Black and Whitey: How the feds disable criminal defense

These people went to jail because:

1) It's against (American) federal law to import wildlife taken in violation of the laws of another country;

2) The people in question took substantial measures to hide their smuggling activity;

3) The amount of illegal goods in question here was valued at millions of dollars.

The fact that it was no longer illegal in Honduras doesn't matter, though the reason why is rather esoteric. In criminal matters, liability requires two concurrent elements: 1) an act; 2) a certain state of mind. You have to have both at the same time--one by itself won't do.

E.g. if I'm in the woods hunting and I shoot and kill someone thinking they are a deer, I'm not guilty of murder because while I have engaged in every action required to commit the crime I did not have the requisite state of mind.

Here, they imported wildlife, and they did so with the knowledge/belief that the wild life had been taken in violation of Honduran law. They were mistaken about whether the wild life had actually been taken in violation of Honduran law, but as a general rule mistakes do not change the outcome unless the mistake negates the state of mind. In this case, their mistake did not negate their guilty state of mind. The result seems harsh, but it's just the symmetry of the rule. It's no more conceptually unfair than say holding someone guilty of attempted murder.

* It contains no bill of rights

* It explicitly leaves intact the law of England

* It concerns itself primarily with officeholding (available only to those with considerable fortunes for the time under this Constitution) and voting (available only to those exceeding a monetary threshold)

* It establishes a freedom of religion only for Protestants (thinking this might have been some semantic subtlety of the 1770's that I didn't get, I looked into this further and found that not only does "Protestant" mean exactly what it says here, but that other states explicitly forbade Catholics and atheists from holding office at all in their 1776-1778 Constitutions).

I gather you refer to the modern New Jersey Constitution when you praise the additional rights it grants. I don't think 'rayiner is talking about modern Constitutional law; something about how we resolved slavery in the 1800s suggests that maybe he understands that states no longer have unlimited power.

In many states, you lose your voting rights. You lose your right to own a firearm, hold elected office, and serve in a jury, sometimes permanently. You may lose your ability to practice certain professions.

In some states, the state has the ability to restore your civil rights after a Federal felony conviction via pardon or other procedure. Other states will only recognize a Federal pardon issued by the president. Still others will not restore certain rights in ANY circumstance; New York for example profits a pardoned convicted felon from ever owning a firearm.

The dubious and controversial theory used against Black was "honest services fraud". The statute enforcing it does seem to have been perilously vague. But the moral/ethical/pragmatic reasoning behind it isn't; it boils down to maintaining a fiduciary duty to your shareholders or, in Rod Blagojevich's case, to the citizens of the state you govern. Also, Black wasn't merely charged with honest services fraud, but also with charges like obstructing justice and theft, charges that Richard Posner upheld.

Pretty much my thought. The system is based on the fundamental belief that it is more harmful to convict an innocent person than to let a guilty one get away. This is why there is a built-in assumption that people are innocent until proven guilty.

The complexity has two results: a) any given person is almost certainly violating a law at any given time, but b) nobody (not even the prosecutor) can tell you which one without spending enormous resources on legal research.

So if the prosecutor isn't given a lot of resources, and the defendant is rich, the prosecutor will likely choose the "wrong" law to charge the defendant with (because they didn't have the resources to find the one the defendant did technically violate), and the rich defendant pays to demonstrate that in court and goes home free.

We could consider the possibility of some kind of means testing, i.e. more resources to prosecutors who prosecute rich defendants, but it falls apart immediately because you can't always tell who is rich. If you're poor but your parents have money, does the prosecutor get extra resources? (Do you then get railroaded if your parents don't like you and won't pay?) How do you tell when someone has a secret research team being financed off book by organized crime?

It seems to me the only thing that can work is to make the law substantially less complicated. And you can't do that at the level of an individual law. If you're going to ban X, you have to cover all the angles of X or you'll have upstanding citizens going to jail and malicious miscreants roaming free.

What we need is to pick which small subset of existing criminal law is worth proscribing and reject all the rest of it. We need to prosecute murder and rape. Do we really need to prosecute computer crimes, rather than just making them a civil matter? We need to prosecute people who dump toxic waste in the river. Do we really need to prosecute recreational drug use, rather than just taxing it to death? We need to prosecute high value tax cheats. Do we really need to prosecute internet casinos?

Stop banning the mostly harmless stuff that everyday people do and we stop having so many prosecutions that the complete inability to pay for them continues to be an enormous injustice.