When It Comes to Overcriminalization, Prosecutorial Discretion Is for the Birds (Inside NACDL)

Overcriminalization includes many troubling trends: overlapping criminal provisions, inadequate definition of what conduct is criminal, the erosion of intent requirements, and excessive penalties.

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The annual White Collar issue of The Champion is an apt time to reflect on noteworthy developments of the past year. From a public policy standpoint, and from the perspective of those who are the subject of investigation and prosecution, the phenomenon broadly defined as overcriminalization is a growing problem. Overcriminalization includes many troubling trends: multiple, overlapping criminal provisions; inadequate definition of precisely what conduct is criminal in those provisions; the erosion of intent requirements; excessive penalties; and a general imbalance that imbues the prosecution with disparate power that chills and sometimes impedes an accused’s capacity to mount a defense. NACDL works with allies from across the ideological spectrum to pursue a multi-faceted strategy to combat each of these trends. Notable cases from the past year underscore the importance of this initiative.

In response to reform efforts, whether it is to limit the enactment of new criminal provisions, clarify intent requirements, or even provide legislative clarity to ensure that compliance with the constitutional requirement to disclose favorable evidence,1 the constant rejoinder is: “Don’t worry. Prosecutors will exercise their discretion wisely.” Well, let’s see. Let’s look at some of the most notorious criminal cases of 2012.

Clemens, Stevens, And Edwards

Consider the Roger Clemens case. The government spent years and millions of dollars to prosecute a professional athlete for purportedly lying to Congress at a hearing that was essentially a political theater designed to expose offensive conduct. What was at stake was his reputation, and nothing more. As odious, disappointing, and morally wrong as it may have been if he used steroids or lied about it, was a federal prosecution an appropriate expenditure of taxpayer money? Is the fact that a person or an entity has done something that is wildly unpopular enough to justify a criminal prosecution? Is that a wise exercise of prosecutorial discretion?

Consider the case against the late Sen. Ted Stevens. Years after the debacle that was the prosecution of this sitting U.S. Senator, the results of the court-ordered investigation of whether the prosecutors had engaged in contempt of court were released this year.2 As is now well known, the findings revealed a pervasive pattern of Brady abuse. For the purpose of this column one aspect of the findings is most pertinent. A key aspect of the government’s theory of the case was that the senator had understated the value of home improvements. Setting aside everything else in the case, if he had not received “something for nothing,” there was no criminality. One category of Brady suppression was independent evidence that in fact the senator may have overpaid for the improvements.3 Those facts may have been inconvenient for the prosecutors, but why did they not prompt the prosecution to rethink the case? Where was the exercise of discretion when actual evidence of innocence came to light?

Then there is the case against former senator and presidential candidate John Edwards. Like Roger Clemens, he was an object of public ridicule for personally offensive, albeit not illegal, misbehavior. To considerable public humiliation, Edwards ultimately admitted to the underlying personal misconduct — an extramarital love affair. Again, after years of investigation and expending millions of taxpayer dollars the government prosecuted John Edwards, not for lying, but for a violation of the Federal Election Campaign Act. This past summer, NACDL aired a webcast of an in-depth interview with Edwards’ trial attorney, Abbe David Lowell.4 As Mr. Lowell explained, the provision under which Edwards was prosecuted actually has a very strong intent requirement. A person must know that the alleged act violated the law and intended it to do so. According to Mr. Lowell, however, the government’s theory of the case was an unprecedented and absolutely novel application of the election law.

The Edwards case involved a payment from a wealthy donor to Mr. Edwards’ mistress. To be a crime, it would be necessary for the government to prove beyond a reasonable doubt that the accused knew that a third party was providing funds to another third party and that the payments were specifically intended to be a campaign contribution. The defense obtained statements from two former chairs of the Federal Election Commission who attested that the payments alleged in the Edwards case did not constitute a contribution, and nor would any candidate at the time of the payments have had any reason to believe that the payments were unlawful. In fact, the defense made this evidence available to the prosecution before the trial. Nevertheless, the prosecutors were undeterred. In fact, they even successfully objected to the admission of the evidence at the trial. So again the question arises, can we count on the government to exercise its discretion wisely? Should this deter or energize efforts to reform the criminal law and rein in prosecutorial excess?

In thinking about this issue, there is another case that came to light in 2012 that did not receive that national attention of the Clemens, Stevens, and Edwards cases. But it surely drives home the point that prosecutorial discretion has become a blank check.

Migratory Bird Treaty

Back in August 2011, to the great public fanfare with which the government likes to commence criminal prosecutions, the U.S. Attorney’s Office in the District of North Dakota charged seven oil companies with a violation of the Migratory Bird Treaty Act for the illegal killing of migratory birds. The company that would eventually become the named defendant in a federal district court decision dismissing the charges was Brigham Oil & Gas, L.P. Brigham Oil was charged with killing two migratory birds found dead near its drilling operations.5 Specifically, the dead birds were found near reserve pits, which are lawful areas near gas and oil drilling operations that are used to contain drill cuttings and other byproducts of the drilling.

The government based its case upon an extravagantly broad reading of the Migratory Bird Treaty Act with criminal penalties originally enacted by Congress in 1918 to codify the provisions of a 1916 treaty between the United States and Great Britain (for Canada), and subsequently expanded to encompass later agreements between the United States and Mexico, Japan, and the Soviet Union. The treaty was clearly intended to reach conduct directed at birds, such as hunting and poaching, and not acts or omissions that have the incidental or unintended effect of killing birds.6  

Nevertheless, the government asserted that the words “take” or “kill” in the Act encompass not only activity directed at birds, but also habitat modification and other consequences of lawful commercial activity.7 In other words, in the absence of a clear description of the specific conduct that would constitute a violation of the Act, the government exercised its discretion to interpret a statute that had been on the books for nearly a century to include behavior that was never contemplated at the time of enactment.

The district court dismissed the charges in reliance upon controlling Eighth Circuit precedent that 15 years earlier had rejected an effort to stretch the Migratory Bird Treaty Act to prohibit the harvesting of timber because that also incidentally kills birds.8 In arriving at its conclusion, the court noted that to extend the Act as proposed by the government would cause “absurd results”9 because it covers nearly all native birds, some 836 species, including pigeons, sparrows, and crows. If the Act were interpreted as the government urged, “then many everyday activities become unlawful — and subject to criminal sanctions — when they cause the death of pigeons, starlings, and other common birds.”10 The court went on to note that this would include cutting brush and trees, and planting and harvesting crops. In fact, “many ordinary activities such as driving a vehicle, owning a building with windows, or owning a cat, inevitably cause bird deaths.”11 

Those who share the view, as does this author, that the nation must aggressively protect the environment should not interpret this critique as reflecting an anti-green sentiment. It is precisely because the sight of a dead bird encased in an oil slick is so sickening that it is imperative to rein in overly expansive criminalization. Emotional overreaction and criminal justice are a combustible mix. The criminal law becomes untethered from its moral anchor when it is used as a tool for social or regulatory control. This is as true when the criminal law is used to prosecute controlled substance abusers as it is when it is used against oil companies whose commercial activities incidentally kill birds. There is a common denominator that unites Roger Clemens, Ted Stevens, John Edwards, and Brigham Oil. In the eyes of a self-righteous prosecution, they are all disliked and therefore they all “deserved” to be prosecuted. Thus, at pivotal moments, when common sense and the prudent exercise of prosecutorial discretion should have counseled restraint, they did not.

Fundamental Reform Is Essential

Each of these defendants had something else in common, something that most accused in this country do not have. They all had considerable resources that made it possible to mount a vigorous defense. Although each of these defendants incurred enormous expense, endured severe public humiliation, and suffered unimaginable anxiety, they all secured their exoneration. Lamentably, for the many that lack limitless resources, fighting an ill-conceived prosecution is not an option. That is why it is imperative to pursue the reforms necessary to rein in overcriminalization. Prosecutorial discretion is not the answer.


  1. NACDL supports the Fairness in Disclosure of Evidence Act of 2012, which would eliminate the subjective materiality determination in favor of a clear rule requiring the prompt disclosure of evidence favorable to the accused. Go to https://www.nacdl.org/discoveryreform for additional information.
  2. Read the report by special prosecutor Henry Schuelke (hereinafter the Schuelke Report) (http://www.nacdl.org/NewsReleases.aspx?id=23788&terms=schuelke).
  3. The Schuelke Report at 22-24, 49.
  4. The interview may be viewed at http://www.nacdl.org/whitecollar or https://www.ustream.tv/recorded/24914233.
  5. United States v. Brigham Oil and Gas, L.P, 840 F. Supp. 2d 1202 (D.N.D. 2012). The two other defendants on the motion to dismiss are Newfield Production Company and Continental Resources Inc. They were charged with killing four birds and one bird, respectively.
  6. Id. at 1208.
  7. Id. at 1211.
  8. Id. at 1209-1211 (citing Newtown Cnty. Wildlife Ass’n. v. United States Forest Serv., 113 F.3d 110 (8th Cir. 1997)).
  9. Brigham Oil, 840 F. Supp. 2d at 1212.
  10. Id.
  11. Later in the opinion, the court cited estimates published by the U.S. Fish & Wildlife Service that 97 to 976 million bird deaths are caused annually by building window strikes; cars kill 60 million birds or more each year; wind turbine rotors kill 33,000; and the most prolific bird killers are cats. A study in Wisconsin estimated that domestic rural cats in that state alone kill roughly 39 million birds annually. Id. at 1212-13.

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