There’s been no news from New York about Gov. Andrew Cuomo’s little eagle feather and his big mistake of law.
And no news is bad news for the rule of law.
Congress should take note.
In a speech last month, Cuomo inadvertently discussed violating a federal statute, the Bald and Golden Eagle Protection Act, when he recalled once taking a bald eagle feather home from Saranac Lake.
The Justice Department could tell anyone in Cuomo’s position that the law forbids taking and keeping a bald eagle feather without a permit, regardless of whether you know that’s a federal crime; and an offender would face up to one year in prison, $5,000 in criminal fines, and another $5,000 in civil fines, per each violation.
According to the U.S. Fish and Wildlife Service, the prohibition applies to “anyone” and “a first offense” can result in fines and imprisonment. It has for other individuals who violated the law, including for one defendant who took a dead eagle’s talons for a Boy Scout function without knowing that was illegal (fortunately, that conviction was reversed eventually).
Now, the question is: Will Cuomo face the music or will Uncle Sam once again prove that there is one law for political elites and another for everyone else?
Federal Fish and Wildlife Service agents once threatened to imprison a Virginia woman whose 11-year-old daughter saved a woodpecker from a cat because a law that probably neither of them had ever heard of, the Migratory Bird Treaty Act, makes it a crime to handle approximately 1,000 bird species—including the woodpecker.
Fortunately, the service acquiesced to public outrage saying that the mother’s citation was “processed unintentionally.”
Federal prosecutors once forced a father and son to both plead guilty to a misdemeanor violation of the Archaeological Resources Protection Act just for looking for arrowheads on federal land. They were sentenced to serve one year of probation and pay $1,500 in fines but avoided the felony conviction and two years behind bars they would have faced had they gone to trial and lost.
Why should the law go easier on Cuomo than it did on those families?
Consider one more tale of two codes.
The Clean Water Act makes it a federal crime to accidently discharge sewage into any “waters of the United States” without a permit.
Lawrence Lewis learned this the hard way while working as a chief engineer at a military retirement center, where his predecessors had trained him to redirect any backed-up sewage into a storm drain they told him led to a sewage treatment facility. Unfortunately, the drain flows into Rock Creek, which runs into the Potomac River, which is a “water of the United States.”
Lewis plead guilty to a misdemeanor to avoid a felony conviction and lengthy prison sentence.
In October 2016, someone got out of a bus charted by the Democratic National Committee and dumped sewage into a storm drain in Lawrenceville, Georgia. After a man reported the incident to police, the Democratic National Committee announced the act “was an honest mistake” and officials “were unaware of any possible violations.”
Lewis—who worked blue-collar jobs and escaped a high-crime neighborhood—didn’t get an honest mistake defense.
The DNC did.
Now, there are a few legitimate ways one might avoid liability under the Eagle Protection Act, but they would require action from Congress.
First, as columnist Jacob Sullum noted at the New York Post, “strong standards for mens rea, the state of mind necessary to be convicted of a crime,” are needed to “prevent the manifest injustice of punishing people for unknowingly breaking the law.”
Sullum aptly pointed to the Mens Rea Reform Act, which Sen. Orrin Hatch, R-Utah, introduced in June, which would, in part, require the government to prove beyond a reasonable doubt that a defendant “willfully” violated any federal crime unless Congress provides another standard.
A second answer is a mistake of law defense.
American courts hold to an ancient legal maxim that everyone is presumed to know the law, and ignorance or a mistake of law is no defense to a crime.
That made sense at the time of America’s founding when there were not enough federal crimes to fill one newspaper and everyone learned each one by heart from parents, preachers, and common sense. The rule makes no sense now that there are more federal crimes than anyone can count, and many of them require a law degree if not a PhD, or both, to understand.
A mistake of law defense would exonerate defendants who could persuade a judge or jury a reasonable person in their position would not have known—and that they did not know—their conduct was unlawful.
A Cuomo spokesman has invoked another option, saying “the governor was unaware of the law but would rectify the situation”; implying Cuomo, unlike any private citizen, has “two options: Put [the feather] back in the river or donate it to a U.S. Fish and Wildlife repository.”
“We’ll do one or the other,” they said.
Cuomo should not have those special options just because he is a politician.
Politicians should learn—as the Lewises and other families have—how much criminal intent reform and a mistake of law defense are needed in an era when lawmakers enact far too many crimes that cover far too much seemingly innocuous conduct.
Those needs represent even greater breakdowns of the rule of law than Cuomo getting a pass.
