Pros and Cons

As a follow up to my post below, another problem we have with federal criminal law is the fact that so much of it is unconstitutional from a federalism standpoint (I sound like Ron Paul!).  Consider this article from CNN.com.

A federal safety board called Tuesday for a nationwide ban on the use of cell phones and text messaging devices while driving.

The recommendation is the most far-reaching yet by the National Transportation Safety Board, which in the past 10 years has increasingly sought to limit the use of portable electronic devices—recommending bans for novice drivers, school bus drivers and commercial truckers. Tuesday’s recommendation, if adopted by states, would outlaw non-emergency phone calls and texting by operators of every vehicle on the road.

It would apply to hands-free as well as hand-held devices, but devices installed in the vehicle by the manufacturer would be allowed, the NTSB said.

NTSB members say the action is necessary to combat a growing threat posed by distracted drivers. While distracted driving has been a problem “since the Model T,” in the words of NTSB Chairwoman Deborah Hersman, authorities say it has become ubiquitous with the explosion in the number of portable smart phones. At any given daylight moment, some 13.5 million drivers are on hand-held phones, according to a study released last week by the National Highway Traffic Safety Administration.Some 3,092 roadway fatalities last year involved distracted drivers, although the actual number may be far higher, NHTSA said.

Full disclosure:  (a) I do a great deal of telephone business while driving, in addition to social calls; (b) I have been known, on occasion, to text, or even look something up on the web, while driving.  I’m not proud of it, but it has happened; (c) I absolutely do not doubt that texting/surfing (the web, not the waves!) while driving contributes greatly to vehicle accidents, though I have serious doubts that merely talking on the phone while driving increases accidents by a significant amount.

I have found this commercial from the United Kingdom to be absolutely persuasive, and actually dramatically curtailed my own texting/surfing while driving (warning: very disturbing content):

However, I’ve got one question for the NTSB: is it constitutional?  Is there someplace in the Constitution that can reasonably be interpreted to give the federal government the power to regulate cell phone use while driving?  If not (and I don’t believe there is), then you are wasting our time with such recommendations.  Get back to issues that are within the federal mandate, and leave these issues to the states, where they belong.

Ran across this article in the Wall Street Journal this morning:

The federal criminal code has grown so large it ensnares everyday citizens who have no idea they are violating the law, a bipartisan group of legal experts told a House panel Tuesday.

There are about 4,500 criminal statutes, said Edwin Meese, attorney general under President Ronald Reagan and now with the conservative Heritage Foundation. “This is in addition to over 300,000 other regulations that don’t appear in the federal code but nevertheless carry essentially criminal penalties including prison,” he said. “So the vast array of traps for the unwary that lurks out there in federal criminal law is more extensive than most people realize.” The Administrative Office of the U.S. Courts figures some 80,000 defendants are sentenced in federal court each year.

Rep. F. James Sensenbrenner (R., Wis.), chairman of the House Judiciary Committee’s panel on crime, terrorism and homeland security,and several panelists cited an article in Monday’s Wall Street Journal, part of a yearlong series about the expansion of the federal criminal code and the erosion of “criminal intent” requirements. The article chronicled the conviction of one Maryland man for actions prosecutors said weren’t intentional. It explained how Lawrence Lewis ended up with a federal criminal record while trying to deal with clogged toilets at a military retirement home in Washington, D.C.

“He was subject to the same law that [would apply to] somebody who knowingly, willingly dumped toxic materials into a navigable water,” said Mr. Sensenbrenner, who has introduced a bill to shrink the federal criminal code by a third and to define the level of criminal intent necessary to break the law.

Mr. Meese said the article was “a graphic example” of what is happening in the federal system. He suggested that fines or other administrative sanctions would suffice.

There are, in my view, two components to this problems.  The first is exactly what is portrayed in the WSJ article quoted above: federal criminal law is overbroad, complicated, and often poorly written.  The result is that honest, well-meaning citizens can violate federal law without any intent or knowledge that they have done so.  I once represented an individual in federal criminal court who had unwittingly violated federal money structuring (laundering) statutes simply by conducing an online brokerage for precious metals.  He wound up spending six months in minimum security federal penitentiary.  The minimum sentence was actually something like 18 months under the federal sentencing guidelines, but the judge recognized that this was a misapplication of a law that was intended to snare terrorists and drug kingpins, not e-bay entrepreneurs.  Nevertheless, the judge was forced to sentence him to the least she could get away with.

The other side of this coin, however, is a lack of discretion and common sense used by federal and local law enforcement when applying these laws.  I’ve seen local law enforcement charge or threaten to charge individuals with the crime of making a terrorist threat for offenses that clearly did not comport with the spirit (and, frequently, in my opinion, the letter) of that law.  The motivation is, of course, to make an arrest, get a conviction.  Everybody wants to justify their position and work product to their boss.  But, just as the laws need to be crafted more carefully, there needs to be a heightened level of discretion when applying them.  Common sense should prevail.

In this context, Representative John Conyers is absolutely correct when he said, “We ought to get rid of the old myth that you’re presumed to know the law.”  However, the intent requirement should be stricter: for many of these crimes, if you didn’t intend to break the law, you shouldn’t even be charged, much less convicted.

Better yet, especially at the federal level, let’s significantly trim the criminal code and regulations.