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  • The FOCUS Act Hearing: When Silence Is an Admission

    The law sometimes reflects common sense.  Consider this example:  Innocent people don’t remain silent when accused of a crime or misconduct; they deny it.  Accordingly, it is reasonable to infer that such an accusation is true if someone doesn’t scream, “Not me.  I didn’t do it.”  In the law that is known as a “tacit admission.”

    Keep that point in mind for a minute.

    A current law, the Lacey Act, makes it a crime to import wildlife or plants in violation of any foreign law – however obscure, however unintelligible, however translated (or not), however trivial, however self-serving, and however unrelated to conservation that law may be.  The Heritage Foundation has explained that that aspect of the Lacey Act is unreasonable because no one has fair notice of what foreign law requires.  On Tuesday, a Subcommittee of the House Committee on Natural Resources held a hearing on the Freedom from Over-Criminalization and Unjust Seizures Act of 2012 (FOCUS Act).  The FOCUS Act would remedy this defect in the Lacey Act making the law enforce­able only through administrative or civil process.

    Heritage has pointed out that criticisms of the FOCUS Act offered at that hearing are unpersuasive, and a weak argument betrays a weak position.  But what truly incriminated the FOCUS Act critics was what they did not say.  No critic was willing to accept that fact that, as written, the Lacey Act permits people like Abner Schoenwetter to be imprisoned for “heinous” crimes such as importing lobsters that (under a void Honduran law, by the way) were too small and should have been packed in boxes, not clear plastic bags.  As for those critics who found it difficult to believe that any such injustice could occur: well, as Senator Rand Paul later had to explain, denial is not just a river in Egypt.  Moreover, no critic was willing to maintain that it is reasonable – let alone desirable – to send people to prison for violating a foreign law that no reasonable person would know even existed.

    Ideally, in order to join issue on this matter, some critic should have been willing to say the following: “Yes, it is grossly unfair to send someone to prison in these circumstances:

      • “For unwittingly violating any law of any foreign nation when importing flora or fauna from overseas,
      • “Whether that law is a statute, a regulation, an interpretation of a regulation (official or not), or something else without any counterpart in our country,
      • “However unrelated to conservation or the environment that law may be,
      • “However trivial that law may be,
      • “However difficult to find that law it may be,
      • “Whatever the language in which that law is written may be,
      • “Even though the very nation whose laws were allegedly violated has no interest in enforcing its own laws,
      • “Even though that nation may not give a fig about the environment as long as the locals get paid to ravage their own lands, and
      • “Even though an offender can be sentenced to, oh, let’s say 10,000 years, a one-year sentence for every fish or flower negligently hauled in and imported by a commercial boat.

    “Yes, that is grossly unfair, but we want that done anyway because [pick one of the following]:

    “We are environmentalists and believe that trees in Guyana are more important than people’s lives in the United States, and we believe this even if the laws in Guyana really don’t protect trees.”


    “We are a domestic timber or wood products industry desperately in need of protection against cheap foreign imports.”


    “We are the government and never prosecute blameless individuals.”


    “All or some combination of the above.”

    That statement would have had the advantage of at least being honest and forthright. Alas, no critic would confess that this is what is at stake.

    As I said at the beginning, sometimes what people don’t say is far more important, and far more incriminating, than what they do.

    Paul J. Larkin, Jr., is Senior Legal Fellow and Manager of the Overcriminalization Project in the Center for Legal & Judicial Studies at The Heritage Foundation.

    Posted in Legal [slideshow_deploy]

    12 Responses to The FOCUS Act Hearing: When Silence Is an Admission

    1. Bobbie says:

      Not sure how this got to the first page? I was editing a comment and the computer went a little nutso? I'll trust your discretion…sorry.

    2. This article is a good example of lawmakers from the past and present that have to justify their jobs. No matter how stupid or ridiculous the law or regulation may be! Good grief! Congress needs an enema!!

    3. Bobbie says:

      This foreign mindset has to be deported!

      This reminds me of a song called "two hang men" I think that's what it was called? Both hanged fighting for justice! The words of truth didn't matter, the law was set aside and the government got what they wanted… "close our mouths and kill our minds they hung us side by side…"
      sound familiar? Obama's "change" and Obama's "hope" for America! "we have to finish what we started!" As his start isn't stopping!! America needs people of good will to stop this INDECENT, UNETHICAL take over and get it's ugliness out!

    4. Sedg632 says:

      The Lacey Act is just another example of government intervention and also submission to minorities that howl louder than the majority. Republican or Democrat doesn't seem to matter. Once elected representatives reach Washington, D.C. and belly up to the government trough like hogs to slop all is then lost regardless of party. We, the people need to eliminate or at least reduce the perks of the elected positions. I was against term limits at one time but now think the time has come to implement limits. One thing is sure, politicians will not voluntarily pull their snouts from the feed bag unless the feed bag is forcibly removed by the owners (the voting public). What say you!

    5. John Piepmeier says:

      It is crazy to hold an American citizens to international laws. American's should only be held accountable to American laws. However, President Obama is an Internationalist and if he has his way America will be under all international laws! He has the U.N. checking how we treat Native Americans…..Never before to my knowledge has an American President let the U.N. investigate the United States on any matter….What's next Slavery?

    6. John K says:

      C'mon, Bobbie. This isn't a left-right/Obama problem…or exclusively a Lacey Act problem or an environmentalists-gone-wild problem. The entire system has evolved over the past 30 years into a voracious, predatory beast. And pity any citizen — the innocent as well as the guilty — that gets in its way.

      • Bobbie says:

        ????????? left-right?obama problem?Are you being sarcastic? the president of perpetual "change" people bank on without knowing what it consists of while increasing his unconstitutional power and control over the will of the American people, of what isn't perfect so make it worse? it's been beyond our reach and always within the control of the government who now stands fully unaccountable! I heed your advice!
        God Bless!

        • LindaO says:

          first we are harrassed, then we lose our jobs, then we have to put the yellow star on our coats, then we are removed from our homes into slums, then the government feeds us what ever they want and I don't necessarily mean food!
          Does all this sound familiar????

    7. Lauretta says:

      First off – love you guys, and thanks for all you do at The Heritage Foundation on We The People's behalf. Appreciate it much. This, the Gibson Guitar, and I'm sure there are others where, out of fear, we do not hear about. All that I can say is – these are very sad times in America. I consider myself a strong person due to tremendous things I've had to overcome in my life and make it to the other side stronger. What it was that helped in a major way was TRUTH and HONESTY with myself and others. None of this is going on with this regime or the 'political left' as I write this. The left has indoctrinated our children to do the same. TRUTH does not matter much anymore. AMERICA IS GOING TO WIN, Mr. Larkin. We are a good people. The FOCUS Act is a wonderful act I'm sure. But, I feel very numb to this regime right now. Yes, I'm contributing and helping to the best of my ability to beat them back, with love and forgiveness when I can. Some days are better than others, though. The left ain't the Democrat Party of ol' time anymore. Never will be. NOT UNTIL we "put a stake through the heart of statism" are we ever going to rid ourselves in this Country of lies, deceit, cronyism, betrayal, and corruption. It took us awhile to get here, if we can hang on a little longer – get rid of the EPA police (a stake through that agency, too) and give the People/Businesses a future outlook We Are Going To Boom! May God bless us. Thank you, again. L

      • John K says:

        I see you're big on driving stakes through things. But here's a newsflash: This country is divided roughly into three parts: 44 percent conservative, 44 percent liberal and 12 percent independent. Here's the question that troubles me most: given their apoplectic, hysterical animosity toward fellow Americans who don't share their views: Exactly what would authoritarian right-wing folks such as yourself do with the rest of us if ever you and your counterparts were in charge. It's scary to contemplate.

        BTW: There's plenty of lies, deceit, cronyism, betrayal and corruption on your side of the divide as well.

        • Bobbie says:

          Really? plenty of lies, deceit, cronyism, betrayal and corruption on "your side of the divide as well?" "PLENTY?" How come it isn't pointed out? "Authoritarian" government isn't apart of America's principles AND no threats of it are suggested or mentioned through the right wing, so where do you see it? America should be standing strongly united under America's principles that promote no left, right or indecent principles. Many people took this country and her people off the path!

    8. Edwin W. Irby, Jr. says:

      Note the environmental community is claiming that if the Focus Act is passed that USFWS law enforcement officers would no longer be permitted to carry firearms when patroling wildlife refuges. They are claiming that only the Lacey Act allows USFWS officer to carry weapons today.

      I know that the Lacey Act is strange and esoteric having worked with it for years in the marine environment, that is the first time I have heard that claim.

      It is a strange day when an environmental groups supports anyone carrying a firearm.

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