Gibson Factory Seizure Leaves Rockers Scratching Their Banging Heads

According to the Wall Street Journal, the U.S. Fish and Wildlife Service stormed Gibson Guitar’s factories in Memphis and Nashville last week, seizing guitars, electronic files, and pallets of wood.  The items were not seized due to any tax evasion, misappropriation of funds, or embezzlement.  Nor, presumably, were the items seized merely because Gibson’s CEO, Henry Juszkiewicz, is a prominent conservative (although that is a curious coincidence).

Instead, the Fish and Wildlife Service seized the goods because of an ongoing legal battle to determine whether Gibson’s guitars are made of illegally harvested ebony wood from protected forests in India.  If the wood was indeed procured from a protected forest, it would constitute a violation of the Lacey Import Act, which authorizes the federal government to prosecute businesses based on speculation about what foreign law might prohibit.  Gibson explained the situation well in its press release: “The Federal Department of Justice in Washington, D.C. has suggested that the use of wood from India that is not finished by Indian workers is illegal, not because of U.S. law, but because it is the Justice Department’s interpretation of a law in India. (If the same wood from the same tree was finished by Indian workers, the material would be legal.) This action was taken without the support and consent of the government in India.”  (The Lacey Act was also implicated in McNab v. United States, the infamous “lobster case” that is frequently cited by opponents of overcriminalization.)

The Lacey Act also criminalizes a failure to properly declare all flora or fauna upon import, whether the violation was intentional or not.  Not only can Gibson’s goods be seized, but the company could face fines and criminal prosecution for its violation of the Lacey Act.  Strict liability (a situation wherein criminal intent is presumed) is typically only applied to abnormally dangerous activities, but one wonders why it is abnormally dangerous – and criminal – to make a mistake on a customs form?

Gov. Beebe and Arkansas Legislature Taking on Recidivism and Prison Growth

Arkansas’s prison population doubled in the past two decades, and corrections costs have jumped eight hundred percent — now costing the state $353 million per annum, an all-time high.  Governor Mike Beebe recently called upon the Pew Center on the States to evaluate the problem and recommend solutions to help the ailing state.  Last week, the Pew Center released its findings and recommendations.

Pew found that Arkansas has been increasing sentence lengths for non-violent offenses consistently for the past twenty years, and it has “depart[ed] substantially from the voluntary sentencing guidelines and delay[ed] transfer of inmates to parole.”  Arkansas’s probation rate is 23% below the national average, while the state’s incarceration rate stands at 522 prisoners per 100,000 residents (compared with the national average of 502).

Following the completion’s research, the Pew Center assisted the Arkansas Working Group on Sentencing and Corrections to craft a reform strategy that could correct these problems within the corrections system.  Their meetings culminated in The Public Safety Improvement Act, which operates on a standard justice reinvestment model: money is redirected toward community-based probation and prevention programs that reduce crime and recidivism.  This leads to a decline in prison populations, which saves taxpayer dollars, and then later, a portion of this money is redirected to strengthen the programs that work best, while the poorly performing programs are eliminated.

Specifically, the act requires vastly improved data collection systems, increased accountability for probationers, an improved parole release process, expansion of electronic parole monitoring for low-level offenders, and expanded eligibility for drug court programs.  It also recommends rehabilitation of longtime drug abusers rather than keeping them imprisoned for extended periods of time.  Lastly, the act clearly states that violent and career criminals will remain in prison, where they belong.

The Public Safety Improvement Act passed both legislative chambers, and it was signed into law by Gov. Beebe in March of this year.  The legislation is projected by Pew to save the state a net $875 million in averted prison construction and operations costs over the next nine years.

A Whole New Meaning to the Term “Fashion Police”

If we didn’t have enough evidence that police interventions are being over utilized in public schools across America, this news story should be enough to change your mind. According to the NBC affiliate out of San Francisco, a teacher told one of her students to pull up his pants—which he refused. Her response? Dialing 9-1-1, and dispatching police officers to the classroom.

No criminal charges were filed—but police officers were diverted from actual crime prevention and response, and taxpayer dollars were expended to intervene in a shockingly minor disciplinary issue.

In 2006, Right On Crime’s Marc Levin wrote about the overuse of the criminal justice system in public schools, including the issuance of a citation to an eight-year-old and the transformation of municipal court judges into vice principals.

Public schools need to return to relying on discipline that doesn’t involve handcuffs. It’s more efficient, more effective—and a far more adequately tailored response to baggy pants.

Illinois Moves Towards Community Treatment Options for Juveniles

Beginning in January of next year, judges sentencing juvenile offenders in Illinois will have an alternative to traditional incarceration: community based treatment.

Under legislation recently signed into law by Governor Pat Quinn, a sentencing decision for a juvenile will now consider myriad factors, and give judges the option to order direct treatment for the juvenile offender in his or her community.

This is a huge step forward for Illinois. It requires political courage and tenacity to weather criticisms and accusations of being “soft on crime” and pass such a bill, but the potential benefits are enormous. For example, when Missouri adopted a community based system of treatment for juvenile offenders, it was able to cut its costs per offender to half the national average for traditional incarceration—$126.19 for Missouri’s group homes, as compared to over $240 for the national average. Further, recidivism rates dropped to a miniscule fraction of the national rate—which can be as high as 55 or 70%. Missouri, in contrast, only puts 4.6% into an adult prison three years after receiving community based treatment.

The key in both programs is the community: such treatment options are small in size, more tailored to each juvenile and come with increasing levels of responsibility and accountability. Furthermore, families are more willing and able to be involved in the juvenile’s treatment and progress, given their close proximity to home.

Illinois will soon reap the rewards of having a more effective juvenile justice system, including a more productive work force, fewer tax dollars spent in this arena, and a safer state for all citizens.

Congress Resuscitating Honest Services Fraud

Since its inception in 1988, the honest services fraud statute has faced boisterous criticism.  The statute was designed to criminalize corruption of public officials, but it has been abused by prosecutors to press charges against unpopular public figures.  The statute is extremely vague, and it has been stretched to cover a number of activities that are not necessarily blameworthy.

Last year, the U.S. Supreme Court stepped in and limited the scope of the honest services fraud statute to criminalize only bribes and kickbacks in Skilling v. United States.  Justice Ginsburg wrote for the majority, “to satisfy due process, a penal statute [must] define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement.”

The Wall Street Journal warns, however, that honest services fraud may not be done yet.  Congress has taken it upon itself to remedy the Court’s “mistake,” and it has introduced a total of three new bills in the House and Senate designed to resuscitate “Honest Services.”  Several of the suggested “fixes” will almost certainly violate the Skilling vagueness test, criminalizing an unknown behavior called “self-dealing.”

Even worse, in order to fill the honest services fraud void, federal prosecutors are stretching other similar statutes to recriminalize the same behavior.  For example, the Justice Department has doubled its enforcement of the Foreign Corrupt Practices Act in the last year, and it now considers a “foreign official” to be essentially every foreign citizen.

Not only do vague laws breed uncertainty amongst governing officials and invite expensive legislation, but they often fail to stop the targeted behavior.  Governmental corruption is a problem, but overreaching laws are not the way to stop it.

Right On Crime Featured in The New York Times

The Right On Crime campaign is prominently featured in a new article in the The New York Times headlined “Trend To Lighten Harsh Sentences Catches on in Conservative States.” Former Reagan Attorney General Ed Meese, a signatory to the Right On Crime Statement of Principles, is quoted as saying that the campaign is a “careful refining of the process.”  Meese further explains: “Most of us who are involved in this are very much in favor of high incarceration of serious habitual offenders. The whole idea is getting the right people in prison, and for those people for whom there is evidence that chances of recidivism are less, to work with those people.”

The article also pays special attention to recent successes in Texas.  The Times notes that “the Texas prison system is now operating so far under its capacity that this month it is closing a 1,100-bed facility in Sugar Land — the first time in the state’s history that a prison has closed.”  (For more on the closing of the Central Unit in Sugar Land, TX, see this article in The Austin American-Statemsman.)

Marc A. Levin of Right On Crime is quoted as saying that “[i]n Texas for the last few years we’ve been driving down both the crime rate and the incarceration rate…[a]nd it’s not just Texas.  South Carolina, Kentucky, Arkansas and Ohio in the past year or so have done major reforms.  These are certainly not liberal states. That is significant.”

California Youth Sentencing Legislation Facing Vote Soon

California Senate Bill 9 was originally introduced in December of last year, and the amended version of the bill passed in the Senate in May.  It has just moved through the Assembly committee on Public Safety, and it will now go through the Appropriations committee, and then the Assembly at large for a vote, according to an article from the Fair Sentencing for Youth project.

SB 9 is a groundbreaking piece of legislation for California juvenile justice. The bill recognizes that youth offenders have a unique capacity to change themselves and it improves access to the rehabilitative tools for them to do so.

If passed, the legislation would “provide an opportunity for review and resentencing after many years of incarceration for youth sentenced to life without parole.”  Furthemore, “[r]ecognizing that teenagers are still maturing, this act creates specific criteria and an intense, three-part review process that would result in the possibility of a lesser sentence for those offenders who have matured and proven themselves to be changed.”

Even if the offenders are resentenced, they will still face a parole board and be required to prove that they deserve release to community supervision, just like any other prisoner.  SB 9 allows for up to three review hearings for each offender serving a life sentence without parole, and it requires a statement of remorse and rehabilitation as a condition of sentence reduction.

New Texas Law Helps Juvenile Offenders, Community

During the Texas legislative session, Right on Crime’s Marc Levin testified on several bills related to criminal justice. According to a recent article in The San Antonio Express-News, one of those bills is now a law that takes aim at ensuring juvenile offenders learn from their mistakes.

Presently, most juvenile criminal violations are punished with a fine.  Unfortunately, the offender’s parents must usually pay these fines, and unless the parents require their child to work off the payment in some way, a juvenile offender will typically escape with nothing more than a lecture and a slap on the wrist.

New legislation, which takes effect in September, will allow juvenile offenders charged with certain class C misdemeanors to be assessed two hundred hours of community service.  In assessing community service, a judge ensures that the child, not the parents, bears the brunt of the punishment.  Judges will be instantly notified if an offender fails to report for his community service, and appropriate action can be taken swiftly.  Such measures have the potential to teach responsibility to juvenile offenders, reduce recidivism, and help clean up the community.

Some advocates of the legislation are optimistic that the new law will also provide great benefits to elderly residents and neglected neighborhoods across Texas.  San Antonio implemented an informal juvenile community service sentencing program last year, and it has seen great success.  Many senior citizens have expressed gratitude for the cleanup efforts of the young offenders.

Ornithologists Beware! Federal Crime For Woodpecker Rescue

At the Cato Institute’s blog, Walter Olson has a new post up about eleven-year-old Skylar Capo, who witnessed her cat attacking a woodpecker in her backyard.  Fearing for the bird’s life, she intervened to rescue the animal and nursed it back to health before releasing it back into the wild.  On the day of the bird’s release, the Capo family took a trip to a Lowe’s home improvement store, where a Virginia game officer spotted Skylar with the bird.

Two weeks later, the game officer and a state trooper arrived at the Capo household to inform them that they owed the federal government $535, and could possibly face jail time.  It turns out, it’s a federal crime to “take,” “possess,” or “transport” a migratory bird without a permit.

Thanks to flurry of nationwide media, the U.S. Fish and Wildlife Service announced that it will be dropping all charges.  Olson responds to this news with some sage advice: “[R]eally, if you’re the parent of a youngster fascinated by backyard wildlife, why take chances? Order them back indoors to play video games and watch TV. It’s much legally safer that way.”

Criminal Penalties for Facebooking in Missouri

Missouri Senate Bill 54, aka the Student Protection Act, seeks to combat inappropriate student-teacher contact.  According to a recent ZDNet article, the legislation increases penalties for failure to report sexual abuse of students, but it also criminalizes student-teacher contact on social networking sites such as Facebook.

Section 162.069 of the bill details the social networking provision:

“Teachers cannot establish, maintain, or use a work-related website unless it is available to school administrators and the child’s legal custodian, physical custodian, or legal guardian. Teachers also cannot have a nonwork-related website that allows exclusive access with a current or former student.”

The wording of the legislation implies that a teacher may be allowed to have a work-related Facebook page, but any connection that goes beyond “work-related” will be impermissible.

The last clause of the law, which criminalizes contact between teachers and their former students, particularly ought to concern anybody worried about overcrminalization.  To put it in perspective, two years after I graduated from high school, when I was twenty years old, my junior high choir director added me on Facebook.  He was a fantastic mentor, a great teacher, and a character reference that I list on applications to this day.  In Missouri, he would be criminally liable

State Governor Jay Nixon signed the bill this week, which will go into effect at the end of August.  The enforcement provisions have not been laid out yet.