My friends, you can sleep safe tonight.
Eddie Leroy Anderson of Craigmont, Idaho, is a retired logger, a former science teacher and now a federal criminal thanks to his arrowhead-collecting hobby.
In 2009, Mr. Anderson loaned his son some tools to dig for arrowheads near a favorite campground of theirs. Unfortunately, they were on federal land. Authorities “notified me to get a lawyer and a damn good one,” Mr. Anderson recalls.
There is no evidence the Andersons intended to break the law, or even knew the law existed, according to court records and interviews. But the law, the Archaeological Resources Protection Act of 1979, doesn’t require criminal intent and makes it a felony punishable by up to two years in prison to attempt to take artifacts off federal land without a permit.
They paid a fine and got probation. The WSJ uses this as a lead-in to a growing controversy over the enormous number of federal laws that no one has ever heard of that can land you in prison. The result has been an explosion in the federal prison population — a huge fraction of whom are not dangerous to the public.
Harvey Silvergate’s book Three Felonies a Day documents this relentlessly. There are so many laws out there that you literally can’t go through life without unintentionally breaking them. Even relatively trivial offense can literally become a federal case. In this case, a law intended to stop people making wholesale raids on protected lands nailed two guys looking for arrowheads. And a problem that could have been solved with a return of the artifacts and a stern warning ended up with threats of prison time and tens of thousands of dollars in legal fees. Does this sound sane to anyone?
Many of the new federal laws also set a lower bar for conviction than in the past: Prosecutors don’t necessarily need to show that the defendant had criminal intent.
These factors are contributing to some unusual applications of justice. Father-and-son arrowhead lovers can’t argue they made an innocent mistake. A lobster importer is convicted in the U.S. for violating a Honduran law that the Honduran government disavowed. A Pennsylvanian who injured her husband’s lover doesn’t face state criminal charges—instead, she faces federal charges tied to an international arms-control treaty.
The plaudits and rewards given to overzealous prosecutors don’t hurt either. Here’s a fun stat: the number of federal criminal laws is about 3000. “About”. No one knows exactly how many there are. If you asked for a list of federal laws to make sure you never broke one, you literally couldn’t get it.
Now there are many, especially those in law, who don’t see a problem with this. These guys broke the law and that’s it. If we want to make an exemption for innocent digging, it needs to be codified into law. But that flies in the face of centuries of common law tradition. It requires us to map out the legal mine field by stepping on every mine.
By creating a system with thousands of laws that can ensnare even the most innocent person, we have made criminals out of ordinary Americans and give immense power to law enforcement. If the feds decide they don’t like you, they can almost certainly find something you’ve done to break the law.
You really should read the whole thing to get properly maddened up. Not only does it describe the ridiculous crimes that have landed people in prison, it has statements from federal prosecutors defending these absurd prosecutions. Their words reveal a mentality that is looking to justify every prosecution they can think of rather than use the law to establish order and justice.
What to do? Well, judges need to have more authority to toss cases. Juries need to be instructed that nullification is a thing. Congress needs to stop passing laws and go back over the ones they have. All laws need to start coming with expiration dates. And prosecutors should be rewarded for showing discretion.
But the over-arching problem is that we’ve lost track of a very important legal principle: laws need to be clear and understandable to the people who are expected to obey them. We’ve gotten too used to a legal system that tolerates laws that are so obscure and opaque, they might as well be written in secret code. We laugh about 2000-page healthcare bills that no one has read but can still hit people with fines or prison time. The opacity of law has to stop.
I wouldn’t rule out a Constitutional Amendment to codify this. The law is not meant to be the exclusive domain of lawyers, understandable only to them. Everyone needs to know where they stand.
Our current situation is ruining lives and shredding respect for the rule of law. That has to register on someone’s rader, right?