Is everything a crime under the Endangered Species Act?

Over on PLF’s Liberty Blog, I have an update on the case pushing back against an effort to radically expand overcriminalization under the Endangered Species Act. The case concerns the meaning of the statute’s provision making it a crime, punishable by a $100,000 fine and a year in prison, to “knowingly” take a protected species. The environmental groups who brought the suit want to read knowingly out of the statute while we argue it requires knowledge of every element of the offense, including that an activity will cause take and the species that will be taken.

collage_20150930151632106This is no theoretical dispute. If the environmentalists are right, you could be thrown in jail if you can’t identify every one of the more than 1,500 listed species. So, for instance, if you were a sheep herder stirred from your sleep by an attack on your flock, you better be able to tell which of the animals on the right is a coyote and which is a Mexican wolf, no matter how much your adrenaline is racing. If you don’t know or guess wrong, you risk being put in a federal prison if you try to protect your flock.

The environmentalists’ theory goes much further than that. Since the statute defines “take” broadly to include essentially anything you do that has any affect on a member of a protected species or its habitat, the environmentalists’ argument would make it a crime to accidentally hit a protected species that darts in front of your car, build a home if it disturbs insects or spiders living below the surface, or going for a jog if you accidentally step on a protected bug or spook a protected animal.

Perhaps the most surprising thing about this case is that federal prosecutors agree with us, not the environmentalists. The Department of Justice concedes that Supreme Court precedent bars prosecution in cases where a person accidentally causes take, without knowing that take would result or the species affected. Historically, DOJ has been an opponent to criminal justice reform, including mens rea reform, earning it criticism from the New York Times.

Does DOJ’s reasonable position in this case suggest it has suddenly embraced the libertarian position on overcriminalization? No. Instead, I think it highlights the disciplining effect that several anti-overcriminalization Supreme Court decisions have had on federal prosecutors. DOJ doesn’t like losing cases, of course, and they have to be concerned about their reputation at the court if they keep bringing prosecutions that it can easily shoot down. As an example of the reputational impact, during the oral argument in a case in which DOJ prosecuted a fishermen for throwing a few fish overboard under the federal anti-shredding law enacted in the wake of Enron, the late Justice Scalia asked if this case was brought by the same prosecutor responsible for other recent cases in which DOJ had gone too far.

In its brief in this case, DOJ explains its position by citing this concern, stating:

It would be an unwise and potentially unfair exercise of discretion for DOJ to subject citizens to prosecution based on a legal theory that the Supreme Court is likely to reject.

This shows that successful cases pushing back against overcriminalization have repercussions far beyond the individual case. Perhaps their biggest impact is creating a disincentive against federal prosecutors pursuing aggressive and novel theories expanding the reach of the criminal law. Beyond just being a waste of resources, it is extremely unfair for the government to abuse the criminal law in this way.

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