An article in today’s Wall Street Journal entitled “As Federal Crime List Grows, Threshold of Guilt Declines” focuses public attention on two trends that has long been followed by Federal Criminal Defense lawyers and has raised concerns among civil rights advocates and attorneys. The first trend, involving the rapid and uncontrolled growth of federal crimes (as distinguished from state crimes like murder, rape, assault, etc) has seen the number of federal crimes rise from just 20 to about 4500. The other trend is the erosion of the proof necessary to prove many federal crimes and send someone to prison.

The uncontrolled growth of federal criminal statutes has resulted in many individuals who are clearly not criminals getting caught up in the criminal justice systems for acts that they were clearly not aware constituted crimes. In legal thought there are generally considered two types of crimes. Crimes that are called in Latin malum in se, meaning wrong in itself are crimes that are generally obvious or inherently wrong or evil such as murder, stealing, assault or rape. The other type of crimes are called malum prohibitum in Latin, meaning wrong as prohibited are those crimes which are wrong only because they are prohibited by a statute such as gun possession, drug possession, copy write infringement, tax evasion or illegal immigration.

Since most crimes that are malum in se crimes, the obvious ones, have already been illegal, the new crimes are the malum prohibitum crimes, the crimes that are not so obvious. To make matters worse, according to the Wall Street Journal article, federal criminal offenses are not limited to one section of federal law but are scattered among 42 of the 51 titles of the United States Code. That means there is no one place where you can look to see if your acts are illegal. So the combination of having non obvious criminal offenses scattered all around the law results in frequent accidental transgressions of sometimes serious laws.

The laws can be quite surprising and most people would not be on notice that they were violating a criminal law. The Wall Street Journal article sites several examples such as a native Alaskan selling an Otter for $50 to a non-native Alaskan without first turning the Otter into some type of handicraft. This violated the Marine Mammal Protection Act and landed the offender on Probation for two years and gave him a permanent criminal record. As everyone knows ignorance of the law is no excuse and ignorance of the law did not help this poor individual from serving probation.

In another outrageous example a fisherman who freed a humpback whale that had been caught in his net was convicted of harassing an endangered species because the law requires him to allow the whale to remain tangled while he notifies authorities and they decide to send the government “expert” to free the whale. The fisherman now goes through life with a misdemeanor criminal record.

The examples of law abiding citizens being convicted of obscure federal statutes goes on and on and has been widely publicized among criminal defense lawyers. In our next blog we will talk about how important and ancient legal protections are being eroded in new federal crimes and how law abiding citizens are being caught up by theses laws.

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