Some Louisianan children recently opened a lemonade stand and were ticketed for operating a business without an occupational license or paying taxes on their earnings.
This not only highlights the absurdity of criminalizing children who were too young to obtain an occupational license or to even pay taxes—but also illustrates how unpredictable enforcement of arcane criminal laws and regulations are just part of doing business for many long-time business owners.
State legislators rushed a responsive bill to the governor’s desk to exempt minors “earning less than $500” a year from the regulatory hurdles. Because, state Sen. Gary Smith asked, “Why would you ticket a child for an activity that promotes entrepreneurship and a work ethic?”
The question should be: Why would we want to ticket an activity that promotes entrepreneurship and work ethic for any American?
A recent symposium hosted by the U.S. Chamber of Commerce’s Institute for Legal Reform and the National Association of Criminal Defense Lawyers furthered the national conversation on how overcriminalization threatens economic opportunity—from children with lemonade stands to bakers with a 100-year-old family business, custodians to engineers—and harms, sometimes ruins, innocent people’s lives in the process.
Overcriminalization describes the trend to use the criminal law rather than the civil law to solve every problem, to punish every mistake, and to compel compliance with regulatory objectives. Criminal law should be used only if a person intentionally flouts the law or engages in conduct that is morally blameworthy or dangerous.
As symposium participants affirmed, government officials too often abuse the criminal law.
Honest workers are “dazed and confused,” said attorney Reginald J. Brown; dazed because they are paying through the nose to remain compliant, and confused because “they want to do the right thing, but they don’t know what that is.”
Part of their peril is that Congress passes vague laws, regulators play fast and loose with the details, and prosecutors can bend the meaning of laws to fit acts that Congress may not have intended to criminalize.
A family of bakers in Connecticut, for example, “had no idea what structuring was” until IRS agents stormed their business, seized the cash in their bank accounts, and charged them with the criminal offense.
After engineer Kurt Mix spent 90 days capping the flow of oil in BP’s Deepwater Horizon spill, armed federal agents raided his home and investigators poured through his emails, text messages, and voice messages, all to drum up criminal charges in the wake of the clean-up. After five years and millions of tax dollars, federal prosecutors charged Mix and his colleagues with dozens of felony charges, but failed to obtain a conviction. Prosecutors ultimately pressured Mix into pleading guilty to a single misdemeanor charge.
When asked what he learned from his experience with the Justice Department, Mix answers:
“It gives me great concern for the future, especially a future crisis. Will the best people respond? Will the safest and most expedited solution be found? Will they be allowed to work as we did in an open, transparent, collaborative, spontaneous environment? Or will they spend all of their time looking over their shoulder and creating a record for when the Department of Justice comes calling?”
Just ask any of these individuals who faced the threat of criminal prosecution and substantial fines for their actions:
- An 11-year-old girl who saved a baby bird;
- A farmer who built a stock pond;
- Or a lobsterman who shipped lobster in plastic instead of cardboard in alleged violation of Honduran law.
At the symposium, former federal prosecutor turned criminal defense lawyer John F. Lauro said that “with enough time, subpoenas, [and] FBI investigators,” anyone could be charged with “crimes they can’t even articulate.”
Legislators are pushing to reform the criminal code. Until the Congress and senior Justice Department officials act on that initiative, “everybody’s at risk,” said Lauro, and the “collateral damage in all this is the individuals who work at these companies.”