Washington's Biggest Crime Problem

The federal government's ever-expanding criminal code is an affront to justice and the Constitution.

William Anderson & Candice E. Jackson from the April 2004 issue

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In both of these cases, the question is not whether the defendants were guilty. It's whether we want a criminal justice system in which a defendant can be tried again for the same offense if he happens to be acquitted -- or even if he's found guilty, in which case punishing him twice would be perfectly OK according to the Supreme Court. Whether we want such a system or not, that's what we've got.

Deriving Force

One reason it's impossible to get a definitive count of federal offenses is that many are derivative, defined by other criminal acts. Laws against money laundering, for example, make otherwise innocent transactions criminal if the government believes they were intended to disguise the source of drug money or other ill-gotten gains. Under the USA PATRIOT Act, federal investigators can criminalize many normal financial transactions by alleging even the most tenuous connection to the funding of terrorism or other illegal activity. Federal prosecutors recently used the PATRIOT Act's money laundering provision against Las Vegas officials accused of taking bribes from a strip club owner. And as illustrated by the indictment of University of Alabama booster Logan Young, derivative crime laws can be used to transform a single offense into several, allowing prosecutors to pile on charges in a way that encourages a guilty plea.

Perhaps the most conspicuous example of a derivative crime law is RICO, the Racketeering Influenced and Corrupt Organizations Act. The most commonly used provisions of RICO make it a crime to conduct or participate in, through a pattern of racketeering activity, the affairs of an enterprise affecting interstate commerce, or to conspire to do the same. The statute defines "a pattern of racketeering activity" as two or more instances within 10 years of "any act or threat" involving a laundry list of crimes defined by state laws or other federal laws.

For instance, two acts of mail fraud within 10 years constitute a pattern of racketeering activity under RICO. Thus, anyone associated with a group of people (an "enterprise" under RICO) that allegedly committed mail fraud ("racketeering activity") could be charged with conspiracy to violate RICO, which carries a 20-year prison sentence. People convicted under RICO can also lose their real and personal property to criminal forfeiture. The government can seize a defendant's assets immediately after indicting him, making it virtually impossible to finance an effective defense.

As the definition of RICO offenses makes clear, any truly wrongful acts covered by the law are already criminalized in other statutes. Not only are RICO violations derivative offenses, but so are many of the underlying crimes the law lists, such as mail fraud and money laundering. RICO adds nothing of substance or value to the federal criminal code, except as a weapon in the hands of investigators and prosecutors.

Derivative crime laws are designed to facilitate convictions, not to protect anyone. Consider the derivative crime of mail fraud, which involves using the mails to perpetrate a fraud. Since almost everyone mails letters, it's easy to satisfy part of the definition and make an indictment stick. If the defendant refuses to plead guilty, the government has to produce only the weakest circumstantial evidence to allow a jury to conclude that the defendant's letter was part of a scheme to defraud someone, and the defendant faces up to 20 years in prison -- and potentially an additional 20 years for a RICO violation.

Most federal criminal laws are derivative because of constitutional constraints on the federal government. For example, Congress has no constitutional authority to make it a crime for one person to defraud another. But it does have the authority to regulate interstate commerce. In 1909, relying on a strained interpretation of that power, Congress passed a law that made it a crime to use the national mail system, even incidentally, to defraud someone.

In the 1916 case Badders v. United States, Supreme Court Justice Oliver Wendell Holmes brushed aside the lack of constitutional authority for this statute, upholding a man's conviction on seven counts of mail fraud (one for each letter) and his sentence of five years' imprisonment per count and a $7,000 fine. Writing for the majority, Holmes reasoned that Congress has the power to regulate (and criminalize) use of the mails even though Congress would have no constitutional authority to criminalize the underlying fraud. "Intent may make an otherwise innocent act criminal," wrote Holmes, "if it is a step in a plot." Citing Supreme Court cases upholding similar laws regulating the use of the mails, Holmes concluded, "Whatever the limits to its power, [Congress] may forbid any such acts done in furtherance of a scheme it regards as contrary to public policy, whether it can forbid the scheme or not."

The Supreme Court's reluctance to question the use of the Commerce Clause as a license to pass criminal laws has created a situation in which Congress has virtually plenary authority to criminalize whatever conduct it chooses. In the 1995 case United States v. Lopez, the Supreme Court ruled for the first time in 60 years that a federal criminal law exceeded Congress' authority under the Commerce Clause. The law in question, the Gun-Free School Zones Act, made it a federal crime to possess a gun in or near a school. But most lower courts have refused to apply that decision in subsequent cases. If the Supreme Court is serious about restoring federalism by imposing meaningful checks on congressional authority, it will have to speak to the issue again, and more forcefully.

Accidental Criminals

In addition to the question of whether Congress has authority to legislate in a given area, there is the issue of whether criminal penalties are appropriate. Consider the case of Christian Hansen and his son Randall, owners and operators of the Georgia-based LCP Chemicals and Plastics. In 2001 the Hansens were convicted of more than 30 environmental violations, including offenses under the Clean Water Act, the Resource Conservation and Recovery Act, the Endangered Species Act, and the Comprehensive Environmental Recovery and Compensation Liability Act. The elder Hansen was sentenced to 10 years in prison, while his son was sentenced to four years. Even though only one employee testified to slipping in contaminated wastewater (but reported no resulting injury), the Hansens were convicted of endangering the health and safety of employees, among many other charges.

Perhaps the most disturbing feature of prosecutions like this one is that federal regulatory statutes such as the Clean Water Act and Endangered Species Act impose criminal liability on the basis of negligence and do not require any culpable intent by the accused. The Supreme Court has determined that certain "public welfare" offenses can trigger criminal sanctions without a showing of criminal intent, recklessness, or even knowledge of the violation. Thus, Congress can impose harsh criminal penalties on business owners and supervisors who have no knowledge of or control over regulatory violations that may occur at their firms.

Environmental regulations, antitrust laws, securities regulations, and a host of other federal laws aimed at nonviolent, nonpredatory behavior the government wants to discourage illustrate how far we have moved from the traditional view of crime as deliberate wrongdoing. Only intentional crimes against people or their property should be subject to criminal penalties. If the Hansens' environmental violations merited sanctions, they should have been civil, not criminal. And if Edward Hanousek, the railroad supervisor mentioned at the beginning of this article, was negligent in overseeing the independent contractor who accidentally spilled oil into a river, whatever harm resulted should have been addressed in a civil proceeding, requiring payment for cleanup or restoration of the waterway.

In recent decades prosecutors increasingly have pursued criminal sanctions against people for behavior that in the past would not have drawn even a fine, much less a prison term. Rudolph Giuliani prosecuted financier Michael Milken for what his own staff called "technical violations" of securities regulations. James Comey, Giuliani's successor as U.S. attorney for the Southern District of New York, charged Martha Stewart, former president of Martha Stewart Living Omnimedia, with "securities fraud" for publicly declaring herself not guilty of a crime the government has not proved she committed. (See "St. Martha," October.) Federal prosecutors receive political benefits not for hard-nosed prosecution of real crimes but for creatively charging high-profile targets. Instead of being reviled for his malicious prosecution of Stewart, Comey recently was promoted to deputy U.S. attorney general, the second-highest post at the Justice Department.