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The Felonization of America

| January 31, 2014

With an avalanche of state-based initiatives to reform the criminal justice system, it is easy to ignore happenings at the federal level. Unfortunately, the felonization of America continues virtually unnoticed. Federal statutes with vast reach put millions of Americans at risk of being fined or imprisoned, with much damage already done.

Cambridge Attorney Harvey Silverglate has thoroughly documented this federal over-criminalization, and his conclusions are frightening. Silverglate estimates that the average American commits three felonies a day!

But what activities of a straight-laced professional can qualify as heinous crimes? Consider the Lacey Act: importing activities that run afoul of the originating country’s laws are punishable by prison time. In an oft-repeated example, seafood merchant Abner Schoenwetter was sent to the slammer for five years for incorrectly importing lobsters from Honduras. The scariest applications of the law, however, may be forthcoming. In 2008, environmentalist groups secured passage of an amendment to the Lacey Act that prohibited the importation of illegally-gathered wood. Given the importance of timber-based imports in our economy and the obscurity of federal law, more brave entrepreneurs will inevitably have to “answer” for their “crimes.”

Silverglate’s work touches on many other aspects of the law, including imagined conspiracies to defraud a company through calling in sick. Few cases, though, match the overreach of Nixon’s Racketeer Influenced and Corrupt Organizations Act of 1970. The law has succeeded in netting Mafia members, but the broad text of the statute invites abuse. An individual can land in hot water by merely using funds derived from a repeated racketeering activity; no racketeering in itself is required. Combined with broad forfeiture laws, this means that assets acquired with the help of a family member or friend can be taken away . The law acts as a “nuclear bomb” on the accused, as prosecutors can threaten the harshest sentences imaginable and action against friends and family unless the defendant agrees to certain terms.

At its worst, the law fiercely punishes fleeting associations with bad organizations; scholars Flood and McGough document these creative uses of the statute” in Columbia Law Review. Rather than curtailing this dubious law, prosecutors are seeking to expand the scope of the law to include websites and hospitals. Whether through the Lacey Act or RICO, federal law-makers and prosecutors have been determined to harshly criminalize activity without end. Only through re-clarifying the original purpose of crime legislation and resisting mission creep can we reform our ailing criminal justice system.


RIGHT ON CRIME is a national campaign to promote successful, conservative solutions on American criminal justice policy—reforming the system to ensure public safety, shrink government, and save taxpayers money. By sharing research and policy ideas and mobilizing strong conservative voices, we work to raise awareness of the growing support for effective reforms within the conservative movement. We are transforming the debate on criminal justice in America.