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.