You Have the Right to Remain Innocent Read online

  As Justice Stephen Breyer of the United States Supreme Court correctly complained in 1998, “The complexity of modern federal criminal law, codified in several thousand sections of the United States Code and the virtually infinite variety of factual circumstances that might trigger an investigation into a possible violation of the law, make it difficult for anyone to know, in advance, just when a particular set of statements might later appear (to a prosecutor) to be relevant to some such investigation.”10 In other words: the deck is stacked heavily against you, and you have no idea what you are up against.

  People who want to read all the federal laws on the books, if they had three decades of free time on their hands, could find them all at any law library collected in a voluminous set of books called the United States Code, which is organized in different sections called titles. One of those fifty-two sections, known as Title 18, is called “Crimes and Criminal Procedure.” It is where any ordinary American citizen would expect to find a complete list of all the crimes recognized under federal law. But even if you took years of your life to read through that entire portion of the Code, believe it or not, you would have missed hundreds of the criminal laws on the books, because they are not all contained in Title 18! Why not? There is not one good reason. It is almost as if our government was determined to do whatever it could to make it nearly impossible for the average American to have any idea what is and what is not forbidden by the law. Legend has it that one wicked Roman emperor had his laws posted on the top of a high pillar so that no citizen could find and read them, but at least you could get at them with a ladder.

  The thousands of American criminal statutes no longer coincide with common sense. Years ago, the Supreme Court held that you can be convicted and imprisoned for committing a crime even if you had no criminal intent and absolutely no knowledge that your conduct was forbidden by any law. Congress has exploited that loophole with ruthless impunity and has passed countless laws that do not require the prosecutor to show that you had any idea that your conduct might be illegal. Former United States Attorney General Edwin Meese has noted that the average American has “little or no hope of knowing all of the thousands of criminal-law statutes—and tens of thousands of criminal-law regulations—by which they must abide in order to remain on the right side of the law. This is one of the primary reasons why it is no longer possible to avoid becoming a criminal by relying on one’s conscience and general understanding of the law.”11 As he has correctly complained, Congress and the state legislatures have created thousands of exotic crimes that “serve as snares and traps for the average American,” and which “transform activities that until recently no one ever considered criminal—such as erecting a fence around your property, investing for your retirement, or disposing of used cooking oil—into potentially criminal conduct.”12

  Here are just a few examples of this madness. It is a federal criminal offense to wear or display the emblem of the 4-H clubs, or even just a “colorable imitation,” if you are trying to fool anyone into thinking that you are associated with those clubs with the intent to defraud that person, and you may be sent to prison for up to six months for that violation.13 You can also go to prison for up to six months for the unauthorized use of the character or the name Woodsy Owl for the purpose of making a profit.14 The same is also true if you knowingly possess any alligator grass or water chestnut or hyacinth plants that have been shipped across state lines, or just the seeds of such grass or plants, even if you were not the one who sent or received them when they crossed state lines.15 (In fact, you can also be sent to prison—even if you played no part in that supposedly dangerous shipment—if all you did was advertise your willingness to do such a dangerous thing.) It is also a federal offense, again carrying a potential penalty of up to six months in a federal prison, if you use the Swiss coat of arms in any advertising for your business.16 I would include a picture of that coat of arms here so you could see what I am talking about, but I cannot take the chance that I might be sent to prison. Two years ago, young sailors thought they were doing a good deed by freeing a five-hundred-pound sea turtle who had become entangled in a buoy line that wrapped around its head and fins, but they were later told by an agent from the National Oceanic and Atmospheric Administration that what they did was a violation of the Endangered Species Act, which makes it illegal to handle an endangered or protected species.17 Luckily for them, they were members of the Kennedy family, so they were not prosecuted. But they could have been, and their good intentions and their ignorance of this law would have been no defense at all.18

  To make matters worse, the statutes themselves are carelessly and clumsily crafted. For far too long, Congress and the state legislatures have been filled with men and women who are either unable or unwilling to write laws with the care and precision necessary to make them plain and unambiguous. It takes a lot of time and hard work to carefully draft a criminal law so that it is directed specifically at the kind of misconduct that Congress means to forbid. It is so much easier to write the statute as broadly as possible and let the courts try to sort out the mess. Just take a look at these horrendous examples.

  One federal law makes it a crime “to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife or plant taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law [or] . . . any law or regulation of any State or in violation of any foreign law.”19 This single sentence, one of many thousands contained in the United States Code, incorporates by reference the crimes set forth in the laws of every other country in the world, and applies to every sort of animal, fish, or plant. People have been prosecuted and convicted under this law for possessing a lobster or a fish—even though the possession of that creature did not violate any other American law—just because it was imported from another country that did forbid such possession. Did you know that you could be guilty of a felony under federal law if you are found in possession of a “short lobster,” because it was a little smaller than one you could lawfully possess?20 If you are charged with such an offense, it does not matter whether it was dead or alive, or whether you killed it; it does not even matter whether you killed it in self-defense. You will not find this law even if you set aside five years of your life to read the entire section of the United States Code governing “Crimes and Criminal Procedure,” however, because this crime is listed in Title 16 (sec. 1857) of the United States Code, in a section that collects all the laws governing the subject of “Conservation.”

  Another federal law makes it a felony for any person “knowingly to deliver or cause to be delivered for transmission through the mails or interstate commerce by telegraph, telephone, wireless, or other means of communication false or misleading or knowingly inaccurate reports concerning crop or market information or conditions that affect or tend to affect the price of any commodity in interstate commerce.”21 For this “crime,” you can be fined up to one million dollars and imprisoned for up to ten years. If you are ever prosecuted for a violation of this law, the way it is written, all the government needs to do to put you behind bars is to prove that you sent anybody a single bit of inaccurate information that somehow concerned crop or commodity market information or conditions. It does not matter whether you sent that message by telephone or mail or telegraph. It does not matter who you sent that letter to. It does not matter whether the information was actually false, or merely misleading. It does not matter whether your note actually had any effect on market prices anywhere, or even whether you intended for it to have that effect. The way this law was written by the morons in Congress, you are guilty of a felony if you send a postcard to your grandmother in a nursing home, trying to make her feel better by lying about how nice the weather has been in Florida, or how low the gas prices have been. And you will not find this law in Title 18 either; this one is buried in the bowels of Title 7 (sec. 13), which lists the laws supposedly regulating “Agriculture.”


  Even criminal laws that are aimed at truly harmful conduct are almost always ridiculously overbroad. One asinine federal law on the books has the perfectly natural objective of trying to prevent terrorists from using chemical weapons to cause the massive infliction of death or physical injury on huge numbers of innocent persons. But the way it is actually written, it forbids anyone to use or merely “possess” any “chemical weapon,” which is defined to include “any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to persons or animals,” unless it is used for certain—very narrowly defined—purposes permitted under the law.22 The potential for temporary inconvenience or mild irritation to a single animal would classify a substance as a chemical weapon. The way this statute is written, as the Supreme Court noted with frustration a couple years ago in Bond v. United States, it is a felony under federal law if a parent, “exasperated by the children’s repeated failure to clean the goldfish tank, . . . considers poisoning the fish with a few drops of vinegar.”23 And of course that is only half the problem, because this statute forbids both the use and the mere possession of such a chemical weapon, so you would be guilty of a violation just by picking up the vinegar at the grocery store for that purpose, even if federal agents caught and arrested you before you poisoned the tank.

  The same is often true of the clumsy laws written by state legislatures. In my home state of Virginia, it is a crime to “hunt, trap, take, capture, kill, attempt to take, capture or kill, possess, deliver for transportation, transport, cause to be transported, by any means whatever, receive for transportation or export, or import, at any time or in any manner, any wild bird or wild animal or the carcass or any part thereof, except as specifically permitted by law.”24 Once again, we have a law that is aimed at a sensible purpose—controlling the illegal and unrestricted killing and possession of certain wild animals, like deer or bears, without the proper authorization and licenses—but the idiots who wrote it could not go to the trouble of writing it narrowly enough so that it would be limited to its intended purpose. The way this absurd law is written, you are guilty of a crime as long as you merely “possess” any “part” of anything that was once a wild bird or animal. That would include a sand dollar or a seashell that you picked up on the beach, or a necklace your granddaughter bought you in the Bahamas with a shark tooth in it. A few years ago, a newly elected member of the Virginia legislature was told by security at the state capitol that he was violating this law because he’d brought a pair of deer antlers to hang on his wall; even though neither he nor anyone else had killed or injured those deer, since the antlers had been naturally shed on his property, he was guilty of a crime under Virginia law.25

  Because of laws like these and countless others, legal experts now agree that just about everybody in the nation, whether they know it or not, is guilty of numerous felonies for which they could be prosecuted. One reliable estimate is that the average American now commits approximately three felonies a day.26 As one federal judge recently observed, because there are “thousands of federal crimes and hundreds of thousands of federal regulations that can be criminally enforced,” the sad truth today is that “most people have committed at least one crime carrying serious consequences,” including countless Americans who have no idea what law they have broken, or how they may have done so.27 That is why you cannot listen to your conscience when faced by a police officer and think, I have nothing to hide.

  Many prosecutors and other cynical observers who read this book will dismiss my complaint, and insist that there is no reason to fear the ludicrous breadth of America’s criminal statutes. There is no need for alarm, they will assure us, because we can all safely trust in the good faith of America’s prosecutors and their discretion to not hassle you or seek to imprison you for innocent and harmless conduct, even if it does happen to be technically forbidden by some obscure statute. But there have been many confirmed cases of federal agents and prosecutors who proved that they cannot be trusted to exercise such restraint—either because they had too much time on their hands, or perhaps subscribed to a corrupt political agenda, or maybe just got a kick out of what they thought was their own ingenuity in exploiting the language of some badly written law to prosecute someone.28

  Just a few years ago, for example, the United States Department of Justice actually used the federal chemical weapons ban to prosecute a woman for putting a mild chemical irritant on the mailbox of her husband’s girlfriend, even though nobody was even seriously, much less permanently, injured.29 The victim of this attack suffered nothing more than a minor thumb burn that was readily treated by rinsing with water. That was the same case in which the Supreme Court of the United States unanimously concluded that, if they adhered to the insane interpretation of this terrible statute that was being defended by the Department of Justice, you could be prosecuted for using a few drops of vinegar to poison your child’s goldfish. The Supreme Court correctly noted that the government’s proposed interpretation of this law “would sweep in everything from the detergent under the kitchen sink to the stain remover in the laundry room.”30 Luckily for the defendant, the Supreme Court said it would not agree to “transform a statute passed to implement the international Convention on Chemical Weapons into one that also makes it a federal offense to poison goldfish.”31 The late justice of the Supreme Court Antonin Scalia correctly described that federal law as “a statute that should be the envy of every lawmaker bent on trapping the unwary with vague and uncertain criminal prohibitions.”32

  And this sort of thing happens all the time. Even more recently, the Supreme Court once again had to reverse the Obama administration, this time for prosecuting a man who threw some fish over the side of his boat. John Yates, a commercial fisherman, reportedly caught six dozen undersized red grouper in federal waters in the Gulf of Mexico, and allegedly threw them into the sea to prevent federal authorities from confirming that he had done so.33 Incredibly, he was then prosecuted for a violation of the Sarbanes-Oxley Act, a federal statute that had been written and passed to protect financial investors and restore trust in financial markets following the collapse of Enron Corporation by forbidding corporate and accounting deception and cover-ups. Congress had made it a federal crime, punishable by up to twenty years in prison, for anyone to alter, destroy, conceal, or cover up “any record, document, or tangible object” to obstruct any governmental investigation. Even though it was undisputed that the law was concerned with corporate document shredding and destruction to hide evidence of financial wrongdoing, the Justice Department pointed out that the incredibly overbroad statute actually referred to any “tangible object,” which would technically include a few fish. The Supreme Court overturned that conviction, holding that it was an unreasonable interpretation of this unreasonably broad statute. Although a few justices on the court would have upheld that conviction, even they agreed that the statute was “a bad law—too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion.”34 They wrote that the statute in this respect “is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code,” which they called the problem of “overcriminalization and excessive punishment in the U.S. Code.”35

  The defendants in those cases were two of the lucky ones, because they were ultimately vindicated by the highest court in the land—but not until after they had been forced to undergo years of anxiety and great expense in defending themselves against ridiculous charges that never should have been filed. In both cases, the defendants lost all of their arguments in the lower federal courts. The Supreme Court justices are able to decide fewer than 1 percent of all the appeals that are presented to them to consider, so it would be madness to imagine that the Supreme Court could ever be counted upon to keep the problem under control.

  The monstrous potential for injustice created by this modern farce has become, quite by accident, the most i
mportant reason why the Fifth Amendment is now more precious than ever before. Even in this modern age, there are many ignorant sentimentalists who believe that our government is deserving of our loyal cooperation and support, and that every good patriot with an innocent conscience should be glad to answer any questions from government agents. That is hogwash. Perhaps it was true a century ago—I deeply regret that it is no longer true—but the United States criminal justice system long ago lost any legitimate claim to the loyal cooperation of American citizens. You cannot write tens of thousands of criminal statutes, including many touching upon conduct that is neither immoral nor dangerous, write those laws as broadly as you can imagine, scatter them throughout the thousands of pages of the United States Code—and then expect decent law-abiding, unsuspecting citizens to cooperate with an investigation into whether they may have violated some law they have never even heard about. The next time some police officer or government agent asks you whether you would be willing to answer a few questions about where you have been and what you have been doing, you must respectfully but very firmly decline.