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Bum lobster rap

- The Washington Times - Monday, January 5, 2004

Is the war on terrorism over? Have we stopped drug trafficking? Has corruption in corporate America ended?

We must have cured these problems. Why else would federal officials spend their time prosecuting people for importing lobster tails in plastic bags instead of cardboard boxes? And why else would our government prosecute individuals because a small percentage of the lobsters in a particular shipment were less than 51/2 inches and therefore violated Honduran law?

Four people, caught in the government's net, face as many as eight years in prison because U.S. officials have decided to prosecute them for alleged violations of the Lacey Act, which permits the government to indict individuals for importing "fish or wildlife taken, possessed, transported, or sold in violation of ... any foreign law." On top of that, the government seized the entire shipment -- more than $4 million worth of lobsters.

To make matters worse, federal prosecutors tacked on charges of smuggling, money laundering and conspiracy. The lobsters were "smuggled" in plastic bags for all to see. The proceeds from the sale of the lobsters were "laundered" because they were deposited in a bank. And the "conspiracy" charges attach because it takes more than one person to run a lobster boat.

All because the U.S. government thinks there has been a violation of Honduran law.

One small problem: The Honduran government doesn't think there has been a violation of Honduran law. The attorney general of Honduras wrote to Attorney General John Ashcroft to tell him there is no violation, and Honduran officials have filed a "friend of the court" brief in U.S. courts to explain what Honduran law says on the matter.

You would think prosecutors would take the hint and move on to more important cases. And perhaps the government will dismiss this case, or the defendants will get the U.S. Supreme Court review it. (Their request for review is pending and should be decided this month.)

But the question remains: How could federal prosecutors proceed with a case simply because they believe -- falsely, as it turns out -- that Honduran law was violated?

What were the prosecutors thinking? Surely there are more worthy cases to prosecute. So why on Earth are we wasting prosecutorial resources on this?

Part of the problem is power prosecutors wield. They decide whom to charge with a crime and for what. They can take something they think violates another country's export or import laws and tack on crimes such as smuggling and money laundering to increase the possible penalty.

U.S. prosecutors shouldn't spend their time deciding whether something violates another country's law. We have enough crime at home. In fact, we have far too many crimes. If the lobsters truly are too small or need to be in cardboard boxes, can't our federal health laws or civil wildlife laws enforce the standards?

The real problem is overcriminalization. Members of Congress continue to pass criminal laws to impress their constituents. According to a 1999 study by the American Bar Association, there are more than 3,000 federal criminal offenses on the books, more than 40 percent of were enacted since 1970. (Although the Lacey Act was passed in 1900, its reach was expanded in 1981.)

Chances are, Americans would prefer federal law enforcement officials to spend their time on terrorism, drug trafficking and corporate corruption. With the amount of crime we have today, we simply can't afford to have them play lobster police.

Ellen S. Podgor, professor of law at Georgia State University, is on the board of directors of the National Association of Criminal Defense Lawyers. Paul Rosenzweig is a senior legal research fellow at the Heritage Foundation.