Pastor Mitchell,
Thank you for your inquiry and for your interest in our work on overcriminalization.
I am aware of no direct relationship between, on the one hand, the cases of George and Kathy Norris or of Krister Evertson and, on the other, the PATRIOT Act or the Homeland Security Act. The cases were chosen for this op-ed not only because their facts showed that the fundamental principles of American criminal law had been violated, but also because they were recent.
The Bush administration had been in office for 6-7 years when we first began investigating these two cases, but they are very much like scores of similar cases that were prosecuted by prior administrations and that are being prosecuted by the current one.
Most overcriminalization does not come in the form of a widely known, highly scrutinized act of Congress such as the PATRIOT Act or the Homeland Security Act. As the ABA Task Force on the Federalization of Crime and as LSU law professor John Baker have pointed out, there are thousands of federal crimes now on the books. (See, e.g., John S. Baker, Jr., “Revisiting the Explosive Growth of Federal Crimes,”
http://www.heritage.org/Research/LegalIssues/lm26.cfm.) Many or most of these “crimes” attach penalties to conduct that the average American does not know – and cannot reasonably be expected to know – carries criminal liability.
And Congress is creating about 55 new crimes a year in statutory text alone (i.e., not including the scores of additional criminal offenses it authorizes federal agencies to create in the federal regulatory code).
Harvey Silverglate, a noted civil-rights and criminal defense attorney and a founding member of a Massachusetts chapter of the ACLU, has recently published “Three Felonies a Day: How the Feds Target the Innocent.” In his book, Silverglate estimates that almost every American now unwittingly commits approximately three felonies a day. The only things keeping any one of us from being prosecuted are the laws of statistics and the whims of federal prosecutors.
I am not aware of any specific facts in any cases brought under the PATRIOT Act in which a defendant was convicted without substantial proof of criminal intent (i.e., mens rea) or engaged in conduct he had no idea was wrongful and the average American would have no idea was wrongful. The same statement applies to the Homeland Security Act. If you have specific information on any such cases, I would be grateful if you would send it along. Any case study in which the facts clearly and convincingly show that the fundamental principles of American criminal law were violated could prove useful to our work battling overcriminalization.
For further research, I recommend the video and written statements for the (bipartisan) July 22, 2008 hearing in the House Crime Subcommittee on “Over-Criminalization of Conduct/Over-Federalization of Crime.” This is the link to the hearing page:
http://judiciary.house.gov/hearings/hear_090722_2.html.
The July hearing was supported by a wide range of groups, including liberal organizations such as the ACLU, Constitution Project, and National Association of Criminal Defense Lawyers (our closest ally on our overcrim work); libertarian organizations such as the Cato Institute and Families against Mandatory Minimums; and conservative organizations such as the Federalist Society, the Washington Legal Foundation, and the Heritage Foundation. All of these groups believe that overcriminalization and the over-federalization of crime are severe problems that threaten all Americans.
I would also suggest my January 2008 paper, “Enacting Principled, Nonpartisan Criminal-Law Reform: A Memo to President-elect Obama,”
http://www.heritage.org/Research/LegalIssues/sr0042.cfm, if you are interested in a better sense of the direction of our work.
Blessings to you,
Brian
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Brian W. Walsh
Senior Legal Research Fellow
Center for Legal and Judicial Studies
The Heritage Foundation
Washington, D.C.
