"Overcriminalization"
That's the term Overlawyered's Walter Olson quotes to describe what the government tried to do to race car legend Bobby Unser, who got lost on a snowmobile in a blizzard, and may or may not have gone on protected government land. It cost him over $860,000 to defend himself from Federal criminal charges. Yes, effectively, for the crime of getting lost in a blizzard:
In other ridiculousness, per the WSJ, from an article by Gary Fields and John R. Emshwiller:
Unauthorized use of the Smokey Bear image could land an offender in prison. So can unauthorized use of the slogan "Give a Hoot, Don't Pollute."
Written details of Unser's case here:
Because of this ordeal, Bobby has become an active supporter of overcriminalization reform and is determined to help see that no one is convicted for actions they took without any intending to violate a law or knowing that what they were doing was illegal or otherwise wrongful.
Ninth Circuit Judge Alex Kozinski complained of "string of recent cases in which courts have found that federal prosecutors overreached by trying to stretch criminal law beyond its proper bounds."
Brian Walsh writes at Heritage.org:
The term "overcriminalization" may be unfamiliar, but the problem it describes is not. Vague and overbroad laws have become a prevalent part of our legal fabric. In fact, research shows that a single Congress introduces hundreds - and enacts dozens - of non-violent criminal offenses that are poorly drafted, redundant, and lack guilty-mind ("criminal-intent") safeguards adequate to protect the innocent.Equally as disturbing has been the growth of criminal law in areas typically reserved for civil fines and administrative sanctions. Actions not otherwise morally blameworthy have increasingly become the source of criminal sanction.
The cases of Unser and Schoenwetter are prime examples of such unbridled growth in the criminal law. Unser was convicted of a federal crime for allegedly operating a snowmobile in a national wilderness. If he did indeed enter it, he did so unknowingly while he and a friend were lost for two days and two nights in a ground blizzard.
Schoenwetter spent five years in prison for "smuggling" lobsters into the U.S. in violation of Honduran fishing regulations, despite the fact that none of the regulations were valid at the time. Until last June, the federal "honest services" fraud statute was also another prime example of overcriminalization. The law criminalizes depriving "another of the intangible right of honest services," whatever that means. Violations could be punished by up to 20 years in prison. It had been used to charge thousands of individuals across the socioeconomic spectrum until all nine justices of the Supreme Court ruled in a set of three cases in June that the statute was unconstitutionally vague.
The only thing standing between you and criminal charges, fines, and maybe even imprisonment maybe somebody finding a crime to charge you with. In a world where much of life is criminalized, we're all criminals.
I cast an extended middle finger in the government's direction...
mpetrie98 at July 27, 2011 11:46 PM
Maybe all that stuff's true, but Unser's move out of the pits in '81 was bullshit, even if the network overplayed the sin.
Also offtopic, watch a music video.
Crid [CridComment at gmail] at July 28, 2011 3:24 AM
To quote from Atlas Shrugged:
"Did you really think we want those laws observed?" said Dr. Ferris. "We want them to be broken. You'd better get it straight that it's not a bunch of boy scouts you're up against... We're after power and we mean it... There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that's the system, Mr. Reardon, that's the game, and once you understand it, you'll be much easier to deal with." ('Atlas Shrugged' 1957) {WMail Issue #23}
And legal prosecution becomes a matter of official favor, or not. If you are one of the favored groups, or one of the groups in power, you can then use the "law" to get an advantage over your rivals, or to punish your enemies.
Those who are unwitting caught are merely "collateral damage", but serve as an important object lesson to the rest of the population observing them, and help maintain control through what was done to them.
Steve at July 28, 2011 4:33 AM
"Violations could be punished by up to 20 years in prison."
You get less time for rape and murder than for this! Wow....
Sabrina at July 28, 2011 4:46 AM
There's too much money to be made by making people defend themselves in court. This goes back to our recent discussion of the sex-offender registry. Making you pay for the rest of your life on a monthly basis is too reliable a source of revenue for the government to suddenly place fair measures in place to make sure no one is on the registry who doesn't deserve to be.
A guy I know, I hesitate to call him a friend because we're about as compatible as Eeyore and Tigger, fell into the sex offender registry because of a kid's testimony where the cops basically fed the kid his lines, despite the fact that there was no physical evidence of any sexual abuse, least of all what the kid was led to describe. He has spent tens of thousands of dollars just to be where he is, and it would cost him 300K, so he says, to prove he's innocent and get his name off the registry. In the meantime, he's had eggs thrown at him as he walks down the street, nails thrown into his driveway, harassment by neighbors, and basically, the law always taking the opposing party's side, even when they're clearly in the wrong. For instance, a neighbor demanded that he not be allowed to pass his house on his way to work, never mind that the law doesn't prohibit him from going where he wants and that to take an alternate route was inconvenient and out of his way. The police told him he would have to take the alternate route from now on, even though the man had no right to forbid him to walk down the street in front of his house.
Bobby Unser is a case in point. Look at what he's having to shell out, just to prove he's innocent of a crime -- an accident -- that no one can even prove he's committed. How can he be charged with something that he "may or may not have done"? Shouldn't there be a burden of evidence before you charge someone with something? Snowmobile tracks that match the one he was riding? A lost item that belongs to him? Video footage?
Unless they have evidence that points to him, which may or may not be proven accurate in a trial, I would say that the judge has no choice but to dismiss the case. I think the government should be required to pay the costs, since they're the ones who brought this ridiculous suit to court.
Patrick at July 28, 2011 5:04 AM
I fought the law and the law lost, but I’m out $34,000
http://mocek.org/blog/2011/02/07/i-fought-the-law-and-the-law-lost-but/
Lisa Simeone at July 28, 2011 6:37 AM
I'm a huge believer in jury nullification. So were some of the Founding Fathers.
Eric at July 28, 2011 10:58 AM
James Wilson, signer of the Declaration of Independence:
Suppose that, after all the precautions taken to avoid it, a difference of sentiment takes place between the judges and the jury with regard to a point of law... What must the jury do? The jury must do their duty, and their whole duty. They must decide the law as well as the fact. This doctrine is peculiarly applicable to criminal cases, and from them, indeed, derives its peculiar importance.
Eric at July 28, 2011 11:02 AM
I also support jury nullification. There are way too many stupid laws.
Melody at July 28, 2011 11:10 AM
Eric and Melody raise an interesting question: If Unser is so innocent, why didn't he just get a public defender, tell his story to a jury, and let it ride (and save the million). I find it hard to believe that a jury would find him guilty, or that the feds would throw Unser in jail (bad publicity) if his story rang true.
Something tells me Unser ran his off-road vehicle where he wasn't supposed to, and hired a good legal gun to muck up the reality as much as possible. The lawyer figured he had a fish, and billed heavily, and did a good job.
BOTU at July 28, 2011 12:20 PM
Amy Alkon
http://www.advicegoddess.com/archives/2011/07/28/overcriminaliza.html#comment-2385286">comment from BOTUThis story has been reported in detail. Read it instead of making nasty assumptions about Unser.
Amy Alkon at July 28, 2011 1:23 PM
"If you are one of the favored groups, or one of the groups in power, you can then use the "law" to get an advantage over your rivals, or to punish your enemies. "
So Team Rahal was behind this. It's all so clear to me now!
Gog_Magog_Carpet_Reclaimers at July 28, 2011 1:41 PM
Well, looks like once again Alkon spreads her legs for a dubious, but nice-ringing story.
In fact, Unser did run his snowmobile onto a federal Wilderness area, in which no mechanized equipment is allowed. He was fined--get this--$75. Unser says he did so unintentionally, thanks to a convenient snowstorm.
The law does not say "Unless you are lost." If so, of course everyone would say they are lost. The alw allows for a whopping $75 fine.
For reasons I do not know, Under spent--he says--$860,000 to have some sleazeball attorney much up waters as much as possible.
Most likely, the lawyer is working for free for the publicity.
Really, Alkon, your baloney-meter needs a check. These are using you like the new country girl at a Baltimore brothel.
Unser To Appeal Conviction
For Wilderness Snowmobiling
ALBUQUERQUE, N.M. — For former race driver Bobby Unser, it’s a matter of principle; the government shouldn’t be allowed to punish people — even nominally — for things they didn’t do. For one of his eco-activist opponents, it’s a matter of winning; her side did, right or wrong, and now Unser should suffer mistreatment "graciously."
Sure, Unser says, he can afford a federal judge's $75 fine for riding a snowmobile in a wilderness area. He says he will appeal anyway.
The three-time Indianapolis 500 winner, who lives in Albuquerque, plans to take the penalty and his conviction to the 10th U.S. Circuit Court of Appeals in Denver.
U.S. District Judge Lewis Babcock of Denver convicted Unser on June 12 of violating the federal Wilderness Act of 1964. The judge also fined Unser $75. Unser had faced a maximum penalty of a $5000 fine and up to six months in jail.
Unser and a friend became stranded in Colorado's snowy back country for two days in December when a snowmobile broke down during a blizzard. The judge rejected Unser's argument that his dire circumstances should have outweighed any possible violations.
Unser said he will appeal the judge's decision and the fine. It's not the money that matters, he explained, it’s the principle.
"People who stop to look at it realize it's more than just $75. The whole thing has been over what the government, the Forest Service, can or cannot do," Unser said.
Unser argued that if he crossed into the South San Juan Wilderness, he had done so unwittingly. (((OH BOO-HOO))
As the basis for his appeal, Unser said his lawyers would argue that prosecutors never proved criminal intent.
"The prosecution has to prove I did something wrong. Without intent, you can't have a criminal activity. The judge just took that out," Unser said.
On a related point, Unser said Babcock declined to make prosecutors prove that he had no reason to enter the wilderness. In effect, Unser said, his defense team had to prove otherwise.
"That goes against everything," he said. "In the United States, the one that is accused has to be proven guilty, not innocent."
Kathy Kilmer, spokeswoman for The Wilderness Society in Denver, said Unser should "be a more gracious person" about accepting his conviction and fine.
She said the judge determined that Unser's snowmobile was found inside the wilderness area, and the reason it was there doesn’t matter.
"Less than two percent of our public land is wilderness. Bobby Unser should be able to find other places to snowmobile and have fun," Ms. Kilmer said.
Although his lawyers advised him it could take up to two years for the case to reach the appellate court, Unser said he wants to proceed.
"This case could straighten out all the misinterpretations that the Forest Service is going by," Unser said.
Jim Webb, supervisor of Colorado's Rio Grande National Forest, which includes the South San Juan Wilderness, would say only that Unser has the right to appeal.
"Certainly, that is Mr. Unser's prerogative, and that's all I have to say about it. The courts have ruled. They've spoken," Webb said.
BOTU at July 28, 2011 3:36 PM
BOTU:
So your mother told you all about that experience, eh?
Dale at July 28, 2011 3:53 PM
Dale-
Hyuk, Hyuk, I guess I am supposed to answer, "No, it was your wife."
Hoo-hooo-hooo.
BOTU at July 28, 2011 4:35 PM
BTW, "Overlawyered?"
How does a lawyer run yup $860k fighting a $75 ticket?
I would say Unser is overlawyered and out of his mind.
Do the words "patsy," "fish," "chump," or "ding-dong" come to mind?
BOTU at July 28, 2011 4:37 PM
Only when referring to you ahole of the unicycle
ronc at July 28, 2011 4:47 PM
I'm a huge believer in jury nullification. So were some of the Founding Fathers.
Posted by: Eric
Jury nullification is the only real reason to even have juries. Judges know far more about the law then the average person so aside from jury nullification there is no other rational reason to have juries sit in on trials
lujlp at July 28, 2011 5:04 PM
The whole thing about bringing in the interior service agents (that were law enforcement) not rangers -- and interrogating him without advising him of his Miranda rights -- brings to mind that they were setting him up.
That he admitted to "wrongdoing" while not being advised of his Fourth/Fifth Amendment rights says they were almost entrapping him. He can't get those statement excluded as hearsay because there were multiple LE agents in the room to corroborate the statements. If he had asked exactly what there positions in the Forest Service was, and they lied, he would have had a case to get that excluded/overturned on entrapment. How many times does a lay person, not expecting trouble, actually get that deep in?
It is a case of everything is illegal unless the government says otherwise.
Jim P. at July 28, 2011 6:44 PM
How does a lawyer run yup $860k fighting a $75 ticket?
Were you so blind you didn't read the words you quoted?
Unser said he will appeal the judge's decision and the fine. It's not the money that matters, he explained, it’s the principle.
"People who stop to look at it realize it's more than just $75. The whole thing has been over what the government, the Forest Service, can or cannot do," Unser said.
Fighting unreasonable judgments costs money, whether it's a murder conviction or a simple fine. I'm glad Unser is willing to use his money to fight for principles.
WayneB at July 29, 2011 12:03 PM
Amy Alkon
http://www.advicegoddess.com/archives/2011/07/28/overcriminaliza.html#comment-2386695">comment from WayneBWayneB, you get it. My dad's that kind of guy -- the stand up for your principles, even if it costs you bigtime kind of guy -- and that was a big influence on me.
Also, people fail to take into account that every time government is allowed to be overreaching, it makes it that much easier the next time.
Amy Alkon at July 29, 2011 12:26 PM
Let's get one thing straight: Bobby Unser is batshit insane. However, that doesn't make him a bad guy. I remember when this all first happened (it was nearly ten years ago). I didn't realize he was still fighting it, but I'm glad he is. This whole business of criminal law devolving from mens rea to strict liability demonstrates the infantile mindset of our governing class today.
Cousin Dave at July 29, 2011 1:01 PM
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