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Putting Innocent Americans on “Trial”

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“Let’s not make a federal case out of this.” Nearly all of us have heard someone say something like this at one time or another. And it used to mean something. Not anymore.


This bit of sarcasm, after all, is meant to imply that the person you’re talking to is taking some relatively small matter and making too big a deal out of it. Only the most serious crimes rise to the level of federal law, right?

Welcome to the 21st century. Today more than 300,000 federal criminal laws are on the books. There are so many, in fact, that stating the exact number is impossible. No one knows for sure how many there are.

“They are published in the bowels of the federal register — the place where few people outside of law firms and major corporations look to find laws — and are often drafted in ambiguous and often hyper-technical language that can’t be understood,” writes John-Michael Seibler, a legal fellow in the Edwin Meese III Center for Legal and Judicial Studies.

In short, you could be breaking a federal law and not even know it. And the fact that you didn’t know you were doing so, or didn’t intend to break the law, would make no difference.

But still, you may be thinking, these crimes must be pretty bad. Well, let’s see. Has your dog ever barked at a squirrel? Depending on where the squirrel is, you may be in trouble. It’s a federal crime to allow a pet to make a noise that scares wildlife within a national park.


Let’s say you work at an ice-cream shop, and you put a few too many drops of wine into a wine sorbet that’s for sale. Uh-oh. That, too, is a federal offense, punishable by up to one year in jail and fines of up to $1,000.

The list goes on, many of them amusingly ridiculous. But to the people who get caught -- ordinary, otherwise law-abiding Americans who had no idea that they were flouting any law, federal or otherwise -- it’s no laughing matter.

Ask Wyoming welder Andy Johnson. His misdeed? He built a stock pond on his eight-acre farm. The Environmental Protection Agency proceeded to fine him $16 million, or $37,500 a day.

Seibler lists several other federal offenses that have appeared on the Twitter page “A Crime a Day.” These include:

· Making it a crime to sell mixed nuts if the nuts pictured on the label aren’t in decreasing weight order (21 USC §333 & 21 CFR §164.110(f)).

· Making it a federal crime to let small cigars leave the cigar factory unless they’re labeled “small” or “little” (26 USC §5762 & 27 CFR §41.73).

· Making it a crime for amateur radio operators to sell amateur radio equipment, and using amateur radio too often (47 USC §502 & 47 CFR §97.113).


· Making it a federal crime for the operator of a wharf to let his longshoremen use common drinking cups (33 USC §941(f) & 29 CFR §1918.95(b)(3)).

And this is just the tip of the iceberg. Thousands of other crimes are on the books, waiting to be discovered by some unsuspecting American who breaks them.

It’s obvious that something needs to be done to reduce the scope and reach of what experts in this area often call “over-criminalization.” We need to distinguish between innocent mistakes and deliberate crimes.

In 1925, Franz Kafka’s “The Trial” was published. It tells the story of a man prosecuted by an inaccessible authority for a crime whose nature is never revealed to him.

Today that work of fiction has become disturbingly close to reality. It’s time to declare a mis-“Trial” -- and restore common sense to federal law.

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