Overcriminalization came up in yesterday night’s  presidential debate in Hempstead, New York when former Massachusetts Governor Mitt Romney raised the infamous prosecution of North Dakota oil drillers for the deaths of 28 birds:

“[T]he president cut in half the number of licenses and permits for drilling on federal lands and in federal waters. So where’d the increase [in drilling] come from? Well, a lot of it came from the Bakken Range in North Dakota. What was his participation there? The administration brought a criminal action against the people drilling up there for oil, this massive new resource we have. And what was the cost? Twenty or 25 birds were killed, and they brought out a migratory bird act to go after them on a criminal basis.”

USA Today explains that Governor Romney was referring to criminal charges filed by U.S. Attorney Tim Purdon. Purdon charged seven oil companies under the Migratory Bird Act for the deaths of birds that appear to have been harmed when they mistook oil reserve pits for ponds. The newspaper went on to explain that the “[c]harges against three companies were dismissed in January….[t]hree other defendants reached plea agreements, and the charges against the final company were dropped by the government.”

When granting the motion to dismiss the charges, Judge Daniel Hovland made an important point about the importance of intent (or mens rea) in criminal prosecutions:

“The U.S. Fish & Wildlife Service has recognized countless numbers of ways in which otherwise lawful actions may result in the unintended death of  migratory birds….[I]t would not be feasible to prosecute all or even most of those persons or entities who technically violate the Migratory Bird Treaty Act….[I]t is highly unlikely that Congress ever intended to impose criminal liability on the acts or omissions of persons involved in lawful commercial activity which may indirectly cause the death of birds protected under the Migratory Bird Treaty Act.”

Judge Hovland also wrote abut the reductio ad absurdum that would emerge if the U.S. Attorney’s interpretation of the act were accepted:

“If the Migratory Bird Treaty Act…were read to prohibit any conduct that proximately results in the death of a migratory bird, then many everyday activities become unlawful–and subject to criminal sanctions–when they cause the death of pigeons, starlings and other common birds.  For example, ordinary land uses which may cause bird deaths include cutting brush and trees, and planting and harvesting crops.  In addition, many ordinary activities such as driving a vehicle, owning a building with windows, or owning a cat, inevitably cause migratory bird deaths.”

Right On Crime signatory Newt Gingrich openly wondered why the oil companies were charged while wind power companies whose activities have resulted in the deaths of many more birds have avoided prosecution.

Several other prominent voices have covered this important case, U.S. v. Brigham Oil and Gas, including the Federalist Society, the Heritage FoundationForbes Magazine, and the Wall Street Journal, which colorfully awarded the U.S. Attorney the sobriquet “Dodo of the Year.”