The fight against overcriminalization continues

December 05, 2016 | By JONATHAN WOOD
Would you want to bet your freedom on knowing which of these is protected by the ESA?

Would you bet your freedom that you know which of these is protected?

Last week, PLF’s motion to intervene was granted in a case threatening to radically expand criminal liability under the Endangered Species Act. As you may recall, we represent several southwestern agricultural organizations who, like pretty much everyone else, face the prospect of imprisonment for innocent mistakes if this case succeeds. It is no overstatement to say that this lawsuit is one of the most stark examples of overcriminalization—it would literally demand people go to jail if they accidently strike an unknown, endangered insect while driving down the highway.

In related news, the Daily Signal has a piece by the Heritage Foundation’s John-Michael Siebler placing several recent PLF cases in the broader context of the overcriminalization problem, including our recent victory on behalf of Andy Johnson and his family.

Thanks to the court’s decision to grant our intervention motion, WildEarth Guardians v. Department of Justice may soon join that list. In that case, a radical environmental group is challenging the government’s interpretation of the Endangered Species Act. According to the statute, you can only be criminally punished if you “knowingly” take a protected species. The government—reasonably, in our view—interprets this to mean that you must know that your actions will cause take and the identity of the species affected. As I’ve explained in this law review article, no other interpretation can be squared with the rule of law because the “take” prohibition is so broad and the species it protects are so obscure that, otherwise, apparently innocent conduct could land you in jail.

Yet WildEarth Guardians argues that none of that knowledge is required. It is pushing its extreme interpretation because it believes that people who knowingly take protected species, particularly Mexican gray wolves, feign ignorance to avoid punishment.

Perhaps they’re right. But, under our Constitution, we don’t erode protections for the innocent in order to ensure that a few guilty are punished. As Blackstone famously said, “it is better that 10 guilty persons escape than that one innocent suffer.” Apparently, WildEarth Guardians disagrees with that bedrock principle.

That’s a shame, because I suspect that not even its employees or supporters could identify every one of the more than 1,500 listed species, with hundreds more waiting in the wings. Yet, if they have their way, that’s precisely what it will take to avoid the risk of imprisonment. Perhaps PLF should start selling listed species flashcards. Soon, we may all need them!