The end of the Lacey Act

 Americans for Forfeiture Reform is pleased to see U.S. Congressman Paul Broun, M.D. (GA-10) bring the Freedom from Over-Criminalization and Unjust Seizures Act (FOCUS) Act of 2012, H.R. 4171 to the floor of the House of Representatives. Senator Rand Paul (KY) introduced identical legislation (S. 2062) in the US Senate last month.

 The FOCUS Act would amend the Lacey Act, removing criminal liability for a range of foreign laws pertaining to animal and plant life.  The Lacey Act currently permits U.S. officials to find foreign laws to leverage fines, forfeitures, and prosecutions against Americans (including via foreign laws that are not enforced in the lands from which they originate). The fines and forfeitures often in go into the budgets of the very departments that threaten prosecutions of foreign laws under the Lacey Act. Unsurprisingly, this has led to abuse including the Gibson Guitar raid and the unresolved disgrace at the National Oceanic and Atmospheric Administration.

The National Association of Criminal Defense Lawyers (NACDL) and The U.S. Chamber Institute for Legal Reform (ILR) released statements applauding Congressman Broun’s move as well.

The NACDL released the following press release earlier today.

House Members Join Senators in Taking on Lacey Act; Nat’l Defense Bar Applauds Another Important Step in Reining in Overcriminalization

Washington, DC (March 8, 2012) – Today in the U.S. House of Representatives, important job-saving legislative reform attacking overcriminalization was introduced. NACDL supports this bold and important step confronting the ever-growing crisis of overcriminalization in the federal criminal law in the form of the “Freedom from Overcriminalization and Unjust Seizures Act of 2012,” the FOCUS Act, which is identical to the legislation introduced in the U.S. Senate in early February.

The now infamous Lacey Act is a law dating to 1900 that originally targeted illegal trade in wild game. When enacted, it imposed a maximum penalty of $200 for a violation, with no provision for incarceration. Over the years, multiple amendments and expansions of this law have produced a case study in the burgeoning problem of overcriminalization and the overfederalization of criminal law. The reach of the Lacey Act now spans the globe, incorporating into U.S. law by reference the laws of foreign nations and extending its scope to a widening range of wildlife, fish and plants.

The law in its current form is overly broad and vague, subject to abuse by prosecutors, and, importantly, can trigger extremely harsh criminal penalties without regard to whether someone accused under the law acted intentionally or knew they were violating a law. Indeed, a witness who testified at the most recent House of Representatives Crime Subcommittee hearing on “Reining in Overcriminalization,” a lobster importer named Abner Schoenwetter, spent six years of his life in federal prison for violating certain Honduran administrative fishing regulations, which the government of Honduras itself told U.S. authorities were not even valid law in that country. A copy of Mr. Schoenwetter’s testimony in the House of Representatives is available here.

This legislation, the FOCUS Act, removes each and every reference within the Lacey Act to “foreign law.” And it sensibly replaces the Lacey Act’s criminal penalties with a civil fine regime providing that a violation with a market value of less than $350 is subject to a maximum penalty of $10,000, with the remaining category of violations subject to a maximum penalty of $200,000.

As NACDL President Lisa Wayne explained when this legislation was introduced in the Senate last month, “It is no secret that in Washington every problem often has at least one or more criminal law ‘solutions.’ That’s a big part of how our country reached the unenviable, and extremely costly, status quo of the highest incarceration rate as well as the largest absolute number of people behind bars of any nation on earth. Indeed, the very size of the federal criminal law is compelling evidence of that point – more than 4,450 crimes are scattered throughout the federal criminal code as well as tens of thousands more in the regulations. So we applaud the sponsors of this legislation for taking this important and courageous step to bring sanity to the criminal law.”

NACDL has for many years been a leading voice for a sensible and fair criminal justice system, including extensive efforts to combat the problem of overcriminalization and the overfederalization of the criminal law. NACDL supports measures such as the FOCUS Act to bring common sense back to criminal lawmaking.

Extensive resources on the problem of overcriminalization, including a link to NACDL’s and the Heritage Foundation’s groundbreaking report, Without Intent: How Congress is Eroding the Criminal Intent Requirement in the Federal Law, can be found at www.nacdl.org/overcrim.: http://www.nacdl.org/NewsReleases.aspx?id=23724&libID=23693

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