Go Directly to Jail

Go Directly to Jail: The Criminalization of Almost Everything

Edited by Gene Healy

  You're an honest businessperson with a strong moral compass. You don't cheat on your taxes, or your spouse. You regularly consult with your attorney to ensure that you're complying with the myriad regulations governing your business. You even go the extra mile, talking with children at "Junior Achievement" programs about how to achieve success. The possibility of a criminal prosecution is the last thing on your mind. "The government only goes after real criminals," you think to yourself.

The latest offering from the Cato Institute says: Think again.

In Go Directly to Jail: The Criminalization of Almost Everything, six essays catalog decent people caught in the indecent web of over 4,000 federal criminal laws. 

In "Overextending the Criminal Law," Professor Eric Luna introduces us to the expanding federal criminal code, which now includes, to the extent that scholars can even count them, over 4,000 crimes. Worse, these crimes have come loose from the common law moorings that punished the evil, and acquitted the good. By eliminating the traditional requirement that a person is guilty only of he commits a guilty act motivated guilty mind, "legislators" are turning traditional "criminal sanctions" into "another tool in their regulatory toolkit." As the book jacket explains, "an unholy alliance of tough-on-crime conservatives and anti-big-business liberals has utterly transformed the criminal law" into a trap for the unwary.

In "The New 'Criminal' Classes: Legal Sanctions and Business Managers" James DeLong discusses the general principles of criminal law that affect all cases, especially the lack of a mens rea requirement in most modern criminal laws. Thus, someone who acts in good faith (even consulting with a lawyer before acting) can end up in prison. Which is what happened to David McNab.

McNab was a seafood importer who shipped undersized lobsters and lobster tails in opaque plastic bags instead of paper bags. These were trivial violations of a Honduran regulation - equivalent to a civil infraction, or at most, a misdemeanor. However, using creative lawyering, a government prosecutor used this misdemeanor offense as the basis for the violation of the Lacey Act, which is a felony. The prosecutor then used the Lacey Act charge as a basis to stack on smuggling and money laundering counts. You got that?

McNab was guilty of smuggling since he shipped lobster tails in bags that you can see through, instead of shipping them through bags that would frustrate visual inspection. He was guilty of money laundering since he paid a crew on his ship to "smuggle the tails." Although it turned out that the Honduran regulation was improperly enacted and thus unenforceable, the government did not relent. A honest businessman lost his property and his freedom: McNab is serving 8-years in prison.

You might be thinking that my summary of the McNab case is fishy. Surely I'm keeping something from you, since no judge would really sentence an honest businessperson so severely. But as Professor Luna details in "Misguided Guidelines: A Critique of Federal Sentencing," prosecutors, not judges, set the terms of sentencing. A judge's hands are tied by the Guidelines. The judge in the McNab case could not weigh McNab's success as a businessperson, his age and family ties and responsibilities, or his lack of any criminal intent. Although McNab was a criminal by accident, not design, the Guidelines required the judge to treat him as a member of La Costra Nostra. Professor Luna ably demonstrates that the Guidelines are not only unconstitutional as a matter of separation of powers, but also as a matter of due process, and more generally, the Guidelines violate any sense of decency.

In "Polluting Our Principles: Environment Prosecutions and the Bill of Rights," Timothy Lynch (Director of the Cato Institute's Criminal Justice Project) talks about the world of environmental enforcement that even Joseph Heller could not have constructed. Lynch shows the irrational world facing a manager whose employee violates an environmental regulation. If an employee violates a law, the manager is liable, his ability to have prevented the illegal act notwithstanding. Yet if the manager does not report the employee (thus subjecting himself to criminal liability), the manager is guilty of a crime. Heads you lose. Tails you lose.

The manager also may not rely on governmental interpretations of the laws as a defense. An environmental enforcement official told one citizen that he could build him home on undeveloped land. One year into the project, the citizen was told that he was breaking the law. You can't rely on those enforcing the law to know the law.

Worst of all is that coming on the wrong side of the flip of an environmental enforcer's whim does not mean you lose a wager. It means you lose your freedom, and your dignity. Environmental laws put people who will be unlikely to defend themselves into prison with the hawks. And even doctors are not immune.

In "HIPAA and the Criminalization of American Medicine," Grace-Marie Turner reports how doctors may find themselves guilty of fraud when their secretaries do nothing more than enter in the wrong billing code out of the tens of thousands of codes to enter. The hundreds of thousands of pages or regulations are literally unknowable, thus subjecting doctors to potential prison sentences. Patients are also hurt, as small-town doctors join larger conglomerates for the additional legal and financial protection. If HIPAA's criminal penalties go unabated, there will be no more Doc. Bakers.

And federal power is growing, as Gene Healy details in "There Goes the Neighborhood: The Bush-Ashcroft Plan to 'Help' Localities Fight Gun Crime." Ignoring principles of federalism and enumerated powers, federal prosecutors, who are always welcome guests at the Federalist Society Annual Convention, are turning even trivial violations of local gun laws into a federal case.

Go Directly to Jail is a must-read for anyone interested in criminal law, as well as doctors and other small business owners, who until recently were more likely to be crime victims rather than criminals. And you don't have to take my word for it. Miguel Estrada (who was filibustered for being too "conservative") endorses the book, writing that "ordinary businesspeople risk being jailed for run-of-the-mill commercial dealings that traditionally have been handled by contract and tort law." Mr. Estrada should know: He represented David McNab.

You can (and dare I say should?) buy Go Directly to Jail here.