As media obsess over trivia related to the GOP presidential primary races, Sen. Rand Paul (R-Ky.) has introduced the FOCUS Act (Freedom from Over-criminalization and Unjust Seizures Act of 2012).
Four other conservatives support FOCUS and they co-sponsored the legislation: Sens. Tom Coburn (R-Okla.), Jim DeMint (R-S.C.), Mike Lee (R-Utah) and James Risch (R-Idaho).
When Paul announced FOCUS, he noted, “This bill removes each and every reference to ‘foreign law’ within the Lacey Act and substitutes the Lacey Act’s criminal penalties with a reasonable civil penalty system.”
Few Americans probably knew what the Lacey Act covered, but that changed in 2009 when federal officers burst into Gibson Guitars in Nashville (Tenn.) and confiscated exotic woods that Gibson believed were perfectly legal. A problem with the Lacey Act, other than subordination of US law to foreign law, is the lack of a due care standard under amendments passed in 2008.
The original Lacey Act passed in 1900 with the reasonable goal of prohibiting trafficking in illegal wildlife, fish and plants. However, the bill was amended 5 times over the years, and the result has stymied some US manufacturers who technically are charged with staying abreast of export laws in every country in the world.
"It is long overdue that the Lacey Act be revised to address its broad over-criminalization," Sen. Paul said. "We have seen the damage this extremely broad and vague law has done to American companies and it is time to change its language to better serve Americans and the American jobs it threatens."
Paul’s statement said, “Victims include David McNab and Abner Schoenwetter, who spent years in federal prison for ‘violating’ invalid Honduran fishing regulations and, most recently, Henry Juszkiewicz, the Chairman and CEO of Gibson Guitar Corp., whose company was raided by armed federal agents this past August.”
Another high profile but underreported case involved a staffer for Sen. Lisa Murkowski (R-Alaska).
The Lacey Act amendments actually place vast powers in the hands of federal employees who may stretch their own powers beyond the cloudy provisions in the bill. Some conservatives believe the current Lacey Act provides a political weapon for special interests.
Paul also noted:
“During a hearing regarding the 1981 amendments to the Lacey Act, a representative from the National Rifle Association (NRA) specifically voiced civil liberties concerns with the bill, stating that their ‘first concern [wa]s with the broad expansion of criminal liability.’ Under the existing Lacey Act at that time, violations could only be prosecuted as misdemeanors, not felonies. However, the 1981 amendments expanded the potential penalties to allow for felony convictions.”
As additional justification for the FOCUS Act, Paul pointed to a recent case brought before the US Supreme Court:
“In Sykes v. United States, 131 S. Ct. 2267, 2288 (2011), Justice Scalia stated in his dissent that: ‘We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws . . . In the field of criminal law, at least, it is time to call a halt.’"
Gibson Guitars was raided again by armed agents in 2011. Millions of dollars in wood remain in federal hands.
The US Dept. of Agriculture actually proved Paul’s assertions with a statement on the government agency’s website. The statement should trouble every American:
“Illegal plants and plant products may also be seized and forfeited whether or not the person from whom they are seized knew of the illegal nature of the product.”
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