The Buckeye Institute: New U.S. Fish and Wildlife Rule Will Help Rein In Overcriminalization

Mar 19, 2020

Columbus, OH – Andrew J. Geisler, a visiting legal fellow with The Buckeye Institute’s Legal Center, filed public comments on Thursday in response to the U.S. Fish and Wildlife Service’s proposed regulatory clarification that the Migratory Bird Treaty Act’s criminal conduct and penalty provisions apply only to those intentionally harming migratory birds. This proposed clarification will help rein in overcriminalization.

Citing the Migratory Bird Treaty Act, Geisler pointed out the text of the Act makes it clear that only “intentional efforts to harm migratory birds qualify for the Act’s criminal penalties.” Despite the clear understanding of the text of the law, a legal opinion issued in the final weeks of the Obama administration recognized incidental harms as crimes under the law, “threatening up to six months in jail and a $15,000 penalty for each and every bird injured or killed.”

As Geisler outlined, these Obama era changes eliminated a mens rea requirement, which ensured “we only impose criminal sanctions on individuals who break the law on purpose.” Quoting Supreme Court Justice Oliver Wendell Holmes, Jr.—who memorably said, “even a dog distinguishes between being stumbled over and being kicked”—Geisler said these mens rea requirements—which The Buckeye Institute has long championed—are “fundamental to our scheme of criminal law.” 

This Fish and Wildlife proposed clarification “would simply ensure that individuals and industry would not face up to six months in jail and up to $15,000 in fines merely because they stumbled over the dog by engaging in otherwise lawful conduct...” 

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