Criminal laws proliferate, at a cost to freedom


The proliferation of criminal laws and regulations with criminal penalties mean that the freedoms of Americans are increasingly at risk as prosecutors take advantage of expanded authority and reach of the federal justice system. Sometimes prosecutors don’t even need to show criminal intent in order to gain a conviction.

As reported in the recent Wall Street Journal article As Criminal Laws Proliferate, More Are Ensnared: “These factors are contributing to some unusual applications of justice. Father-and-son arrowhead lovers can’t argue they made an innocent mistake. A lobster importer is convicted in the U.S. for violating a Honduran law that the Honduran government disavowed. A Pennsylvanian who injured her husband’s lover doesn’t face state criminal charges — instead, she faces federal charges tied to an international arms-control treaty.”

Even though a person may be acquitted of criminal charges, the process of the trial may be punishment enough. Fighting charges may result in legal bills of hundreds of thousands of dollars.

The Journal piece includes the story of a U.S. man who imported lobsters from Honduras. That country had a statute specifying the minimum size of lobsters for export, and some of the lobsters exported — and accepted by the U.S. importer — were smaller than that size. The man was convicted of a U.S. law that requires U.S. citizens to follow other country’s fish and wildlife laws. During the appeal, Honduras filed a brief in support of the man saying it had canceled the undersized lobster law. Despite this, the conviction was upheld, and the man spent 69 months in prison.

The power of federal prosecutors, armed with an expansive federal criminal code and regulatory regime, is immense. At a recent Cato University lecture that I attended, Radley Balko said “If a prosecutor wants to get you for political reasons or personal reasons … he can find a way to get you. And even if he can’t put you in prison, he can ruin your life and ruin your finances.”

Balko, like the Journal article, described the large number of laws on the books that federal prosecutors may use — “tools in the toolbox,” Balko described. There are perhaps 4,500 crimes contained in our federal statutes, although several efforts to count them have resulted only in estimates, even after two years of counting.

Then, there are the regulations, which may number — again, counting is impossible — in the hundreds of thousands. Some of these carry criminal penalties. And as the saying goes, “Ignorance of the law is no defense.”

Balko described the federal sentencing model which allows judges to sentence defendants as through they were convicted of crimes for which they were acquitted, as long as they are convicted of some charges.

Some laws are good. Laws protect the property rights that are the basis of our freedoms and the free market exchange process that leads to prosperity. But as the Journal writes, “Some federal laws appear picayune. Unauthorized use of the Smokey Bear image could land an offender in prison. So can unauthorized use of the slogan ‘Give a Hoot, Don’t Pollute.’” We should note that these things are created by government, paid for by taxpayers, and ought to be available for free use. But not so for Smokey.

Another example of federal overreach is the charge of lying to investigators. Using this, sometimes defendants are convicted of a crime even though the government can’t obtain a conviction on the underlying charge, that is to say, the actual crime.

A notable case of this is that of Martha Stewart. As told by Ilana Mercer: “When it became apparent to U.S. Attorney David N. Kelley that he could not charge Ms. Stewart with insider trading, he used the unrehearsed interviews she had given law-enforcement officers — interviews not subject to Fifth Amendment protections — to charge her with conspiracy, obstruction of justice, and lying to investigators about a matter that was never a crime. This entrapment was easily facilitated under the unconstitutional Section 1001 of Title 18 in the United States Code. This makes it an offense to make “a materially false” statement to a federal official—even when one is not under oath. (It is perfectly acceptable, however, for said official to bait and bully a private citizen into fibbing.)”

Summarizing, Mercer wrote: “The entrapment of Ms. Stewart and Mr. Bacanovic conjures the ubiquitous scene in the movies where the suspect bolts and the cop gives chase. Cop hauls suspect in for questioning, only to discover he has the wrong man. ‘If you are innocent, why did you run?’ the detective demands. To which the suspect replies, ‘I was afraid.’ The cop has no choice but to release him. In truth-is-scarier-than-fiction America, however, Martha Stewart and Peter Bacanovic were not released. They were prosecuted and convicted for the ‘crime’ of … running.”

Mercer’s article is aptly titled Convicted for Fearing Conviction.

A recent example is that of baseball pitcher Roger Clemens, whom Balko said was “basically being accused of lying to a roomful of politicians.” The audience did not miss the intended irony.

It’s not only at the federal level that laws and regulations are growing. In Wichita we watch the city council struggle to produce a detailed set of regulations covering Halloween haunted house attractions, when it appears that these businesses haven’t had any problems that require regulation.

The Wichita City Council recently revoked the operating license of a bar because the owner had been convicted of a crime of moral turpitude. The owner had plead guilty to providing false statements to police involving a beating at his bar.

Sometimes laws exist just so the state can pile on another offense and add to jail time or fines. Kansas, like some other states, has a marijuana tax stamp law. As Kansas has no medical marijuana law, it appears that it is illegal for anyone to possess marijuana in the state. But should you decide to do so, the Department of Revenue requires you to obtain a tax stamp. Few actually purchase the stamps, so when people are charged with drug crimes, violation of the tax stamp law is just one more charge for prosecutors to add.

Do these laws work?

For all its lawmaking, government often doesn’t solve the problem it’s trying to prevent. Kansas, like many states, has passed a law against texting while driving. But as I reported last year in Texting bans haven’t worked, based on research performed by the Highway Loss Data Institute : “But the bans haven’t worked, and some states have experienced an increase in crashes. … The study does not claim that texting while driving is not dangerous. Rather, the realization by drivers that texting is illegal may be altering their behavior in a way that becomes even more dangerous than legal texting.”

Another example of laws that may or may not be accomplishing their goals are red light camera enforcement laws. While the Insurance Institute for Highway Safety says these laws save lives due to a reduction in certain type of accidents, they also cause an increase in other types of accidents. Furthermore, there is persuasive evidence that simply lengthening the time of yellow lights reduces the types of accidents the cameras are credited with reducing. Balko, writing for, notes this about longer yellow light times: “Somehow, that doesn’t seem as appealing a policy to city governments. Another reason we critics have impugned the motives of public officials is that several cities have been caught shortening yellow times at intersections after they’ve been outfitted with cameras. That would seem to be a pretty good indication of a government that values revenue more than safety.”

Laws named after dead people are another problem. Generally named for a sympathetic victim, these laws allow politicians to appear to be doing something.

A recent example is the versions of Caylee’s Law, named after the Florida toddler Caylee Anthony. Many people feel that her mother bears responsibility for her death, even though the mother was not convicted of that. So in response we have Caylee’s Law proposed in many states and at the federal level. The laws require rapid reporting to law enforcement offices of a missing or dead child.

In his lecture, Balko provided examples of how parents or caregivers could innocently fall afoul of such a law, and could be charged with a serious crime when in fact there is no culpability. As to the actual effectiveness of such laws, Balko concluded “Can you image a parent depraved enough to murder their own child is going to be dissuaded by a law that requires them to report the death of that child within an hour of having killed them? Nobody’s going to be dissuaded by this law. The law is not going to save a single child’s life. This is about vengeance. People are upset that Casey Anthony was released.”

Balko added that the problem with naming laws after sympathetic victims is that it shuts off debate. If anyone opposes Caylee’s Law, it will be charged that they are not outraged over her death, and they are not serious about protecting children. This, he said, is not a good way to have discussion and debate about public policy.

But the urge by politicians to be seen as “doing something” — even if what they do has more negative consequences than positive — is often the driving force behind laws, and also behind the cases of overzealous prosecutors.


One response to “Criminal laws proliferate, at a cost to freedom”

  1. Sam Sneed

    Great article, both yours and the first one you link to. I have not taken the time to read the other link. Many conservatives are so law and order that they don’t realize that Prosecutor’s and Cops are as much apart of BIG GOVERNMENT as any kind of social program or tax increase. Keep up the good work.

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