Law en­force­ment gone wild

The Washington Times Weekly - - Commentary -

“You don’t need to know. You can’t know.” That’s what Kathy Nor­ris, a 60-year-old grand­mother of eight, was told when she tried to ask court of­fi­cials why, the day be­fore, fed­eral agents had sub­jected her home to a fu­ri­ous search.

The agents who spent half a day ran­sack­ing Mrs. Nor­ris’ long­time home in Spring, Texas, an­swered no ques­tions while they emp­tied file cab­i­nets, pulled books off shelves, ri­fled through draw­ers and clos­ets, and threw the con­tents on the floor.

The six agents, wear­ing SWAT gear and car­ry­ing weapons, were with — get this — the U.S. Fish and Wildlife Ser­vice.

Kathy and Ge­orge Nor­ris lived un­der the specter of a covert gov­ern­ment in­ves­ti­ga­tion for al­most six months be­fore the gov­ern­ment un­sealed a se­cret in­dict­ment and re­vealed why the Fish and Wildlife Ser­vice had treated their fam­ily home as if it were a train­ing base for sus­pected ter­ror­ists. Or­chids. That’s right. Or­chids. By March 2004, fed­eral pros­e­cu­tors were well on their way to turn­ing 66-year-old re­tiree Ge­orge Nor­ris into an in­mate in a fed­eral pen­i­ten­tiary — based on his home-based busi­ness of cul­ti­vat­ing, im­port­ing and sell­ing or­chids.

Mrs. Nor­ris tes­ti­fied be­fore the House Ju­di­ciary sub­com­mit­tee on crime this sum­mer. The hear­ing’s topic: the rapid and danger­ous ex­pan­sion of fed­eral crim­i­nal law, an ex­pan­sion that is of­ten un­prin­ci­pled and highly par­ti­san.

Chair­man Robert C. Scott, Vir­ginia Demo­crat, and rank­ing mem­ber Louie Gohmert, Texas Repub­li­can, con­ducted a truly bi­par­ti­san hear­ing (a D.C. rar­ity this year).

Th­ese two leaders have be­gun giv­ing voice to the in­creas­ing num­ber of ex­perts who worry about “over­crim­i­nal­iza­tion.” Astro­nom­i­cal num­bers of fed­eral crim­i­nal laws lack specifics, can ap­ply to al­most any­one and fail to pro­tect in­no­cents by re­quir­ing sub­stan­tial proof that an ac­cused per­son acted with ac­tual crim­i­nal in­tent.

Mr. Nor­ris ended up spending al­most two years in prison be­cause he didn’t have the proper pa­per­work for some of the many or­chids he im­ported. The or­chids were all le­gal — but Mr. Nor­ris and the over­seas ship­pers who had pack­aged the flow­ers had failed to prop­erly nav­i­gate the many, of­ten ir­ra­tional, pa­per­work re­quire­ments the U.S. im­posed when it im­ple­mented an ar­cane in­ter­na­tional treaty’s new re­stric­tions on trade in flow­ers and other flora.

The judge who sen­tenced Mr. Nor­ris had some ad­vice for him and his wife: “Life some­times presents us with lemons.” Their job was, yes, to “turn lemons into lemon­ade.”

The judge ap­par­ently failed to ap­pre­ci­ate how dif­fi­cult it is to run a suc­cess­ful lemon­ade stand when you’re an el­derly di­a­betic with coro­nary com­pli­ca­tions, arthri­tis and Parkin­son’s dis­ease serv­ing time in a fed­eral pen­i­ten­tiary. If only Mr. Nor­ris had been a Libyan ter­ror­ist, maybe some Euro­pean of­fi­cial at least would have weighed in on his be­half to se­cure a health-based mercy release.

Kris­ter Evert­son, an­other vic­tim of over­crim­i­nal­iza­tion, told Congress, “What I have ex­pe­ri­enced in th­ese past years is some­thing that should scare you and all Amer­i­cans.” He‘s right. Evert­son, a small-time en­tre­pre­neur and in­ven­tor, faced two sep­a­rate fed­eral pros­e­cu­tions stem­ming from his work try­ing to de­velop cleanen­ergy fuel cells.

The feds pros­e­cuted Mr. Evert­son the first time for fail­ing to put a fed­er­ally man­dated sticker on an oth­er­wise law­ful UPS pack­age in which he shipped some of his sup­plies. A jury ac­quit­ted him, so the feds brought new charges. This time they claimed he tech­ni­cally had “aban­doned” his fuel-cell ma­te­ri­als — some­thing he had no in­ten­tion of do­ing — while de­fend­ing him­self against the first charges. Mr. Evert­son, too, spent al­most two years in fed­eral prison.

As Ge­orge Wash­ing­ton Uni­ver­sity law pro­fes­sor Stephen Saltzburg tes­ti­fied at the House hear­ing, cases like th­ese “il­lus­trate about as well as you can il­lus­trate the over­reach of fed­eral crim­i­nal law.” The Cato In­sti­tute’s Ti­mothy Lynch, an ex­pert on over­crim­i­nal­iza­tion, called for “a clean line be­tween law­ful con­duct and un­law­ful con­duct.” A per­son should not be deemed a crim­i­nal un­less that per­son “crossed over that line know­ing what he or she was do­ing.” Seems like com­mon sense, but ap­par­ently it isn’t to some fed­eral of­fi­cials.

For­mer U.S. At­tor­ney Gen­eral Richard Thorn­burgh’s tes­ti­mony cap­tured the essence of the prob­lems that worry so many crim­i­nal-law ex­perts. “Those of us con­cerned about this sub­ject,” he tes­ti­fied, “share a com­mon goal — to have crim­i­nal statutes that pun­ish ac­tual crim­i­nal acts and [that] do not seek to crim­i­nal­ize con­duct that is bet­ter dealt with by the seek­ing of reg­u­la­tory and civil reme­dies.” Only when the con­duct is suf­fi­ciently wrong­ful and se­vere, Mr. Thorn­burgh said, does it war­rant the “stigma, pub­lic con­dem­na­tion and po­ten­tial de­pri­va­tion of lib­erty that go along with [the crim­i­nal] sanc­tion.“

The Nor­rises’ night­mare be­gan with the search in Oc­to­ber 2003. It didn’t end un­til Mr. Nor­ris was re­leased from fed­eral su­per­vi­sion in De­cem­ber 2008. His wife tes­ti­fied, how­ever, that even af­ter he came home, the man she had mar­ried was still gone. He was by then 71 years old. Un­sur­pris­ingly, serv­ing two years as a fed­eral con­vict — in ad­di­tion to the years it took to de­fend un­suc­cess­fully against the charges — had taken a se­vere toll on him men­tally, emo­tion­ally and phys­i­cally.

Th­ese are re­pres­sive con­se­quences for an el­derly man who made mis­takes in a small busi­ness. The feds should be ashamed, and Mr. Evert­son is right that every­one else should be scared. Far too many fed­eral laws are far too broad.

Mr. Scott and Mr. Gohmert have set the stage for more hear­ings on why this places far too many Amer­i­cans at risk of un­just pu­n­ish­ment. Mem­bers of both par­ties in Congress should fol­low their lead.

Brian W. Walsh is se­nior le­gal re­search fel­low in the Cen­ter for Le­gal and Ju­di­cial Stud­ies at the Her­itage Foun­da­tion.

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