Saturday, July 31, 2010

Overcriminalization

"Overcriminalization" includes applying criminal sanctions to conduct that traditionally has not been considered inherently wrongful, federalizing crime that properly belongs under state jurisdiction, and attaching criminal penalties without criminal intent. Reasonable people may disagree whether any specific bill included in the Legislative Update Alert is an abuse of criminal law or is in fact justified. Nevertheless, the Legislative Update Alert includes all bills our researchers have identified that add or enhance federal criminal penalties. Please visit us at Overcriminalized.com 

It's part of the Heritage Foundation's huge library of things to scare the you-know-what out of you! Of course, they do more than scare you, they give you the tools to fight the good fight, too.

It's a great resource and chocked full of information that shows you just exactly what "our" politicians are trying to do to us. When you read this, combine it with all the other bits and pieces that we hear and read, you get a very clear, shockingly clear, picture of where this White House, and all their minions in Congress and throughout the country, are taking us. Guaranteed to spur you to work harder to change the culture in our government.

One thing I found interesting personally is that yesterday or the day before I posted a release from the Obama White House about the last item in this newsletter regarding Native American art, new penalties, etc. We have Arts Across Georgia, focusing (duh) on the arts. I got the release, glanced at it, then posted it not thinking anything much about it. That is, until I read the bit in the last paragraph of the newsletter below. I'm SO glad there are people at the Heritage Foundation who are looking at these things closely and clearly.



Here's a sample of the info included in yesterday's update:

S. 3598: Secure Water Facilities Act

Sponsor: Lautenberg (D - NJ)

Official Title: A bill to amend the Safe Drinking Water Act and the Federal Water Pollution Control Act to authorize the administrator of the Environmental protection Agency to reduce or eliminate the risk of releases of hazardous chemicals from public water systems and wastewater treatment works, and for other purposes.

Status:
7/15/2010: Introduced in Senate
7/15/2010: Referred to Senate Environment and Public Works Committee

Commentary: This bill calls on the Administrator of the Environmental Protection Agency (EPA) to promulgate new regulations establishing risk-based performance standards for the security of public water systems that serve more than 3,300 people or otherwise present a security risk. The bill and regulations would also protect certain information from disclosure, including any vulnerability assessment of a water system, documents that relate to audits or inspections of covered systems, and documents relating to a security threat or breach. “Whoever discloses protected information in knowing violation of the regulations” will be subject to imprisonment for up to 1 year, a fine as authorized by Title 18, U.S. Code, or both. If the person who unlawfully discloses protected information is a federal officeholder or employee, that person will be subject to possible removal from federal office or employment.


S. 3599: Secure Chemical Facilities Act

Sponsor: Lautenberg (D - NJ)

Official Title: A bill to enhance the security of chemical facilities and for other purposes.

Status:
7/15/2010: Introduced in Senate
7/15/2010: Referred to Senate Homeland Security and Governmental Affairs Committee

Commentary: This bill would modify and make permanent the authority of the Department of Homeland Security to regulate security practices at chemical facilities. It would call for the risk-based designation and ranking of chemical facilities that possess substances of concern or meet other criteria established by the Secretary of DHS. The bill and regulations would also protect certain information from disclosure, including information related to the assessment of the vulnerability of a chemical facility, documents that relate to an audit or inspection of a covered chemical facility, and documents relating to a security threat or breach of security. “Any person” who discloses protected information “in knowing violation of the regulations” will be subject to imprisonment for up to 1 year, a fine as authorized by Title 18, U.S. Code, or both. If the person who unlawfully discloses protected information is a federal official or employee, that person will be subject to possible removal from federal office or employment.


S. 3632:

Sponsor: Gillibrand (D - NY)

Official Title: A bill to provide for enhanced penalties to combat Medicare and Medicaid Fraud, a Medicare data-mining system and a beneficiary verification pilot program, and for other purposes.

Status:
7/22/2010: Introduced in Senate
7/22/2010: Referred to Senate Finance Committee

Commentary: This bill, a nearly identical companion to H.R. 5044, includes provisions that would double the criminal penalties for specified knowing and willful wrongful acts in connection with federal health care programs and that would create a new offense for those who, knowingly, intentionally, and with the intent to defraud, “traffic” in Medicare or Medicaid beneficiary identification numbers or billing privileges. One subpart of 42 U.S.C. § 1320a-7b(a) prohibits the making of false statements or representations in connection with applications for benefits or payments under a federal health care program. The penalty for making such false statements or representations other than “in connection with the furnishing (by that person) of items or services for which payment is or may be made” will be doubled, with imprisonment for up to one year or a fine of $10,000 increasing to imprisonment for up to two years or a fine of $20,000. The penalty for (1) making false statements or representations by someone in connection with that person’s furnishing of items or services for which payment is or may be made; (2) receiving kickbacks, bribes, or rebates; (3) making false representations with respect to the condition or operation of institutions: or (4) engaging in illegal patient and admittance practices would be doubled as well, increasing from imprisonment for up to 5 years, a fine of $25,000 or both to imprisonment for up to 10 years, a fine of $50,000, or both. In addition, the bill would create a new offense for, knowingly, intentionally, and with the intent to defraud, selling or distributing two or more Medicare or Medicaid beneficiary identification numbers or billing privileges. The violation of this provision would be punishable by imprisonment for up to 3 years, a fine as authorized by Title 18, U.S. Code, or both.


S. Amendment 4486:

Sponsor: Pryor (D - AR)

Official Title:

Status:
7/19/2010: Introduced in Senate

Commentary: This Amendment is proposed for H.R. 5297, which would create the Small Business Lending Fund Program. It addresses the Earned Income Credit (EIC) that can be claimed by some individual taxpayers. It would amend 18 U.S.C. § 1028A(a), to address the problem of identity theft involving the EIC. Any person who “knowingly transfers, possesses, or uses, without lawful authority” someone else’s means of identification or a false identification document in connection with a willful attempt to evade or defeat taxes by claiming the EIC or submits a false or fraudulent statement in connection with a claim for EIC benefits would be subject to the penalties for identity theft set out in 18 U.S.C. § 1028(b), plus an additional term of imprisonment of up to 5 years.


S. Amendment 4488:

Sponsor: Boxer (D - CA)

Official Title:

Status:
7/20/2010: Introduced in Senate

Commentary: The Amendment is proposed for H.R. 5297, which would create the Small Business Lending Fund Program. A participating lender that “knowingly makes a false statement with respect to the income, assets, or other qualifications of a small business concern” in connection with a loan or loan application would be subject to imprisonment for up to 5 years, a fine of $500,000, or both.


H.R. 5788: Mine Safety Accountability and Improved Protection Act

Sponsor: Moore (R - WV)

Official Title: A bill to honor the nation’s fallen miners by requiring improved mine safety practices and compliance in order to prevent future mine accidents.

Status:
7/20/2010: Introduced in House
7/20/2010: Referred to House Education and Labor Committee

Commentary: This bill would increase the enforcement powers of the Secretary of Labor and establish a National Mine Safety Board and empower it to conduct independent investigations of mine accidents that involve 3 or more deaths. The bill would also increase the penalty for any willful violation of a mandatory health or safety standard or for any knowing failure to comply with orders issued by the Secretary. The penalty for a first conviction would increase to imprisonment for up to 5 years, a fine of $1,000,000, or both, from the current penalty of imprisonment for up to 1 year, a fine of $250,000, or both, as set out in 30 U.S.C. § 820(d). The penalty for subsequent violations would increase to imprisonment for up to 10 years, a fine of $2,000,000, or both, from the current penalty of imprisonment for up to 5 years, a fine of $500,000, or both. The bill would also make it unlawful to retaliate against anyone who has provided information “related to the existence of a health or safety violation or an unhealthful or unsafe condition, policy or practice” to enforcement officials. The penalty for that offense would be imprisonment for up to 10 years, a fine as authorized by Title 18, U.S. Code, or both. The bill would increase the penalty that may be imposed on any unauthorized advance notice of any health or safety inspection to imprisonment for up to 5 years, a fine as authorized by Title 18, U.S. Code, or both, from the current penalty of imprisonment for up to 6 months, a fine of $1,000, or both, as set forth in 30 U.S.C. § 820(e). Finally, where a business entity is responsible for the violation, any director, officer, or agent of that operator who “willfully authorized, ordered, or carried out such violation, failure, or refusal, or any policy or practice that contributed to the occurrence of a fatality” will be subject as an individual to the same civil and criminal penalties that can be imposed on the operator.


H.R. 5810: Securing Aircraft Cockpits Against Lasers Act of 2010

Sponsor: Lungren (R - CA)

Official Title: A bill to amend Title 18, United States Code, to provide penalties for aiming laser pointers at airplanes, and for other purposes.

Status:
7/21/2010: Introduced in House
7/21/2010: Referred to House Judiciary Committee

Commentary: The bill would make it unlawful for any person to “knowingly aim[] the beam of a laser pointer at an aircraft in the special aircraft jurisdiction of the United States, or at the flight path of such an aircraft.” The bill does not safeguard those who aim a laser at an aircraft or its flight path accidentally, inadvertently, or with benign intent. It would not prohibit the aiming of a laser beam at an aircraft by authorized individuals conducting research, development, operations, testing, or training, or anyone using the laser to send an emergency distress signal. The penalty for unlawfully aiming a laser at an aircraft would be imprisonment for up to 5 years, a fine as authorized by Title 18, U.S. Code, or both.


H.R. 5663: Miner Safety and Health Act of 2010

Sponsor: Miller (D - CA)

Official Title: A bill to improve compliance with mine and occupational safety and health laws, empower workers to raise safety concerns, prevent future mine and other workplace tragedies, establish rights of families of victims of workplace accidents, and for other purposes.

Status:
7/1/2010: Introduced in House
7/1/2010: Referred to House Education and Labor Committee
7/13/2010: Hearing Held by House Education and Labor Committee
7/21/2010: Mark up in the House Education and Labor Committee
7/21/2010: Ordered to be reported

Commentary: Section 820(d) of Title 30, U.S. Code, currently prohibits “willfully” violating a mandatory mining health or safety standard or “knowingly” violating or refusing to comply with certain orders issued by the Secretary of Labor. This bill would significantly lower the protectiveness of the mental state required to prove a violation of a mandatory health and safety standard from “willfully” to “knowingly.” Violators are currently subject to imprisonment for up to one year, a fine of up to $250,000, or both on the first conviction, and imprisonment for up to 5 years, a fine of $500,000, or both for subsequent violations. This bill would increase the penalty for first violations to imprisonment for up to 5 years, a fine of $1,000,000, or both, and the penalty for subsequent violations to imprisonment for up to 10 years, a fine of $2,000,000, or both. Under 30 U.S.C. § 820(c), a director, officer, or agent of a corporate violator who “knowingly authorized, ordered, or carried out” the conduct leading to the violation is subject to prosecution to the same extent as the corporation. This provision will not necessarily be interpreted by the courts to require the government to prove beyond a reasonable doubt that the director, officer, or agent had any actual knowledge that what he or she authorized, ordered, or carried out was unlawful.


H.R. 5626: Blowout Prevention Act of 2010

Sponsor: Waxman (D - CA)

Official Title: A bill to protect public health and safety and the environment by requiring the use of safe well control technologies and practices for the drilling of high-risk oil and gas wells in the United States, and for other purposes.

Status:
6/29/2010: Introduced in House
6/29/2010: Referred to House Energy and Commerce Committee
7/15/2010: Mark up in the House Energy and Commerce Committee
7/15/2010: Ordered to be reported House

Commentary: This bill would, beginning one year after its enactment, require applicants for permits to drill for a “high-risk well” to attest to the capacity of their blowout prevention and remediation ability and call for the promulgation of regulations specifying the minimum standards for blowout preventers, third-party certifications, and documentation. Any person who “knowingly and willfully” violates any provision of the act or any regulation that implements it, makes a false statement in a document that is filed or required to be filed, or falsifies or tampers with a required monitoring device will be subject to imprisonment for up to 10 years, a fine of up to $10 million, or both. Under the bill, an officer or agent of a corporation that is subject to prosecution who “knowingly and willfully, or with willful disregard” orders or carries out the prohibited activity is subject to prosecution to the same extent as the corporation. This provision will not necessarily be interpreted by the courts to require the officer or agent to have actual knowledge that what he or she authorized, ordered, or carried out was unlawful.


H.R. 5566: Prevention of Interstate Commerce in Animal Crush Videos Act of 2010

Sponsor: Gallegly (D - CA)

Official Title: A bill to amend Title 18, United States Code, to prohibit interstate commerce in animal crush videos, and for other purposes.

Status:
6/22/2010: Introduced in House
6/22/2010: Referred to House Judiciary Committee
6/23/2010: Mark up in the House Judiciary Committee
6/23/2010: Ordered to be reported
7/19/2010: Reported to House
7/21/2010: House passage of amended bill under suspension of rules.

Commentary: This bill replaces H.R. 5092 and is a response to the U. S. Supreme Court’s April 2010 decision in United States v. Stevens, in which the Court found that 18 U.S.C. § 48, which prohibits the commercial creation, sale, or possession of certain depictions of animal cruelty, violated the First Amendment because it was substantially overbroad. The Court noted, among other things, that the reach of § 48 was so broad that it would include depictions of hunting activities. Because the statute applied to depicted conduct that was illegal in any state where the depiction was created, sold, or possessed, the Court also observed that a “depiction of entirely lawful conduct runs afoul of the ban if that depiction finds its way into another State where the same conduct is illegal.” This bill would prohibit the knowing sale or distribution in interstate or foreign commerce of “animal crush videos” and create safe harbors for depictions of veterinary or animal husbandry practices and depictions of hunting, trapping, or fishing. It would apply to depictions of actual conduct that violate a criminal prohibition on cruelty to animals under Federal law “or the law of the State in which the depiction is created, sold, distributed, or offered for sale or distribution.”


H.R. 4173: The Wall Street Reform and Consumer Protection Act of 2009

Sponsor: Frank (D - MA)

Official Title: To provide for financial regulatory reform, to protect consumers and investors, to enhance Federal understanding of insurance issues, to regulate the over-the-counter derivatives markets, and for other purposes.

Status:
12/2/2009: Introduced
12/2/2009: Referred to House Financial Services Committee
12/2/2009: Referred to House Agriculture Committee
12/2/2009: Referred to House Energy and Commerce Committee
12/2/2009: Referred to House Judiciary Committee
12/2/2009: Referred to House Rules Committee
12/2/2009: Referred to House Budget Committee
12/2/2009: Referred to House Oversight and Government Reform Committee
12/2/2009: Referred to House Ways and Means Committee
12/11/2009: House Passage
1/20/2010: Received in Senate
1/20/2010: Referred to Senate Banking, Housing and Urban Affairs Committee
5/20/2010: Discharged Senate Banking, Housing and Urban Affairs Committee
5/24/2010: Senate Passage
6/30/2010: Conference report passed in the House
7/15/2010: Conference report passed in the Senate
7/21/2010: Signed by the President

Commentary: This wide-ranging financial markets regulatory bill would, among many other things, establish a Financial Services Oversight Council including the heads of the Department of the Treasury, Federal Reserve Board of Governors, Comptroller of the Currency, Office of Thrift Supervision, Securities and Exchange Commission (SEC), Commodities Futures Trading Commission (CFTC), Federal Deposit Insurance Corporation, Federal Housing Finance Agency, and National Credit Union Administration Board. The stated purposes for the Council include monitoring financial markets, advising Congress of financial regulatory developments, and coordinating financial regulatory actions among member agencies. The bill provides for the establishment of a regulatory regime that will cover transactions in derivatives and give oversight responsibility to the CFTC, requiring the registration of traders and trading activities. Section 13(a)(5) of Title 7, U.S. Code, governs the trading of commodity futures and other instruments regulated by the CFTC. It provides that “[a]ny person” who “willfully” violates “any other provision of this chapter, or any rule or regulation thereunder” will be subject to imprisonment for up to 10 years, a fine of $1 million, or both, plus the costs of prosecution. Section 13(a)(5) further provides, “[N]o person shall be subject to imprisonment under this paragraph for the violation of any rule or regulation if such person proves that he had no knowledge of such rule or regulation.” Where the transaction involves securities-based derivative instruments, responsibility for regulatory oversight is vested in the SEC. Section78ff of Title 15, U.S. Code, specifies the penalties for violating the securities laws. [Editor's Note: The National Association of Criminal Defense Lawyers' far more thorough description and analysis of the many criminal provisions in this wide-ranging bill is available at http://www.nacdl.org/public.nsf/whitecollar/HR4173].


H.R. 725: Indian Arts and Crafts Amendments Act of 2009

Sponsor: Pastor (D - AZ)

Official Title: A bill to protect Indian arts and crafts through the improvement of applicable criminal proceedings, and for other purposes.

Status:
1/27/2009: Introduced
1/27/2009: Referred to House Judiciary Committee
1/27/2009: Referred to House Natural Resources Committee
12/2/2009: Hearing Held by House Natural Resources Committee
12/16/2009: Mark up in the House Natural Resources Committee
12/16/2009: Ordered to be reported House Natural Resources Committee
1/15/2010: Discharged House Judiciary Committee
1/15/2010: Placed on House calendar
1/19/2010: House passage of amended bill under suspension of rules.
1/20/2010: Received in Senate
3/26/2010: Placed on Senate calendar
6/23/2010: Senate Passage
7/26/2010: House Passage

Commentary: As introduced, this bill was titled the Indian Arts and Crafts Amendments Act of 2009. It was identical to H.R. 7024 and S. 1255 in the 110th Congress and S. 151 in the current Congress and reduced penalties for some violations of the prohibition on misrepresenting goods for sale as having been produced by Native Americans. As passed by the Senate, the bill would not only reduce penalties set out in 18 U.S.C. § 1159 for some violations of the prohibition on misrepresenting goods for sale as having been produced by Native Americans, it would also change the sentencing powers of Native American tribal courts. With respect to misrepresentation, under current law, "knowing" violations are punishable by criminal fines of up to $250,000 and imprisonment of up to five years for a first offense, and by criminal fines of up to $1,000,000 and imprisonment of up to 15 years for subsequent offenses. This legislation would change the penalty structure in two ways. First offenses concerning goods worth less than $1,000 would be punishable by fines of up to $25,000 and imprisonment of up to a year, and fines for subsequent offenses would be calculated under Title 18 rather according to the fines defined under this new penalty scheme. With respect to the sentencing powers of Native American tribal courts, current law does not permit a tribal court to impose a term of imprisonment greater than 1 year, a fine of $5,000, or both. Under the bill as passed by the Senate, a tribal court would be able to sentence a defendant who has previously been convicted of the same or a comparable offense by any jurisdiction in the United States, or a defendant who is being prosecuted for an offense comparable to an offense that would be punishable by imprisonment for more than 1 year if prosecuted by the United States or any of the States to imprisonment for up to three years, a fine of $15,000, or both. Even when multiple charges are involved, the tribal courts would be unable to impose imprisonment longer than 9 years. Significantly, nothing in the bill as passed by the Senate would give a Native American tribe criminal jurisdiction over a non-Native American. Since 1990, tribes have been empowered to exercise criminal jurisdiction over any Native Americans, including those who are not members of the tribe.

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