Congress Looks at Laws That Criminalize Non-Criminal Behavior

By Lesley Clark | McClatchy Newspapers
WASHINGTON — Abner Schoenwetter, a Miami seafood importer, spent six years in prison, paid tens of thousands of dollars in fines and legal fees and is at risk of losing his home.

His crime? Agreeing to purchase lobster tails that federal prosecutors said violated harvest regulations — in Honduras.

Now Schoenwetter, 64, is a convicted felon with an ailing wife, no job or right to vote and three years of supervised release ahead of him. But he's also a star witness for congressional efforts aimed at stemming what a growing number of legal experts and lawmakers consider "overcriminalization" — the federal government's penchant for writing new laws to criminalize conduct that could be addressed with fines or other remedies.

"We must put an end to the notion that we need to prosecute every individual for every perceived offense," said Rep. Bobby Scott, a Virginia Democrat who chairs a House Judiciary subcommittee that last week held its second hearing on overcriminalization. "We continue to lock up people for offenses that should not even require incarceration."

Legal experts say there are more than 4,450 federal crimes on the books and as many as 300,000 federal regulations that can be enforced criminally. From 2000 to 2007, Congress created 452 entirely new crimes, said Brian Walsh, a senior legal research fellow at the Heritage Foundation who focuses on overcriminalization.

"It used to be a grave statement to say someone was making a 'federal case' out of something," Walsh told lawmakers. "Today, although the penalties are severe and frequently harsh, the underlying conduct punished is often laughable."

Support for cutting back the tangle of laws and regulations is strong among what Scott calls "seemingly odd political bedfellows" — the Heritage Foundation, a conservative Washington think tank; the American Civil Liberties Union; Edwin Meese, attorney general under President Ronald Reagan; liberal Democrats and traditional law-and-order Republicans who chafe at a plethora of federal regulations, many of which carry prison time.

"We're talking about people's freedom and the way it affects people's faith in their government or lack thereof. We've got to get this cleaned up," Rep. Louie Gohmert, R-Texas, a former judge and prosecutor, said after Schoenwetter told the panel about the agents who burst into his home early one morning, "herding my wife, my mother-in-law and my daughter into the living room in their nightclothes."

"I'm not here to get sympathy," Schoenwetter told lawmakers. "I'm here to make sure other Americans don't have to go through the same destructive ordeal that we've been through."

A major problem, legal experts and lawmakers say, is that many federal laws are written so vaguely that prosecutors are not required to prove criminal intent to put someone behind bars.

Joining Schoenwetter at the witness table: former racecar driver Bobby Unser, who — after getting lost in a blizzard — was prosecuted for entering a national wilderness area on a snowmobile. The charge carried a six-month prison term and a $5,000 fine. Because it was considered "strict liablity," the government didn't have to prove Unser intended to break the law, or that he even knew he broke the law.

"That doesn't seem like American justice to me," Unser told lawmakers. "Why should I, who nearly died in the blizzard, have to show there was no true need for me to enter the wilderness? I didn't even know I was there."

Lawmakers said they worry that the pursuit of such charges wastes valuable law enforcement time and that too many nonviolent offenders are taking up valuable prison space.

Schoenwetter's nightmare began in 1999 when he and several co-defendants were charged with smuggling and conspiracy after agreeing to purchase lobster tails from the same supplier they'd been using for more than a decade. But this time, federal officials said the catch violated Honduran fishing regulations — and therefore, the federal Lacey Act, which makes it a crime to import fish that violates foreign laws.

The Heritage Foundation's Walsh said advocates are developing recommendations to address the problem, including requiring bills that add criminal penalties to be reviewed by the House and Senate judiciary committees. He said a study found that bills that cleared the committees were "statistically more likely to have criminal intent requirements" than those that didn't face such scrutiny.

Other changes would be to direct federal courts to give the benefit of the doubt to the defendant — rather than the prosecution — when faced with ambiguous criminal laws.

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