Last month, a hyper-aggressive U.S. Fish and Wildlife Service agent, accompanied by a Virginia state trooper, arrived at Alison Capo’s door to announce that our friendly federal government intended to make her a federal criminal. The reason? Alison’s daughter Skylar rescued a woodpecker from being eaten by a cat. The penalty? A $535 fine and possible incarceration—a maximum of six months to a year in federal prison—because of a dangerously flawed federal law called the Migratory Bird Treaty Act.
According to WUSA, eleven-year-old Skylar came upon a baby woodpecker just before a cat was about to make the bird his next meal. The aspiring veterinarian told the TV station, “I couldn’t stand to watch it be eaten.” So Skylar asked her mother if she could care for the bird and then release it. Mom agreed, and the family went on its way, stopping at a home improvement store in Fredericksburg, Virginia. Rather than keeping the bird in the hot car, they brought the woodpecker inside the cool store.
It was there that one of the U.S. Fish and Wildlife Service’s undercover (!) agents spotted the mom–daughter crime duo. Nervously, the undercover wildlife woman held up her badge and proceeded to reprimand Alison and Skylar for illegally taking and transporting the bird.
Under the Migratory Bird Treaty Act (16 U.S.C. § 703 et seq.), the woodpecker is a protected species. The problem is that the act provides only convoluted definitions of which birds are protected that makes identifying the protected species a difficult task. And unfortunately for the Capos, there isn’t an “eleven-year-old girl who cares about animals” exception.
When the Capos got home, they released the woodpecker and notified the Fish and Wildlife Service. Two weeks later that same agent, accompanied by the Virginia state trooper, showed up at the Capo residence and, according to Alison, delivered a citation stating that she violated federal law, owed the federal government a $535 fine, and could be imprisoned.
But not long after the story garnered national attention, the Fish and Wildlife Service decided the situation was a “misunderstanding” and explained that Alison should never have received the ticket because it was, they claimed, “processed unintentionally.”
Nonetheless, several lessons can be learned from this bizarre episode. First, and perhaps most disconcerting, is that it doesn’t take much for one to become a federal criminal. In this particular example, the offense that Alison Capo was accused of carries no criminal-intent (mens rea) requirement. That means that even those Americans who act innocently and unintentionally yet technically violate the law are subject to criminal penalties. The Without Intent report, published by The Heritage Foundation and National Association of Criminal Defense Lawyers, found that there are dozens of laws passed every year by Congress that lack adequate criminal-intent requirements, resulting in more innocent people being jailed for conduct that is neither violent nor inherently wrongful.
Second, the American people don’t support the federal government’s unjust enforcement actions using flawed laws, yet public opinion is rarely brought to bear. In this instance, the negative press and public backlash was enough for the U.S. Fish and Wildlife Service to nullify the ticket. But what of those innocents who are charged but cannot get in front of a camera to tell their stories?
This case ended well for the Capo family, but it does not mean that justice has actually been served. The Migratory Bird Treaty Act remains on the books despite its overbreadth and serious other flaws. There is nothing stopping another family from enduring the same outrageous investigation and potential jail time.
Similar cases already exist. Three-time Indy 500 winner Bobby Unser was not as lucky as Alison Capo. Unser, while snowmobiling on a mountain trail, got lost in a blizzard and nearly died of hypothermia. After recovering, Unser voluntarily sat down with U.S. Forest Service officials, who questioned him under the pretense of helping him locate his lost snowmobile. After hours of such questioning, the Forest Service revealed that they were estimating that Unser wandered into the prohibited national wilderness area when he was in the blizzard and charged him criminally. Unser fought through the federal courts but was ultimately unsuccessful, so he must add to his illustrious resume that he is now a federal criminal.
The Heritage Foundation is publicizing outrageous stories such as these and bringing more attention to the problems of overcriminalization. In One Nation Under Arrest, Senior Legal Fellow Brian Walsh helped bring to light many unfortunate tales of overcriminalization and its innocent victims. The Wall Street Journal recently delved into the topic as well.
Children can learn important lessons by caring for animals. The Josephson Institute of Ethics provides an animal-care curriculum that teaches children the virtues of empathy and respect. But there is no readily available curriculum to teach America’s children that caring for animals could lead the out-of-control federal government to teach your mom or dad a lesson in federal prison. The federal government’s approach to criminal law and criminal law enforcement strongly suggests such a curriculum is needed.
