This commentary originally appeared in Fox News on December 29, 2015.
Krister Evertson is the type of person we all strive to be: Eagle Scout, National Honor Society member, worker with the deaf and hearing impaired, and all-around law-abiding citizen.
Krister sold raw sodium, which is perfectly legal and used in variety of applications. Raw sodium must be shipped by ground transportation, not through the air. Unbeknownst to Krister, even when he checked off “ground” on the shipping label, UPS may ship by air.
Krister was arrested at gunpoint. He was found not guilty, but the government wouldn’t stop there. After spending $430,000 in tax dollars, the government subsequently tried and convicted Krister for abandoning the ”toxic” materials he clearly and carefully stored under another’s supervision. Krister spent nearly two years in federal prison.
Krister’s story is no far-fetched exception to some arcane law. Thousands of law-abiding citizens have been convicted under the more than 300,000 federal provisions, most of them administrative — in other words not passed by Congress — that carry a criminal penalty.
And this horror story could happen to you. It is estimated that each American commits three felonies a day without ever knowing it. And just as was the case with Krister, many of these regulations carry no requirement that you knew or should have known you were doing something illegal—the intent of your actions is irrelevant.
Many states have tried to combat their own overcriminalization dilemmas by requiring a certain level of criminal intent, also called “mens rea,” to laws that do not currently address the person’s guilty state of mind.
Congress is attempting to follow suit with bipartisan legislation in both chambers, but is meeting some resistance from those that believe requiring criminal intent to regulatory violations will allow wealthy CEOs to get off scot-free from white collar offenses.
This couldn’t be further from the truth. It’s everyday citizens like Krister who don’t have the money to pay a team of attorneys to keep them in line with the mountain of criminal regulation that are hurt by the status quo.
Economic growth and advancement are stymied by criminalization of ordinary business activities. Many people will not participate in certain markets that are ripe for development and innovation because the risk of being prosecuted for a mistake is too great, or it simply costs too much to comply with all the criminal regulations.
It’s not to say that these individuals should go unchecked. However, prison and a lifetime criminal record for a misunderstanding goes far beyond the punishment needed to prevent the actor from committing the crime in the future.
A civil remedy for innocent actors will allow them to learn from their honest mistake, continue pursuing their dream, and help society as a whole.
By staying course and continue to criminalize everything, we could all find ourselves behind bars one day.
Lavrentiy Beria, the head of Stalin's secret police said, “Show me the man, and I’ll show you the crime.” That this threat is now increasingly relevant in America needs to be addressed.
Greg Glod is a Policy Analyst for Right on Crime as well as the Center for Effective Justice at the Texas Public Policy Foundation. On January 6, 2016, the Texas Public Policy Foundation will be hosting a panel at the Hilton in Austin, Texas during their annual Policy Orientation called “Three Felonies a Day: How Everyday Behavior Affects Everyday People.” The panel, moderated by Glod, will highlight some of the successes Texas and other states have had pushing against overcriminalization and what future steps can be taken.