The federal government has become increasingly involved in the creation of more and more environmental laws and regulations, as well as amending existing laws and regulations. Many of these new and amended laws and regulations are attached to criminal penalties. The rational for making these laws criminally punishable is the belief that it will deter behavior deemed dangerous or harmful to the environment. Unfortunately, many of these offenses lack meaningful criminal intent requirements and are often drafted in such a vague or overbroad manner that nearly anyone could be facing criminal charges despite acting with no intent to violate the law or even for innocuous conduct.
A quick look at numbers released by the Environmental Protection Agency (EPA) shows that an increasing number of people each year are being charged, fined, and sentenced to prison terms under federal environmental laws. In 1983, 34 individuals were charged with violating an environmental law or regulation. Of those 34, not one faced criminal prosecution or criminal punishment. By the year 2000, 360 individuals were criminally charged with an environmental offense. That same year, the EPA collected $122 million in criminal fines and 146 years of prison sentences were meted out. Fast forward to 2013 and the amount of criminal fines and restitution collected by the EPA jumps to $1.5 billion.
FOCUS Act of 2012
The Freedom from Over-Criminalization and Unjust Seizures Act of 2012 (FOCUS Act) would amend the Lacey Act (codified at 16 U.S.C. §§ 3371-78), which was originally enacted as a conservation law to control illegal trade in wild game. After many amendments since its passage, the Lacey Act is now an extremely broad and vague law that criminalizes violations of foreign laws and carries harsh criminal penalties. The FOCUS Act, introduced via companion bills S. 2062, sponsored by Sen. Rand Paul (R-KY), and H.R. 4171, sponsored by Rep. Paul C. Broun (R-GA), seeks to reform the Lacey Act.
A reasonable person has no way of knowing all wildlife, fish, and plant laws and regulations in every other country across the globe. As such, the FOCUS Act seeks to narrow the Lacey Act’s coverage by removing all references to foreign law therein. The FOCUS Act would 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 $200,000. Finally, the FOCUS Act would limit forfeiture authority for violations of the Lacey Act to just the contraband in violation of the act—i.e. only the fish, wildlife, or plants alleged to be in violation of the law and not, for example, the boat of the accused.
Why It Matters
When originally enacted, the Lacey Act imposed a maximum penalty of $200 for a violation, with no provision for incarceration. Over the years, multiple amendments and expansions of this law have produced a case study in the burgeoning problem of overcriminalization and the overfederalization of criminal law. The reach of the Lacey Act now spans the globe, incorporating by reference the laws of foreign nations into U.S. law and extending its scope to a widening range of wildlife, fish, and plants. The law in its current form is overly broad and vague, subject to abuse by prosecutors, and, importantly, can trigger harsh criminal penalties without regard to whether people accused of violating the law acted intentionally or with knowledge that they were violating the law.
NACDL’s Position on the FOCUS Act of 2012
NACDL supports the FOCUS Act and sees it as a bold and important step confronting the ever-growing crisis of overcriminalization in the federal criminal law. For years, NACDL has been a leading voice for a sensible and fair criminal justice system and supports measures that bring common sense back to criminal lawmaking.
The FOCUS Act seeks to remedy the severe problems within the Lacey Act, namely:
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- The Lacey Act includes harsh criminal penalties for importing fish, wildlife or plants in violation of any foreign law of any foreign nation.
- The Lacey Act potentially imposes criminal punishment on individuals acting without intent to violate foreign law or knowledge of the foreign law.
- The Lacey Act makes it possible for selective prosecution because the statute encompasses such a large amount of conduct that a reasonable person cannot have fair notice or what is and is not criminal.
Passage of the FOCUS Act would address each of these issues, as well as other problems with the Lacey Act, and provide critical reform to an area of environmental enforcement that epitomizes the problem of overcriminalization.
Status of the FOCUS Act
Sen. Rand Paul (R-KY) introduced S. 2062 on February 2, 2012. Rep. Paul C. Broun (R-GA) introduced the identical House version, H.R. 4171, on March 8, 2012. Both bills were referred to the relevant committees in their respective chamber. The House Committee on Natural Resources, Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs held a hearing on the FOCUS Act on May 8, 2012. Sen. Rand Paul (R-KY), Rep. Paul C. Broun (R-GA), and Reed D. Rubinstein of the U.S. Chamber of Commerce, served as witnesses and testified in favor of the FOCUS Act. The bills failed to move out of committee during the 112th Congress.
Similar measures have yet to be introduced in the 113th Congress.
How to Get Involved
There is currently no active legislation aimed at making reforms to the Lacey Act. To show support for such reform efforts, please use NACDL’s Contact Congress function to call or e-mail your U.S. Representative or Senator, or the sponsors of the FOCUS Act of 2012, to encourage them to re-introduce, co-sponsor, or generally support similar legislation in the 113 Congress.
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Text of FOCUS the Act
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," NACDL News Release, March 8, 2012.
- "Sen. Rand Paul Takes on Lacey Act; Nat'l Defense Bar Applauds Important Step in Reining in Overcriminalization," NACDL News Release, Feb. 2, 2012.
Other Commentary on the FOCUS Act
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- "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.
- 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 Responds 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.