Jailing the Innocent

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Every day many Americans commit crimes of which they are unaware. Many of the crimes with which Americans are charged are absurd.

One recent case brought to light by Ellen Podgor and Paul Rosenzweig is that of three Americans sentenced in federal court to eight years in prison for importing lobster tails from Honduras in plastic bags instead of cardboard boxes. Why this matters, no one knows. Moreover the importers of the lobster tails have no responsibility for how the seafood was packed in Honduras.

Federal prosecutors decided that Honduran law was violated by the shipment because a few tails (3% of the shipment) were less than 5.5 inches in length.

The Honduran government objects to this interpretation of its law and filed a brief in behalf of the defendants, but federal judges nevertheless convicted their fellow citizens for violating the Lacey Act by importing "fish or wildlife taken, possessed, transported, or sold in violation of any foreign law."

To insure a harsh sentence the prosecutors loaded up charges against the defendants by bringing indictments for smuggling, money laundering and conspiracy. Smuggling is inferred from a few of the tails allegedly being undersized and illegal. Money laundering is charged because the lobster purchase and sale required money to be deposited in a bank. Conspiracy is charged on the basis that more than one person was involved.

In other words, these are totally trumped-up crimes.

The upshot is that three Americans have had their lives ruined by federal prosecutors and judges for violating a Honduran law that the Honduran president, attorney general and embassy say is not on their country’s statute books.

For reasons no one knows, federal prosecutors spent six months trying to find reasons in Honduran law to indict the American importers of the lobster tails. If it took federal prosecutors six months to find something in foreign law that they could allege the importers to have violated, how could the importers possibly have known that they could be imprisoned for the ordinary everyday business of importing lobster tails for restaurants?

Legal scholars such as Mr. Rosenzweig at the Heritage Foundation and Erik Luna at the University of Utah Law School are calling attention to the overcriminalization that has made it impossible in America to conduct ordinary business activities without risk of indictment. It is tyrannical to burden Americans with the substantive obligation of knowing how federal prosecutors might interpret every foreign law. No sane person could regard the lobster importers’ conduct as criminal. Liberty is extinguished where law is so broad and vague as to entrap even the most honest citizen.

Nave Americans tend to regard miscarriages of justice, such as the lobster import case, as rare examples of legal idiocy that somehow will be corrected by the legal system. However, such cases are routine and are seldom if ever corrected. In America today law enforcement boils down to the exercise of power by unaccountable prosecutors. Justice is not served by ensnaring the innocent.

Married men who happen to own guns are being turned into felons by wives who ask for restraining orders when they file for divorce. Prosecutors interpret restraining orders as criminalizing prior gun ownership. A restraining order turns a law-abiding gun owner into a criminal. It is an example of unconstitutional ex post facto law at its worst.

Americans are uninformed about the tyrannical nature of their criminal justice system. Until they become personally ensnared in the system, Americans believe that police and prosecutors would never convict an innocent person. Once they experience the system, Americans are terrified by the system’s indifference to whether a defendant has committed a crime.

Mary Sue Terry, former attorney general of the Commonwealth of Virginia, says the concern of the justice system "has turned from seeking truth to seeking convictions, and our post-conviction efforts are focused on denying any further review."

Ever widening arrest powers are bringing a reality check to more and more Americans. Just before Christmas the US Supreme Court ruled that a police officer who discovers contraband in a car can arrest every occupant if no one admits to ownership of the illicit item. Warn your teenagers never to get into a car with acquaintances who might have alcohol, drugs, or weapons. And be careful whose car you get into yourself.

In a recent Cato Policy Report, Erik Luna says that "the sheer number of idiosyncratic laws and the scope of discretionary enforcement" are making criminals out of many Americans who had no intent to break a law or any knowledge that they had.

A country that goes out of its way to imprison the innocent has no business preaching democracy to the world.

Dr. Roberts [send him mail] is John M. Olin Fellow at the Institute for Political Economy, Senior Research Fellow at the Hoover Institution, Stanford University, and Research Fellow at the Independent Institute. He is a former associate editor of the Wall Street Journal and a former assistant secretary of the U.S. Treasury. He is the co-author of The Tyranny of Good Intentions.

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