“You’re Under Arrest!”: Overcriminalization with Brian Walsh
2015-02-07 · Guest: Brian Walsh (Ethics and Public Policy Center) · 52:10
Explosion of Federal Criminal Law and Overcriminalization
Bob Zadek and guest Brian Walsh discuss the explosion of federal criminal law and the erosion of the “guilty mind” (mens rea) requirement. They explore how regulatory “gotcha” laws, like the Lacey Act, allow the government to imprison citizens for non-violent, unintentional technical violations, using cases like Gibson Guitar and Krister Evertson as examples.
Topics: Overcriminalization, Mens Rea, Federalism, Lacey Act, Criminal Justice Reform, Regulatory State, Essential Liberty
Speakers: Bob Zadek, Brian Walsh
Introduction to Overcriminalization [00:00]
Bob Zadek: Hello everyone, welcome to the Bob Zadek Show every Sunday at 9:00 AM. Thanks so much for listening. I am your host, Bob Zadek. We are the only live libertarian talk radio show on the air all weekend. The show of ideas, not attitude. Thanks so much for listening.
We have all grown up telling our parents, our friends, our teachers, quote, “You don’t have to make a federal case out of it,” close quote. What that meant was there’s no reason to escalate, no reason to make a big deal about it, just relax. A federal case. Well, what makes government different from other organizations? We have religious organizations, we have social organizations, we have businesses, and we have government. What makes government different? Answer: Government is the only organization with the lawful power to point a gun at your head and say, “Do what we say or else.” Government is the only organization which has the lawful power to deny us our liberty, to lock us up if we don’t do what they say. If General Foods—if we don’t do what General Foods says, we don’t get to eat their cereal. If we don’t do what the government says, we go to the slammer. That makes government different.
The subject today is the cancerous growth of federal criminal law. When our founders gave us our Constitution, there were three—count them, three—federal crimes. Trivia question: Can you name them? They’re all in the Constitution. Answer later.
The Original Three Federal Crimes [01:45]
Bob Zadek: To help us understand what’s going on at the federal level, where we have not one but hundreds of various federal police forces, even though our founders envisioned a federal government with no police force whatsoever—now we have hundreds of them—how did we get here? More importantly, how do we get out of it? To help us understand this, I’m proud and delighted to welcome Brian Walsh to the show. Brian has recently written a piece in the Wall Street Journal entitled—and this will tell you all about it—“Time to Arrest the Federal Criminalization Spree.” Brian was an executive director of the Ethics and Public Policy Center’s American Religious Freedom Program. He has written extensively. He wrote a wonderful piece with Heritage, “One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty.” Brian, thanks so much for giving us an hour of your time this Sunday morning.
Brian Walsh: Bob, it’s my pleasure. Thanks for having me on.
Bob Zadek: Now, Brian, you woke up one morning and decided to pen a wonderful piece in the Wall Street Journal, “Time to Arrest the Federal Criminalization Spree.” What prompted you to write that piece, and what was the premise which drove the article?
Brian Walsh: Well, it was prompted by a little bit of good news, and that is that a number of organizations—the Heritage Foundation where I used to work, the National Association of Criminal Defense Lawyers, and others—have been working for about a dozen years up on Capitol Hill to try to get Congress to begin to act in a more principled, more circumspect manner when it engages in new criminalization, you know, creating new criminal laws. And so the positive development was that the new House of Representatives adopted a rules change that we had proposed about starting about eight years ago that makes it a little bit more likely, or hopefully a lot more likely, for the House Judiciary Committee to actually be the one that’ll oversee all new criminalization. Up until now—why should anybody care about that? The reason why is that up until now, this criminalization—the new criminal laws, the modified criminal laws in every bill, almost every bill—they’ve just been floating through every committee up on Capitol Hill. It’s very difficult for one committee to have oversight of it, and this new rules change by the House Judiciary Committee and in favor of the House Judiciary Committee should help to arrest some of that problem. So that was the foundation, that’s what spurred this particular piece. But of course, as you described, federal criminal law is out of control. It’s exploded over the past 40 to 50 years in particular, and Congress is well past time when it should roll up its sleeves and get down to that difficult business of reining it in and making it more understandable for the average person like you and me.
Inherently Wrongful Conduct vs. Regulatory Crimes [03:15]
Bob Zadek: Let’s help our friends out there understand why this is a problem. In our system of federalism, the founders envisioned that the so-called police power—a term of art—rests with the states and the political subdivisions of a state, the cities and counties and townships. And that all of those police powers would not exist, or none of them would exist at the federal level, except for the three original federal crimes, which were treason, counterfeiting, and piracy, for those of you who were sitting on the edges of your chairs wondering what they are. So we had almost no federal criminal law and for sure no federal police force. And criminal law is special in that it is a body of law which, if you violate the law, you’re locked up. Our founders and us citizens today cherish our liberty. Being locked up is a very big deal. It’s the denial of the most fundamental of fundamental rights, our liberty. Therefore, there are lots of—and have been for hundreds of years—lots of common law and then statutory rules governing when you can be locked up, when you are committing a crime. And so the subject is, it is unjust for Americans to be denied their liberty unless they have some knowledge that they’re breaking a law and they’re doing what everybody acknowledges to be a bad act. Now, Brian, give us a little background on what criminal law is all about and how society has learned over hundreds of years not to have a somewhat just system of criminal law, this distinguishing right from wrong.
Brian Walsh: Absolutely. Well, you’re absolutely correct that most of the power to enforce criminal laws and to punish inherently wrongful conduct—things like murder, rape, robbery, assault, battery, arson, kidnapping—those things that we all know are fundamentally and inherently wrongful. Most of the power for that was intended to be reside in the states, unless, of course, somebody took someone across state lines for kidnapping or something along those lines where there actually is a federal interest or a federal nexus, as lawyers would say.
Bob Zadek: By the way, we can debate that for another day. I’m not so sure I’m willing to concede that, but go ahead.
Brian Walsh: Okay, fair enough. And I’m happy to discuss that as well. But as you said, criminal law is different. It’s just different from every other species of law. And the reason why you pointed out is that it’s the greatest power that government routinely uses against its own people, at least in a justified manner. And it carries these really intense stigma that goes with it. So the stigma of being deemed a felon, of losing your personal liberty, you know, and in extreme cases and in some states, you can even face the death penalty, of course. So criminal law is different. It should be used in a very narrow set of cases, primarily for inherently wrongful conduct or also conduct like I just mentioned—murder, rape, robbery—things that you don’t have to have anyone really instruct you that it’s wrongful.
The Importance of Criminal Intent (Mens Rea) [04:50]
Bob Zadek: Brian, you said something which is very important, and I want to be sure our friends out there really focus on this. You said “inherently wrongful conduct.” Talk a little bit more about that. What do you mean by inherently wrongful?
Brian Walsh: Well, that’s the type of conduct that essentially, virtually—I mean, we can at the outer edges of it, we might disagree a little bit in the gray areas, but in the core of it, it’s black and white. And that is killing someone without justification is punished everywhere in the world as a crime, at least anywhere that has a functioning civilized government. Assault, battery, theft, extortion—those types of crimes are wrong in that there’s something inside of us that essentially says it would be wrongful if government didn’t punish this. You just know it.
Bob Zadek: In other words, what those crimes that you listed, what they all have in common is they are one person harming the person or property of another. We know, and Brian, you and I have discussed it, we know from infancy the difference between right and wrong, harming somebody and not harming somebody. And you have discussed that with me even when young children interact, and explain to our friends out there how obvious it is what these inherently wrongful acts are, these bad acts between individuals.
Brian Walsh: Well, yeah, exactly. One of the core concepts, or two core concepts really, of criminal law is that most crimes should be this set of really inherently wrongful conduct that we described, and you have to engage in it with something called criminal intent or wrongful intent. And what that’s similar to, it’s similar to the innate response of a child when that child has done something, broken something, or maybe elbowed somebody, and they say to their parent or the authority around them, “I didn’t mean to do that. I did not intend to do that,” you know, is what they’re saying. And the reason that they say that is because we know that it’s different if you intend to do something wrongful, inherently wrongful, like hit someone, or if you accidentally spin around quickly and hit somebody in the face with your elbow. That’s a completely different matter. It’s still unfortunate, it still may cause harm, but that’s the type of thing that the law should regulate through the civil law. And that is where you end up going to court and getting damages, you know, money or something along those lines, as opposed to prosecuting someone for accidentally hitting someone or accidentally doing something wrongful.
So where that plays out in real life in today is that many, many crimes today regulate conduct that you or I may not know offhand is actually prohibited. So it may do something like—one example is a gentleman by the name of Krister Evertson, who was sending some materials—he was an inventor and he was sending some materials that were lawful for him to ship, but he did not know, even though he had investigated as best he could, he did not know that you have to put a certain sticker on your package. Nor did the UPS person who took his package know that he had to put a certain sticker on it. As a result, he ended up being prosecuted for violating a federal crime that didn’t require anyone to prove that he intended to do it, you know, essentially that he intended to do it. So if you or I are in a situation where we now today have thousands of federal criminal laws—no one can even count them, not even the Justice Department or the Congressional Research Service, both of them have given up trying when they’ve been asked to do so—how can we possibly know how to keep all of our conduct lawful? And we need to be protected by having that the government have to prove that we intended to violate some law or that we knew that we were violating some law. That’s called criminal intent. And again, it really gets back to that fundamental principle that much like the child or as Justice Oliver Wendell Holmes said, “Even my dog knows the difference between my stumbling over him and my intentionally kicking him.”
Bob Zadek: And what’s really important, this is not nitpicking, this is not like something which we find annoying, but it goes to the core of civic life. And here’s what I mean: The purpose of criminal law is to deter people from doing acts that society finds to be deleterious and to punish people who do bad acts. Now, how can you deter people if the laws are so complex that nobody knows except after the fact that you’ve done something wrong? It becomes a “gotcha.” And when you start to have federal law where people get locked up under a “gotcha” by some aggressive prosecutor, what happens? We all start to lose respect for the law. And society starts to suffer from a cancer, a civic cancer, when people no longer respect the government, no longer respect the laws. We all become a cynical nation of lawbreakers, not because we have become evil, but because we lose respect for the system. So that’s why this is so important. We cannot have a criminal justice system full of “gotchas” so that you find out only after the fact, when you had no bad intent, that you’re in the slammer. And that’s why Brian’s subject is so important. It goes to the heart of respect for our government and respect for criminal law.
This is Bob Zadek. I’m speaking with Brian Walsh. We are discussing Brian’s writings on the subject of the overcriminalization of American civil life by the federal government. 800-345-5639 to join the conversation at any time. Your calls are, of course, always welcome.
The 20th Century Shift in Legal Philosophy [08:55]
Bob Zadek: Now, Brian, we started off with three, as I said, three federal crimes. And now we have—we don’t know how many—somewhere around 5,000 if you ignore all the regulations that criminalize conduct. How did this happen? Can you give us in the big picture, who’s at fault and what’s at fault and systemically, what’s wrong with our country that we became so—that we started to lose respect for the value of liberty and become so willing to lock away people for doing what we would think is something which is not that bad or not bad at all? How did we get here?
Brian Walsh: Well, great question. And it’s—you know, by the time of the founding of this country, we had about 500 years or more of development of the Anglo-American common law. And that common law had certain presumptions in it, such as what we just talked about: that criminal law should be reserved for only the really heinous, inherently wrongful conduct, you know, the most dangerous, and you should only punish somebody if they acted with criminal intent. Those two concepts were at the core of the criminal law really until the beginning of the 20th century.
Bob Zadek: And by the way, the importance of common law and why looking back at the common law is always helpful. The reason common law is so important is that common law evolved. As people lived together in society, they developed over time and through experiences, they developed rules. So these were not rules that were enacted by some legislator who had a worldview. These were enacted collectively by the behavior of millions of people interacting together and learning from experience. So the common law is highly small-d democratic in that it represents sort of the best that human beings have learned about interacting. Therefore, the common law has to be the starting point because it’s the result of all of us operating in good faith over a long period of time. Sorry, Brian, go ahead.
Brian Walsh: No, it’s good. Well, the—and so when the Constitution was adopted, it was adopted in a context. In other words, it wasn’t just created ex nihilo out of nothing, right? It was created in the context of the American Anglo-American common law. And that means that when we adopted the Constitution, it says that you have the right to trial by jury. It did not have to—the Constitution itself did not have to define trial, it did not have to define jury, because those things had a definition in the context of the existing common law. So in the same way, what it meant for something to be a crime was also defined. It had to have a wrongful act and a guilty and a wrongful mind, a guilty act and a guilty mind.
In the 20th century, that theory came under a lot of scrutiny. And more and more experts began to see the criminal law as a way of controlling behavior and a way of shaping behavior. As a result, they began to throw out a lot of those restrictions on what the criminal law should be punishing and began to see that—began to believe and to promote the idea that criminal law was just another handy tool like any other handy tool that if we can try to promote a certain socioeconomic end or socioeconomic goal using the criminal law, we should do it. So in the 20th century, the whole idea of the guilty mind, the criminal intent, being a part of the law became less and less important, especially at the federal level to start with. So we began to see experimentation with criminalizing all types of conduct—economic conduct, social conduct—and it wasn’t really until not that long ago that people began to once again realize that the criminal law was out of control and that we really needed to go back to those first principles. And we—a number of organizations, the Heritage Foundation, the National Association of Criminal Defense Lawyers, Ethics and Public Policy Center whom I work for, began to work on this on Capitol Hill again to reinstate those principles so that we would get back to that fundamental truth of: criminal law is something very powerful, very dangerous. If it’s used properly and appropriately and justly, then it’s vital to any fully productive and functioning society. But if it’s applied with too much—too frequently and too aggressively based on a superabundance of criminal laws that are too broad, then it unnecessarily destroys lives, you know, livelihoods, families. And we’re now beginning to reap the whirlwind of that. That’s why you have people from the left and the right, Democrats and Republicans, beginning to see that this is a problem that we must address.
The “Tough on Crime” Mantra [11:15]
Bob Zadek: And what’s really important for our friends out there to understand, and I suspect they already do, is this: That to the extent that we have this creeping growth of federal criminal law, it shows a—there’s a corresponding declining respect for the value of liberty. What’s the opposite of liberty? Answer: Incarceration. So when the legislators will just throw in without much thought a criminal penalty for conduct that is only bad because some legislature decides that it’s bad, not because society needs it for its own protection—once we do that, the legislature is saying, “I put higher value on affecting behavior than I do upon liberty.” And it’s just a declining respect for liberty. And libertarians—same root—value liberty above all other values. Our dominion over our own bodies and behavior is cherished. And when the legislature denigrates the value of liberty, we have to react very strongly. And that’s why this topic is so very important. It’s one thing for the legislature to try to influence behavior if they must by passing some kinds of statutes and building an infrastructure if they must do that—I of course reject that. But to criminalize it, to use the ultimate weapon of a six-by-nine-foot cell, is over the line. And that’s why Brian’s topic is so important.
So Brian, isn’t there a bit of laziness going on at the federal level? You’ve written about that. And tell us where you find some sloppiness, laziness, if not bad motives, at the federal level.
Brian Walsh: Yeah, well, you know, really we had—after the explosion in crime in the ’50s, ’60s, and ’70s, that “tough on crime” mantra became a very compelling way for politicians to pick up votes. And of course, we did need to improve some of the sentencing and also just the way that we were prosecuting and punishing some inherently wrongful conduct—you know, murder, rape, robbery, and the rest. But that “tough on crime” just became kind of an easy way for people to pick up votes, and it wasn’t necessarily principled. Unfortunately, one of the things that’s happened over the past couple of generations is that there has not been very solid, systematic teaching of civics across the country. Now, there are exceptions and some school districts are terrific at it. But in general, Americans are not as familiar with the Constitution as they were 50 to 60 years ago, not as familiar with our basic rights and also some of the concepts of criminal law and how it’s supposed to work. So when politicians began promising “tough on crime,” they didn’t really have to give much more detail than that. It sounded good, and sure enough, if they then proposed a very harsh bill on whatever the crime might be or whatever the current event might be, that ended up being a politically popular thing to do.
So one of the perfect examples of this is a very tragic carjacking that occurred in Maryland during the George H.W. Bush’s administration. And it was a carjacking that, again, tragic, the woman ended up being killed in it. And the positive side from a law enforcement standpoint was that both of the perpetrators were caught, both of them were prosecuted, both of them were given the maximum sentence, life imprisonment, under Maryland law. There was really no doubt that they were the ones who committed that crime. The unfortunate side—and this is just more illustrative of how this problem occurs—is that Congress felt that it was under some type of pressure to, quote, “do something” about it, to be tough on crime. Well, carjacking at that time was already prohibited and punishable as a severe crime in every jurisdiction in the nation. Nevertheless, Congress created a federal carjacking statute, one that really wouldn’t have much—there wasn’t really much federal interest because most carjackings, like this one in Maryland, occurred within the boundaries of a single state. Nevertheless, that illustrates how these laws come into being. There’s a lot of pressure on Congress, on the federal government, on the Justice Department to be the ones who fix every problem. Instead of turning to our local state capitals many times to get our problems fixed there, the mentality has grown up in the last 50 years that Congress is the source of all wisdom, as President Reagan said, when often, you know, its solutions to the problems are worse than the problems themselves. So that “tough on crime” has translated into a mentality up on Capitol Hill that we’ve been working to combat for about a dozen years, which is that every good bill needs to have a criminal—new criminal law associated with it. And we actually heard members of Congress about eight to ten years ago saying things like that. Hopefully, we’ve begun to combat that, but that’s the type of thing that your listeners and people like them need to help their politicians, elected representatives, understand: that they want principled criminalization. And in fact, they even want some of the bad criminal laws to be pulled off the books. Congress seems to have forgotten that it can repeal bad laws, and it can and it should, and some of the worst ones need to be thrown into the legislative dumpster and taken off the books and, you know, good riddance to them.
The Case of Krister Evertson [15:45]
Bob Zadek: Brian, I wonder—you made one statement that I will just raise a question about. You said in telling us the carjacking story that there was pressure on Congress to pass a federal law. I don’t think that was really the case. Congress or Congresspeople running for office seized upon that as a way to make some points during an electoral campaign. I don’t think there was a groundswell at the local level for Congress to pass a federal carjacking statute, but rather the issue was hijacked for the crass reason of making an easy election issue that nobody could oppose and run on that issue and vote for that kind of legislation. I’m not so sure you’re right about there being a clamoring.
Brian Walsh: Yeah, I think it’s hard sometimes to determine the—or make the distinction between what the media wants and thinks it needs and what the people want. And so you absolutely could be correct that there was no clamoring for a federal solution. The media may have been the ones who made that an issue and, as you said, in something of, you know, unstated cahoot or collaboration with the people who are going to benefit from it politically. So it really is something where—but we do see this in—the media can be a facilitator and enabler of this process because often if there is an issue, they really want a federal solution, and we’ve seen that even recently. So that’s a dynamic that leads towards further criminalization unless we step back and ask some hard questions and say, “Are there laws already on the books that can punish appropriately with the right level of punishment this type of conduct, and are they being enforced?” And if the answer is yes, then it’s tragic that there may be a crime committed, but we may not need new law. We may not need new law.
Bob Zadek: And part of the problem is, while there are lobbying groups for almost every issue, there really isn’t, except for one that I’ll get to in a moment, there is no strong lobby who lobbies aggressively and effectively to help those people who get caught up in the regulatory criminal law environment and get incarcerated for committing very benign acts that are technical criminal law violations. There’s no lobby. Now, I said no lobby except for one. The one happens to be libertarians, because libertarians have as a core lobbying value: liberty. So therefore, this is an argument simply in favor of liberty and opposing the surrender or the taking away of liberty for spurious and for rather silly reasons.
Now, Brian, just to show—and there are, in addition to congressionally enacted criminal laws, the executive branch also, through the regulatory nation we live under, has myriad and uncountable—and I really mean uncountable—number of federal criminal statutes that are buried in regulations so that nobody knows about them, so it cannot deter behavior because nobody knows the behavior is bad. So give us some examples, because you’ve written about this extensively, of how what you call “crazy laws” and rogue prosecutors—give us some examples of how otherwise law-abiding Americans get swept up in these hyper-technical statutes and regulations and have their liberty taken away.
Brian Walsh: I will. And before I say it too, I will echo what you said: that Congress oftentimes in its new legislation will put a provision in the new law that says that violations of this section, violations of regulations and rules promulgated under this section, can be punished by five years in prison or whatever else it might be. So they sort of put a blanket criminalization for any new regulations that unelected bureaucrats end up promulgating later on. So it really is a destructive trend, one that needs to be and is starting to be addressed. And I agree with you, there aren’t really lobbying organizations. Fortunately, there is a coalition of organizations even on the left and the right—the National Association of Criminal Defense Lawyers, the Heritage Foundation, Cato Institute, Institute for Justice, the Federalist Society as well. But an example of how this plays out—I mentioned earlier Krister Evertson, who was an inventor who spent really $100,000 of his own family’s money trying to invent clean energy cells. And he’d been fascinated by this since he was a high school student. I had—he ended up testifying in Congress, I’ve met Krister, spent time with him. He’s one of the gentlest, most unpresuming men you’ve ever met. He had a picture of him even in high school working on this idea. He just had that idea that he wanted to be involved in creating clean fuel cells. So he did everything he possibly could to adhere to existing regulations. He knew what safety was. And at some point, he ended up running into financial problems and had to sell some of his materials, very all lawful for him to do so. He sold some of them over eBay, shipped them in a container that was properly insulated, all the rest of that, and he failed to put the right sticker on his package. Now, as it turned out, this was a rule, a regulation created by some bureaucrat someplace. The sticker that they were supposed to put on, no federal official could ever even show what that sticker was supposed to look like. So it wasn’t clear that the sticker ever existed; there was just a requirement that the sticker be put on there. That’s not even bad enough. What it got worse: He ended up being acquitted because he had an enterprising public defender who showed that the UPS agent who received his package and shipped it for him had actually lied. And then the feds, instead of allowing this case to drop, they ended up prosecuting him claiming that during the time that he was defending this, that he had, quote-unquote, “abandoned” his materials, which were stored in half-inch thick stainless steel drums with no leakage whatsoever. And because they did not have to prove criminal intent about this second charge, they could just say, “Well, he constructively abandoned them because he hadn’t visited them for a while.” Well, he’s a little busy defending himself against another prosecution which he was acquitted for. Nevertheless, because they did not have to prove criminal intent in this second charge, he ended up being found guilty, spent two years in federal prison, and ended up basically having his entire livelihood destroyed. The last time I spoke with him, he was living on a trailer in a construction site because that’s the only place he could find to live in. That’s the type of thing that we see happening more and more because of these crazy prosecutions and these very broad laws.
The Lacey Act and Foreign Regulations [18:05]
Bob Zadek: The story that I know you’ve told before, I think you did it in an interview recently, was about the Honduran fish issue.
Brian Walsh: Abner Schoenwetter was an importer for about 20 years of seafood. He had no violations, he conformed to all USDA, FDA requirements, all the inspections, all the rest. However, a bureau of the Department of Commerce received an anonymous fax claiming that his shipment was going to be illegal. And he ended up being boarded—his ship was boarded. They decided that—it’s a long story, but I’ll give you the short version. The short version is that not that he had violated any U.S. law per se, that he had allegedly violated Honduran regulations, which the Honduran government later said were not valid and enforceable at the time that Abner allegedly violated them. One of those regulations required him under Honduran law to package all of his seafood in cardboard boxes. He had done it in un-leakable plastic bags. And there is a federal law called the Lacey Act that makes every violation of any nation’s fish or wildlife regulation of any nation on earth a violation under federal law punishable in a federal penitentiary time. Abner ended up serving eight years in prison for this and his fellow workers.
Bob Zadek: And his only crime was violating Honduran law.
Brian Walsh: A Honduran regulation even. It wasn’t even something that was promulgated by the legislature of Honduras; it was something that a bureaucrat created in another jurisdiction in Honduras. And they later said—the Attorney General of Honduras, which like the Attorney General of the United States is the highest law enforcement officer in Honduras—gave a sworn statement that that regulation was not punishable, not valid and enforceable during that time. Nevertheless, Congress didn’t look at every single law or regulation of every nation on earth when it enacted the Lacey Act and decide, “Yes, we want to punish all of those laws, they’re consistent with our principles, our Constitution, and all the rest.” Nevertheless, if you violate any of those, you could end up going to prison.
Bob Zadek: It was lazy, lazy, lazy, thoughtless legislation. When we elect representatives and senators, we elect them to do one thing: pass good laws. And this was legislative malpractice. And when I hear this story, and I invite my friends out there to do the following: Imagine if you were in prison for eight years for doing that act. How would you feel about your country? Would you say to yourself, “I am a criminal, I deserved it, I deserve to be deprived my liberty,” or would that make you despise everything about America and feel America is a totally unjust country? The fact is, it pains me to think that my country takes liberty and gives it so little value, and elected officials with the stroke of a thoughtless pen are able to deprive fellow citizens of their freedom for violating statutes such as that.
The Gibson Guitar Raid [20:35]
Brian Walsh: Yeah, Bob, and you know, it’s interesting is that a lot of these laws are enacted with good intentions. And that—those good intentions end up being played out in a way that ends up having unintended consequences. It’s really up to us to make sure that we are looking over the shoulders of our elected representatives and letting them know that we are not in favor of them legislating and criminalizing in an unprincipled manner. It really takes the people still—the people still have power in these issues. It’s important for us to be educated about it. Your show is an important venue for that to happen, and for Americans to recognize how should criminalization work and to speak up when they see things that seem to be unjust.
Another example of this is Gibson Guitars. You’ve probably heard about that.
Bob Zadek: It’s funny, I was just going to mention Gibson Guitars, because I suspect I have a few rockers out there in the audience. So I was thinking about Gibson Guitars when you are talking about another country’s environmental laws. Tell our friends about Gibson Guitars, because it’s a horrible story, but it proves our point.
Brian Walsh: Almost unimaginable. Almost unimaginable. You know, of course, Gibson Guitars is one of the most famous guitar companies. They’re iconoclastic in American culture. They’ve got the Les Paul, which is one of the most famous guitars, electric guitars ever made. And they were raided by federal agents. They actually had 30 SWAT agents, SWAT gear, automatic weapons. They invaded three of their factories in 2009 and 2011.
Bob Zadek: In Tennessee, if I’m not mistaken.
Brian Walsh: I believe it was in Tennessee, that’s correct. And the initial claims by law enforcement was that they had been importing hardwoods—rosewood and other hardwoods for their guitar fretboards and for other parts of their guitar—illegally according to the laws of India and Madagascar. Well, pause for a moment and fast forward and recognize that the government of Madagascar provided a sworn statement saying that no laws had been broken. The Justice Department’s claims that Gibson had violated the laws of India were never supported by that nation’s government. That should have really finished the case. In fact, the Justice Department probably should have figured that out before they did the raid. Fast forward even further, they ended up spending about two and a half million dollars in legal fees. They would have spent about five to six million dollars in legal fees if they had ended up going to trial. They paid about a half million dollars in fines in a settlement, and they were never charged with a single crime. They were essentially shut down from being able to import the woods that they needed for their business from India, from Madagascar during that time. And of course, their competitors weren’t. One of their competitors was the Martin Guitar Company, whose catalog said that they also used East India rosewood in some of their guitars. For some reason, they were never investigated, they were never shut down from importing in that way. Now, I’m not saying that this was motivated by politics. But here’s the problem: When you have a very broad law like the Lacey Act, which was the foundation of this alleged crime which turned out not to be a crime, when you have a broad law like that, certain factors that appear to be political are going to raise suspicions in people’s minds. So for the CEO of Gibson had actually given a small amount of money, about $3,500, to a couple of Republican candidates. The CEO of Martin, their top competitor, had given about $35,000 to Democrat candidates. Now again, no one knows for sure if that had any influence on it, but when you have a very broad law like this that’s selectively enforced, it raises questions, it undermines respect for the law, it really raises doubts in everybody’s mind about the justice of the justice system. It’s the type of thing that just should not happen in America.
Bipartisan Hope for Reform [22:35]
Bob Zadek: And once Americans start to believe that their own government is arbitrary and unjust about incarceration, depriving people liberty, our civic fiber starts to be torn apart. The civic fiber that I love so much starts to deteriorate. And I so much want a country where we respect the laws and believe in our heart of hearts on first principles that our government operates on first founding principles. And we hear these stories and we are forced to say it does not. It makes me ashamed, and I don’t want to be ashamed of my own country.
Now, Brian, give us a positive note. We have about two minutes left. Tell us what you hope will happen in Congress today. And this is not a partisan issue; it is bipartisan because there’s no Democratic or Republican position. Give us an optimistic note in a minute and a half as to why you hope things will get better.
Brian Walsh: Well, I think because you and others have been raising awareness on this issue for a while, a number of organizations have been doing so for a while, Americans are starting to wake up to the problem. In addition, there have been champions on Capitol Hill: Representatives Bobby Scott, Democrat from Virginia; Bob Goodlatte from Virginia, Republican; Louie Gohmert from Texas, and others, bipartisan, recognizing that this is an issue. They created a bipartisan Overcriminalization Task Force in the House Judiciary Committee, and there have been hearings on this issue, and we’re beginning to see some movement. So one of the most positive things that’s happened in this year is that adoption of the new rules change so that now all federal criminalization should—all new criminalization should be reviewed by the House Judiciary Committee. That’s a positive step forward. And we’re also seeing, for example, in Ohio, a new law adopted that would require a criminal intent anytime that the legislature forgets to put it in or chooses not to put it in, automatically would be read into the law. That type of default rule for criminal intent is another thing that’s gaining currency. More and more people are beginning to pick up that idea. So you’re seeing people on the left and the right working together, Democrats and Republicans. I think that there has a greater awareness of the problem, and I think Americans are beginning to wake up on it. So I think there is hope. Things are moving in the right direction, slowly at first, but at least they’re the right steps in the right direction.
Bob Zadek: We can’t have federal criminal or even state criminal laws that are “gotcha” statutes. That is, we trick people into getting into prison. That’s un-American and that has to stop. Brian, how do people follow you online?
Brian Walsh: Go to eppc.org, that’s Ethics and Public Policy Center dot org. And that’s one of the best places to find my information. And when it comes to overcriminalization, some of those other organizations that I mentioned—National Association of Criminal Defense Lawyers, the Heritage Foundation—are doing a great job as well. So it’s really a coalition effort and a lot of people are working together on it.
Bob Zadek: Brian, thanks so much for giving us an hour of your time this Sunday morning and keep up the good work. We’ve got to get people out of prison unless they really do bad acts. Thank you so much. Thanks to my friends out there for listening, for giving me an hour of your time. I’ll be back next Sunday. Have a good day.