Justice for the Birds

by Carrie Severino

The Wall Street Journal deserves a lot of credit for the attention it is bringing to the problem of over-criminalization, on the news side and the editorial side. On Tuesday the Journal ran a front-page story on over-criminalization and the systematic erosion of traditional mens rea standards that we have witnessed in recent decades. The piece was the latest in an excellent series by Gary Fields and John Emshwiller. Today, the paper features this editorial highlighting the consequences of the over-criminalization trend. According to the Journal:

The U.S. Attorney for North Dakota hauled seven oil and natural gas companies into federal court for killing 28 migratory birds that were found dead near oil waste lagoons. You may not be surprised to learn that the Administration isn’t prosecuting wind companies for similar offenses.

Continental Resources is accused of violating the 1918 Migratory Bird Treaty Act because “on or about May 6, 2011 in the District of North Dakota” the company “did take [kill] one Say’s Phoebe,” of the tyrant flycatcher bird family. Brigham Oil & Gas is accused of killing two Mallard ducks. The Class B misdemeanors carry fines of up to $15,000 for each dead bird and up to six months in prison.

The U.S. Code is littered with criminal laws that are shockingly vague or that impose strict liability for the covered activity. Or both, as in the case of the Migratory Bird Treaty Act. Not surprisingly, creating an innumerable number of federal statutes and regulations that impose criminal liability, sometimes on a strict liability basis, has led to uneven application of the law. Our readers are now familiar with the Gibson Guitar case. Regarding these bird cases, the Journal reports:

Absurdity aside, this prosecution is all the more remarkable because the wind industry each year kills not 28 birds, or even a few hundred, but some 440,000, according to estimates by the American Bird Conservancy based on Fish and Wildlife Service data. Guess how many legal actions the Obama Administration has brought against wind turbine operators under the Migratory Bird Treaty Act? As far as we can tell, it’s zero.

Their uneven enforcement is the only reason such laws still exist — the Migratory Bird Treaty Act potentially covers such commonplace activities as collecting pigeon feathers from the street, saving a robin’s egg, chasing gulls at the beach, or trying to nurse an injured woodpecker back to health. God’s eye may be on the sparrow, but the federal government has its eye on nests, eggs, feathers, and about 800 species. If the government consistently prosecuted every violation of this law, citizens would storm Congress demanding repeal. Yet the uneven enforcement lets the government keep these laws in their back pocket to bully those they don’t approve of.

Conservative legal experts — including heavyweights like former AGs Ed Meese and Dick Thornburgh, former Deputy AG George Terwilliger, distinguished scholars like John Baker and many others — have been making the case that federal criminal law was never supposed to play this sort of role. I hope policymakers are listening, at the very least because they have seen what happens when all that prosecutorial discretion rests in the hands of an administration that views the law as a tool to “spread the wealth around.”

See here for my previous post on the Gibson Guitar case and more background links on the topic of over-criminalization.  

Bench Memos

NRO’s home for judicial news and analysis.