolutionaries‘‘identifiedoppressionwith
abuse of criminal law, and identified the rights of man with basic
rights to fair criminal trial.’’ To prevent abuse, the newly indepen-
dent United States ‘‘shrank the concept of state crime to an almost
irreducibleminimum.Themenwhodraftedpenalcodeswerewill-
ingtoacceptalotofslippageinenforcementtoprotecttheinnocent,
and (even more) to keep the government in check.’’1
That no longer holds. As the American Bar Association’s Task
ForceontheFederalizationofCrimeputitin1998,‘‘Solargeisthe
present body of federal criminal law that there is no conveniently
accessible, complete list of federal crimes.’’2 There are now more
than4,000federalcrimes,anincreaseofone-thirdsince1980.3Many
of those crimes, spread out through some 27,000 pages of the U.S.
Code, incorporate violations of federal regulations that are in turn
spread throughout the tens of thousands of pages of the Code of
Federal Regulations. As a result, even teams of legal researchers—
let alone ordinary citizens—cannot reliably ascertain what federal
law prohibits.4
As federal criminal law has metastasized, federal criminal sanc-
tions have become more indiscriminate. At one time, the common
law doctrines of mens rea (‘‘guilty mind’’) and actus reus (‘‘guilty
act’’) cabined the reach of criminal sanctions, but those protections
have eroded dramatically in the past 50 years. Today it’s possible
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GODIRECTLYTOJAIL
tosendapersontoprisonwithoutshowingcriminalintentoreven
aculpable act—aswhenbusinessowners andcorporateexecutives
areconvictedunderthe‘‘responsiblecorporateofficerdoctrine’’for
negligent failure to supervise the acts of their employees.5
Increasingly,legislatorsarecomingtoviewthecriminalsanction
as merely another item in their regulatory toolkit. Want to show
you’reseriousaboutagivensocialproblem,whetherit’spollution,
corporate malfeasance, or e-mail spam? Make it a crime. In some
cases,thecriminallawgetsinvokedformattersmoreproperlyhan-
dledthroughcivillawsuits.Inothers,politicalactorsuseittocrimi-
nalize behavior that shouldn’t be the subject of any legal sanction
at all. As a result, the criminal law is becoming unmoored from its
ethical foundations.
At the same time, America’s criminal justice system is becoming
ever more centralized and punitive because of rampant federaliza-
tion and mandatory minimum sentencing. The result is a labyrin-
thine criminal code, a burgeoning prison population, and a system
that would scarcely be recognizable to the Founders.6
Examples of overcriminalization are legion. Under the McCain-
Feingoldcampaignfinancelawpassedin2002,unionsandcorpora-
tions—as wellas their officers—now facesevere criminal penalties
forbroadcastingadvocacymessagesthat‘‘refe[r]toaclearlyidenti-
fied candidate’’ in the run-up to an election.7 The Sarbanes-Oxley
Act of2002 imposes criminal penalties,including prison sentences,
forexecutiveswhocertifyfinancialstatementsthatproveincorrect.
And the War on Drugs grows ever more draconian: the federal
governmentcontinuestoopennewfrontsinthebattleagainstdrug
use,asiffederalresourceswerelimitlessandtherewerenogenuine
terroristthreatsonthehorizon.TheBushadministrationhasbegun
crackingdownonpain-managementdoctorsforallegedprescription
drug abuse, sending a message to other doctors to err on the side
ofunderprescribingforpatientsinpain.8ComedianTommyChong
was sentenced on September 11, 2003, to nine months in jail for
selling water pipes and other drug paraphernalia on the Internet.9
Attimes,thetrendtowardovercriminalizationcantakeacomical
turn, as evidenced by what might be termed the ‘‘criminalization
of bad taste.’’ In May 2004, the Louisiana House Criminal Justice
Committee approved a bill that would penalize the unfortunate
tendency of America’s youth to adopt a sartorial trend commonly
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Introduction
associated with plumbers: ‘‘It shall be unlawful for any person to
appear in public wearing his pants below his waist and thereby
exposing his skin or intimate clothing.’’ In the town of Opelousas,
Louisiana,wearinglow-slungpantsalreadygarnersanoffenderup
to six months in prison.10
But overcriminalization is only rarely amusing—more often, it’s
genuinelythreatening.Legislatorsandregulatorshavepaintedwith
sobroadabrushthatordinarybusinesspeopleareatriskofprosecu-
tionfor everydaybusiness activities.Justices ClarenceThomas and
Sandra Day O’Connor emphasized that risk in their dissent from
the Court’s refusal to hear the appeal in United States v. Hanousek
(2000).Inthatcase,EdwardHanousekJr.,aroadmasterforarailroad
company in Alaska, was sentenced to six months in prison when a
backhoe operator working under him accidentally ruptured an oil
pipelinewhilesweepingrocksoffasectionoftrack.Hanousek,who
was off duty and away from the site when the accident occurred,
wasconvictedofunlawfuldischargeundertheCleanWaterActby
reason of negligent failure to supervise. Justice Thomas, joined by
Justice O’Connor, dissented from the Court’s denial of review.
‘‘[T]his case,’’ warned Thomas, ‘‘illustrates that the [Clean Water
Act]...imposescriminalliabilityforpersonsusingstandardequip-
menttoengageinabroadrangeofordinaryindustrialandcommer-
cial activities.... I think we should be hesitant to expose countless
numbers of construction workers and contractors to heightened
criminal liability for using ordinary devices to engage in normal
industrial operations.’’11
More recently, in February 2004, the Supreme Court refused to
hear the appeals in McNab v. United States and Blandford v. United
States, two cases in which four seafood dealers faced long federal
prison terms even though they hadn’t violated any law.12 Defen-
dants’ punishment is based on the facts that (1) they improperly
shipped some lobster tails in plastic bags rather than cardboard
boxes,(2)some3percentofthelobstershipmentcontainedlobsters
with tails less than five inches long, and (3) less than 7 percent
of the same shipment may have contained egg-bearing lobsters.
Accordingtothefederalgovernment,thesefactsconstitutea‘‘crime’’
undertheLaceyAct,afederalstatutethatmakesitacrimetoimport
fish or wildlife taken ‘‘in violation of any foreign law.’’
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