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Sunshine and Seashells, Mollusks and Mens Rea

| July 23, 2018

Collecting seashells that are strewn across thousands of miles of America’s shorelines may be a pastime for many beachgoers, but a recent incident out of Florida highlights that the line between “commonplace” and “criminal” is thin, indeed.

According to the Florida Keys News, Diana Fiscal-Gonzalez pleaded no contest to criminal charges after taking 40 queen conches out of the waters around Key West. A Dallas, Texas resident, Gonzalez had planned to clean them up and sell them as gifts. However, queen conches are a protected species under Florida law, making it illegal to harvest or possess them (though it is not unlawful to possess their shells so long as they do not contain any living organism). Many of the conches returned to the ocean by the Florida Fish and Wildlife Conservation Commission after Gonzalez’s arrest were indeed alive, although it is unclear whether she knew she possessed living animals when she removed them.

During sentencing, she apologized to the judge, saying that she “didn’t know it was illegal to take the state-protected mollusks.” According to FKN, while Judge Mark Wilson withheld adjudication—meaning she won’t face a criminal conviction on her record—she was nonetheless sentenced to fifteen days in jail, including six months of probation and $768 in fines and court costs.

It cannot be argued that Ms. Gonzalez committed an offense under Florida law. Nor can it be questioned that if Florida citizens find social utility in protecting queen conches that they have every prerogative under the law to do so. Nonetheless, many aspects of this case demonstrate the troubling extent to which criminal law is being degraded and brought to bear over activity that isn’t obviously criminal in nature.

The first such aspect is that of criminal intent. In the Western canon of law, it is not enough in most situations that a prohibited action (actus reus) simply occurred for someone to be guilty of wrongdoing. Mens rea, or a “guilty mind,” must be present as well. The presence of both elements of a crime is essential, otherwise societies risk punishing those who engage in proscribed actions without an affirmative intent to so do. (That even a dog knows the difference between being stumbled over and kicked is a well-known example of this principle.) As the Supreme Court held in Morissette v. United States, criminal intent standards are no “transient notion,” but “as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” Therefore, to neglect adequate intent requirements for all elements of a crime is to invite ambiguity between that which is morally blameworthy and what is inoffensive.

Ms. Gonzalez pleaded no contest even after she stated that she was unaware that possessing live queen conches was illegal, but it turns out her innocent intentions are irrelevant. The controlling statute disclaims any explicit intent requirement that government must prove before finding her guilty. Without any such language requiring knowledge that a conch in one’s possession contains a living organism, Ms. Gonzalez—or anyone else—would have little recourse once she removed it from the beach. They’re guilty—intent notwithstanding. This is no way to wield criminal law.

A second concerning aspect is Ms. Gonzalez’s incarceration. To be sure, fifteen days is a relatively short period of time. However, the purpose of incarceration is to sequester dangerous people from the public, or otherwise to communicate the extent of an offense’s disturbance of public order. Short of the death penalty, government arguably wields no greater implement against one’s liberty than putting someone behind bars. Furthermore, as my colleague Marc Levin and I discuss in a recent paper, even short stays in jail can have many adverse consequences, e.g. loss of employment and greater possibility of future lawbreaking. So, what demonstrable benefits do Floridians obtain by jailing someone for this low-level offense? Is she a public safety threat? Additionally, probation is built on an incentive structure—i.e. someone will be released from detention and so be able to work and participate in normal, daily activities, but under court supervision so as to deter future crimes. What about harvesting and transporting living conches—apparently without knowing that they were living—demands continued supervision for six months upon her release? Is there anything to suggest that her jail sentence is unlikely to deter the commission of another petty crime, thereby necessitating probation?

These aren’t unfair questions to ask of Ms. Gonzalez’s case. Taking these things into consideration, incarceration should not be used as a front-line corrective for every slight under the sun—especially when other lesser sanctions may be able to accomplish society’s desire of promoting conservation of the queen conch just as effectively, including civil penalties.

America has an overcriminalization problem. We have too many criminal offenses, which makes it next to impossible for most citizens to understand what is expected of them (especially when traveling in other states, as was Ms. Gonzalez). Too many criminal offenses result in arrest and jail time. We also have too many criminal offenses without any explicit requirement that someone must have intended to commit them, which degrades the law’s moral legitimacy and ensnares people who never meant to run afoul of the law.

Unfortunately, this deficit appears to have found another mark in Florida.

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MICHAEL HAUGEN is a policy analyst at the Texas Public Policy Foundation and its Right on Crime initiative.

His work for the Foundation has focused primarily on criminal justice reform topics, particularly civil forfeiture, prison reform and justice reinvestment, mens rea reform, occupational licensing, and various law enforcement and privacy issues. He’s also written about federal corporate subsidies, school choice, and gun rights.

Haugen is a graduate of Eastern Washington University, with a Bachelor of Science degree in Biology with Pre-Medicine Option, and a minor in Chemistry. He also holds an Associate of Arts degree in General Studies from North Idaho College. At EWU, he participated in academic research in a molecular microbiology laboratory for two years, investigating genetic virulence factors and pathophysiology in microbes.

His writing has appeared in National Review, The Hill, Townhall, Washington Examiner, Dallas Morning News, El Paso Times, Trib Talk, RedState, Ricochet, and Breitbart Texas.

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