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on January 4, 2005
You're an honest businessperson with a strong moral compass. You don't cheat on your taxes, or your spouse. You regularly consult with your attorney to ensure that you're complying with the myriad regulations governing your business. You even go the extra mile, talking with children at "Junior Achievement" programs about how to achieve success. The possibility of a criminal prosecution is the last thing on your mind. "The government only goes after real criminals," you think to yourself.

The latest offering from the Cato Institute says: Think again.

In Go Directly to Jail: The Criminalization of Almost Everything, six essays catalog decent people caught in the indecent web of over 4,000 federal criminal laws.

In "Overextending the Criminal Law," Professor Eric Luna introduces us to the expanding federal criminal code, which now includes, to the extent that scholars can even count them, over 4,000 crimes. Worse, these crimes have come loose from the common law moorings that punished the evil, and acquitted the good. By eliminating the traditional requirement that a person is guilty only of he commits a guilty act motivated guilty mind, "legislators" are turning traditional "criminal sanctions" into "another tool in their regulatory toolkit." As the book jacket explains, "an unholy alliance of tough-on-crime conservatives and anti-big-business liberals has utterly transformed the criminal law" into a trap for the unwary.

In "The New 'Criminal' Classes: Legal Sanctions and Business Managers" James DeLong discusses the general principles of criminal law that affect all cases, especially the lack of a "guilty mind" requirement in most modern criminal laws. Thus, someone who acts in good faith (even consulting with a lawyer before acting) can end up in prison. Which is what happened to David McNab.

McNab was a seafood importer who shipped undersized lobsters and lobster tails in opaque plastic bags instead of paper bags. These were trivial violations of a Honduran regulation - equivalent to a civil infraction, or at most, a misdemeanor. However, using creative lawyering, a government prosecutor used this misdemeanor offense as the basis for the violation of the Lacey Act, which is a felony. The prosecutor then used the Lacey Act charge as a basis to stack on smuggling and money laundering counts. You got that?

McNab was guilty of smuggling since he shipped lobster tails in bags that you can see through, instead of shipping them through bags that would frustrate visual inspection. He was guilty of money laundering since he paid a crew on his ship to "smuggle the tails." Although it turned out that the Honduran regulation was improperly enacted and thus unenforceable, the government did not relent. A honest businessman lost his property and his freedom: McNab is serving 8-years in prison.

You might be thinking that my summary of the McNab case is fishy. Surely I'm keeping something from you, since no judge would really sentence an honest businessperson so severely. But as Professor Luna details in "Misguided Guidelines: A Critique of Federal Sentencing," prosecutors, not judges, set the terms of sentencing. A judge's hands are tied by the Guidelines. The judge in the McNab case could not weigh McNab's success as a businessperson, his age and family ties and responsibilities, or his lack of any criminal intent. Although McNab was a criminal by accident, not design, the Guidelines required the judge to treat him as a member of La Costra Nostra. Professor Luna ably demonstrates that the Guidelines are not only unconstitutional as a matter of separation of powers, but also as a matter of due process, and more generally, the Guidelines violate any sense of decency.

In "Polluting Our Principles: Environment Prosecutions and the Bill of Rights," Timothy Lynch (Director of the Cato Institute's Criminal Justice Project) talks about the world of environmental enforcement that even Joseph Heller could not have constructed. Lynch shows the irrational world facing a manager whose employee violates an environmental regulation. If an employee violates a law, the manager is liable, his ability to have prevented the illegal act notwithstanding. Yet if the manager does not report the employee (thus subjecting himself to criminal liability), the manager is guilty of a crime. Heads you lose. Tails you lose.

The manager also may not rely on governmental interpretations of the laws as a defense. An environmental enforcement official told one citizen that he could build him home on undeveloped land. One year into the project, the citizen was told that he was breaking the law. You can't rely on those enforcing the law to know the law.

Worst of all is that coming on the wrong side of the flip of an environmental enforcer's whim does not mean you lose a wager. It means you lose your freedom, and your dignity. Environmental laws put people who will be unlikely to defend themselves into prison with the hawks. And even doctors are not immune.

In "HIPAA and the Criminalization of American Medicine," Grace-Marie Turner reports how doctors may find themselves guilty of fraud when their secretaries do nothing more than enter in the wrong billing code out of the tens of thousands of codes to enter. The hundreds of thousands of pages or regulations are literally unknowable, thus subjecting doctors to potential prison sentences. Patients are also hurt, as small-town doctors join larger conglomerates for the additional legal and financial protection. If HIPAA's criminal penalties go unabated, there will be no more Doc. Bakers.

And federal power is growing, as Gene Healy details in "There Goes the Neighborhood: The Bush-Ashcroft Plan to 'Help' Localities Fight Gun Crime." Ignoring principles of federalism and enumerated powers, federal prosecutors, spurned by welcome guests at the Federalist Society Annual Convention, are turning even trivial violations of local gun laws into a federal case.

Go Directly to Jail is a must-read for anyone interested in criminal law, as well as doctors and other small business owners, who until recently were more likely to be crime victims rather than criminals. And you don't have to take my word for it. Miguel Estrada (who was filibustered for being too "conservative") endorses the book, writing that "ordinary businesspeople risk being jailed for run-of-the-mill commercial dealings that traditionally have been handled by contract and tort law." Mr. Estrada should know: He represented David McNab.
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on July 7, 2006
One day someone will write a comprehensive, scholarly and multi-disciplinary study of the phenomenon of federal overcriminalization. Until then, this is a valuable resource for a topic thusfar known mostly through experience and anecdote. The author/editor has collected several law review articles, all of which were apparently published before in other places under the auspices of the Cato Institute. Each of these articles is excellent, but they are all quite specialized, and serve only as case studies. They give glipses of the "big picture" of mission creep in federal criminal law, but the details remain indistinct. They also have an unfortunate "think-tanky" feel to them, leaving the impression of a lack of objectivity. Libertarians will be convinced, but civil-rights-minded liberals may take the Cato imprint as an indication of bias. That is unfortunate, because there is nothing partisan about the very real problem these essays document.

The author/editor is to be commended for paying attention to vice and drug crimes. Too often, commentators in this area focus only on white-collar crime. This is understandable, since this is where the money is. But prostitutes, murderers, and drug dealers can be federal criminal defendants, too, and they too are often victims of overcriminalization. Mandatory minimum sentences can be every bit as frightening as the responsible corporate officer doctrine.

Ultimately, this book is more than a success. But it is also an invitation to delve deeper into overcriminalization, an area ripe for new scholarship.
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on March 18, 2005
Each of us probably broke a half dozen Federal government laws today. From the three laws listed in the Constitution we have now grown to over 4,000 Federal laws, and an uncountable number of regulations with the force of law.

Today I was watching the news about smashing meth labs in somewhere like Iowa. A few years ago they found two labs. Last year they found fifteen hundred. It seems like the drug laws, the annual wars on drugs, the drug Czar, aren't really doing very much. I believe that one definition of insanity is doing the same thing over and over when you know it isn't working.

Then there's the so called Patriot's Act which to most people seem to directly violate the Constitution. (And to which challenges are making their way through the court system.)

Reading about the apparent lapses in any kind of common sense described in this book is scary. You can only hope that they, whoever they are, aren't really out to get you.

The prison population in the United States is 1 out of every 142 residents. About 3.1% of all adult US citizens are in prison, jail, on probation or parole. This is about six times the percentage in England.

Hey, you guys in Washington, something is wrong here.
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on January 21, 2010
I purchased this book for an attorney facing indictment for a variety of absurd charges. This person has no intention of rolling over and playing dead for the Feds. This book confirms everything I and He have known for a very long time. The Feds as well as almost all aspects of the Federal govt is out of control.
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on February 4, 2013
I bought this book and "Three Felonies a Day" at the same time. This book is much better in that it talks about cases against normal, everyday people and how they ran afoul of the law. "Three Felonies a Day" was a big disappointment. Unless you want to read about politicians and wall streeters getting in trouble. I couldn't relate to them. This book is much closer to home and gives stories of people you can relate to.
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on August 2, 2013
Government of, by and AGAINST the people. If you want to keep believing in the promise of America, don't read this book. Bury your head in the sand and trust the government. If you are not a criminal yet, they will eventually make you one.
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on March 23, 2015
This is one of the most important books ever. Government started out as a beneficial system. Criminal laws were enacted to stop obvious wrongs, such as theft, murder, fraud, grossly reckless conduct, etc. Then Government went wild and out of control. Things that no one could imagine have become illegal for political and ideological reasons. This means men with guns can come and arrest or kill you if you violate some arcane environmental or administrative law. Government and its criminal laws have become a hellish nightmare for common citizens. Worst of all, many of these laws are promulgated by agencies that exist far outside of the political process, such as the EPA, FCC, etc. Citizens are given no chance to voice their opinions to their elected representatives on these laws. The bureaucrats who make these laws are untouchable and unreachable to the common citizen. Government now has all the characteristics of a most harmful cancer. Left unchecked, the government will kill (and is killing) its host, the country.
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on September 4, 2014
Excellent book. Similarly to: "The Monster Chase" by Marion Stahl, illustrating a health provider dilemma, Healy shows the worrisome absurdity of our legal system today. Gene Healy takes a broader approach as well as an attorney view on the matter. His book is full of real life examples.

This book needs to be required reading by every abiding citizen. The examples cited shows that any one could find himself behind bars and ruined as a consequence. We are not talking about murders, but navigating a complex and ever changing sets of rules in many aspect of business law as well as personnal life. His facts are chilling to say the least and are a call for action in civil liberties.
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on August 12, 2012
My sister is a prosecutor. I know what I am talking about firsthand. With the drug war gone crazy you would like to think we would find solutions, but a government workers job is to keep their job. Therefore if the job is to lock people up, they will, even when in clear violation of the spirit/intent of the law. They know what they are doing is not right, but who among us can resist the chance for some easy points? You? Yeah I'd like to think I would also. Easy promotions the dirty way!
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on December 5, 2012
Thank you Cato Institute and Gene Healy for writing on such an important subject. I believed in government but was presented with a very different view over the past 10 years. This book is a must read for any one who feels untouchable or let say thinks is an honest and hard working citizen.
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