The Champion

April 2012 , Page 13 

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Legislators Seek to Reform Lacey Act (NACDL News)

By Ivan J. Dominguez

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Identical bills have been introduced in the U.S. House and Senate seeking to reform the Lacey Act, a 112-year-old law that originally targeted illegal trade in wild game. This legislation, the “Freedom from Overcriminalization and Unjust Seizures Act of 2012,” or the FOCUS Act, removes each and every reference within the Lacey Act to “foreign law.” It replaces the Lacey Act’s criminal penalties with a civil fine regime providing that a violation with a market value of less than $350 is subject to a maximum penalty of $10,000, with the remaining category of violations subject to a maximum penalty of $200,000. NACDL supports this important step confronting the ever-growing crisis of overcriminalization.

When enacted, the Lacey Act imposed a maximum penalty of $200 for a violation, with no provision for incarceration. Over the years, multiple amendments and expansions of this law have produced a case study in the burgeoning problem of overcriminalization and the overfederalization of criminal law. The reach of the Lacey Act now spans the globe, incorporating by reference the laws of foreign nations into U.S. law and extending its scope to a widening range of wildlife, fish and plants. The law in its current form is overly broad and vague, subject to abuse by prosecutors, and, importantly, can trigger extremely harsh criminal penalties without regard to whether people accused under the law acted intentionally or knew they were violating a law.

As NACDL President Lisa Wayne explained when the legislation was introduced in the Senate in February, “It is no secret that in Washington every problem often has at least one or more criminal law ‘solutions.’ That’s a big part of how our country reached the unenviable, and extremely costly, status quo of the highest incarceration rate as well as the largest absolute number of people behind bars of any nation on earth. Indeed, the very size of the federal criminal law is compelling evidence of that point — more than 4,450 crimes are scattered throughout the federal criminal code as well as tens of thousands more in the regulations. So we applaud the sponsors of this legislation for taking this important and courageous step to bring sanity to the criminal law.”

Extensive resources on the problem of overcriminalization, including a link to NACDL and the Heritage Foundation’s groundbreaking report, Without Intent: How Congress is Eroding the Criminal Intent Requirement in the Federal Law, can be found at www.nacdl.org/overcrim.

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