The Volokh Conspiracy - Prosecution of Kurdish Immigrants for Running an Unlicensed Money Transfer Operation:

MaxSpeak (Max Sawicky's blog) now has more details on the story, from Max's coblogger Barkley Rosser. I blogged a few weeks ago about an earlier MaxSpeak posting that struck me as overwrought and maddeningly lacking in details. This post provides more details, and links to a newspaper article that offers still more.

As best I can tell, the claim in this post (which doesn't deal with various supposed abuses involved during the investigation and prosecution of the case, but deals just with the substantive issue) is that (1) the defendants, while legally guilty, are basically decent people who ran afoul of a complex law that sweeps harmless conduct in together with genuinely harmful conduct, and (2) the federal prosecutors, realizing this, should have just dropped the prosecution and let the defendants off with a warning.

This is not an implausible claim -- it's hard to tell how plausible without still more information -- but it's important to put it in perspective (something that seemed to me missing from the original MaxSpeak post): There are lots of laws that punish conduct because of its potential to cause harm, and that are in fact applied to people who engaged in the conduct but did so with good motives, and seemingly without causing actual harm themselves.

Licensing requirements are classic examples. Their whole point is to prohibit doing a certain broad class of things (e.g., transfering money, selling guns, selling liquor, distributing controlled substances, and running various other businesses) without a license, and not just to prohibit doing specific items from that class that are harmful (e.g., transfering money to terrorists, or selling guns to people who you know will use them for criminal purposes). As a (squishy) libertarian, I take the view that many (probably most) of these requirements should probably be repealed. But I'm not sure that this is right as to prophylactic rules that are aimed at preventing the transnational distribution of funds to terrorists (distribution that can happen even if the intermediaries are well-intentioned); at the very least, the argument for decriminalizing this has to be made, rather than just assumed. And in any event, until the laws are repealed, it's unsurprising that prosecutors enforce them even against generally decent people.

I should also note one point about the column that Prof. Rosser links to: When it says "The Patriot Act, enacted a month after 9/11, made a simple transfer of someone's money a felony regardless of knowledge or intent, a radical shift in criminal law," it actually means "a radical shift in the legal regime governing money transfers." A casual reader might assume that the "radical shift in criminal law" claim means that there's something radically new about the notion that unlicensed activity can be made a felony regardless of knowledge or intent that the activity is for some harmful purpose (and regardless of whether the actor knows about the licensing statute). That's not at all so, as I mention above.

	[Eugene Volokh, April 14, 2006 at 1:16pm] Trackbacks Prosecution of Kurdish Immigrants for Running an Unlicensed Money Transfer Operation: MaxSpeak (Max Sawicky's blog) now has more details on the story, from Max's coblogger Barkley Rosser. I blogged a few weeks ago about an earlier MaxSpeak posting that struck me as overwrought and maddeningly lacking in details. This post provides more details, and links to a newspaper article that offers still more. As best I can tell, the claim in this post (which doesn't deal with various supposed abuses involved during the investigation and prosecution of the case, but deals just with the substantive issue) is that (1) the defendants, while legally guilty, are basically decent people who ran afoul of a complex law that sweeps harmless conduct in together with genuinely harmful conduct, and (2) the federal prosecutors, realizing this, should have just dropped the prosecution and let the defendants off with a warning. This is not an implausible claim -- it's hard to tell how plausible without still more information -- but it's important to put it in perspective (something that seemed to me missing from the original MaxSpeak post): There are lots of laws that punish conduct because of its potential to cause harm, and that are in fact applied to people who engaged in the conduct but did so with good motives, and seemingly without causing actual harm themselves. Licensing requirements are classic examples. Their whole point is to prohibit doing a certain broad class of things (e.g., transfering money, selling guns, selling liquor, distributing controlled substances, and running various other businesses) without a license, and not just to prohibit doing specific items from that class that are harmful (e.g., transfering money to terrorists, or selling guns to people who you know will use them for criminal purposes). As a (squishy) libertarian, I take the view that many (probably most) of these requirements should probably be repealed. But I'm not sure that this is right as to prophylactic rules that are aimed at preventing the transnational distribution of funds to terrorists (distribution that can happen even if the intermediaries are well-intentioned); at the very least, the argument for decriminalizing this has to be made, rather than just assumed. And in any event, until the laws are repealed, it's unsurprising that prosecutors enforce them even against generally decent people. I should also note one point about the column that Prof. Rosser links to: When it says "The Patriot Act, enacted a month after 9/11, made a simple transfer of someone's money a felony regardless of knowledge or intent, a radical shift in criminal law," it actually means "a radical shift in the legal regime governing money transfers." A casual reader might assume that the "radical shift in criminal law" claim means that there's something radically new about the notion that unlicensed activity can be made a felony regardless of knowledge or intent that the activity is for some harmful purpose (and regardless of whether the actor knows about the licensing statute). That's not at all so, as I mention above.