Order on Protecting Americans from Overcriminalization Through Regulatory Reform
whitehouse.gov
whitehouse.gov
>Criminal prosecution based on regulatory offenses is most appropriate for those persons who know what is prohibited or required by the regulation and choose not to comply, thereby causing or risking substantial public harm. Criminal prosecutions based on regulatory offenses should focus on matters where a putative defendant had actual or constructive knowledge that conduct was prohibited.
This seems a step backwards. It would seem fairly easy to argue for almost any crime that one simply just didn't know it was a crime.
Is it fair to penalize someone if they couldn't possibly know their behavior was criminal?
That only works until the government knocks on your door and points to the regulation you're violating. Then even if they don't prosecute you for doing it yesterday, you're all out of excuse if you do it tomorrow. Which gets you to stop.
Oh Wait.
https://www.wsj.com/articles/SB10001424052702304319804576389...
https://thehill.com/opinion/criminal-justice/473659-america-...
My general claim is that that is essentially already the case. If you become a citizen you have to pass a test to demonstrate familarity with the local society (if you're born here, high school is mandatory). This is no different than how professional licensing works. You could argue that citizenship tests/H.S. barely covers the law, but professional licensing doesn't either. My claim is not that the current system is neccesarily perfect or good, just that the current system where you're expected to know the law is functionally equivalent to expecting professionally licensed people (other than lawyers) to know the law, except that you just have a new class of people who are exempt for roughly no reason. Thus it doesn't really make sense as a suggestion since it is basically what the status quo is.
https://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat:
> Ignorantia juris non excusat (Legal principle)
> Ignorantia juris non excusat or ignorantia legis neminem excusat (Latin for "ignorance of the law excuses not" and "ignorance of law excuses no one" respectively) is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely by being unaware of its content.
> European-law countries with a tradition of Roman law may also use an expression from Aristotle translated into Latin: nemo censetur ignorare legem (nobody is thought to be ignorant of the law) or ignorantia iuris nocet (not knowing the law is harmful).
And if Wikipedia is no authority for you maybe the bible is:
Leviticus 5:17: "If a person sins and does what is forbidden in any of the LORD's commands, even though he does not know it, he is guilty and will be held responsible."
If everybody was prosecuted for breaking all the laws they didn't know existed, everybody would be in prison.
Also, the old principle was reasonable when the law consisted of things like "don't kill people or steal stuff" which everybody can be reasonably expected to know whether or not they ever read the book where it's written down. That doesn't quite work when you're talking about every obscure detail of the 70,000 pages in the Federal Register.
The principle is reasonable because otherwise everyone would just claim they didn't know regardless of if they did
Nobody said it was perfect, as they say.
> The principle is reasonable because otherwise everyone would just claim they didn't know regardless of if they did
Not saying it is perfect or imperfect. Just saying the imagined time when all rules were self-obvious natural laws that could be logically deduced a priori, never existed.
Hell, trump pardoned someone convicted of murder (which is disgusting, but i guess he thought it was reasonable).
But my main point is there was never a time or society where the only crime was murder.
As far as pork specificly - i imagine nobody really knows, but there's some speculation at https://en.wikipedia.org/wiki/Religious_restrictions_on_the_...
It said that rituals and rules can serve as a way to raise the cost of being in the religion, which can help keep people who don't really believe in the religion out. The book had a cartoon showing a man standing in front of a "Church Picnic" sign and he had a thought balloon that said "I'll pretend to love Jesus for a free hamburger!".
The tangible benefits of being accepted as being a member of a church can be considerable, far beyond the occasional free hamburger at a church picnic. Members of a church will often when they need services or need to buy things look first to providers that are in their church.
If all it takes to convince them you are one of them is showing up at services occasionally and giving a small donation now and then, that is a price many non-believers would pay.
Annoying rituals and rules raise that price. For the true believers who are in the church because they believe that it is the only way to not spend an eternity being tortured in hell, church is worth it even with the onerous rituals and rules.
For the person who is only there because he thinks it will get him a few more customers for his landscaping business, the rules and rituals can make it not worth it.
My step father is quite conservative and he and I don’t see eye to eye on much, but one time he pointed out how the declining religiosity of my generation meant an increased reliance on the state for social programs that the church once filled the need for, and I’ve never been able to stop seeing that function of religion since.
26 USC §5674(b) & 27 CFR §25.144(a) make it a federal crime for a brewer to remove beer from a brewery in a keg that has the name of more than one brewer on it.
21 USC §§331, 333 & 21 CFR §169.115(a) make it a federal crime to sell French dressing if less than 35% of its weight is vegetable oil.
43 USC §1733 & 43 CFR §6302.20(e) make it a federal crime to pick someone up from a federal wilderness area using a hot air balloon.
7 USC §8303, §8313 & 9 CFR §93.318(b) make it a federal crime to bring an American horse back into the United States after being in a Canadian rodeo without a health certificate.
42 USC §6928 & 40 CFR §257.3–8(b) make it a federal crime to start a dangerous garbage fire.
21 USC §331, 333, 343 & 21 CFR §155.201(a)(2)(v) make it a federal crime to sell canned "random sliced" mushrooms unless they were sliced in a random manner.
https://www.amazon.com/How-Become-Federal-Criminal-Illustrat...
Everyone should know that burning garbage can be dangerous.
Anyone who operates a hot air balloon should know how to use it safely.
Anyone who works with animals should know about the risks of spreading disease.
Anyone who works with food should know about food labelling laws.
No, we are not all expected to know them.
The first one is from a part of the tax code that covers taxation on alcohol sales. If you are not involved in the commercial beer brewing industry, you do not need to know it.
The second one is part of the rules on interstate commerce in food, drugs, and cosmetics. Again, most of us have no need to know it. Same with the sixth one.
The third is from the laws governing public lands. If you aren't going to fly your hot air balloon into a Federal wilderness area, there is no need to know it.
...and so on.
https://criminal.findlaw.com/criminal-procedure/what-is-pros...
https://www.nolo.com/legal-encyclopedia/prosecutorial-discre...
https://www.wsj.com/articles/SB10001424052702304319804576389...
https://thehill.com/opinion/criminal-justice/473659-america-...
https://blogs.loc.gov/law/2013/03/frequent-reference-questio...
https://www.amazon.com/How-Become-Federal-Criminal-Illustrat...
https://abcnews.go.com/US/york-gov-cuomo-ruffles-feathers-re...
All kinds of laws have a "willfulness" requirement, which means that you had to do something on purpose. For things like vehicular manslaughter or public indecency, this means that you had to purposefully do something bad with your vehicle or expose yourself. Tragic vehicular and wardrobe malfunctions do not meet the willfulness requirement.
But the issue happens when you apply this standard to white collar crimes, because this makes knowledge of the law a legal requirement to being convicted of it. For example, let's consider the IRS own handbook[0] on tax crimes. This book explicitly includes wilfulness as an element for tax evasion on page 15. It defines wilfullness on page 17 as:
> Willfulness is defined as the "voluntary, intentional violation of a known legal duty."
It also helpfully notes (also on page 17)
> Willfulness is subjectively measured. A defendant's good faith belief that he is not violating the tax laws, no matter how objectively unreasonable that belief may be, is a defense in a tax prosecution.
So yes, if you're avoiding paying your taxes, ignorance of the law is a valid defense, and in fact the IRS agrees. This also applies to bank fraud, election rule fraud, etc. etc.
If I somehow don't know that killing people is illegal and I intentionally shoot someone, the excuse that I didn't know it was illegal doesn't get me anywhere (even assuming the court believes me).
If, on the other hand, I didn't intend to kill someone, that does lessen the severity of the crime or even eliminate it if it was truly a freak accident where I couldn't reasonably have prevented it by exercising more caution.
The result is that ignorance is a defense, at least for some types of laws.
There are plenty of courts, including American ones, that treat extremely counterintuitive laws different.
But also, large corporations tend to have lawyers and consequently either not break the rules or have the ability to argue their way out of it. So the main benefit would seem to be to small companies that make an honest mistake.
https://www.mlive.com/news/flint/2021/01/oil-chem-owner-plea...
I don’t believe a fine is sufficient for this type of corporate malfeasance, small business or not.
Less you know and understand, less you have liability.
One day Trump will refer to this as some sort of achievement or having struck out at "the enemy". That is the point.
I don't like requiring proof that a person knowingly broke a regulation to criminally charge them. I can think of a few examples where that would have been good. But I think generally the US doesn't prosecute large scale violations enough. Deep Water Horizon, the Flint water crisis, the housing crisis, and the Volvo emissions scandal are all examples where almost no one went to jail. This seems like it would cripple environmental protection and make corporate legal defense much easier.
It might have some benefit for small businesses. But it doesn't protect against heavy fines. And my current assumption is agencies are already not likely to settle with criminal charges.
https://www.economist.com/leaders/2010/07/22/rough-justice
> America imprisons people for technical violations of immigration laws, environmental standards and arcane business rules. So many federal rules carry criminal penalties that experts struggle to count them. Many are incomprehensible. Few are ever repealed, though the Supreme Court recently pared back a law against depriving the public of “the intangible right of honest services”, which prosecutors loved because they could use it against almost anyone.
I think the point is to issue common-sense executive orders and force the Democrats to justify striking them down.
One important take away for me was that the way things are set up now is you often can't just commit one crime. For example, a simple burglary ends up with "breaking and entering", "trespassing", "theft", etc. This way, the prosecutor "throws the book at you" and if all the crimes apply, you are facing 50+ years in jail. You are then pressured to skip the court system and accept a plea bargain without facing a jury of your peers. This is a perversion of the judicial system.
https://www.amazon.com/Overcriminalization-Limits-Criminal-D...
The rules won't be put into effect, afaict - there's no time - and are worthless for the American people. If the Trump administration thought they were worthy, presumably they would have enacted them years ago when Trump have could utilized them.
AFAIK, it's like a CEO changing a bunch of policies on their last day at the company. Now the only purpose I divine is to undermine the American government or score political points. You can ignore it, but then there is no reason for it ever to stop.
Which seems appropriate to me, most of the time.
https://thecriminallawyer.tumblr.com/post/29326904495/16-a-p...
But from my reading I think this order only applies to business regulations, so you might want to delay your next bird feather gathering party.
https://abcnews.go.com/US/york-gov-cuomo-ruffles-feathers-re...