The FOCUS Act Hearing: When Silence Is an Admission

Paul J. Larkin Jr. /

The law sometimes reflects common sense.  Consider this example:  Innocent people don’t remain silent when accused of a crime or misconduct; they deny it.  Accordingly, it is reasonable to infer that such an accusation is true if someone doesn’t scream, “Not me.  I didn’t do it.”  In the law that is known as a “tacit admission.”

Keep that point in mind for a minute.

A current law, the Lacey Act, makes it a crime to import wildlife or plants in violation of any foreign law – however obscure, however unintelligible, however translated (or not), however trivial, however self-serving, and however unrelated to conservation that law may be.  The Heritage Foundation has explained that that aspect of the Lacey Act is unreasonable because no one has fair notice of what foreign law requires.  On Tuesday, a Subcommittee of the House Committee on Natural Resources held a hearing on the Freedom from Over-Criminalization and Unjust Seizures Act of 2012 (FOCUS Act).  The FOCUS Act would remedy this defect in the Lacey Act making the law enforce­able only through administrative or civil process.

Heritage has pointed out that criticisms of the FOCUS Act offered at that hearing are unpersuasive, and a weak argument betrays a weak position.  But what truly incriminated the FOCUS Act critics was what they did not say.  No critic was willing to accept that fact that, as written, the Lacey Act permits people like Abner Schoenwetter to be imprisoned for “heinous” crimes such as importing lobsters that (under a void Honduran law, by the way) were too small and should have been packed in boxes, not clear plastic bags.  As for those critics who found it difficult to believe that any such injustice could occur: well, as Senator Rand Paul later had to explain, denial is not just a river in Egypt.  Moreover, no critic was willing to maintain that it is reasonable – let alone desirable – to send people to prison for violating a foreign law that no reasonable person would know even existed.

Ideally, in order to join issue on this matter, some critic should have been willing to say the following: “Yes, it is grossly unfair to send someone to prison in these circumstances:

“Yes, that is grossly unfair, but we want that done anyway because [pick one of the following]:

“We are environmentalists and believe that trees in Guyana are more important than people’s lives in the United States, and we believe this even if the laws in Guyana really don’t protect trees.”

or

“We are a domestic timber or wood products industry desperately in need of protection against cheap foreign imports.”

or

“We are the government and never prosecute blameless individuals.”

or

“All or some combination of the above.”

That statement would have had the advantage of at least being honest and forthright. Alas, no critic would confess that this is what is at stake.

As I said at the beginning, sometimes what people don’t say is far more important, and far more incriminating, than what they do.

Paul J. Larkin, Jr., is Senior Legal Fellow and Manager of the Overcriminalization Project in the Center for Legal & Judicial Studies at The Heritage Foundation.