NACDL

The “Freedom from Over-criminalization and Unjust Seizures Act of 2012” (FOCUS Act) seeks to reform the Lacey Act by substituting the Lacey Act’s criminal penalties with civil penalties and removing the Act’s reliance on foreign laws as the basis for determining violations.  S. 2062, introduced in February 2012 by Sen. Rand Paul (R-KY), and H.R. 4171, introduced by Rep. Paul C. Broun (R-GA) in March 2012, are identical companion bills.   

The Lacey Act, 16 U.S.C. §§ 3371–3378, is a conservation law that attempts to prohibit trafficking in “illegal” wildlife, fish and plants. When enacted in 1900, the Lacey Act only contained a civil monetary penalty for violations and did not contain any provisions imposing jail or prison time.  Since that time it has undergone several amendments and expanded dramatically.  The Lacey Act now includes harsh criminal penalties for importing fish, wildlife or plants in violation of any foreign law of any nation.  Violations of the Lacey Act can be punished as misdemeanors or felonies and the criminal penalties can be imposed on individuals who acted without intent to violate, or even knowledge of, the relevant foreign law.

The Lacey Act now serves as a high-profile and frightening example of over-criminalization.  Victims include David McNab and Abner Schoenwetter, who spent years in federal prison for “violating” invalid Honduran fishing regulations and, most recently, Henry Juszkiewicz, the Chairman and CEO of Gibson Guitar Corp., whose company was raided by armed federal agents in August 2011. In Sykes v. United States, 131 S. Ct. 2267, 2288 (2011), Justice Scalia stated in his dissent that: “We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular.  It should be no surprise that as the volume increases, so do the number of imprecise laws . . . In the field of criminal law, at least, it is time to call a halt.”  The Lacey Act as currently codified is overly broad, imprecise, vague, and subject to abuse by overzealous prosecutors and activist judges.

Reasonably aiming to narrow its coverage, S. 2062 and H.R. 4171 remove each and every reference to “foreign law” within the Lacey Act.  Furthermore, these bills replace the Lacey Act’s criminal penalties with the following reasonable civil fine regime: (1) a violation with a market value of less than $350 is subject to a maximum penalty of $10,000 and (2) a violation with a market value higher than $350 is subject to a maximum penalty of $20,000. If enacted, the FOCUS Act would go a long way to restoring the basic due process requirement of fair notice to the Lacey Act.

The Senate version currently has seven co-sponsors, Senators Coburn (R-OK), DeMint (R-SC), Enzi (R-WY), Lee (R-UT), McConnell (R-KY), Risch (R-ID), and Wicker (R-MS). The House version currently has 20 co-sponsors, Representatives Bachmann (R-MN), Bishop (R-UT), Boren (D-OK), Duncan (R-SC), Gingrey (R-GA), Gohmert (R-TX), Harris (R-MD), Kingston (R-GA), Lankford (R-OK), McClintock (R-CA), Paul (R-TX), Pearce (R-NM), Peterson (D-MN), Pitts (R-PA), Posey (R-FL), Price (R-GA), Schmidt (R-OH), Walberg (R-MI), Westmoreland (R-GA), and Young (R-AK).      

NACDL supports such measures as the FOCUS Act, which aims to minimize the overcriminalization and overfederalization created by the currently ambiguous Lacey Act.  Supportive commentary from NACDL, coalition organizations and others, as well as background material on the Lacey Act and its victims, are provided below.

Resources

Text of FOCUS the Act 

• S. 2062 
• H.R. 4171 

NACDL on the FOCUS Act 

• "Legislators Seek to Reform Lacey Act," NACDL News, The Champion Magazine, April 2012.
• "House Members Join Senators in Taking on Lacey Act; Nat'l Defense Bar Applauds Another Important Step in Reining in Overcriminalization," March 8, 2012.
• "Sen. Rand Paul Takes on Lacey Act; Nat'l Defense Bar Applauds Important Step in Reining in Overcriminalization," Feb. 2, 2012.

Other Commentary on the FOCUS Act  

• "DOJ Bullies Gibson into Submission: Will Congress Allow This to Happen Again?," The Foundry, Aug. 7, 2012.
• "Op-Ed by Sen. Rand Paul: Rep. Earl Blumenauer Needs to Brush Up on His Legal Research Skills," The Huffington Post, May 9, 2012.
• "U.S. Chamber Applauds Introduction of FOCUS Act in U.S. Senate," The U.S. Chamber of Commerce, Feb. 3, 2012.

Congressional Testimony on the FOCUS Act 

• Written Statement of Sen. Rand Paul on "H.R. 4171, the FOCUS Act," Before the House Committee on Natural Resources, Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs, May 8, 2012.
• Written Statement of Rep. Paul C. Broun on "H.R. 4171, the FOCUS Act," Before the House Committee on Natural Resources, Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs, May 8, 2012.
• Written Statement of Reed D. Robinstein for the U.S. Chamber of Commerce on "H.R. 4171, the FOCUS Act," Before the House Committee on Natural Resources, Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs, May 8, 2012.

Victims of the Lacey Act  

• Gibson Guitar
  
  • "Gibson Guitar Settles," PointOfLaw.com, August 7, 2012.
  • "Gibson Guitar: Settling Away Bad Publicity," The Foundry, August 7, 2012.
  • "The Music Didn't Die After All," The FCPA Blog, August 7, 2012.
  • “Gibson’s Blues: Endless Laws Criminalizing Business,” CBN, April 24, 2012.
  • "Gibson Guitar Targeted as the Lacey Act Falls Flat in Nashville," The Foundry, October 27, 2011.
  • Gibson Guitar & CEO Henry Juskiewicz Respond to the Government's Raids, August 25, 2011.
• Abner Schoenwetter
  • Case Summary: Abner Schoenwetter - Overcriminalization Victim 
  • Video: "Excessive Criminal Laws Trap Honest American Businessman," The Heritage Foundation, May 21, 2012.
  • Congressional Testimony Before the House Judiciary Crime Subcommittee, September 10, 2010.