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Bench Memos

NRO’s home for judicial news and analysis.

Keep Your Laws Off My Guitar



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The Wall Street Journal has an important story today about a federal-government raid of Gibson Guitar plants in Memphis and Nashville. Our musically inclined readers know Gibson as the company behind the guitars played by legends like B.B. King, Jimmy Page, and Eric Clapton. 

What was Gibson’s crime? Turns out the feds went after Gibson for violating the Lacey Act, a law that could make you a federal criminal for violating “any foreign law — regardless of whether you knew of the foreign regulations.” A Gibson official maintains that they complied with the relevant law and, according to the Journal, suggested that the feds “are using the aggressive enforcement of overly broad laws to make the company cry uncle.” I am sure the Lacey Act experts will comment on the specific provisions that were allegedly violated and I will leave it to them to decide whether DOJ technically has a case here. What I can say with a fair amount of certainty is that the Gibson official has a point when he complains about overly broad laws. 

This particular case is emblematic of a much larger public-policy problem that a growing number of high-profile organizations and individuals, on the right and the left, have been highlighting. It is often called “over-criminalization,” but it might as well be thrown in with the problem of over-regulation and federal overreach. 

According to this Federalist Society study, the federal criminal code has exploded in recent decades. As of 2004, there were “over 4,000 offenses that carry criminal penalties in the United States Code. This is a record number, and reflects a one-third increase since 1980.” And we have no reason to believe the trend is slowing. Dodd-Frank included its own batch of criminal provisions. In recent months, Republicans Rep. Jim Sensenbrenner and Sen. John Cornyn jumped on the bandwagon to expand the reach of mail- and wire-fraud statutes and “fix” the honest-services-fraud law that has been a special nuisance to anyone who truly cares about federalism and liberty. 

Unfortunately, even the most well-intentioned criminal laws can have serious unintended consequences — for federalism, for liberty, and for our economy. The problem is especially acute when those laws have become so numerous and poorly worded that they fail to provide Americans fair notice of what conduct could make them a federal prisoner. According to a joint study by the Heritage Foundation and NACDL:

Members of the 109th Congress (2005–2006) proposed 446 criminal offenses that did not involve violence, firearms, drugs and drug trafficking, pornography, or immigration violations.  Of these 446 proposed non-violent criminal offenses, 57 percent lacked an adequate mens rea [criminal intent] requirement. Worse, during the 109th Congress, 23 new criminal offenses that lack an adequate mens rea requirement were enacted into law.

Instead of using federal criminal law to protect legitimate interstate commerce, we now have a mess of federal criminal laws that capture ordinary human conduct and give federal prosecutors the ability to steer the private sector with the threat of criminal sanctions. (It is “Regulation by Prosecution,” as the Manhattan Institute put it.) I know I’ve quoted it before, but it is worth repeating this excellent quote from a recent opinion of Justice Scalia: 

We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nittygritty. In the field of criminal law, at least, it is time to call a halt.



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