Early in the last century, I attended two colleges that enforced strict codes of personal conduct. This included prohibitions on tobacco, alcohol and sex – i.e., smoking, drinking, and fooling around (in the student vernacular). At that time, these were not recognized as serious “sins” by wider society, except in excess. But at those colleges, they were entirely prohibited to students and faculty, on pain of dismissal from the institutions. “Moderation” was not an acceptable option. (Married people were generally exempted from the strictures on fooling around, although they were not supposed to enjoy it.)
Even the most doctrinaire believers in those behavioral policies recognized, however, that it would be difficult to defend expulsions or firings for the minor offenses of smoking, drinking, etc. Many colleges of that time used the demerit system to deal with such offenses, but the colleges of which I speak were not so inclined.
Accordingly, administrators found it prudent to construct “contrived sins,” which would subsume SDFA and other minor offenses and magnify them into expellable offenses. The primary vehicle for this was called The Pledge – a literal document all students had to sign in order to matriculate. (Employees also had to sign it in order to work at the colleges.)
The Pledge listed activities and practices that the individual “promised” not to engage in. Thus, if he should be found to have violated of any of the proscriptions, he could rightfully be expelled for “breaking his word” – an offense generally recognized as serious, even by secular society.
Generations of students have complained that this artificial construction was unworthy of religiously grounded institutions. It also significantly restricted personal freedom, as secular people have eagerly pointed out on many occasions.
I cite the foregoing because up until the present time Americans have been unaccustomed to the dynamic of “contrived” offenses in their laws. Past law was easily understood. Trivial errors were not generally elevated into federal offenses. And you couldn’t accidentally break the law.
Everyone of normal intelligence knew that robbing a bank was a serious offense. You couldn’t rob one without knowing you were doing it. Nor would you go to jail for putting the wrong postage on a letter or misfiling a form. This tended to simplify life. You could choose to break the law and risk its penalties, of course, but this was not something you strayed into unawares.
As they say – that was then and this is now. A recent article, “Criminalizing Everyone” – written by Brian W. Walsh, a senior legal research fellow in the Center for Legal and Judicial Studies at the Heritage Foundation – details several shocking cases in which ordinary citizens were busted for “crimes” they didn’t know they were committing.
In one case, armed SWAT teams raided a couple’s home. A business owner was arrested, tried, convicted and jailed for offenses that seem absurd to all but a federal prosecutor. A Saturday Night Live skit framed around the case would lack the credibility even a comedy sketch requires.
George Norris, aged 66, had his business records seized in a raid. He was being investigated for possible violations of obscure regulations governing his home-based business of cultivating, importing and selling orchids. The home of Mr. Norris and his wife, Kathy, was invaded by SWAT-garbed, gun-toting agents from the U.S. Fish and Wildlife Service, who trashed their belongings, ignored their protests, and refused to say what they were looking for.
Mr. Walsh reports: “Mr. Norris ended up spending almost two years in prison because he didn't have the proper paperwork for some of the many orchids he imported. The orchids were all legal – but Mr. Norris and the overseas shippers who had packaged the flowers had failed to properly navigate the many, often irrational, paperwork requirements the U.S. imposed when it implemented an arcane international treaty's new restrictions on trade in flowers and other flora.”
So a 66-year-old man with diabetes, heart trouble, arthritis and Parkinson’s disease spent two years in the Joint for improperly filling out some paperwork? This is a gag – right? It recalls students getting kicked out of school for going to the movies or blowing smoke in the woods.
Mr. Walsh notes that Mr. Norris would have been treated better – e.g., “mercy release” for his medical conditions – if he had been a Libyan terrorist. The ordeal of investigation, prosecution and prison has left him a broken man and his finances in chaos. His life will never be the same.
Another case publicized this summer, during bipartisan hearings conducted by the House Judiciary subcommittee on crime, was that of Krister Evertson – a small businessman and inventor who fell afoul of federal law for a crime he didn’t know he was committing. Again, Mr. Walsh’s account is shocking:
“The feds prosecuted Mr. Evertson the first time for failing to put a federally mandated sticker on an otherwise lawful UPS package in which he shipped some of his supplies. A jury acquitted him, so the feds brought new charges. This time they claimed he technically had ‘abandoned’ his fuel-cell materials – something he had no intention of doing – while defending himself against the first charges. Mr. Evertson, too, spent almost two years in federal prison.”
Testifying before the Judiciary subcommittee, Mr. Evertson said, “What I have experienced in these past years is something that should scare you and all Americans…”
At those hearings, criminal law expert Timothy Lynch, of the Cato Institute, spoke of “a clean line between lawful conduct and unlawful conduct.” He wants to prosecute as criminals only people who knew they were acting illegally. Former U.S. Attorney General Richard Thornburgh said we need “…criminal statutes that punish actual criminal acts and [that] do not seek to criminalize conduct that is better dealt with by …regulatory and civil remedies.”
Good words, but obviously not heeded by overzealous federal prosecutors eager to advance their careers with the scalps of hapless businessmen and ordinary citizens. The cases cited stink to high heaven – the vindictive treatment of Mr. Evertson arguably being the worst. Prosecutors slapped him with a second offense after he beat the rap on the absurd first charge of not attaching the right sticker to a piece of mail. (Call out the marines!) Would they have charged him for failing to lower the toilet seat, had the second charge failed? Is this where we are now – jailing people for trivial offenses? Terrorists at Guantanamo prison get better treatment than this.
While the “contrived sins” scenario of my long-ago college days is not exactly analogous to the “accidental crimes” shtick of today’s federal jurisprudence, the parallel track of heavy penalties levied for trivial offenses is easily seen. Americans should be resisting this misguided direction in their federal laws. The more confusing the law becomes, the greater chance exists for all of us to fall, unwittingly, afoul of it. We should not be jailing people for misfiling forms or for failing to use proper postal labels. Federal prosecutors having time for this should find honest work.
The colleges I referred to in the opening paragraphs rarely expel students now for smoking, drinking and fooling around – except in the most egregious of situations. They have chosen to treat students as responsible young people who need some protection from risky behaviors. Thus, they have constructed behavioral standards to which all reasonable people can repair, with penalties appropriate to the violations. Shouldn’t we be doing the same in federal jurisprudence?
George Washington called government “a dangerous servant and a fearful master.” If we ever doubted that assessment, we should certainly see its prescience now.