Should you go to jail if you can’t recognize every endangered species?

[Update: since this post, we’ve asked the Court to rule against this radical attempt to expand the criminal reach of the ESA. More here.]

collage_20150930151632106Over on PLF’s Liberty Blog, I have an update on a case that seeks to radically expand the reach of the Endangered Species Act’s criminal provisions. In that case, WildEarth Guardians is challenging the government’s interpretation of the statute—which limits criminal punishment to cases where you “knowingly” take a protected species—as requiring knowledge that your actions will cause take and the identity of the species affected. Thankfully, the court has granted our motion to intervene, allowing us to defend the government’s reasonable interpretation as the only one the statute allows.

The title of this post is not hyperbole. If the case succeeds, the ability to recognize every single one of the more than 1,500 listed species could be the difference between liberty and incarceration. For instance, it would be a federal crime to accidentally strike a protected species, even an insect, with your car while speeding down the interstate. One of the animals in the image above is protected, but the other isn’t. PLF’s clients in the case are farmers and ranchers in the area where both of these creatures roam, who would be expected to distinguish them in a split-second while their animals are being attacked or their families menaced. Do you imagine that you’d be able to with your adrenaline rushing or in the dark?

The criminal law should not be stretched this far. For centuries, the core protection against abuse of the criminal law has been the requirement that the government prove a guilty mind—mens rea. Eroding that protection, as this case attempts to do, threatens to make any innocent accident into a crime. When that happens, none of us are safe and criminal punishment is dictated more by prosecutorial whim than guilt. As Judge Alex Kozinski recently explained, without mens rea‘s protections:

Under the best circumstances, most targets will be unlucky schmoes who happen to catch the authorities’ attention or people the prosecutors or the public think are particularly ‘bad .’ At worst, a ubiquitous criminal law becomes a loaded gun in the hands of any malevolent prosecutor or aspiring tyrant.

Update: I have more on this subject here, here, and here.


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