Making Felons of Us All

The libertarian blogger The Hippo’s Ass has an interesting post from the “truth is stranger than fiction” department:

We are all becoming criminals. Here is yet another example of the Government overreaching its authority and criminalizing ordinary citizens who had no intention of breaking the law.

In 2006, Federal Agents burst through the door of the home Kathy and George Norris, 60 and 66 year old Grandparents of six grandchildren. They ransacked the house, overturned drawers, emptied bookshelves, threw the Norris’ belongings on the floor and searched their home.

Were these SWAT clothed agents from the FBI? The ATF? Homeland Security?

Nope. They were from the U.S. Fish and Wildlife Service….and their mission: Looking for illegal orchids.

That’s right. Orchids. Seems that Mr. Norris, who owned a home-based business cultivating, importing and selling legal orchids, did the unthinkable: he ordered perfectly legal orchids from a supplier overseas, but failed to fill out the necessary paperwork properly. The result? Mr. Norris spent two years in prison.

Read the whole thing here: When Orchids Are Made Illegal, only Criminals Will Own Orchids

Two years in prison for improperly filling out paperwork. About orchids. Think about that.

The Norrises aren’t criminals. The federal agents, prosecutors and judge, all subsidized by our tax dollars, who put two innocent American grandparents through a Kafkaesque nightmare reminiscent of the Soviet show trials are the real criminals here. But they will never be held to account for their role in this miscarriage of justice.

In a new book titled Three Felonies a Day: How the Feds Target the Innocent, author Harvey Silverglate relates how federal laws have become so complex and confusing that ordinary law-abiding citizens commit on average three felonies a day.

Silverglate isn’t talking about hardened criminals or “greedy” businessmen purposely trying to skirt or evade known laws, but wholly innocent people inadvertently running afoul of laws that seem purposely intended to make felons of us all.

It began with the so-called War on Drugs, but first we need to review some Constitutional history, specifically the Fourth Amendment. Since the beginning of the 20th century, federal case law interpreted the 4th Amendment’s prohibition against unreasonable searches and seizures to require the exclusion of any evidence obtained during an illegal search. This affected only a tiny percentage of criminal cases, since most criminal activities were governed by state, not federal law, and most states did not follow the federal exclusionary rule. They agreed with Justice Benjamin Cardozo, chief judge of the New York State Court of Appeals, who declining to adopt the federal exclusionary rule, famously asked “Must the criminal go free because the constable has blundered?” To ask the question is to answer it.

The biggest problem with the exclusionary rule is that it benefited only criminals, since if a law-abiding citizen was victim of an illegal search, presumably no criminal evidence would be found and he was left without redress for the infringement of his Constitutional rights. But if a criminal was the subject of an illegal search, then the exclusionary rule served as a Get Out of Jail Free card. The problem was compounded by a series of Warren Court decisions in the late 1950s and early 1960s. First, the Warren Court decreed that most of the Bill of Rights (even when they say “Congress shall not.”) apply to the states. This meant that the federal exclusionary rule now applied to the states. Next, the Warren Court expanded the “protections” of the Fourth Amendment to increasingly hamstring legitimate law enforcement activities. One particularly egregious example was their wholesale invention of the “fruit of the poisonous tree” doctrine, which extended the exclusionary rule to throw out not only evidence obtained in, but as a result of, an illegal search. This meant that if the police received a tip during an event later ruled to constitute an illegal search, and then the police obtained a warrant based even in part on the tip and found evidence during a subsequent legal search, the evidence still had to be discarded under the fruit tree doctrine. Finally, the Warren Court turned the definition of an illegal search on its head. A police officer acting on clear probable cause obtains a warrant from a magistrate, conducts an appropriate search and finds evidence of a crime. However, it is later discovered that the warrant contains an error, such as misspelling the target’s name or transposing numbers on the address. The warrant is declared defective, the search deemed “unlawful” and the evidence thrown out.

Getting back to the War on Drugs, by the early 1980s, thanks in large part to Warren Court decisions, the drug lords seemed to be winning. The narco-terrorist drug cartel in Cartagena nearly brought down the Colombian government. In the U.S., we witnessed the spectacle of obviously guilty drug dealers acquitted on technicalities. When the drug cartels started executing Colombian judges and politicians and threatening our own law enforcement agents, it was time to fight back … with a vengeance.

By the mid-1980s, even liberal federal Circuit Court of Appeals clerks cynically joked about the “drug-dealer” exception to the Fourth Amendment. We went from one extreme to the other. From solid evidence obtained during good faith searches thrown out on technicalities to the opposite extreme of no-knock warrants and routine infringements of civil liberties. If you had the misfortune of living next door to a drug dealer or a suspected drug dealer … or a disliked neighbor that an anonymous tipster accused of drug dealing, the SWAT teams might break down your door in the middle of the night by mistake. If you assumed they were burglars or worse and grabbed a weapon to defend your family, it would be your funeral. Literally. But if you were lucky enough to survive the ordeal, the exclusionary rule would help you … if the weapon was illegal.

Something else happened over the last 25 years. In 1970, Congress enacted the Racketeer Influenced and Corrupt Organizations Act, commonly referred to as RICO. While its intended use was to prosecute the Mafia and drug traffickers, its application was greatly expanded to potentially ensnare virtually any legitimate business and its management. RICO applies when there is “a pattern of racketeering activity.” However, “racketeering activity” is broadly defined to include not only gambling, murder, kidnapping, arson, robbery, extortion, and drug trafficking, but also fraud, including securities fraud. And “pattern” requires only two “predicate acts.” While Federal prosecutors appropriately used RICO to go after the Gambino crime family and assorted mobsters, in 1989, they also used RICO to threaten Michael Millken and Drexel Burnham Lambert with 98 felony counts based on allegations of market manipulation and technical violations of securities regulations that previously carried no criminal penalties. Millken and Drexel ended up pleading guilty and no contest to lesser charges, since Millken faced life imprisonment if convicted, and an indictment would have put Drexel out of business.

Since then, the federal criminal code has literally created thousands of new “crimes” ranging from fish and game and environmental regulations to HIPAA recordkeeping requirements for insurers and medical practitioners, as documented in a 2004 Cato Institute book, Go Directly to Jail: The Criminalization of Almost Everything, written by Gene Healy.

Under traditional common law, criminal liability required both a criminal act (actus reus) and criminal intent (mens rea), and the prosecutor had the burden of proving his case “beyond a reasonable doubt.” No longer. The new federal criminal statutes ignore the core principles of traditional common law, especially the criminal intent requirement. This makes it extremely easy for federal prosecutors to bring charges against people like the Norrises. Even if you are a law-abiding person, even if you have no intent to commit a crime, even if you act on the advice of an attorney or the government, you can go directly to jail, thanks to what the book describes “an unholy alliance of tough-on-crime conservatives and anti-big-business liberals has utterly transformed the criminal law” into dystopian nightmare that’s part Kafka, part Orwell, part Heller.

When they came for the orchids I did not speak up, etc.

But when I awoke the next morning from unsettling dreams, I found myself changed into a monstrous vermin.

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