Congress Looks to Close the Barn Door -- After the Horse Escapes!

Someone sent me the link to an article in which Congress actually held a hearing on the problem of "overcriminalization," or what Rep. Bobby Scott of Virginia declared:

We must put an end to the notion that we need to prosecute every individual for every perceived offense. We continue to lock up people for offenses that should not even require incarceration.

I include some portions of the article so readers can get a better sense of what is happening:

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, at age 64, is a convicted felon with an ailing wife, no job, no right to vote and has 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.

I happened to be at a one-day seminar six years ago, with Schoewetter's attorney being one of the speakers, and I can tell you that what I heard that day was outrageous. To make matters worse, the Honduran attorney general wrote a letter declaring that Schoenwetter and his partner had NOT violated Honduran laws, but that did not matter to federal prosecutors who wanted yet another win at all costs. (Furthermore, we see once again a federal jury failing to do its duty and, instead, choosing to destroy a human life because an ambitious federal prosecutor told them to do it.)

The article continues:

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 -- that's more than a crime a week, 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 said told lawmakers. ``Today, although the penalties are severe and frequently harsh, the underlying conduct punished is often laughable.''

Some of the material here is similar to what Candice E. Jackson and I had in Reason Magazine in 2004 in our article, "Washington's Biggest Crime Problem." In that article, we addressed what apparently some members of Congress only now are starting to realize: that they have created a monster, and federal prosecutors now are able to find that they can charge about anyone they want with any crime of their choosing. Like Levrenty Beria, the infamous head of the Cheka, the secret police for Lenin and Stalin, once declared: "Show me the man, and I will find you the crime."

Unfortunately, it is much too late. Congress, wanting to be "tough on crime," managed to create whole new categories of "crime," turning criminal law away from its roots that went back to the legal traditions we inherited from England, and moving it in a direction in which one did not have to commit a real "crime" in order to be a criminal.

The monster has been devouring innocent people for a long time, and there is no way that Congress can tame it. Should Congress try to do so (and I CANNOT imagine another "tough on crime" Republican Congress being willing to take this kind of a step), federal prosecutors will find creative ways to bring criminal charges against any member of Congress who wishes to roll back this legal tidal wave. Don't kid yourselves. Federal prosecutors literally have NO checks and balances in their line of work.

When the "Public Integrity" unit of the U.S. Department of Justice has liars working for it, and when prosecutors in that unit hide evidence and lie to judges -- and receive no real penalties for such behavior -- then we know that the game is over. I have watched federal prosecutors over the past decade lie, break the law, hide evidence, and engage in malicious prosecutions, yet I have not seen one person who did these things pay any kind of penalty for it.

Thus, the notion that Congress can gain control of a legal system that is out of control is like saying that Congress really is trying to shut that barn door -- now that the horse is out. It is not going to happen, and it cannot happen.

So-called Progressives promised that once we had "experts" in place in the government and they were given unlimited power, they would do good, since everyone knows that "experts" are pure of heart and have only the public welfare in mind. Well, we have Rule of Experts today, and our prisons are bursting with the world's largest prison population, our economy is in ruins (thanks to the "experts" at the Federal Reserve System), and there seems to be no end in sight to the misery these people are inflicting upon others.

Abner Schoenwetter was a decent, law-abiding citizen, and then a federal prosecutor decided to destroy the man and his family. Why? Because he could do it, and he knew that no one would stand in his way. Not even Congress.