If It Sounds Unbelievable, It Probably Is
The other day, Will and a whole host of other bloggers linked to this Washington Times op-ed on the federalization of criminal law (which is, in fact, a big problem). Central to the story was the Congressional testimony of a man who claimed to have spent two years in prison “because he didn’t have the proper paperwork for some of the many orchids he imported.”
One problem: this wasn’t quite true, as Ken of Popehat discovered with the magic of a PACER account. It seems the guy was fully aware of the legality of his actions, which involved knowingly smuggling endangered species and taking some fairly obvious steps to conceal those orchids from detection. Whether this warranted a full-scale armed raid to execute a search warrant is, of course, another issue entirely. But the point is that this guy did a lot more than making an innocent mistake on his paperwork.
On top of that, ignorance of the law isn’t an excuse. There’s good reason for regulating agricultural imports, and it’s your responsibility as an importer to familiarize yourself with the law. Expecting laws “to protect innocents by requiring substantial proof that an accused person acted with actual criminal intent” is absurd. I doubt many at the Washington Times would extend the same sympathy to perpetrators of violent crimes who weren’t aware of all the ramifications of their actions. Tough on crime, unless it’s white collar.Report
Ehhh….this goes too far in the other direction. When we criminalize conduct, we usually at least have some sort of mens rea requirement. True, ignorance of the law is no excuse, but that’s different from imposing strict criminal liability on anyone who commits a regulatory violation.
We do, however, regularly impose strict civil liability for regulatory violations in the form of fines and license suspensions.
Sending someone to jail for simply failing to properly fill out paperwork is really draconian. Sending someone to jail for knowingly failing to properly fill out paperwork is generally ok.
So yeah, we can criminalize the importation of endangered species without much of a break from traditional mens rea requirements – as long as the defendant knew they were importing that species, traditional criminal law says that it’s ok to convict whether or not they know importing that species was illegal. But it’s a big break from traditional mens rea requirements to convict for a failure to complete paperwork related to the importation of something that is legal to import where the defendant had no idea that he was required to complete that paperwork. For that, the appropriate action to take is historically just fines or license suspensions (or maybe, in some circumstances, treatment as a misdemeanor).Report
I don’t see how the defendant could know that importing a certain type of orchid was legal with certainty (with anyone remotely involved with the practice knowing that importation of certain species is illegal) without also being aware of the regulatory requirements of legally importing that type of orchid.Report
Why not? Not everyone goes through the hoops of checking the regulations to see what is and is not legal to import before they go ahead and import something. Plenty of times, they just assume it’s legal and import it.
Regardless, whether they’re aware of the regulatory requirement is a fact issue. Certainly evidence that they researched the legality of importing item x can be used to suggest that they were aware of the need to complete Form 1010101, but it is not dispositive in and of itself.Report
I think that in the process of becoming certain that importing x is legal it is inevitable that one would discover the need to fill out some sort of form and then be responsible for finding out it’s form 1010101. I would allow for a case where an exporter is knowingly deceiving an importer and lies about a lack of forms to fill out. That’s different from not bothering to do the legwork, though.Report
Like I said, though – that’s a fact issue, not a legal issue. In other words, the defendant’s state of mind is for the jury to decide – it can’t just be assumed as a matter of law to the point where you just remove the mens rea requirement and make it a strict liability felony.Report
Good catch, Mark (and props to Ken, as well).Report
All credit goes to Ken. I never thought to call BS on it either until I read Ken’s post.Report
Legalize Orchids.Report
Well, that’s a different issue entirely.Report
Jaybird, Orchids kill people daily. Are you suggesting we should just start killing people? What if kids get their hands on some orchids…?Report
You can make paper out of orchids, E.D.Report
another option is never trust the washington timesReport