Conservatives are jubilant that last Friday, as reported by the AP, a bill designed to prevent Kansas courts or government agencies from making decisions based on Islamic or other foreign legal codes has cleared the state Legislature. The measure goes next to Republican Gov. Sam Brownback, who hasn’t said whether he’ll sign or veto the measure.
Though the bill was prompted by concerns about Islamic Shariah law being used in U.S. courts, it does not specifically mention Shariah. Instead, the bill says that Kansas’ courts, administrative agencies or state tribunals can’t base rulings on any foreign law or legal system that would not grant the parties the same rights guaranteed by state and U.S. constitutions.
The Kansas legislature must not have known about the Lacey Act — a Congressional law that makes it a federal offense to violate any foreign law when it comes to fish, wildlife, or plants.
In 1900, illegal commercial hunting threatened many game species in the United States. So Congress passed the Lacey Act to protect and preserve game and wild birds by making it a federal crime to poach game in one state with the purpose of selling the bounty in another. It was also concerned with the potential problems of the introduction of non-native, or exotic species of birds and animals into native ecosystems.
Since 1900, the Act has been amended several times, the result of which is to expand the Act’s coverage to include fish, amphibians, reptiles, mollusks, crustaceans, plants (including trees), as well as the products made from the preceding.
Although the original Lacey Act was concerned with the trafficking of illegally captured or prohibited animals and birds across state lines within the United States, by the 1960s, according to Robert S. Anderson in his 1995 article for the Public Land Law Review, the Lacey Act had shifted in importance from a domestic anti-poaching statute to one that would address the problems of international trade — which means violations of foreign laws.
A position paper by the NCBFAA (National Customs Brokers & Forwarders Association of America, Inc.) points out that:
“The sweeping scope of the product coverage takes on added meaning when you consider that the Lacey Act offenses include not just violations of U.S. laws or treaties, but violation of any foreign law that protects or regulates plants or trees. There are almost 9,000 such laws in Indonesia alone. Moreover, a list of all the relevant foreign laws with which an importer is responsible for compliance does not exist. The penalties for violations of the Lacey Act offenses range from civil administrative penalties to forfeiture of the goods to criminal fines and imprisonment. In effect, the Lacey Act Amendments criminalize U.S. citizens involved in importing a wide range of products far removed from the logging process as a substitute for stronger enforcement by foreign governments in timber rich countries.”
Paul Larkin writes for the Heritage Foundation, March 11, 2012, that the Lacey Act violates one of the fundamental tenets of Anglo–American common law: that ‘men of common intelligence’ must be able to understand what a law means.
Not only has the recent explosion of U.S. federal criminal law rendered this standard a mere fiction, the problem is exacerbated by the fact that the Lacey Act makes it a crime to violate a foreign nation’s law. If Americans don’t even know the dizzying profusion of U.S. laws, how would we know the laws of foreign countries?
An example is what happened to Abner Schoenwetter. In the case of United States v. McNab, Schoenwetter and several other individuals were convicted of several federal offenses in connection with their importation of Caribbean spiny lobsters from Honduras. The federal government charged the defendants with violating the Lacey Act by importing Honduran lobsters in violation of Honduran law: The lobsters were too small to be taken under Honduran law; some contained eggs and so could not be exported; and the lobsters were packed in boxes rather than in plastic as required by Honduran law.
The jury convicted the defendants, and both the district court and the court of appeals upheld the convictions. The circuit court even refused to give any weight to the opinions of the Honduran courts and the Honduran Attorney General that the regulations were invalid under Honduran law and could not serve as a predicate violation under the Lacey Act. The result was that Schoenwetter was sentenced to eight years in a federal prison—a term longer than what some violent criminals could spend in lockup—for domestic regulatory offenses that did not even violate foreign law.
Larkin points out:
“Foreign nations may have very different allocations of governmental power, bureaucracies, and enforcement personnel. Some will speak and write in English; some will not. Some will make their decisions public; some will not. Some will have one entity that can speak authoritatively about its own laws; some will not. And different components of foreign governments may change their interpretations of their own laws over time, perhaps nullifying the effect of a prior interpretation, or perhaps not.
It is sheer lunacy to assume that the average citizen can keep track of such laws, let alone do so by him- or herself without a supporting cast of lawyers—that is, assuming that the average citizen could find a lawyer knowledgeable about the intricacies of a particular foreign nation’s law. Domestic lawyers and judges are not even familiar with foreign law, let alone qualified as experts.”
Adding to the nightmare is the fact that, as pointed out by Robert Anderson, the Lacey Act violator need not be the same person who took, possessed, transported, or sold the wildlife in violation of the underlying law. Culpability attaches to anyone who imports, exports, transports, receives, acquires, or purchases the wildlife, and who knows, or in exercise of due care should know, that it was illegally taken, possessed, transported, or sold. The degree of the accused’s knowledge regarding the status of the tainted wildlife is one of the factors that distinguishes a felony from a misdemeanor violation.
Did you get that?
Let me emphasize:
“Culpability attaches to anyone who…purchases the wildlife” or plant or tree or products made from the wildlife or plant or tree, in violation of some foreign nation’s law(s).
Which means you and me. And that, of course, is insanity.
Senator Rand Paul (R–KY) and Representative Paul C. Broun (R–GA) have introduced two bills in Congress—each one called the FOCUS Act (Freedom from Over-Criminalization and Unjust Seizures Act of 2012 )—to defang the Lacey Act. FOCUS would amend the Lacey Act in several ways, one of which would make it enforceable only through the civil process.
H/t FOTM reader Wade.