FOCUS Act of 2012 (S. 2062 & H.R. 4171)

The “Freedom from Over-criminalization and Unjust Seizures Act of 2012” (FOCUS Act) seeks to reform the Lacey Act by substituting the Lacey Act’s criminal penalties with civil penalties and removing the Act’s reliance on foreign laws as the basis for determining violations.  S. 2062, introduced in February 2012 by Sen. Rand Paul (R-KY), and H.R. 4171, introduced by Rep. Paul C. Broun (R-GA) in March 2012, are identical companion bills.   

The Lacey Act, 16 U.S.C. §§ 3371–3378, is a conservation law that attempts to prohibit trafficking in “illegal” wildlife, fish and plants. When enacted in 1900, the Lacey Act only contained a civil monetary penalty for violations and did not contain any provisions imposing jail or prison time.  Since that time it has undergone several amendments and expanded dramatically.  The Lacey Act now includes harsh criminal penalties for importing fish, wildlife or plants in violation of any foreign law of any nation.  Violations of the Lacey Act can be punished as misdemeanors or felonies and the criminal penalties can be imposed on individuals who acted without intent to violate, or even knowledge of, the relevant foreign law.

The Lacey Act now serves as a high-profile and frightening example of over-criminalization.  Victims include David McNab and Abner Schoenwetter, who spent years in federal prison for “violating” invalid Honduran fishing regulations and, most recently, Henry Juszkiewicz, the Chairman and CEO of Gibson Guitar Corp., whose company was raided by armed federal agents in August 2011. In Sykes v. United States, 131 S. Ct. 2267, 2288 (2011), Justice Scalia stated in his dissent that: “We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular.  It should be no surprise that as the volume increases, so do the number of imprecise laws . . . In the field of criminal law, at least, it is time to call a halt.”  The Lacey Act as currently codified is overly broad, imprecise, vague, and subject to abuse by overzealous prosecutors and activist judges.

Reasonably aiming to narrow its coverage, S. 2062 and H.R. 4171 remove each and every reference to “foreign law” within the Lacey Act.  Furthermore, these bills replace the Lacey Act’s criminal penalties with the following reasonable civil fine regime: (1) a violation with a market value of less than $350 is subject to a maximum penalty of $10,000 and (2) a violation with a market value higher than $350 is subject to a maximum penalty of $20,000. If enacted, the FOCUS Act would go a long way to restoring the basic due process requirement of fair notice to the Lacey Act.

The Senate version currently has seven co-sponsors, Senators Coburn (R-OK), DeMint (R-SC), Enzi (R-WY), Lee (R-UT), McConnell (R-KY), Risch (R-ID), and Wicker (R-MS). The House version currently has 20 co-sponsors, Representatives Bachmann (R-MN), Bishop (R-UT), Boren (D-OK), Duncan (R-SC), Gingrey (R-GA), Gohmert (R-TX), Harris (R-MD), Kingston (R-GA), Lankford (R-OK), McClintock (R-CA), Paul (R-TX), Pearce (R-NM), Peterson (D-MN), Pitts (R-PA), Posey (R-FL), Price (R-GA), Schmidt (R-OH), Walberg (R-MI), Westmoreland (R-GA), and Young (R-AK).      

NACDL supports such measures as the FOCUS Act, which aims to minimize the overcriminalization and overfederalization created by the currently ambiguous Lacey Act.  Supportive commentary from NACDL, coalition organizations and others, as well as background material on the Lacey Act and its victims, are provided below.

Resources

Text of FOCUS the Act 

NACDL on the FOCUS Act 

Other Commentary on the FOCUS Act  

Congressional Testimony on the FOCUS Act 

Victims of the Lacey Act  

 

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