Alex Kozinski and Misha Tseytlin explain in a book chapter titled “You’re (Probably) a Federal Criminal” that “most Americans are criminals, and don’t know it, or suspect that they are but believe they’ll never get prosecuted.”
Having experimented with recreational drugs is the most obvious way that people (including at least our three most recent presidents) have violated federal criminal law but the tax and regulatory codes provide thousands of arcane rules that even decent people can easily and unintentionally violate.
Radley Balko and Brian Walsh provide an example in the strange case of Krister Evertson, an inventor who was hounded for two years for technical violations of hazardous cargo handling regulations as a pretext for punishing him for yet another arcane regulation involving stickers on UPS packages. [See Update]
Ilya Somin observes,
The vast scope of federal criminal law is a very serious problem. Because of it, most Americans are effectively at the mercy of federal officials whenever they might choose to come after us. We are used to thinking of “criminals” as a small subset of the population. In that happy state of affairs, criminal law threatens only a small number of people, most of whom have committed genuinely heinous acts. But when we are all federal criminals, perfectly ordinary citizens can easily get swept up in the net simply by being unlucky or because they ran afoul of federal prosecutors or other influential officials. Overcriminalization also leads to the longterm imprisonment of hundreds of thousands of nonviolent people (mostly as a result of the War on Drugs, but many for other reasons as well) who haven’t caused any harm to the person or property of others. Some 55% of all federal prisoners are nonviolent drug offenders. In addition, the ability to convict almost anyone of a federal crime means that federal officials have wide discretion to punish people who are unpopular, politically weak, run afoul of the current administration, or otherwise become tempting targets. Tellingly, the people who get imprisoned for nonviolent drug offenses are mostly poor and lacking in political influence, while middle class people who do similar things are less likely to be singled out by federal prosecutors.
Putting people in jail for consuming recreational drugs is arguably quite silly but it’s at least widely known to be illegal and something that society has long thought a good idea. But criminal penalties for technical violation of regulatory provisions — which haven’t even been passed into law by Congress or signed by the president — is simply outrageous. And the ability to selectively prosecute people who federal authorities deem worthy of incarceration for something amounts to a back door bill of attainder.
UPDATE: Bernard Finel points me to the case and notes that Evertson “transported 10 metric tons of sodium metal” and that mishandling sodium metal is really, really dangerous. So, even if Evertson was totally unaware that what he was doing wrong, stopping him from doing it was decidedly a good action by EPA. Whether Evertson ought go to prison for it is another mattter but he’s not a poster boy for the general topic.
