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“The Government’s Overcriminalization Hypocrisy”

| January 5, 2016

This article originally appeared in Real Clear Policy on December 22nd, 2015.

In a report released this week, the Government Accountability Office determined that the EPA’s use of social media to urge public support for an administrative rule violated federal law, calling it “covert propaganda.” But this finding will undoubtedly lead to no civil or criminal repercussions.

Similarly, in August of this year, the EPA admitted responsibility for the discharge of over 3 million gallons of toxic water containing arsenic and lead into the Animas River in Colorado. Lawmakers continue to investigate the admitted criminal act of the EPA. The Navajo Nation plans to sue the EPA over the incident and the damage to their lands and water.

But it’s a foregone conclusion that no one at the EPA will be held criminally liable in this incident either, and civil lawsuits involving the executive branch are hard to successfully litigate due to “sovereign immunity” (which means the government can’t be sued unless it agrees to be) and added procedural hoops that come with governmental suits. Even if successfully sued, the EPA will foot the bill with our tax dollars. Pretty nice setup.

In contrast, when the private sector violates one of the EPA’s rules — or any of the federal government’s 300,000 criminal regulations — the book is often thrown at them.

Consider Robert Unser, a three-time Indianapolis 500 winner. In 1996, while legally snowmobiling, Unser and a friend got caught in a blizzard and became lost in the mountains around southern Colorado. Their snowmobiles broke down and the two men had to trek through the wind, cold, and snow after barely surviving the night in a snow cave they built.

After recovering, Unser contacted Forest Service personnel to locate his snowmobile. He subsequently found out that federal officials were charging him with operating a motorized vehicle inside a National Wilderness area — where Unser had driven the machine inadvertently during the blizzard — a misdemeanor that carries up to a $5,000 penalty and six months in prison.

Unser was unbelievably convicted of the offense, because the law was vague as to whether the government had to prove he had gone into the prohibited area intentionally. Unser will have a criminal record for the rest of his life.

Of the hundreds of thousands of federal provisions that carry a criminal penalty, a vast majority come directly from federal agencies and bypass the authorization of Congress. And many, like the one that ensnared Unser, do not require the actor to have any level of criminal intent, also known as “mens rea.”

Bills adding a baseline criminal-intent standard to laws that do not currently address this issue are receiving bipartisan support in both houses of Congress, but the legislation is also meeting some resistance. Sadly, but not surprisingly, our government officials take advantage of the vague, ambiguous, and voluminous nature of these regulations to make it easier to criminalize everyday behavior.

Opponents of criminal-intent reform do not want to change the status quo because doing so might make it more difficult to enforce laws put in place to protect our environment, health, and safety. If that’s the case, let’s pierce the veil of criminal and civil liability for government actors who violate these laws and remove appropriations from their budgets, rather than pay out lawsuits from our tax dollars. This of course, will never happen.

It defies the basic pillars of our justice system to allow hundreds of thousands of regulations to carry major criminal penalties irrespective of the actor’s intent. It is estimated that each American citizen commits three felonies each day. The time for reform is now, before we all find ourselves behind bars.

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GREG GLOD  is a Policy Analyst for Right on Crime as well as the Center for Effective Justice at the Texas Public Policy Foundation. Based in Austin, Texas, Glod is an attorney who began his legal career as a law clerk for the Honorable Judge Laura S. Kiessling on the Circuit Court for Anne Arundel County, Maryland. He subsequently practiced at a litigation firm in Annapolis, Maryland before joining Right on Crime and the Texas Public Policy Foundation. In 2010, he graduated from The Pennsylvania State University with B.A. degrees in Crime, Law, and Justice and Political Science. In 2013, Glod received his J.D. from the University of Maryland School of Law.

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