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When Playing Hooky Is A Felony

Saying a system is broken is not the same as saying every result reached by the system is wrong. Criminal laws are a necessary part of a functioning society. Many U.S. prosecutors work hard in the interests of justice and fairness. That said, overbroad language and uneven application of the law has created a world where simple acts of living can expose you to felony prosecution. Nothing more than luck could separate an honest, upright citizen from a lengthy prison stay and the destruction of his or her life. A review of several questionable federal laws demonstrates the problem of an overbroad law and the freedom prosecutors have to pursue questionable convictions.

In 2003, an American restaurateur received a two-year prison sentence for running afoul of the Lacey Act. Her crime was accepting a shipment of lobsters from Honduras in clear plastic bags, rather than cardboard boxes. Honduran law allegedly banned the shipping of lobsters in clear plastic bags, though the Honduran government told the court the law was not valid when the defendant was arrested. The Lacey Act criminalizes any act by an importer that violates "any foreign law." That the restaurateur did not know of the law, and apparently that the law wasn't even valid, did not prevent her from receiving a two-year prison sentence. 

U.S. Code Section 1346 says, "For the purposes of this chapter, the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services." Honest services fraud under that definition is so broad that almost anything short of perfect work could subject you to felony prosecution. Did you plan a long lunch with coworkers? Did you leave work early to go to a happy hour without official permission? Did you call in sick to watch the big game with friends? You could be a felon for depriving your employer of its intangible right to your honest services. What percentage of the American public would not be in prison if this law were applied universally?

When the law is broad and discretion is vast, the only possible result is injustice. While the failed war on drugs is certainly responsible for a significant percentage of our massive population of incarcerated persons, there are many factors at play. Anyone accused of a crime, even people who are sure they did nothing wrong, needs to be wary. Committing a felony is much easier than most people imagine.

Source: You, too?, "Three Felonies A Day: How the Feds Target the Innocent," by Harvey A. Silverglate 

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Kohlmetz, Steen & Hanrahan, P.C.

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