From the President: Faces of Overcriminalization

Faces of Overcriminalization Jim E. Lavine November 2010 5 Krister Evertson never had so much as a parking ticket prior to his arrest on May 27, 2004. 1 A National Honor Society member, science whiz, clean energy inventor, and small business entrepreneur, Krister is now a felon. The nightmare

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Krister Evertson never had so much as a parking ticket prior to his arrest on May 27, 2004.1 A National Honor Society member, science whiz, clean energy inventor, and small business entrepreneur, Krister is now a felon. The nightmare that took two years of his freedom and hundreds of thousands of dollars in invention materials began when he made a simple error: he failed to put a “ground” sticker on a package that he shipped. Despite his clear intention to ship by ground — as evidenced by his selection of “ground” on the shipment form and payment for “ground” shipping — the government prosecuted him for this error anyway. When the jury acquitted Krister, the government charged him again, this time for his alleged abandonment of toxic materials. Krister had securely and safely stored his valuable research materials in stainless steel drums, at a storage facility, while he fought for his freedom in trial over the missing shipping sticker. He ultimately spent two years in a federal prison for that mistake.

Federal criminal lawmaking has drifted far from its doctrinal anchor in fair notice and due process. Individuals should not be subjected to criminal prosecution and conviction unless they intentionally engage in inherently wrongful conduct or conduct that they know to be unlawful. There are nonpersonal aspects of this problem, but the other side of the problem is the human side, or as NACDL refers to it, the face of overcriminalization.

Over 4,450 federal crimes are scattered throughout the 50 titles of the U.S. Code. In addition, it is estimated that there are at least 10,000 and quite possibly as many as 300,000 federal regulations that can be enforced criminally. The truth is no one, including the government, has been able to provide an accurate count of how many criminal offenses exist in our federal code.

The hallmarks of enforcing this monstrous criminal code include a backlogged judiciary, overflowing prisons, and the incarceration of innocent individuals who plead guilty not because they actually are, but because exercising their constitutional right to a trial is too risky. This enforcement scheme is inefficient, ineffective and, of course, a tremendous taxpayer expense. The cost of incarcerating one of every 100 adults in the United States is always troubling, but particularly so during a time of economic instability and ever-increasing federal debt.

Presenting the face of overcriminalization is critical to raising public awareness of this dangerous trend.

George Norris is a grandfather and retiree who turned his orchid hobby into a part-time business running the greenhouse behind his home. He had never had a run-in with the law before that fateful day in October 2003 when three pickup trucks pulled up outside his home. Federal agents, clad in protective Kevlar and bearing guns, stormed the house. The agents refused to tell George what he had done wrong and, instead, ordered him to remain seated in his kitchen, under supervision, while they ransacked his home and seized his belongings.

For months after the raid, George remained unaware as to its cause. He was eventually indicted in Miami for orchid smuggling. His crime, at its core, was a paperwork violation: he had the wrong documents for some of the plants he had imported. The plants themselves were legal to import and he likely could have obtained the right documents with a bit more time and effort. Although he made a simple mistake, one made regularly by dealers in imported plants, he had certainly complied with the spirit of the law.

The court denied George's request to transfer the case to his home state of Texas. Mounting a defense became very expensive very quickly. Unable to defend himself, George reluctantly gave up the fight, pled guilty to inflated charges, and was sentenced to 17 months in federal prison. George, in his late 60s at the time, was also diabetic, with cardiac complications, and suffered from arthritis, glaucoma, and Parkinson's disease. While incarcerated, his health declined substantially and he now faces the additional issues of depression, paranoia, and sleep complications. Afraid to even leave his home, George is now a broken man.

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Let me tell you about two other victims, Abner Schoenwetter and Bobby Unser. Abner spent nearly six years in prison for shipping lobster tails in plastic bags, rather than cardboard boxes, in violation of a Honduran law that was deemed null and void by the Honduran government. Bobby Unser became lost in a blizzard while snowmobiling and spent almost two days trekking through snow in search of aid. After this near-death experience, Bobby was prosecuted for unknowingly entering protected land with his snowmobile. The fact that he was lost in a blizzard was no defense in the eyes of the government.

Abner and Bobby add two more stories to the face of overcriminalization, but they are so many others whose stories we will never hear. The cost of overcriminalization does not stop with the personal freedom of its direct victims. In my over 25 years as a criminal defense attorney, I have seen families shattered, careers ruined, businesses fail, thousands of innocent workers become unemployed, and entire communities devastated — all done at the expense of taxpayers. Whether in the form of a costly investigation or prosecution, a lengthy sentence at an overcrowded prison, or the loss of tax revenue from businesses and workers, the true cost of overcriminalization is immeasurable. The constitutional obligations of due process and fair notice demand reform and the critical need for fiscal responsibility makes that demand all the more urgent.

These personal stories support the conclusion of a growing number of commentators and experts that the time has come for Congress to stop this dangerous trend, to acknowledge the threat to civil liberties by this unprincipled form of criminalization, and to carry out critical reforms that will protect against unjust prosecutions and convictions.



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  1. The facts in the cases of Krister Evertson, George Norris, Abner Schoenwetter, and Bobby Unser are taken from multiple sources. See, e.g., ONE NATION UNDER ARREST (Paul Rosenzweig & Brian W. Walsh eds., 2010); House Hearing (written statement of Krister Evertson, July 22, 2009, available at; Quin Hillyer, Examiner Special Report: How One Good Man’s Intentions Took Him From a Fuel Cell to a Jail Cell, THE WASHINGTON EXAMINER, Jan. 22, 2009; Andrew Grossman, The Unlikely Orchid Smuggler: A Case Study in Overcriminalization, HERITAGE FOUND. L. MEMO. No. 44, July 27, 2009; House Hearing (written statement of Kathy Norris, July 22, 2009, available at; Letter from Daniel J. Popeo, Chairman and General Counsel, Washington Legal Foundation, to The Honorable Alberto R. Gonzales, Attorney General of the United States (July 11, 2007) available at; United States v. McNab, 331 F.3d 1228 (11th Cir. 2003); United States v. Unser, 165 F.3d 755 (10th Cir. 1999); David Wallis, Bobby Unser, Race Car Champion as Scofflaw,, June 6, 1997.