Washington, DC (February 2, 2012) – Today in the U.S. Senate, Senator Rand Paul, joined by Senators Coburn, DeMint, Lee, and Risch, took a bold and important step to confront the ever-growing crisis of overcriminalization in the federal criminal law by sponsoring and introducing the “Freedom from Overcriminalization and Unjust Seizures Act of 2012,” the FOCUS Act.

The now infamous Lacey Act is a law dating to 1900 that originally targeted illegal trade in wild game. When enacted, it 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 into U.S. law by reference the laws of foreign nations 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 extremely harsh criminal penalties without regard to whether someone accused under the law acted intentionally or knew they were violating a law. Indeed, a witness who testified at the most recent House of Representatives Crime Subcommittee hearing on “Reining in Overcriminalization,” a lobster importer named Abner Schoenwetter, spent six years of his life in federal prison for violating certain Honduran administrative fishing regulations, which the government of Honduras itself told U.S. authorities were not even valid law in that country. A copy of Mr. Schoenwetter’s testimony in the House of Representatives is available here.

Sen. Paul’s legislation, the FOCUS Act, removes each and every reference within the Lacey Act to “foreign law.” And it sensibly replaces the Lacey Act’s criminal penalties with a civil fine regime providing that a violation with a market value of less than $350 is subject to a maximum penalty of $10,000, with the remaining category of violations subject to a maximum penalty of $200,000.

“It is no secret that in Washington every problem often has at least one or more criminal law ‘solutions.’ That’s a big part of how our country reached the unenviable, and extremely costly, status quo of the highest incarceration rate as well as the largest absolute number of people behind bars of any nation on earth. Indeed, the very size of the federal criminal law is compelling evidence of that point – more than 4,450 crimes are scattered throughout the federal criminal code as well as tens of thousands more in the regulations,” explained Lisa Wayne, President of the National Association of Criminal Defense Lawyers (NACDL), “so we applaud the sponsors of this legislation for taking this important and courageous step to bring sanity to the criminal law.”

NACDL has for many years been a leading voice for a sensible and fair criminal justice system, including extensive efforts to combat the problem of overcriminalization and the overfederalization of the criminal law. NACDL supports measures such as the FOCUS Act to bring common sense back to criminal lawmaking.

Extensive resources on the problem of overcriminalization, including a link to NACDL’s and the Heritage Foundation’s groundbreaking report, Without Intent: How Congress is Eroding the Criminal Intent Requirement in the Federal Law, can be found at www.nacdl.org/overcrim.

Contacts

Ivan Dominguez, Deputy Director of Public Affairs & Communications, (202) 465-7662 or idominguez@nacdl.org.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.