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If You're Reading This, You're Probably a Federal Criminal:

Radley Balko has an interesting post discussing the ever-expanding reach of federal criminal law. As he points out, the problem is not just that federal criminal law has expanded to cover many areas that are better left to state or local governments. It is that the scope of federal criminal law is so broad that the feds could probably find a crime to pin on almost any American adult.

Judge Alex Kozinski and Misha Tseytlin have an excellent essay entitled "You're (Probably) a Federal Criminal." As they put it, "most Americans are criminals, and don't know it, or suspect that they are but believe they'll never get prosecuted." You are a federal criminal if you have done any of the following:

1. Used any of the hundreds of substances banned by federal law, including smoking small amounts of marijuana and the like when you were in college. The last three presidents of the United States are all federal criminals under the drug laws, as are probably the majority of people who went to college in the last 40 years. Kozinski and Tseytlin cite statistics suggesting that nearly half of Americans have taken banned drugs at some point in their lives. The next presidential state of the union address should perhaps begin with "My fellow federal criminals," instead of the traditional "My fellow Americans." It would be a great teaching moment!

2. Underpaid federal taxes (often even inadvertently). As even sophisticated players like certain Obama Administration officials have learned, the federal tax laws are often so complex and bvzantine that it's not hard to violate them by accident. If you do, there are often criminal penalties attached.

3. Cut corners in your business dealings. The federal mail and wire fraud statutes are so broad that virtually any sharp business practices can potentially be prosecuted as a federal crime. Indeed, as Kozinski and Tseytlin explain, the statute criminalizes actions that deprive employers or customers of "the intangible right to honest services," which in many cases leads to the imposition of criminal penalties on professionals who are guilty of nothing more than doing a poor job (sometimes in cases where their poor performance didn't cause any harm.

4. Mishandled supposedly dangerous substances or did a poor job of supervising workers who handled them. Federal regulations criminalizing such conduct often punish people even if their actions didn't create any real danger to life, health or public safety.

5. Violated a wide range of miscellaneous federal regulations. There are far too many of these to list. Kozinski and Tseytlin discuss some of them. One example is the Lacey Act, which makes it a federal crime to violate most American and even foreign fishing and wildlife regulations. They note a case where a group of businessmen were imprisoned for violating an obscure Honduran fishing regulation that even the Honduran government itself claimed was invalid.

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. In that happy state of affairs, criminal law threatens only a small number of people, 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. Tellingly, the people who get imprisoned for nonviolent drug offenses are mostly poor and lacking in political influence, while middle class people who do similar things are less likely to be singled out by federal prosecutors.

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 or that of the Department of Justice.

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. It is, therefore, no accident that the vast majority of federal prisoners are either nonviolent drug offenders or people who commit regulatory "crimes," while 72% of state prisoners have committed either violent offenses (53%) or property crimes (19%). Overbroad state criminal law is a menace. The fact that we are all federal criminals is even worse.

UPDATE: I want to briefly address two points regarding the statistic I cited indicating that 55% of federal prisoners are nonviolent drug offenders (both raised by various commenters and e-mailers). First, it is true that most of these people are small-time traffickers rather than mere users. That does not, however, take away from the fact that mere users are also subject to heavy penalties under federal law. Most are spared them, but only because of underenforcement. In any given case, federal prosecutors still can go after users if they so choose, which leaves a large part of our population effectively at the feds' mercy. Also, the plight of the traffickers is still significant. Even if you are more sympathetic to the War on Drugs than I am, it might still trouble you that people who sell small quantities of drugs are routinely sentenced to many years in federal prison.

Second, it is also likely that some of the people convicted of nonviolent drug offenses also, at some point, committed violent crimes for which they were not convicted (e.g. - perhaps for lack of evidence). However, it is implausible to assume this to be true for the vast majority of the hundreds of thousands of people imprisoned for nonviolent drug crimes. And, in a free society, we should not imprison people for activities that do not deserve lengthy prison terms in themselves merely because we suspect that they committed other, worse, deeds.

Moreover, much of the violence that drug dealers engage in is itself a product of the War on Drugs. By creating a vast illegal market, the War on Drugs creates opportunities for organized crime and gangs, which in turn tend to enforce their contracts and property rights through violence, since they obviously cannot turn to the legal system to do so. This point is made in numerous social scientific studies of the War on Drugs, such as Dukes and Gross' America's Longest War. In addition to the moral problems, citing drug-related violence as a justification for imprisoning people for nonviolent drug offenses ignores the fact that drug prohibition is itself the major cause of such violence.

loki13 (mail):
I AM SPARTACUS!
7.27.2009 12:40am
John Moore (www):
We need to immediately make it a federal crime for prosecuting people for silly federal crimes!

That ought to solve it.
7.27.2009 12:43am
loki13 (mail):
To clarify-

if a nation if comprised entirely of lawbreakers, then no one has broken the law. There are three possible outcomes to what is occurring:

1. The continued expansion and enforcement of Federal Criminal Law. If such is the case, then everyone becomes a lawbreaker. In a society where everyone is breaking the law, then the law has no legitimacy. In such a case, there would eventually be revolution and a new set of laws. Everything is forbidden, nothing is permitted.

2. Recognition of this encroachment. Such a recognition would lead to a diminution in the number of laws that brand Americans as law breakers. This would give added legitimacy to the laws that are enforced. Nothing (almost) is forbidden, all (or close to it) is permitted.

3. The continuation of what we have, or a continued expansion in the number of laws that make the conduct that we do illegal, yet the laws are enforced piecemeal, at the discretion of prosecutors. In such a case, we become a nation not of laws, but of men, and justice is determined at the wisdom and whim of individuals.

I think (3) is the most likely scenario, and I find it troubling. This is the best post Prof. Somin has had in a long time, and it should give pause to people on both the left and the right. While I believe in prosecutorial discretion to some degree, we are fast approaching a point where simply living in our modern society and transacting business with others is enough to constitute a crime, and we stay free only due to the forbearance of the government. I find that troubling.
7.27.2009 12:49am
law and order (mail):
Not to worry. Sgt. Jim Crowley's on it. He will be at your house between 1 - 4 pm.
7.27.2009 1:07am
einhverfr (mail) (www):
Loki13: I find that troubling as well. One serious question is what can be done about it? IMO probably nothing. It isn't a bad time to start businesses overseas.....

What is worse is that these statutes haven't been declared to be violations of due process of law yet and probably won't.
7.27.2009 1:34am
Jon Roland (mail) (www):
At the Constitution Society we get a steady stream of reports of abuses by government officials, and the situation is far worse than most people in the upper and professional classes realize. Most of those people who don't vote are not satisfied with the present political order, but have lost all respect for law and government, regarding it as an occupying force. We are nearing the stage when it will be too risky for government officials to leave fortified "green zones" without armed escorts. Just spend some time in any gang-ruled urban ghetto to get the real picture.

It is not just catching the attention of a federal agent for one's political views. It is an open joke among federal prosecutors that if one can't find real criminals the path to advancement is to convict some easy targets, and it doesn't even matter whether they have actually violated any of the too many federal statutes. When evidence can't be found, it can be made, and "testilying" is SOP.

A couple of their favorites are "misstating a social security number" and "lying to a government investigator". You should advise your clients to never give anyone their social security number, and never talk to a government investigator, even with the entire session video recorded and with a lawyer present.
7.27.2009 1:38am
loki13 (mail):
einhverfr,

there is nothing to be done. all in all, these expansions of Federal Police Power are just another brick in the wall.

...um, or something like that. I have a more involved response that invokes the tension between Federalism and a strong central government, counterbalanced with the unfortunate nature of our two major political parties, but now is not the time for it.
7.27.2009 1:40am
Cato The Elder (mail) (www):

Some 55% of all federal prisoners are nonviolent drug offenders.

Professor Somin,

I feel quite strongly that using this statistic in academic discussion is ethically wrong. It is true, but the implication that is supposed to elicit is dishonest, IMHO. I feel that libertarians who often must and should argue against folk intuitions, should be above "life expectancy" and "infant mortality"-type arguments. What assures us that the many drug traffickers convinced under these "non-violent" drug charges as part of federal plea bargains and behind-the-scenes prosecutorial brokering would not be imprisoned under properly calibrated laws which might have some element of violence included? I have seen a bit of evidence from the few people I trust to be rigorous and non-biased on this, that stopping the Drug War would indeed on net reduce violence by removing the pecuniary incentives to fight over "turf" and territory, but hardly anyone presenting this very statistic presents such evidence, and honestly without representing the argument fully, it will fail to convince anyone who feels that those laws are justified by the dangers. It was only a few years ago that I was a very doctrinaire libertarian on the Drug War, but after reading case studies -- especially those regarding methamphetamine and MDMA -- and also researching a little more about the mechanisms of addictions, has led me to be far less convinced of my fundamental correctness. This issue is not so simplistic as it is often presented.
7.27.2009 1:41am
David M. Nieporent (www):
Ilya forgets to mention a rather prominent one around here: you're a federal criminal if you give a fake name to Myspace. (Maybe. Maybe not. But it's not obvious enough for a judge to dismiss an indictment before trial.)
7.27.2009 1:43am
Cato The Elder (mail) (www):
Corr.: Please change the above to read "...convicted under these 'non-violent' drug charges..." and "...[they have] led me to be far less convinced..."
7.27.2009 1:44am
David M. Nieporent (www):
What assures us that the many drug traffickers convinced under these "non-violent" drug charges as part of federal plea bargains and behind-the-scenes prosecutorial brokering would not be imprisoned under properly calibrated laws which might have some element of violence included?
Well, either
A) they didn't do anything violent;
B) they did something violent but the prosecutor couldn't prove it;
C) they did something violent, the prosecutor could prove it, but he chose not to because he's lazy;
D) they did something violent, the prosecutor could prove it, but he prosecuted for a non-violent drug offense because the penalties for the latter are as severe as the penalties for the former.

In the first three situations, they wouldn't be imprisoned. In the last, they might be, but that still says something bad about the law.
7.27.2009 2:07am
ReaderY:
I think this post calls for a violation of the Volokh usage rules: I'll call Professor Somin a @#@$#, or perhaps a !@#@#, in honor of the federal crime of that description.
7.27.2009 2:08am
D.O.:
What about statute of limitations? If they are in place, probably "everybody is a criminal" is too strong a statement. That does not excuse the stupid laws, naturally.
7.27.2009 2:49am
Lior:
Overruling Houston v. Moore would be a good first step, I think.
7.27.2009 3:06am
Dave N (mail):
As a state prosecutor,I find the explosion of federal criminal law to be troubling. If it truly is a federal issue, fine. If the case is passed on to the feds (particularly if non-federal law enforcement handled the investigation) because the federal sentencing guidelines are harsher than local law, then I say shame on the state officials who let it happen.
7.27.2009 3:11am
NickM (mail) (www):
David M. N. - you forgot
E) they did something violent, the prosecutor could prove it, but that charge was dropped in a plea bargain because they agreed to testify against someone else.

Nick
7.27.2009 4:03am
Laura Victoria (mail):
I think there are tremendous dangers with prosecutorial abusive discretion at the state level as well where voting with your feet is not a realistic option--for example when a client is charged in a state, like Colorado, with onerous "bond violation" statutes. With these, the client signs a boilerplate laundry list of bond conditions along with the rest of the paperwork to leave jail on bail. These include, not drinking alcohol, anywhere anyplace at all, just because they were arrested on a dui. It includes all sorts of other things. Say they got a new arrest while on bond, that new arrest could be the basis for a bond violation for arrest number 1.

These are not tremendously unreasonable (except for the alchol one, as a conviction would not mandate no drinking, but a non-conviction does?, but the penalties are ridiculous and the enforcement is used a leverage device or selective prosecution device all the time. In a misdemeanor case, each bond violation carries a minimum mandatory six-months consecutive to any other sentence. Thus two instances of drinking would result in an automatic year being added to a first offense dui that would generally result in a max of two days in jail.

DA's save that for defendants they don't like--and in a small Colorado town that may well have zero to do with anything relating to the law. For a felony, it becomes a one year minimum mandatory, consecutive. So all discretion is removed from the judge (and judges are forbidden from participating in plea negotiations in Colorado, as well under some bizaare separation of powers violation theory) and the DA is da Boss.

Further, people only vote with their feet if they know what they're up against. Most civilians do not until they are charged and proscuted. Admittedly, at that point many do leave the state and thank God the warrant only stays in the state computer system.
7.27.2009 6:08am
Gilbert (mail):

Some 55% of all federal prisoners are nonviolent drug offenders.


I keep seeing this, and I keep wondering whether anyone actually believes that anyone is in federal prison for personal use. The ones in prison might be "nonviolent" but they were not your average pothead -- they were probably traffickers.

Not to say I disagree with the general sentiment, but this statistic just bothers me.
7.27.2009 7:16am
Oren:

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.

On the other hand, there are far fewer Federal enforcement agents then there are State counterparts (even in a single State). The Federal gov't is spread thinly, the States have one police officer for every 3000 people (source: DOJ [PDF]) let alone the small army of RMV, LCC and other quasi-police authorities.

PS. Anyone know where I can become a better Federal criminal by finding a PDF of Kozinski's article (or any other format that's better than Google Books)?
7.27.2009 7:17am
Ryan Waxx (mail):

Some 55% of all federal prisoners are nonviolent drug offenders.


... and it's never occurred to you that the federal-drug, state-violent dichotomy is because if a given citizen is prosecuted for drug offenses, its likely to be at the federal level rather than the state level?

Wait, I thought this was supposed to be a legal blog where the OP's were supposedly to be able to think up these things by themselves.
7.27.2009 7:23am
smitty1e:
Reading the comments, no one seems to grasp that this is just another brick in the mausoleum of the 50 States United.
We essentially become a single United State, and are then, in subsequent decades, subject to a drift into tyranny.
Support the Federalism Amendment. The Information Age should see power more distributed, not less.
7.27.2009 7:25am
Fub:
Wow -- 17 comments and no obligatory Ayn Rand quotation about government's purpose to make everyone a criminal. All the more strange, because it's directly on point.
These dangers are not unique to federal law. State criminal law has been expanded too far as well.
The phenomenon is not limited to expansion of criminal statutes per se, but to the increased zealotry with which officials attempt to enforce every bizarre and niggling detail of statutes as well as stretch their application far beyond their clear and sensible meaning. The recent federal Lori Drew case is an example of the latter.

A local case in recent years that drew local press coverage (and sympathetic to the state to boot) involved an elementary school kid who liked to play around a nearby creek. Kids have done that since the dawn of time.

After a seasonal rain which temporarily raised the creek, the kid found a fair sized fish in an isolated pool. He captured the fish, took it home. He made the error of mentioning it at school. Word got back to the Department of Fish and Game. All hell broke loose.

The kid was arrested on numerous charges, no fishing license, out of season fishing, trespass, felonious lollygagging with intent to mope, and the kitchen sink. It made the local paper, and drew huge sympathy for the state from the enviroloons, who bombarded the paper with letters decrying these heinous crimes against the environment.

The kid was placed on double secret probation, and was probably traumatized for life. All just for being a kid.

If there is a bright side, maybe the kid will grow up to be a libertarian.
7.27.2009 7:33am
PersonFromPorlock:
smitty1e:

The Federalism Amendment is a nice idea but it needs more work: for instance, the author uses "confined within a single state" as a limitation on the commerce power, when the courts have repeatedly found few actions so 'confined' as to not affect interstate commerce.

There are other textual problems as well, and a bad tendency to write burp-worthy prose in an attempt to sound 'constitutional'.
7.27.2009 7:56am
Oren:

Support the Federalism Amendment. The Information Age should see power more distributed, not less.

Of all the arguments for Federalism, this has to be the most daft. I cannot imagine running any sort of internet service and having to comply with 50 different sets of ridiculous rules instead of one set of ridiculous rules.

The safe-harbor provision in the DMCA has relieved service providers from being under the thumb of every dickhead State AG -- being under the dickheads of the FCC is a reasonable price to pay.
7.27.2009 8:02am
Toby:
Everyone a criminal means everyone is subject to prosecution at whim.

You can verify how prevalent this approach is by watching what happens to whistle blowers in governement agencies. Just about any whistle blower is later convicted of numerous crimes, including falsifying phone records. THis usually means he worked late, and called home to say he was working late. 5 years later, when he annoys the powers that be, this is part of the pile-on.

Such laws are not there for justice, because they are not enforced.
Such laws are not there to protect the public purse, because they are not enforced.

Such laws are there to enforce conformity and compliance to extra-legal requests.
7.27.2009 8:06am
Oren:
I hasten to add that the above isn't an argument against Federalism per se. It is only meant to illustrate that in the case of information technology, one large tyranny is far better than 50 little tyrannies. One might still be in favor of broad Federalism despite the added costs that 50 regulatory regimes would impose on information services but certainly not because it would help.

It's bad enough that a California company like Yahoo cannot host auctions in which a third party sells Nazi memorabilia because of the French/German veto on such sales, that Google gets dragged into court in Italy, that posting to your blog counts as "publishing" in libel-happy Britain. I'll place my vote squarely against any more such lunacy.

It's actually somewhat ironic then that the internet is (relative to meatspace) a libertarian paradise by top-down imposition.
7.27.2009 8:08am
Angus:
It's things like this that put me into the Left-Libertarian range rather than traditional liberalism. I have no sympathy for the state or states criminalizing trivial "misconduct."

Heck, pre-Lawrence, pretty much anyone who traveled across state lines with a wife/girlfriend/husband/boyfriend and had oral sex on the trip was guilty of violating the federal Mann Act.
7.27.2009 8:28am
Jon Roland (mail) (www):

These dangers are not unique to federal law. State criminal law has been expanded too far as well.

There is an important difference: State criminal drug laws are unwise but not unconstitutional, whereas federal drug laws are unconstitutional. That point needs to be hammered into the public mind until it becomes almost impossible to empanel a jury that will convict in federal court.
7.27.2009 8:34am
11-B/2O.B4:


I keep seeing this, and I keep wondering whether anyone actually believes that anyone is in federal prison for personal use. The ones in prison might be "nonviolent" but they were not your average pothead -- they were probably traffickers.



While I am quite certain there are a few users (you know, the kind of people who get leaned on to testify against their will)I agree that the majority are probably dealers. You know, dealers like Charlie Lynch . Ok, so most of them are far less savory characters. In what way does this make the statistic less of an abomination?

John Stuart Mill held that the only legitimate and useful reason for regulation was to keep people from hurting others, not themselves. No matter how personally destructive, I agree with this. If someone wants to poison themselves, I say let them. What most people really fear is "drug addicts" committing other crimes . But are they satisfied that a crackhead can be prosecuted for burglary? No, they want the drug made illegal as well. It's moralizing foolishness.
7.27.2009 8:37am
Bill St. Clair (mail) (www):
I have no hope that things are going to get better through eliminating federal "law" or regulation. But it won't get much worse. If the feds start enforcing more of their ridiculous laws, we'll see a lot more Carl Dregas.

And we've already started to see Tenth Amendment movements, with bills in 38 states. If the feds make it necessary, those bills will grow teeth, and federal agents will start to be arrested, by local, county, and state authorities, and tried for kidnapping. What is arrest, after all, but legally-justified kidnapping? Absent the legal justification, it becomes a capital offense. And rightly so. Look up 18 USC 241 and 242.
7.27.2009 8:39am
brainfish2:
2. Underpaid federal taxes (often even inadvertently). As even sophisticated players like certain Obama Administration officials have learned, the federal tax laws are often so complex and bvzantine that it's not hard to violate them by accident. If you do, there are often criminal penalties attached.

There is no federal criminal liability for a failure to pay federal taxes that is "inadvertent" or "by accident." Far from being strict liability offenses, the federal tax crime statutes are all interpreted in light of Cheek, which provides a good faith defense--in other words, you must violate a "known legal duty." In tax crimes, ignorance of the law is a defense.
7.27.2009 8:39am
Jon Roland (mail) (www):
PersonFromPorlock:

The Federalism Amendment is a nice idea but it needs more work

You might find my Draft Amendments to be better worded.
7.27.2009 8:43am
Ryan Waxx (mail):
And most citizens' taxes are far less complicated than a politicans'. Unless you plan to own a business, of course. Then you'd WISH that you only had to deal with 50 individual government dickheads.
7.27.2009 8:46am
Jon Roland (mail) (www):
brainfish2:

There is no federal criminal liability for a failure to pay federal taxes that is "inadvertent" or "by accident." Far from being strict liability offenses, the federal tax crime statutes are all interpreted in light of Cheek, which provides a good faith defense--in other words, you must violate a "known legal duty." In tax crimes, ignorance of the law is a defense.

It would seem you have never observed an actual criminal tax trial. I observed the trial in Austin of Tom Clayton, who presented strong and unrefuted evidence that he held a sincere belief he did not have taxable income on which he was legally bound to file and pay a tax on. He made a long chain of legal arguments to the IRS that he was not allowed to present to the jury because even quotes from the Constitution and such federal court cases as Pollock and Brushaber were redacted on objection that they were "misstatements of the law and the exclusive prerogative of the judge to say what the law is". Then when the judge gave his oral instructions to the jury he quoted not from the statute or even the regulations, but from the IRS instruction booklet, and said that was the law and if the defendant didn't file or pay he was guilty. The Cheek defense was made and ignored, and more to the point, it was not allowed to be made to the jury, contrary to the Stettinius precedent, never overturned.
7.27.2009 8:59am
Ed Dembitz (mail):
Prof Somin wrote

"Underpaid federal taxes (often even inadvertently). As even sophisticated players like certain Obama Administration officials have learned, the federal tax laws are often so complex and bvzantine that it's not hard to violate them by accident. If you do, there are often criminal penalties attached."

Taxpayers are RARELY subject to criminal tax penalties, not "often." Why stick to the truth when that fails to support your argument? I am a tax attorney with over 30 years experience and I have NEVER seen a case of a criminal penalty for an inadvertent error.

Glaxo and Merck settled transfer pricing tax disputes of respectively about $3 billion and $2 billion without even a civil penalty being imposed. If aren't familiar with tax law, perhaps it would be better not to make erroneous assertions
7.27.2009 9:03am
bornyesterday (mail) (www):
Reminds me of a comment made on House -- if you take a perfectly 'healthy' person off the street and run him through every possible medical test, on average, you'll find at least 3 things wrong with him
7.27.2009 9:06am
Ken Arromdee:
Ok, so most of them are far less savory characters. In what way does this make the statistic less of an abomination?

It makes the original claim "if you're reading this, you're probably a federal criminal" not very significant with respect to drugs, since if you're reading this, you're likely to have been a user, but not a dealer.
7.27.2009 9:25am
Hannibal Lector:
Whenever I teach a course in criminal justice, I start by administering a little confidential survey asking the students whether they've ever done certain things including threatening to hurt someone when they are angry, taking something from a store without paying for it, etc., etc. It usually turns out that everyone in the class is a criminal if we define criminality as ever having committed a criminal act. Then I can continue the course by explaining why this is a lousy definition of criminality.
7.27.2009 9:33am
Oren:

State criminal drug laws are unwise but not unconstitutional, whereas federal drug laws are unconstitutional.

Surely you can't mean all Federal drug laws? At the absolute minimum, I think the US can properly make it illegal to transport narcotics over an international border.
7.27.2009 9:53am
Angus:
Read a little more about the cases in Balko's post, and I'm not so sure anymore that they are as ridiculous as they seem. For example, the Kirster Evertson prosecuted for selling sodium metal. Turns out he had 10 tons of the stuff (which is used in Meth making) and had transported it from Seattle to Idaho without taking needed safety precautions. He also was head of what looked to be a single-person corporation and was known to travel under a false name. I'm ambivalent about drug laws, but my gut says this guy was in the meth business.
7.27.2009 9:56am
Seamus (mail):
Used any of the hundreds of substances banned by federal law, including smoking small amounts of marijuana and the like when you were in college.

Don't forget the heinous crime of treating your migraine with some of the Tylenol with codeine your spouse or other family member has sitting in the medicine cabinet left over from his or her wisdom tooth extraction.
7.27.2009 10:10am
Seamus (mail):
Whenever I teach a course in criminal justice, I start by administering a little confidential survey asking the students whether they've ever done certain things including threatening to hurt someone when they are angry, taking something from a store without paying for it, etc., etc. It usually turns out that everyone in the class is a criminal if we define criminality as ever having committed a criminal act. Then I can continue the course by explaining why this is a lousy definition of criminality.

WTF? Did I actually hear you saying that assault and shoplifting shouldn't be crimes? (I agree, though, that they shouldn't be federal crimes, unless committed within the special maritime or territorial jurisdiction of the fedral gubmint.)
7.27.2009 10:12am
Widmerpool:
Further, is is a federal crime to happily take a hamburger today but offer to pay for it next Thursday with no present intent to do so. Wimpies of the world unite! You have nothing to lose but your ketchup stains!
7.27.2009 10:17am
SeaDrive:
re: voting with feet

Lest anyone suspect that this is only a theoretical possibility, let me assure you that perusal of the more popular gun blogs will reveal numerous examples of citizens who opt against living in certain states (e.g CA, NY, NJ, MA, IL) because of restrictive gun laws.
7.27.2009 10:18am
Gabriel McCall (mail):
I cannot imagine running any sort of internet service and having to comply with 50 different sets of ridiculous rules instead of one set of ridiculous rules.

Then you must not be able to imagine running an internet business in the real world, where the internet actually crosses national borders. There's 192 nations in the UN.
7.27.2009 10:25am
Smooth, Like a Rhapsody (mail):
Another very common way to do something that is not just criminal but felonious is to take a dose of (e.g., your spouse's) prescription medicine that does not belong to you--allergy meds, pain pills, etc.
7.27.2009 10:31am
Guest14:
I observed the trial in Austin of Tom Clayton, who presented strong and unrefuted evidence that he held a sincere belief he did not have taxable income on which he was legally bound to file and pay a tax on.
You don't get a Cheek defense if you argue that the tax law isn't constitutional. You only get it if you were trying to comply but were honestly confused by the complexity of the law.
7.27.2009 10:34am
Jon Roland (mail) (www):
Oren:

State criminal drug laws are unwise but not unconstitutional, whereas federal drug laws are unconstitutional.

Surely you can't mean all Federal drug laws? At the absolute minimum, I think the US can properly make it illegal to transport narcotics over an international border.

I meant federal criminal drug statutes. It can only be a crime to transport across an international border if it is an offense against the law of nations, such as an act of piracy or war, or with a nation with which we are in a declared state of war, and the offender is on U.S. territory at the moment he commits the offense, unless it is piracy, the only offense for which we have extraterritorial jurisdiction. "Regulation" under the Commerce Clause only authorizes civil penalties like fines or confiscation of merchandise, not criminal penalties.
7.27.2009 10:34am
GV:
Ken Arromdee, you're missing the point of the post. You're right that the federal government does not generally prosecute drug users. But that's as matter of prosectorial discretion. Possessing any amount of pot is a federal crime. And that's the point of the post. We're all (or most of us) are criminals under federal law. Most of us aren't prosecuted only because of the good graces of the Government.
7.27.2009 10:34am
Cornellian (mail):
Just one of the reasons why I've come around to the view that maybe jury nullification isn't such a bad thing after all.
7.27.2009 10:45am
http://volokh.com/?exclude=davidb :

We are nearing the stage when it will be too risky for government officials to leave fortified "green zones" without armed escorts.

When will this come to pass? Can you give us an estimate, say, plus or minus 5 years? 10 years? 20 years?

And who (generally speaking) is included in your definition of "government officials"?

If you haven't guessed by now, I think your claim is a bit extreme. And, perhaps, completely loony.
7.27.2009 11:17am
hawkins:

I keep seeing this, and I keep wondering whether anyone actually believes that anyone is in federal prison for personal use. The ones in prison might be "nonviolent" but they were not your average pothead -- they were probably traffickers.


I believe the point of the comment was regarding whether or not the inmates are violent -- not whether they are traffickers
7.27.2009 11:22am
CDR D (mail):
Just one of the reasons why I've come around to the view that maybe jury nullification isn't such a bad thing after all.



Exactly right. If we're all fed criminals, we still get a jury of our "criminal" peers. Jurors just need to understand the real power they have.
7.27.2009 11:23am
PC:
I keep seeing this, and I keep wondering whether anyone actually believes that anyone is in federal prison for personal use.

Not a case of personal use, but it illustrates the point about non-violent drug offenders in federal prison. Even if a witness perjures herself in order to get you convicted based on her own plea deal with federal prosecutors, you still deserve to be in jail because federal prosecutors know how to be a doctor better than you do. Sure, as a doctor you may have been duped by the witness who said she was in severe pain, but what does that say about the federal agents and prosecutors who were also duped by the witness with a bogus story about drugs for sex?
7.27.2009 11:37am
Jon Roland (mail) (www):
http://volokh.com/?exclude=davidb :

We are nearing the stage when it will be too risky for government officials to leave fortified "green zones" without armed escorts.

When will this come to pass?

It's already in the early stages. More threats and attacks against officials, especially judges, prosecutors, and cops, who are concealing their home addresses or moving into gated communities protected by security guards (who are usually off-duty cops). More patrol cars carrying two cops instead of one, or traveling in pairs.

The harbinger is the situation in Mexico, where the cartels are mounting armed attacks on officials, driving them to take repressive measures that are building resentment among ordinary citizens, many of whom are coming to see police and military as more of a threat than the cartelistas.

Things were improving in the inner cities before the recession, but increasingly you would be well advised to stay out of them, especially at night. They sre becoming law-free zones.
7.27.2009 11:40am
einhverfr (mail) (www):
Angus:

For example, the Kirster Evertson prosecuted for selling sodium metal. Turns out he had 10 tons of the stuff (which is used in Meth making) and had transported it from Seattle to Idaho without taking needed safety precautions. He also was head of what looked to be a single-person corporation and was known to travel under a false name. I'm ambivalent about drug laws, but my gut says this guy was in the meth business.


Then properly investigate and if this turns out to be correct, then arrest him on meth manufacturing charges.

However, regardless of Evertson's guilt or innocence relating to laws unrelated to those he was charged and convicted of, this case shows how tenuous the rule of law really is in this country. If you prefer to be governed by a government of men, why don't we just restore a monarchy? Our last president was the third president named George (so I call him President George III), so maybe he would make a good king?
7.27.2009 11:43am
Thorley Winston (mail) (www):

2. Underpaid federal taxes (often even inadvertently). As even sophisticated players like certain Obama Administration officials have learned, the federal tax laws are often so complex and bvzantine that it's not hard to violate them by accident. If you do, there are often criminal penalties attached.



As brainfish2 and Ed Dembitz pointed out, there are no criminal penalties for inadvertently underpaying your taxes. And as others have pointed out, the "55% of federal prisoners are non-violent drug offenders" claim is misleading at best. I have to wonder which of the rest of this list of purported federal "crimes" are suspect as well.
7.27.2009 12:07pm
mike23 (mail):
What about software piracy and copyright infringement?

I presume many people have made copies of copyrighted material, if only to share with a single friend (for instance to create a mixed CD for travel). Many college students have shared installation disks and pass-codes. Some people make copies of Netflix DVDs, and CDs borrowed from the library. While I don't read the copyright warnings carefully, I get the impression that sometimes reproduction even if only for personal convenience is illegal.

While serial violators may be uncommon, I suspect if you tabulate the fraction of people who have committed one such offense in their lifetime, it would be significant.
7.27.2009 12:07pm
SeaDrive:

I keep wondering whether anyone actually believes that anyone is in federal prison for personal use.


Given the way federal prosecutors threaten fringe players with jail unless they rat out the big guys, I find it very possible that someone when to jail because they didn't have the information the prosecutor thought they did.
7.27.2009 12:08pm
pmorem (mail):
Hrmh.. Mann Act...

Current form:
Whoever knowingly transports any individual in interstate or foreign commerce, or in any Territory or Possession of the United States, with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 10 years, or both.

There were a number of states with old (and unenforced) sodomy laws, effectively incorporated into federal law by the Mann Act...
7.27.2009 12:18pm
sk (mail):
"Used any of the hundreds of substances banned by federal law, including smoking small amounts of marijuana and the like when you were in college. The last three presidents of the United States are all federal criminals under the drug laws, as are probably the majority of people who went to college in the last 40 years. Kozinski and Tseytlin cite statistics suggesting that nearly half of Americans have taken banned drugs at some point in their lives."

A quibble, but:

if 'nearly' (i.e. less than) half of Americans have taken banned drugs, yet you claim that the majority of college students have smoke marijuana, either 1) you believe that college students smoke pot at a greater rate than the population (and at a great enough rate that the 51%+ who have, when factored into the non-college population, which is abusing many banned substances (not just pot), nets an overall-population-banned-substance-abuse-rate at something less than 50%), or 2) selectivity bias. You and your friends all smoked pot, so you assume all (or at least all the 'cool' kids) did so as well.

My suspicion is 2). I didn't smoke pot, nor did most of my friends. The potheads in college were all too stoned to notice us.

During college, potheads assume everybody smokes pot because that makes their behavior cool. A few decades later, former potheads assume everybody smoked pot because that makes their behavior acceptable.

Sk
7.27.2009 12:23pm
Doc Merlin:
I've been saying this for years.

WE DON'T HAVE RULE OF LAW.
I don't care how often we say we do, but we don't, due to selective enforcement and virtually everyone being a criminal. However, I really don't see a guaranteed way out of it that is politically feasible, or a way to fix it. It seems to me that governments will naturally tend towards this.

Some possible fixes:
1) Maybe if all criminal laws had automatic sunset provisions the way that military spending does?
2) Maybe if we completely removed the ability of government to regulate commerce? (i.e.: all interactions between consenting adults are made legal)
7.27.2009 12:23pm
Oren:
pmorem -- very interesting. You can still be charged in TX for violating the law at issue in Lawrence so does the unconstitutionality of the charge "carry over" into a Federal prosecution under the Mann Act?
7.27.2009 12:26pm
Oren:
sk, the statistic was every kid that every tried marijuana, not those that started into a regular habit. I don't know if it's 50%, but I'd venture is a sizable minority.
7.27.2009 12:28pm
some guy:
Read a little more about the cases in Balko's post, and I'm not so sure anymore that they are as ridiculous as they seem. For example, the Kirster Evertson prosecuted for selling sodium metal. Turns out he had 10 tons of the stuff (which is used in Meth making) and had transported it from Seattle to Idaho without taking needed safety precautions. He also was head of what looked to be a single-person corporation and was known to travel under a false name. I'm ambivalent about drug laws, but my gut says this guy was in the meth business.

Actually, if you read the facts of Everston's case (or his recent testimony before the House Judiciary Committee), it is pretty clear that his case is even more ridiculous than it seems. The sodium,. which he was using to develop fuel cells, was sold legally. Everston did not violate the "safety precautions" that he was eventually accused of violating -- those requirements applied only to much larger amounts of the substance. In a scene reminiscent of Grand Theft Auto III, Everston was "run off the road near his mother's home in Wasilla, Alaska, by SWAT-armored federal agents in large black SUVs training automatic weapons on him." Federal agents then "ransack[ed]" his 80-year-old mother's home. Everston was eventually acquitted by a jury because, as mentioned above, he had not violated the inapplicable "safety requirements."

After Evertson was acquitted, federal prosecutors tried to save face by charging him with "abandoning" his fuel cell materials while he was in prison awaiting his first trial:


According to the government, when Krister was in jail in Alaska due to the first unjust charges, he had "abandoned" his fuel-cell materials in Idaho. Unfortunately for Krister, federal lawmakers had included in the Resource Recovery and Conservation Act a provision making it a crime to abandon "hazardous waste." According to the trial judge, the law didn't require prosecutors to prove that Krister had intended to abandon the materials (he hadn't) or that they were waste at all -- in reality, they were quite valuable and properly stored away for future use.


Everston served almost two years in federal prison because officials charged him with a crime that he had not committed, in order to save face after failing to convict him for another crime that he had not committed.
7.27.2009 12:45pm
Kazinski:
It should also be pointed out that reading, and commenting on a blog while at work is federal crime, that or any other sort of goofing off, like fantasy leagues, or NCAA pools is potentially a violation of "the intangible right to honest services,".
7.27.2009 12:51pm
David M. Nieporent (www):
Read a little more about the cases in Balko's post, and I'm not so sure anymore that they are as ridiculous as they seem. For example, the Kirster Evertson prosecuted for selling sodium metal. Turns out he had 10 tons of the stuff (which is used in Meth making) and had transported it from Seattle to Idaho without taking needed safety precautions. He also was head of what looked to be a single-person corporation and was known to travel under a false name. I'm ambivalent about drug laws, but my gut says this guy was in the meth business.


First, while I see that there was an alias attached to his prosecution, I can't find anything which says that he "was known to travel under a false name."

Second, I see not the slightest evidence that he was making meth, and I don't see that the government made any such claim. But assuming for the sake of argument that he was, wouldn't you be proving the point? The criminal code is so expansive that people who are suspected of being in an illicit business can be convicted of something without the government actually having to prove that the person is actually in that illicit business?

Third, Evertson was convicted for storing the metal on the theory that the mere fact that he didn't use it immediately meant that it was "waste."
7.27.2009 1:02pm
pmorem (mail):
Oren,

I'd be very interested in knowing the answer to that question. It does seem likely, though, that in practice a judge would throw out any Mann Act charge if the underlying charge was unconstitutional. In theory, though, your point probably holds.

So much for interstate dating.
7.27.2009 1:08pm
pmorem (mail):

Everston served almost two years in federal prison because officials charged him with a crime that he had not committed, in order to save face after failing to convict him for another crime that he had not committed.



Perhaps that could be re-written as:

... a crime that he had been compelled to commit...
7.27.2009 1:14pm
Angus:
Reading more on the Evertson case, I'm now pretty much convinced the guy was involved in meth manufacture and distribution and the authorities just screwed up in the initial warrant and search. This is from a hearing in his first case:

The United States admits that some of the items seized were not covered by the search warrant. Docket No. 29, p.12. Hazardous material including sodium cyanide, muriatic acid, nitrite acid, and battery acid found during the lawful search were seized as a matter of public safety.


All of these are commonly used in meth manufacture. Guy got a post office box in Alaska using a fake name and using a false address. Shipped large quantities of meth making materials unmarked through the mail. Like I said, I'm ambivalent about drug laws, but I'm not convinced this guy is the innocent poster child for a tyrannical government.

Remember, Al Capone was snagged not for his organized crime spree, but for tax evasion. That doesn't mean he was an innocent victim.
7.27.2009 1:44pm
Jon Roland (mail) (www):
Angus:

I'm not convinced this guy is the innocent poster child for a tyrannical government.

Convicting someone on a false charge who is merely suspected of being guilty of something else is tyranny. Law is not supposed to be war.
7.27.2009 1:51pm
some guy:
Reading more on the Evertson case, I'm now pretty much convinced the guy was involved in meth manufacture and distribution and the authorities just screwed up in the initial warrant and search.

No such claims were made by the prosecution, nothing of the sort was uncovered by the media outlets that have been covering this case for years, and no suggestion of "meth manufacture' was even hinted at in response to his congressional testimony. In short, no one is making this contention except for you.
7.27.2009 2:00pm
hawkins:

Things were improving in the inner cities before the recession, but increasingly you would be well advised to stay out of them, especially at night. They sre becoming law-free zones.


Inner cities are much more safe than they were 20 years ago
7.27.2009 2:04pm
Angus:
No such claims were made by the prosecution, nothing of the sort was uncovered by the media outlets that have been covering this case for years, and no suggestion of "meth manufacture' was even hinted at in response to his congressional testimony. In short, no one is making this contention except for you.

There's been almost zero coverage of the case before this last week. The only mentions I could find were throwaway blurbs at the time of his arrest and his conviction. The media hasn't covered it at all, and all the blogs this week are basically repeating his legal defense team's press release.

I, though, found a link to a response brief in his original case.
Link
Why was the guy using a fake name and address to ship hazardous materials unmarked through the mail?
7.27.2009 2:24pm
David M. Nieporent (www):
All of these are commonly used in meth manufacture.
You know what they're also commonly used in? All sorts of industrial manufacturing. Including batteries, which is what he was working on. These are not obscure chemicals that are somehow specifically associated with meth. This is about like the cops who can't find any trace of cocaine in the house but insist that plastic bags, measuring cups, and scales are really evidence of cocaine dealing.
Guy got a post office box in Alaska using a fake name and using a false address. Shipped large quantities of meth making materials unmarked through the mail.
Translation: he was selling sodium on eBay. Not exactly the normal m.o. of a Mexican drug lord.

Then he testified before Congress about the abuses of the government. Also not exactly the normal behavior of a drug dealer trying to hide his crimes.
Like I said, I'm ambivalent about drug laws, but I'm not convinced this guy is the innocent poster child for a tyrannical government.
Even if everything you say is true, you're simply helping make the case, as I already pointed out. Creating lots of laws so we can convict people of minor crimes without being able to convict them of the serious crime they're supposedly guilty of is tyrannical government.
7.27.2009 2:29pm
David Schwartz (mail):
Just today, I opened a package of "2000 Flushes" and put the tablets in my toilet. The package said to clean the toilet bowl thoroughly including under the rim" and warned me to "wear rubber gloves when handling".

Alas, I neither wore rubber gloves nor cleaned under the rim of my toilet. The packaging clearly states that "it is a violation of Federal law to use this product in a manner inconsistent with its packaging".

It gets worse. I just realized that I put one table in the front right corner and one in the rear right corner. The instructions clearly say to put both tablets in the rear right corner.

I haven't yet discarded the packaging, as the instructions require. I'm not quite sure how long I have to do this though, so I might not be in violation.

How long until there's a knock at my door?

(And, on a serious note, this is another case where a law makes it criminal to violate some rules that are not themselves passed into law, subject to public notification and legislative approval or review, subject to a requirement that they be unambiguous, and so on.)
7.27.2009 2:31pm
Anatid:
Cato:

It was only a few years ago that I was a very doctrinaire libertarian on the Drug War, but after reading case studies -- especially those regarding methamphetamine and MDMA -- and also researching a little more about the mechanisms of addictions, has led me to be far less convinced of my fundamental correctness.


Surely, then, you are well-acquainted with legal nightmare that accompanied MDMA's classification as a Schedule I rather than Schedule III drug? It's hardly the poster child for a drug being appropriately regulated by the DEA.

As for methamphetamine ... show me the regular tweaker (rather than infrequent social user) who habitually abuses methamphetamine who commits no other crimes as a result of this habit, and I'll take my hat off to you.

Addiction is a nasty social and psychophysiological problem, but does the Drug War actually reduce the net social harm caused by addiction? Does it reduce in gang war fatalities, or the terrific expense to emergency rooms when overdoses come in the doors, or the lost work hours (and therefore income tax) and productivity from being too high or strung out to perform a job? I've seen a number of studies that show that harm reduction programs, particularly education with an emphasis on harm reduction rather than teetotalism, are highly effective. Moreso, I would suspect, than selective criminal prosecution for drug use in the absence of other crimes.
7.27.2009 2:35pm
Bob from Ohio (mail):

I keep wondering whether anyone actually believes that anyone is in federal prison for personal use. The ones in prison might be "nonviolent" but they were not your average pothead -- they were probably traffickers.


Suh! Be quiet! You are questioning the Holy Grail of libertarians.
7.27.2009 2:56pm
erics (mail):
Bob from Ohio forgot to read the whole thread.
7.27.2009 3:32pm
loki13 (mail):

Suh! Be quiet! You are questioning the Holy Grail of libertarians.


I am not a libertarian, but even I am amazed by your leap in logic. Since when is trafficking (or even dealing) considered a violent crime- in and of itself?

I grow one pot plant, I'm a user.
I grow ten pot plants, I'm a trafficker.

I have one cow, I like steak.
I have ten heads of cattle, I'm an entrepeneur.

America has always understood that there is a profit motive, and, heck, that's a good thing. *If* you don't believe people should be imprisoned for the consumption of drugs, then you probably don't believe the people supplying them should be, either.

But this goes to the problem of proliferation in our laws. Maybe the trafficker in question *is* a bad guy. Maybe he does kill people. So the LEO, instead of having to go through the difficulty and time of proving the really bad stuff he does, gets him with a drug crime.

If you don't see a problem with government, in general, choosing whatever laws they want to go after people they deem to be "bad" and hoping that prosecutorial discretion saves you... well, good luck with that.
7.27.2009 3:35pm
Losantiville:
the intangible right to honest services,

The Supremes have a chance to cure this one next term since they granted cert in US v. Conrad Black.
7.27.2009 3:46pm
Bob from Ohio (mail):

Bob from Ohio forgot to read the whole thread.


See Loki13 for evidence.
7.27.2009 3:52pm
Bob from Ohio (mail):

Maybe the trafficker in question *is* a bad guy. Maybe he does kill people. So the LEO, instead of having to go through the difficulty and time of proving the really bad stuff he does, gets him with a drug crime.


And Al Capone went away for tax evasion.
7.27.2009 3:54pm
Bob from Ohio (mail):
Most people do consider drug trafficing to be "bad stuff", btw.
7.27.2009 3:56pm
Andrew Grossman (mail) (www):
Krister Evertson was not making meth, and it's insulting to accuse him of such without any evidence whatsoever. He had all that sodium for a well-documented and legitimate purpose, as even the prosecutors acknowledged. The relevant briefs are available on PACER and Westlaw.

Evertson was trying to create a more efficient practice to manufacture sodium borohydride, a source of hydrogen ions for fuel cells.

Beyond the briefs, I've spoken with Krister's business partner, his family members, and a number of friends going back years. I've also been through all the records in both of his cases. Last week, after a year of talking with him by phone while he was in prison, I welcomed Krister to Washington to testify at the House hearing.

This has nothing to do with illegal drugs.

In a few weeks, the Heritage Foundation will post a brief video documentary on Krister and what the government did to him.

He is just about the most guileless and innocent individual you could imagine. Forget drugs; he's never even had a drink.
7.27.2009 4:01pm
Anatid:

Most people do consider drug trafficing to be "bad stuff", btw.


Why, exactly?

I mean, if you're selling methamphetamines to grade school kids, or if you're terrorizing your neighborhood with gang wars over crack traffic, then yeah, bad stuff. But as mentioned before, those sorts of things come with additional crimes (contributing to the delinquency of a minor, potentially child abuse; assault, manslaughter, concealing a firearm without a permit, disturbing the peace). If a grower in Mendocino is selling to nearby hippies, college students, and business who like to relax with a joint on weekends, where exactly is the harm done?

It's important to distinguish between the damage that different drugs can cause, as well as how the same drugs can be used and trafficked in very different ways in different contexts. Lumping everything together in under "drug trafficking" is overly simplifying the situation past the point where it is no longer accurate.
7.27.2009 4:14pm
Jefferson Weeps & Hitler's giddy:
Relegating every citizen to criminal status paves the way for the "powers that be" (or any future group of "powers that be") to do some major social cleansing. Just separate the undesirables into easily identifiable groups and stir up a hate-storm of propaganda about why those groups are threats to national security, enemies of our way of life, dangerous to our children, etc. Then investigate and dispose. Easy-peasy.
7.27.2009 5:14pm
SFH:
Balko's column today on the Gates fiasco is the best I've seen on the subject.
7.27.2009 5:40pm
Thorley Winston (mail) (www):
Most people do consider drug trafficing to be "bad stuff", btw.


Agreed, which is why the factoid about whether drug offenders in federal and State prison are "nonviolent" is not as important as whether they were sent to the prison for "trafficking" or "possession" when used to suggest that Volokh readers might be in danger of becoming a "federal criminal" if they ever used illegal drugs.

I'm inclined to support drug relegalization for adults. I can accept the argument that prohibition creates more problems than it solves. I can be persuaded that regulating (what are now) illegal drugs like alcohol and tobacco would be a more productive way of mitigating the damage that drug abuse creates.

But buying the argument that our prisons are filled with otherwise normal law abiding people who had the misfortune of being popped for being a casual user? Not buying it.
7.27.2009 6:08pm
Angus:
Beyond the briefs, I've spoken with Krister's business partner, his family members, and a number of friends going back years. I've also been through all the records in both of his cases. Last week, after a year of talking with him by phone while he was in prison, I welcomed Krister to Washington to testify at the House hearing.

In all that time did you ever ask him why he was using a fake name and fake address to send hazardous materials unmarked through the mail?
7.27.2009 6:21pm
Nom duh Ploome:
I think it's illegal to smoke Cuban cigars even when you're outside the US, though I couldn't find it on the State Department's website. You know, the whole trading with the "enemy" thing. Perhaps someone with better foraging skills (or more accurate information) could comment.
7.27.2009 6:24pm
Bob from Ohio (mail):

Why, exactly?


A variety of reasons of course. I don't think that most people have the same toleration of drugs that libertarians have.



If a grower in Mendocino is selling to nearby hippies, college students, and business who like to relax with a joint on weekends, where exactly is the harm done?


I don't think most traffickers are so arguably harmless.
7.27.2009 6:26pm
ohwilleke:
The premise is dubious. Why many people violate federal tax laws, few rise to the level of criminal violations which almost uniformly require intentional underpayment or nonpayment or nonfiling.

Likewise, not every violation of federal law is a criminal offense. One can, for example, run up immense civil fines with the SEC without being subject to criminal liability.

The honest services statute, likewise, while broad in scope, is not without boundaries. Some of those boundaries are in case law, but they exist.

Certainly, there are many underprosecuted federal crimes. The Justice Department does not prosecute people for failure to file an income tax return, standing alone. Nor, does it file federal criminal charges in small dollar amount (typically under $75,000) check fraud cases that are covered by federal law.

Justice Department policy also specifically discourages dual federal and state prosecutions in the vast majority of cases, even though the U.S. Supreme Court's dual sovereignty doctrine has held that this doesn't violate constitutional prohibitions.

There is overcriminalization period, and there are, in particular, many crimes that don't need to be criminalized at the federal rather than the state level. Most federal crimes are already crimes under state law, however, so the burden on the public from these crimes is modest. For example, there are dozens of crimes on the book that prohibit murdering particular types of people (e.g., postal workers) despite the fact that murder is a crime under the law of every state.

Honestly, overcriminalization of relatively innocent or unintentional conduct is much more common at the local level, where it is customary to have a blanket statute providing incarceration penalties for all municipal ordinance violations, e.g. unpaid library fines, than it is to see overcriminalization of conduct at the state or federal level.
7.27.2009 6:33pm
Doc Merlin:
Everyone keeps bringing up Capone, without remembering that it was alcohol prohibition that allowed him to come into power in the first place. Without the massive rent seeking that prohibitionary laws allow, violent gang enterprises just aren't profitable.
7.27.2009 6:43pm
some guy:
It cracks me up that even people posting anonymously cannot admit when they are obviously wrong. Yes, Angus, this means you.
7.27.2009 7:07pm
Tom Totten:
How long would it take me to read all laws I am subject to? How many would I understand? Even if I was a lawyer would I understand them? Are some contradictory? Are some ambiguous? How many new laws are made each year I'm subject to?
7.27.2009 7:28pm
Brian G (mail) (www):
Here is something to think about. In New Mexico, where I live and practice, the death penalty was abolished by the legislature and signed by Governor Bill Richardson. As a result, he was honored by the Pope and many other entities. About six weeks or so ago, 4 gang members went into a Denny's on a packed Saturday morning to rob the joint. They shot and killed a Denny's worker. A few of them got caught. And the Bernalillo County (Albuquerque) D.A. transferred the case to the Feds. You know why? So they can face the death penalty! So, what we have said as a state is that we don't want the death penalty, except when we do, but in that case we will have to ship it over to the Feds. What really burns me is that now they will spend the next 2 years arguing whether or not a local Denny's provides the jurisdictional nexus for interstate commerce.

Nice work New Mexico Democrats. Hope those awards from Amnesty International go a long way for you.
7.27.2009 7:55pm
Angus:
It cracks me up that even people posting anonymously cannot admit when they are obviously wrong. Yes, Angus, this means you.

I have yet to be given a legitimate answer as to why the guy was living under a fake name, had given the post office a phony address, and was selling large quantities of hazardous substances by shipping in unmarked packages -- except for "I've talked to the guy by phone and he says he didn't do anything wrong."
7.27.2009 8:32pm
einhverfr (mail) (www):
Bob from Ohio:

Most people do consider drug trafficing to be "bad stuff", btw.


Good to know. This way if I upload videos onto You Tube about drug trafficking ("bad stuff") I may be guilty of violating the terms of service and hence, if I am aware of this beforehand, federal law......
7.27.2009 8:37pm
einhverfr (mail) (www):
Angus:

I have yet to be given a legitimate answer as to why the guy was living under a fake name, had given the post office a phony address, and was selling large quantities of hazardous substances by shipping in unmarked packages -- except for "I've talked to the guy by phone and he says he didn't do anything wrong."


The fact of the matter is simple: the crime he was convicted of he was compelled forcibly to commit by federal agents. The issue here is not whether or not he was guilty of some other crime, but whether the law is sufficiently arbitrary and capricious as to be a threat to personal liberty.

I have yet to see you post a coherent argument that this was NOT dangerous to personal liberty and the rule of law.
7.27.2009 8:39pm
jimsjournal (www):
I totally agree with the main point of this post -- but, since (unlike most members of the cabinet and other major federal positions, various members of Congress, etc.) I never claim dubious tax deductions and probably over-pay every year, and since exceeding posted speed limits is not a federal offense (at least as far as I know), and I haven't even smoked tobacco since 1980, surely various statutes of limitations would absolve me of any federal crime I might have committed in my younger days.
7.27.2009 8:51pm
WHOI Jacket:
All this does is breed contempt for the law.

No offense to our gracious hosts, but this sort of thing is the end result of government by lawyers, for lawyers and of lawyers.
7.27.2009 9:09pm
einhverfr (mail) (www):


No offense to our gracious hosts, but this sort of thing is the end result of government by lawyers, for lawyers and of lawyers.


Strangely that is the description of the most libertarian society I can think of in history: Medieval Iceland.
7.27.2009 9:59pm
Bob from Ohio (mail):

Good to know.


Glad to be of service.

Just because you think selling drugs is harmless, it does not mean that everyone agrees or that you are right.
7.27.2009 10:33pm
mariner:
"Did you really think that we want those laws to be observed?" said Dr. Ferris. "We want them broken. You'd better get It straight that it's not a bunch of boy scouts you're up against - then you'll know that this is not the age for beautiful gestures. We're after power and we mean it. You fellows were pikers, but we know the real trick, and you'd better get wise to it.

There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.

Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted - and you create a nation of law-breakers - and then you cash in on guilt. Now that's the system, Mr. Resrden, that's the garrie, and once you understand it, you'll be much easier to deal with."

from "Atlas Shrugged"
7.27.2009 11:06pm
David Schwartz (mail):
Angus: So your argument is that it doesn't matter whether or not he chose to commit the crime for which he was convicted, what mattered is whether he did a bunch of suspicious things?
7.27.2009 11:39pm
Angus:
einhverf,
According to the EPA's site, he was convicted not just abandoning the material improperly (which sounds definitely bogus given the circumstances), but also improperly securing it while transporting it to storage in the first place.

"A federal jury in Pocatello yesterday returned guilty verdicts against a former Salmon resident for violating the Hazardous Materials Transportation Safety Act and illegally storing and disposing of hazardous waste, violations of the Resource Conservation and Recovery Act."
7.27.2009 11:48pm
einhverfr (mail) (www):
Bob from Ohio:


Just because you think selling drugs is harmless, it does not mean that everyone agrees or that you are right.


First of all, not all drugs are equally harmful. For example, I am fairly certain that selling wild lettuce latex* is substantially more harmful than selling cannabis buds despite the fact that the lettuce resin is legal while the cannabis buds are not. Similarly, I am fairly sure that selling pure caffeine causes more harm and more addiction than selling mild coca extracts.

SMART intoxicant entrepreneurs should always deal in unregulated stuff, like extracts from common weeds etc.

* Historically this was sold as a cheap adulterant and even substitute for opium resin. Also note that domestic lettuce produces a similar intoxicant if it is allowed to bolt.
7.28.2009 1:35am
einhverfr (mail) (www):
Angus, link please?
7.28.2009 1:37am
Angus:
I've seen several variations of the press release, but the one with the most detail is this one.
Link
7.28.2009 7:30am
JohnKT (mail):
I think you're missing another weird crime. Many household cleaners, such as Tilex, are labelled with the warning that use of the product contrary to label warnings is a violation of federal law.

Tilex, the shower mildew cleaner, warns the user that it must be used in a well-ventilated area.

It is an EPA law.

At any time, the EPA police may crash into my home and charge my wife with environmental crime. The argument would be that in the arresting agents's opinion, our shower was not ventilated enough during her use of Tilex.

My own interpretation of the law is that there may be environmental danger from many cleaners, but instead of the EPA putting the onus of safety on the manufacturers, the customer is criminalized. There, see? We have solved environmental pollution. Hurray.

Wal-Mart in my area requires proof of age to buy these products. No other store does. The Wal-Mart clerks assume the age check must have something to do with kids intoxicating themselves with the cleaner. But the reason so far as I can tell is environmental crime.

I'm glad Mr. Somin mentioned overcriminalization by the states. Grits for Breakfast blog has found over 2,000 Texas felonies that can be committed with oysters. But we don't vote with our feet, as he fondly imagines.
7.28.2009 9:16am
Jon Roland (mail) (www):
JohnKT:

Grits for Breakfast blog has found over 2,000 Texas felonies that can be committed with oysters.

Not exactly. 2324 felonies of all kinds, 11 of which relate to oysters. See here.
7.28.2009 10:56am
David M. Nieporent (www):
I have yet to be given a legitimate answer as to why the guy was living under a fake name, had given the post office a phony address,
Perhaps for the same reason that some woman reported that two black men were breaking into Henry Louis Gates's house? That is, those facts are allegations by the government, not established facts. The only ruling on them was on a motion to suppress, not on an actual criminal charge.

Again, there has been no allegation by anybody, until you, that he had anything to do with meth. You've presented no argument that he had anything to do with meth; your entire argument is that these chemicals could be used in meth manufacture, which is true of many things. The government never made the claim. There was no DEA investigation. The EPA is the only entity that ever went after him.
7.28.2009 12:12pm
R Britt (mail):
Let's add Pseudoephedrine Sulfate, the active ingredient in Claritin-D and Pseudofed. It's also a key ingredient in Methamphetamine. Meth is illegal (duh). But so is PES. If you get caught with more than one month's supply, you are guilty of "Intent to Produce Methamphetamine" under the Combat Methamphetamine Epidemic Act (a part of the PATRIOT Act).

Oh, and powdered baby food. You can't purchase - or even have - more than one box at a time because it "looks too much like cocaine".
7.28.2009 12:55pm
JohnKT (mail):
I stand corrected. There are 11 oyster related felonies in Texas. I conflated 2324 felonies with the subclause, "11 involving oysters."

Thanks to Jon Roland for the correction.

Still, 11 oyster felonies is impressive.
7.28.2009 3:41pm
Mr. Wizard:
If you don't respect Ayn Rand's view on the matter, try Madison's:

It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
7.28.2009 4:33pm
FiveBoxes (mail) (www):
The only recourse We the People have against out-of-control government criminalization is trial by jury and jury nullification.

See JuryBox.org for more info.
7.28.2009 7:11pm
einhverfr (mail) (www):
Since the statutes of limitations have expired, here are my federal crimes:

1) Underpayment of gallonage taxes for the beer I brewed at college from when I was 18 through when I was 21. After 21 a set of exemptions kicked in so it was no longer illegal. The 3-year statute of limitations has long since expired.

2) Marijana use (tried it about 4 times prior to the age or 21, found it boring, gave up on it). The five year statute of limitations has long since expired.

3) Opium possession. Grew the plants, harvested the seeds, and made tinctures out of the straw. However, perfectly legal alternatives exist to opium tinctures so why break the law?* However... opium poppies can be used to make far more federal criminals fairly easily.** The five year statute of limitations has long since expired.

So yes, I am a federal criminal. Anyone else?

* For example, lettuce resin (from bolting lettuce and wild lettuce plants) has historically been used as a low-cost substitute for opium. Extracting it is a bit easier but it tastes terrible. However, it is a strong sedative similar to opium in nature and growing lettuce is fairly unregulated.

** Growing the plants, and possession of the seeds are both legal. However, picking any other part of the plant is not. If you plant opium poppies in your garden next to the sidewalk, anyone who picks a flower while they are walking is a criminal! You can even give seeds to obnoxious neighbors and ask the police to prosecute them when they cut the flowers for table displays!
7.28.2009 7:28pm
einhverfr (mail) (www):
(Not that police would prosecute, but technically cutting a papaver somniferum flower that is legally growing in your yard and putting it in a vase on the kitchen table is a drug crime.)
7.28.2009 7:30pm

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