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Right on Crime | August 3, 2012
Nancy Black’s “whales” case was written up in The Economist a few months ago, and now the bizzarre case of overcriminalization in which a marine biologist is being threatened with prosecution under the 1972 Marine Mammal Protection Act has caught George F. Will’s attention. The column contains this admonition:
“In 1980, federal statutes specified 3,000 criminal offenses; by 2007, 4,450. They continue to multiply. Often, as in Black’s case, they are untethered from the common-law tradition of mens rea, which holds that a crime must involve a criminal intent — a guilty mind. Legions of government lawyers inundate targets like Black with discovery demands, producing financial burdens that compel the innocent to surrender in order to survive. The protracted and pointless tormenting of Black illustrates the thesis of Harvey Silverglate’s invaluable 2009 book, ‘Three Felonies a Day: How the Feds Target the Innocent.’ Silverglate, a civil liberties lawyer in Boston, chillingly demonstrates how the mad proliferation of federal criminal laws — which often are too vague to give fair notice of what behavior is proscribed or prescribed — means that ‘our normal daily activities expose us to potential prosecution at the whim of a government official.’ Such laws, which enable government zealots to accuse almost anyone of committing three felonies in a day, do not just enable government misconduct, they incite prosecutors to intimidate decent people who never had culpable intentions. And to inflict punishments without crimes.”
Professor Ilya Somin of George Mason University has additional thoughts on the case at The Volokh Conspiracy. Over the years, several of the most egregious overcriminalization cases (lobsters, orchids, snowmobiles) have entered a kind “Overcrim Hall of Shame.” The whales case appears to be next.