A Whale of a Federal Case

In today’s Washington Post, George Will describes what I can only call a real whale of an abusive federal criminal prosecution:

The huge humpback whale whose friendliness precipitated a surreal seven-year — so far — federal hunt for criminality surely did not feel put upon. Nevertheless, our unhinged government, with an obsession like that of Melville’s Ahab, has crippled Nancy Black’s scientific career, cost her more than $100,000 in legal fees — so far — and might sentence her to 20 years in prison. This Kafkaesque burlesque of law enforcement began when someone whistled.

Black, 50, a marine biologist who also captains a whale-watching ship, was with some watchers in Monterey Bay in 2005 when a member of her crew whistled at the humpback that had approached her boat, hoping to entice the whale to linger. Back on land, another of her employees called the National Oceanic and Atmospheric Administration (NOAA) to ask if the whistling constituted “harassment” of a marine mammal, which is an “environmental crime.” NOAA requested a video of the episode, which Black sent after editing it slightly to highlight the whistling. NOAA found no harassment — but got her indicted for editing the tape, calling this a “material false statement” to federal investigators, which is a felony under the 1863 False Claims Act, intended to punish suppliers defrauding the government during the Civil War.

A year after this bizarre charge — that she lied about the interaction with the humpback that produced no charges — more than a dozen federal agents, led by one from NOAA, raided her home. They removed her scientific photos, business files and computers. Call this a fishing expedition.

She has also been charged with the crime of feeding killer whales when she and two aides were in a dinghy observing them feeding on strips of blubber torn from their prey — a gray whale.

To facilitate photographing the killers’ feeding habits, she cut a hole in one of the floating slabs of blubber and, through the hole, attached a rope to stabilize the slab while a camera on a pole recorded the whales’ underwater eating.

So she is charged with “feeding” killer whales that were already feeding on a gray whale they had killed. She could more plausibly be accused of interfering with the feeding.

Never mind. This pursuit of Black seems to have become a matter of institutional momentum, an agent-driven case. Perhaps NOAA, or the Justice Department’s Environmental Crimes Section, has its version of Victor Hugo’s obsessed Inspector Javert….

To finance her defense she has cashed out her life’s savings, which otherwise might have purchased a bigger boat. The government probably has spent millions.

As Will points out, this is just one particularly egregious example of the abuses caused by the vast growth of federal criminal law over the last several decades, to the point where the majority of Americans are probably federal criminals. I wrote about the broader problem here:

As [Judge Alex Kozinski and Misha Tseytlin put it, “most Americans are criminals, and don’t know it, or suspect that they are but believe they’ll never get prosecuted….”

The vast scope of federal criminal law is a very serious problem. Because of it, most Americans are effectively at the mercy of federal officials whenever they might choose to come after us. We are used to thinking of “criminals” as a small subset of the population… most of whom have committed genuinely heinous acts. But when we are all federal criminals, perfectly ordinary citizens can easily get swept up in the net simply by being unlucky or because they ran afoul of federal prosecutors or other influential officials. Overcriminalization also leads to the longterm imprisonment of hundreds of thousands of nonviolent people (mostly as a result of the War on Drugs, but many for other reasons as well) who haven’t caused any harm to the person or property of others. Some 55% of all federal prisoners are nonviolent drug offenders. In addition, the ability to convict almost anyone of a federal crime means that federal officials have wide discretion to punish people who are unpopular, politically weak, run afoul of the current administration, or otherwise become tempting targets…..

To me, the amazing thing is not that federal prosecutors sometimes abuse their enormous powers, but that they don’t do so far more often. However, as federal criminal law continues to expand, it will be more and more dangerous to keep relying on their self-restraint….

These dangers are not unique to federal law. State criminal law has been expanded too far as well. However, states that overcriminalize risk losing people who “vote with their feet” either because they fear imprisonment or because they don’t want to pay the high taxes needed to finance an overgrown criminal justice and law enforcement system. It is far more difficult to escape the feds…. Overbroad state criminal law is a menace. The fact that we are all federal criminals is even worse.

UPDATE: I have fixed the broken link to my 2009 post on the dangerous growth of federal criminal law. Thanks to Hans Bader for pointing it out.