Lacey Act: Double the Punishment, at Home and Abroad

Tourists and merchants abroad are subject to the laws, and punishment, of the nation they’re visiting. It should be unthinkable then that the United States would support another round of punishment for those individuals who find themselves in legal trouble while outside her jurisdiction.

But unthinkable may be the federal government’s middle name, since the country has imposed this double punishment since 1900, when it passed the Lacey Act.

The law, originally to protect birds whose feathers were popular in hats, now regulates imports of plant products, and was amended in 2008 to include wood. The Lacey Act sounds well-intended, but, as noted in a research report from the Heritage Foundation, it demands that a person who imports flora or fauna from a foreign nation know every law of every foreign country — in whatever form that law may take, in whatever language that law may be written, and however obscure that law may be — on pain of criminal liability.

If you’re in trouble in another country for removing plants or animals and the United States finds out, the Lacey Act ensures that you’re going to be in trouble for being in trouble — as if we don’t already have enough laws to tiptoe around in the United States. Until 1981, Congress was careful to only impose criminal liability upon parties acting “knowingly and willfully” in an illegal manner. However, the removal of the word “willful” from the law in 1981 gave it power beyond regulation of commerce: the power to criminalize.

Two fundamental principles of criminal law, according to Paul Larkin of Heritage, are that everyone is presumed to know criminal law, and that the average person must be able to find, read, and understand criminal law. According to Larkin, the Lacey Act not only tolerates, but embraces laws written in a foreign language. Granted, US citizens could use some work on their notorious inability to speak any language other than English, but a situation that could lead to criminal charges is not the time to force tourists to Google Translate an entire foreign legal code.

Criminal charges aren’t limited to unsuspecting travelers, either. Gibson Guitar’s Nashville plant was raided in 2009 and 2011 by federal agents, after the company was suspected of circumventing Indian trade laws to import ebony. CEO Henry Juszkiewicz admitted that a broker could have mislabeled a shipment, but insisted that the transaction had been approved by Indian authorities. Agents also “second-guessed” a Gibson shipment from Madagascar, alleging that the ebony was contraband.

Gibson’s description of the government’s “Orwellian” behavior is spot on: it seems that no one linked to the supply chain is safe. Gene Nix, a wood engineer at Gibson, was informed that he could face five years in prison for simply sorting illegal wood on the factory floor. Nix worked “willingly,” but he could not have reasonably been charged with “knowingly” working on illegal goods.

By punishing its own citizens for violating the laws of other countries, the federal government is delegating “substantive lawmaking authority,” which makes enforcement of the Lacey Act an unconstitutional mess. Paul Larkin recommends four solutions to distill this stew of laws:

  • eliminate domestic criminal liability for a violation of foreign law;
  • require the government to prove that a person acted “willfully”;
  • adopt a mistake of law defense;
  • identify the foreign laws.

The first recommendation is the most logical; the second is perhaps a step in the right direction; the third seems only to be sweetening the stew instead of clarifying it; and the last is laughable. Identify the foreign laws to which US citizens are held accountable? Are courts actually enforcing laws that they neither fully understand nor have the jurisdiction to enforce?

The governing body responsible for this “blind deference to foreign courts” should be ashamed. Frivolous criminal law such as this is a mockery of laws intended to protect people from real harm, and is further proof that some things are only illegal because they’re illegal.

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