The Over-Criminalization of Conduct

The House Judiciary Committee, Subcommittee on Crime, Terrorism and Homeland Security, is holding a hearing this afternoon of particular interest to small-business owners, who seem the most susceptible to the hearing’s topic, “Over-Criminalization of Conduct/Over-Federalization of Criminal Law.”

The Washington Legal Foundation devotes a great deal of effort in this area, that is, the unjust and unnecessary criminal prosecution of citizens for regulatory or civil violations. In effort to look tough, send a message, or just out of an excess of prosecutorial zeal, too many people are prosecuted for innocent mistakes that harm no one — and the prosecution alone is enough to ruin them.

The WLF has represented one such person, businessman Krister Evertson, an Idaho businessman who will testify at today’s hearing. (As will former Attorney General Richard Thornburgh, who chairs the WLF’s board.)From a WLF news release:

The Washington Legal Foundation (WLF) [has] filed a Petition for a Writ of Certiorari in the U.S. Supreme Court urging that they review (and ultimately overturn) the conviction of a small businessman in Idaho for alleged technical violations of the Resource Conservation and Recovery Act (RCRA), the law that governs disposal of hazardous wastes. WLF’s client was convicted and sentenced to 21-months imprisonment for storing chemicals that prosecutors deemed “hazardous wastes.” The evidence at trial showed that the chemicals were not “waste” at all but rather were valuable products that the defendant was using in connection with his business.

The news release describes the case. It is our impression that these sorts of abusive prosecutions occur disproportionately in areas of environmental regulation. One speculates as to why — environmental zeal melded with prosecutorial zeal, political pressure from activist groups, or general disregard for business.

At least the first two elements in that list were on display in another excessive — and expensive — criminal prosecution, that of former W.R. Grace executives in Montana for criminal violations under the Clean Air Act. The judge repeatedly admonished the U.S. Attorney’s office for slipshod and (borderline) unethical behavior; jurors quickly found the executives not guilty. We’ve written about that case at Point of Law.com.

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