Liberals and, especially, libertarians, have unending heartburn about imposing criminal punishment for non-violent, regulatory offenses. One particular provision that gives them fits is the federal false statements statute, 18 USC 1001, which makes it a felony for a person to make a false or deceptive statement to any department or agency of the United States in any matter within the agency's jurisdiction.
Having some libertarian sympathies, I can understand, at least, the misgivings about criminalizing such statements. I am not alone in this. The most prominent example of judicial willingness effectively to circumvent the false statements statute lay in many courts' acceptance of the "exculpatory no" doctrine, in which an interviewee's simple, though false, denial of wrongdoing in response to an investigator's question was held to be outside the statute. (The "exculpatory no" doctrine was brought to an end in 1998 in Brogan v. United States).
It is true that Section 1001 is potentially subject to abuse by prosecutors. On the other hand, it would be hard to find a statute that is not "potentially" subject to abuse. It seems to me to be very much an overdrawn conclusion that potential abuse outweighs the damage to legitimate governmental functions that can be caused by lying. I also think libertarians focus on the perils of excessive government to the unhealthy exclusion of understanding the moral rot, and the damage, created by our present culture of deceit. That, however, is a subject for a post of its own.
For the moment, I want to return to the question posed by the title of this post, namely, whether we should criminally punish non-violent, regulatory offenses. I would simply ask readers to decide for themselves.
"It seems to me to be very much an overdrawn conclusion that potential abuse outweighs the damage to legitimate governmental functions that can be caused by lying."
But in a regime where we have prosecutorial immunity and an ability of cops to flat out lie about what was said, this is a bitter pill for a lot of people to swallow.
I'm not a fan of people lying to federal agents either, but it's possible that some limiting principle needs to be present.
The punishment should fit the crime. Providing a weapon to someone prohibited from having weapons is at the bare minimum a reckless (I would say knowing) disregard for the rights and safety of others. A white lie to an investigator may have had no consequences to anyone at all.
I frankly think the Supreme Court got it right in United States v. Gaudin: the touchstone should be "materiality," and that's a mixed question of law and fact. Personally, I'd prefer judges be a bit more aggressive in dismissing cases for a lack of materiality. Federal judges have no problem making factual assumptions to dismiss civil cases, so the same should certainly be true of criminal cases.
Scooter Libby went to jail for being "evasive", not for any underlying crime. Martha Stewart went to jail for lying about a non-crime. David McNab and Abner Schoenwetter went to prison because they imported lobsters in plastic bags not cardboard boxes; or was it because 3% of the lobsters were undersized?. George Norris went to prison because his hobby orchid paperwork wasn't in order. Ambiguous regulations, absence of mens rea, prosecutorial zealotry, absence of bureaucratic common sense, absence of societal harm; criminal punishment is not warranted in so many instances.
1. "Scooter Libby went to jail for being "evasive", not for any underlying crime."
That's utterly false. Libby never spent ten minutes in jail. His jail term was communted by the President before it began. Nor did he get convicted for being "evasive." He was convicted of perjury before the grand jury -- in other words, lying under oath. Do you think lying under oath is OK? Yes or no.
BTW, I agreed that no prison was warranted for Libby and said so in an op-ed in the Washington Post, http://www.washingtonpost.com/wp-dyn/content/article/2007/06/06/AR2007060602292.html A month later, the President's action followed the advice set forth in that piece.
So I actually did something about it. What did you do?
2. "Martha Stewart went to jail for lying about a non-crime."
She went to jail for lying about insider trading, which is a felony punishable by up to 20 years, and a fat fine. See Section 32(a) of the Securities Exchange Act of 1934.
In addition, she was offered a plea bargain to a single charge, and a recommended (but not guaranteed) sentence of probation (i.e., no jail), but turned it down, evidently feeling that her multi-millions would enable her to beat the rap. http://www.cbsnews.com/8301-201_162-604627.html
She lost the gamble, and, after a five week jury trial, was convicted of, in addition to lying, conspiracy and obstruction of an SEC proceeding.
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Since you did not tell the truth about your first two examples, I didn't go on to your others. Nor will I until you fully admit your prevarication and explain why you did it.
Libby and Ms. Stewart might have thought that lying works. Maybe it does in many places, but it does not work on this blog.
I am not a fan of perjury, since we all are protected from self incrimination and can refuse to offer testimony under oath.
I am also not a fan of overusing obstruction of justice indictments as a weapon to punish people when they are not entirely truthful with investigators. I don't think either Libby or Stewart (or anyone, for that matter) was prosecuted for the original offense that prompted their investigations.
When Libby was sentenced he was ordered to jail immediately, during appeal. I did not realize that immediately didn't really mean immediately. My bad.
None of this has much to do with the subject of your original post "Should We Criminally Punish Non-Violent, Regulatory Offenses?" My other anecdotes did.
As to the linked article. Knowingly giving a firearm to a felon is a crime. Lying and certifying the lie on a Form 4473 has the same weight as perjury and is explained very clearly on the form. I may be splitting hairs, but I'm not sure that is merely a regulatory offense.
"I am also not a fan of overusing obstruction of justice indictments as a weapon to punish people when they are not entirely truthful with investigators."
Presumably no sane person is a fan of "overusing" anything. The only important question is what constitutes "overuse," and that seems to me to be difficult to define in the abstract.
In addition, there is a big difference between "not being entirely truthful" (i.e., not revealing everything you know) and flat-out lying.
Finally, is there something wrong with just telling the truth and not calculating about how you want to shade and massage things? Are you happy about the amount of deceit this culture tolerates?
"When Libby was sentenced he was ordered to jail immediately, during appeal. I did not realize that immediately didn't really mean immediately. My bad."
OK, fair enough. Still, you should have said "ordered to jail immediately," rather than "went to jail." Words are important. They're the only tools we have for communicating on this blog.
"None of this has much to do with the subject of your original post 'Should We Criminally Punish Non-Violent, Regulatory Offenses?'"
Then why did you bring it up?
" As to the linked article. Knowingly giving a firearm to a felon is a crime. Lying and certifying the lie on a Form 4473 has the same weight as perjury and is explained very clearly on the form. I may be splitting hairs, but I'm not sure that is merely a regulatory offense."
I believe it allows ATF to keep track of who has what gun. In the huge majority of instances, this does not involve any crime or any suspicion of crime, and therefore is far more regulatory in character than anything else.
You are not required to give your name and job to comment here, but I'd be interested in knowing if you care to say.
Thank you for your response.
"...is there something wrong with just telling the truth and not calculating about how you want to shade and massage things? Are you happy about the amount of deceit this culture tolerates?"
Hallelujah. The deceit is everywhere and all of the time, particularly in politics. It is a sad state of affairs. In my career in construction, I was lied to directly and evasively on almost an hourly basis. But then again, I didn't expect to punish the prevaricators with indictment, jail time or even breach of contract, even though the stakes could be magnitudes higher than Stewart's $51,000 windfall.
By the way, I imagine that most investigators expect criminals to lie while the friends, associates and family shade the truth, when not under oath.
Overuse? How about some of these criteria? The guy was an asshole and pissed me off. He's high profile and this will be good for my prosecutorial career. Everyone likes a good witch-hunt when it's the opposition party. We can't make a case on the crime, but at least we can get an easy conviction on obstruction.
"I believe it allows ATF to keep track of who has what gun." ....only tangentially
The ATF does not receive the 4473. It is kept confidential and in possession of the dealer. The dealer uses it to respond to legitimate tracing requests by the ATF. Certainly it can be produced during prosecution of someone who obtained a firearm under false pretense.
The ATF has no "registry" of firearms or firearm owners (except for NFA firearms) This is a feature, not a bug. Some states have constructed their own registry, however.