Pintler, on Evertson’s first case–I think that a felony prosecution for shipping via UPS w/o adding the right stickers is unwarranted

It sounds like an idiotic prosecution. The jury agreed, and acquitted Evertson. What’s vagueness got to do with it?

Pintler, on Evertson’s second case–If someone transports 3000 gallons of gasoline w/o taking all the required precautions, but arrives at the destination without mishap or harm to anyone, are felony charges really appropriate, as opposed to a moderate fine, agreement to comply rigorously in the future, and so on?

By his own account, Mr Evertson was offered a plea bargain, but rejected it. Although guilty, he went to trial with a loser defense; that seldom works out well. Here’s the Ninth Circuit’s take.

Chris Travers–In that case, though, vagueness might be less of a problem than reward systems for prosecutors who get lots of convictions.

Yes!

David Drake–I strongly disagree with this distinction. Vagueness in the law gives prosecutors the chance to indulge their attitudes or take advantage of perverse incentives by prosecuting people who did nothing really wrong. We should not have to rely on juries or courts of appeals to protect us against prosecutorial abuses.

OK, we agree that abusive prosecutors are a problem. So where’s your evidence that vague laws are a key tool in their abuse? More to the point, where’s Mr Silverglate’s?

Because I’m questioning whether the problem is vagueness in the law (Mr Silverglate’s diagnosis) or an attitude/incentives problem among the prosecutors.
If it’s the latter, then you’d see prosecutions that fail in the courts. Sustained convictions for innocous behavior are evidence that the problem lies in the laws themselves.

I strongly disagree with this distinction. Vagueness in the law gives prosecutors the chance to indulge their attitudes or take advantage of perverse incentives by prosecuting people who did nothing really wrong. We should not have to rely on juries or courts of appeals to protect us against prosecutorial abuses.

Because I’m questioning whether the problem is vagueness in the law (Mr Silverglate’s diagnosis) or an attitude/incentives problem among the prosecutors.
If it’s the latter, then you’d see prosecutions that fail in the courts. Sustained convictions for innocous behavior are evidence that the problem lies in the laws themselves.

Ok. I know one individual who was convicted of medicare “fraud” by accidentlly filing for reimbursement with the wrong billing code. The conviction was upheld because the prosecutors had threatened others into pressuring the individual in question to plead “no contest.”

In that case, though, vagueness might be less of a problem than reward systems for prosecutors who get lots of convictions.

Ten tons of sodium is not quite comparable to inadvertently packing a mercury thermometer.

1)His original crime – the one in Alaska, where he was acquitted – was for shipping sodium via ground UPS, without attaching the required ‘air transport is a no-no’ sticker. I don’t know the exact details, but I know I have shipped e.g. ammunition, aerosol cans, and so on by going to the main UPS facility in Seattle, asking what I should do, and taking that advice. Given that the UPS workers had different opinions about what the requirements were, I think that a felony prosecution for shipping via UPS w/o adding the right stickers is unwarranted – it could be you or me, even if we tried out best to comply with all the complex regulations.

2)I am not surprised the EPA feels they were in the right :-). And they may be, but: 10 tons is a small truckload. It would make a zinger of a fire, but (with the disclaimer I am not a hazmat expert) it’s not clear it is any more dangerous than an equivalent amount of gasoline or propane or what have you. If someone transports 3000 gallons of gasoline w/o taking all the required precautions, but arrives at the destination without mishap or harm to anyone, are felony charges really appropriate, as opposed to a moderate fine, agreement to comply rigorously in the future, and so on?

Because I’m questioning whether the problem is vagueness in the law (Mr Silverglate’s diagnosis) or an attitude/incentives problem among the prosecutors.
If it’s the latter, then you’d see prosecutions that fail in the courts. Sustained convictions for innocous behavior are evidence that the problem lies in the laws themselves.

Chris Travers–Other commentors have provided cases where individuals were … see the Chong case whit mentioned re: the first post

Again, I’m questioning Mr Silverglate’s diagnosis–whether the problem is vagueness in the laws. Chong was prosecuted for selling drug paraphenalia, specifically bongs.

You may think that a law against selling drug paraphenalia is dumb. (I do, for example.) But there seems little doubt that bongs are drug paraphenalia, or that Chong’s Nice Dreams company was selling them as such.

I’m looking for a case where some poor schlub selling hair clips got convicted because they were subsequently used as roach clips.

Pintler–Are you familiar with the Krister Evertson case? …. how about if your wife included a mercury thermometer in your checked baggage?

After reading Mr Evertson’s account to Congress, I looked up the EPA’s version of the case in which he was actually convicted. They provided some details that Mr Evertson had left out:

“He transported 10 metric tons of sodium metal from its port of entry at the Seattle-Tacoma Port Complex to Salmon, Idaho, where he used some of the sodium in an effort to manufacture sodium borohydride. Everston arranged for the transportation of the sodium metal not used in the manufacturing process and several above-ground storage tanks which contained sludges and other liquids to a facililty in Salmon. Sodium metal and the materials in the tanks were highly reactive with water, and the jury found that Evertson failed to take protective measures to reduce the risk that the transported material would react and damage persons or property.”

Ten tons of sodium is not quite comparable to inadvertently packing a mercury thermometer.

pireader: Mr Silverglate –You’ve now made three long posts on this topic.When you started posting, I commented that “to convince me there’s a problem, you’ll have to cite actual cases of people prosecuted and imprisoned for innocuous conduct.”That example has yet to appear. Will it be forthcoming?

Are you familiar with the Krister Evertson case? Here is his testimony before congress.

I agree it’s a good thing to keep sodium off of airplanes (although I do wonder how some Alaskan villages get all the things you don’t want to put on planes), but I’m not sure I would agree Mr. Evertson is the right person to make an example of, and the subsequent case in Idaho has the gloss of retribution for his acquittal in Alaska.

Before you say he should be slammed for shipping sodium via ground UPS (which is sent by air in Alaska), how about if your wife included a mercury thermometer in your checked baggage? Maybe you boxed up your new lithium ion cordless drill? Again, I’m not arguing putting those on airplanes is smart; I’m saying that felony prosecutions of people who unwittingly do so is not the right way to manage the problem.

Of course. And let’s not overlook the fact that going through the whole business – investigation, indictment, trial – was no picnic for the defendants. It’s easy to overlook the fact that while this sort of thing is all in a day’s work for the prosecutor it can take a huge emotional toll on the accused.

That doesn’t mean there shouldn’t be investigations and prosecutions of course, but it does seem to impose some sort of obligation on prosecutors (and their bosses) to get things done quickly, to be pretty damn sure of their grounds, and to evaluate cases critically.

Why do you require that the accused be convicted?

Cioffi and Tanner (cited in the original post) were found not guilty by a jury a few days ago. Isn’t this case–where a jury refuses to convict–a better measure of the “innocuous conduct” of the accused?

BTW–the defense costs here were probably astronomical, so it’s impossible to say that the defendants suffered no damage because they were ultimately acquitted.

You’ve now made three long posts on this topic. When you started posting, I commented that “to convince me there’s a problem, you’ll have to cite actual cases of people prosecuted and imprisoned for innocuous conduct.”

Other commentors have provided cases where individuals were. Usually the issue is that very unethical practices are used to force plea deals (see the Chong case whit mentioned re: the first post). I have personal knowledge of other cases.

Or do the other commentors’ cases mentioned have any weight here?

You’ve now made three long posts on this topic. When you started posting, I commented that “to convince me there’s a problem, you’ll have to cite actual cases of people prosecuted and imprisoned for innocuous conduct.”

That example has yet to appear. Will it be forthcoming?

Dingell explained that his committee “did not believe that the lack of consensus over the proper delineation of an insider trading definition should impede progress on the needed enforcement reforms encompassed within this legislation.”

IOW, “These people are guilty of something. Don’t let justice get in the way.”

Another problem with vague laws is that it’s easy for the government to come up with a situation where if you do something they’ll prosecute you under one law, and if you don’t do the same thing they’ll nail you under another.

I agree fully that the language of the law, all laws, ought to be clear and easily understood.

I do think though that for a long time, investment fraud was under investigated. The statistics show great percentage gains in arrests, but I am quite certain our prisons are not overflowing with white collar criminals. I would like to see more investment cops on the (Wall) street, enforcing clear laws.

I would also like to see an incentive program, -high dollar prize maybe- set up to reward people who turn violators in. Professionals are very reluctant to expose a colleague they know is doing wrong. This has to change.