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A Poster Child for Overcriminalization: The History of the Lacey Act

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by Jarrett Dieterle, former legal intern at Manhattan Institute's Center for Legal Policy, and author of The Lacey Act: A Case Study in the Mechanics of Overcriminalization published in the Georgetown Law Journal

What if I told you that the U.S. Department of Justice could prosecute a renowned American company for exporting wood in violation of a foreign country's laws? To many Americans, such a tale would be unbelievable. How, they might ask, could violating a foreign law make one susceptible to a felony conviction in the United States?

The answer is the Lacey Act, which was the proximate cause of the now-famous Gibson Guitar raid that occurred in the summer of 2011 (when the company was accused of exporting wood for its guitars in violation of the laws of India). Under the Lacey Act, it is illegal to "import, export, transport, sell, receive, acquire, or purchase" any plant or type of wildlife that was "taken, possessed, transported, or sold" in violation of a foreign or domestic law. Penalties for violating the Lacey Act can lead to draconian punishments--including felony convictions, jail time, large fines, and asset forfeiture.

Legal scholars like Paul Larkin of the Heritage Foundation have long highlighted the Lacey Act as an example of the concept of "overcriminalization" (a topic well-covered on Point of Law, as well). Overcriminalization means criminalizing conduct that most people do not view as inherently criminal or blameworthy. Although the Lacey Act's present day form has been extensively analyzed, little has been written about the Lacey Act's long and tortured history. In other words, we know a lot about why the Lacey Act criminalizes conduct that is often innocuous, but we know much less about how the law evolved to become a poster child for overcriminalization.

With this in mind, I decided to retrace the history of the Lacey Act and explore how the Act has changed over time. The result of this effort was recently published in the Georgetown Law Journal, and it turned up some fascinating trends about how overcriminalization occurs in modern, democratic societies.

In 1900, an Iowa Congressman named John F. Lacey introduced a modest bill into the U.S. House of Representatives that was primarily concerned with reversing a recent decline in certain wild bird populations. Among other factors, Congressman Lacey blamed the decline in birds on those he called "pot hunters," who were essentially poachers that shot the birds in violation of state laws and then sold them across state lines for profit. In an effort to thwart these pot hunters, Congressman Lacey proposed a mechanism by which violation of a state game law would trigger a violation of U.S. federal law (this multi-layered legal machinery was necessary given the interpretation of the Constitution's interstate commerce clause at the time).

When it was first enacted, Congressman Lacey's bill had the support of state and local game wardens eager to apprehend the notorious pot hunters, as well as the backing of sportsmen and farmers. Although the Lacey Act had humble beginnings, by the second half of the 20th century (when it underwent several rounds of amendments) the Act had become a powerful environmental law weapon. Today, the law's most enthusiastic supporters are influential environmental interest groups such as Greenpeace, the World Wildlife Fund, and the Sierra Club, as well as labor unions (who favor the law because it functions as a protectionist trade barrier).

This change in Lacey Act supporters has been accompanied by other changes to the law over the years, such as weakening the Act's mens rea requirements, beefing up the penalties one could face for violating the Act, and allowing Lacey Act prosecutions for foreign law violations (as opposed to just state law violations). The end result of all these amendments? A law that is capable of sending Americans to jail for violating obscure Honduran lobster fishing regulations (this actually happened).

The history of the Lacey Act can serve as a cautionary tale to future policymakers and legislators about the dangers of using the heavy hand of the criminal law to enforce what are essentially regulatory offenses (and often foreign regulatory offenses at that). Small tweaks to a law may not seem like a big deal when they are enacted, but when added together over time they can result in a statute that criminalizes conduct most Americans would view as morally blameless.

At almost every opportunity, Congress expanded the Lacey Act's reach, watered down its culpability standards, and made its enforcement schemes more aggressive. Hopefully lawmakers will resist these impulses when drafting and amending future laws. Our civil liberties may depend on it.

[In this post, I have provided just a small--and expedited--taste of some of the changes that have occurred to the Lacey Act over the 100+ years of its existence. The full story can be found here.]

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.