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Op-ed Placement

Overcriminalization’s spillover effect: Man gets criminal record because of a sewer

09/28/2015
Originally Published in Rare on 9/28/15.

Across the United States, honest, hardworking small-business owners and employees are spending money on lawyers’ fees to shield themselves from prosecution arising from Congress’ excessive enactment of criminal laws.

All too often, it isn’t terrorists or drug kingpins, but rather entrepreneurs and their employees, who fall prey to overcriminalization. That money spent on lawyers could be better invested in expansion and job creation.

Overcriminalization isn’t a new problem, but it’s one that’s been exacerbated in recent years. Congress passes new criminal laws without much debate or thought about the cost or consequences, especially on those who may unwittingly commit a federal offense.

Consider the case of Lawrence Lewis. While working as a janitor in the District of Columbia public school system, Lewis graduated from night school and landed a position as chief engineer of Knollwood, a military retirement community. But his hard work landed him in trouble with the long arm of the federal government.

Toilets had backed up in a section of the community. To prevent flooding, Lewis diverted the sewage into what he thought was the D.C. water-treatment system, a standard practice at the facility at the time. He didn’t realize the sewage was actually being diverted to a storm drain that emptied into Rock Creek, a tributary to the Potomac River.

A passer-by noticed the sewage in the creek and reported it to authorities. The source of the pollution was determined to be Knollwood. Even though he didn’t realize the sewage would wind up in the creek, Lewis found himself facing federal charges for violating the Clean Water Act of 1972.

Lewis wanted to make his case to a jury, because he knew he hadn’t knowingly done anything wrong. But his lawyer warned him that federal prosecutors did not have to prove knowing guilt. Rather than risk losing everything he had worked so hard for, Lewis pleaded guilty. He was sentenced to probation and was forced to pay a $2,500 fine.

Between 2000 and 2007, Congress enacted 452 new criminal offenses that didn’t address crimes against persons (sexual or violent crime), immigration or drugs. Moreover, many criminal laws are so vague that innocent people are being caught up in them and wrongly sentenced. In the 109th Congress, for example, 60 percent of criminal offenses enacted lacked an adequate criminal-intent provision, also known as mens rea or “guilty mind.”