August 16th, 2009
A good friend reminded me that dove hunting season is just about two weeks away. In that spirit, take a look at this brief article from our friends at the Wall Street Journal Law Blog.
It is yet another example of over-criminalization of our laws and over-federalization of our criminal jurisprudence. Granted, Exxon has a bad environmental track record and makes an easy target in light of the Valdez spill. But more shocking is the side note that a power company was shaken down by the feds for birds killed on its power lines. How in the world is an electric company supposed to keep birds from sitting on its power lines?!
If I were the defense lawyer for PacifiCorp, I’d have considered cutting power to all govermental customers during the plea negotiations. Maybe toss in a few rolling blackouts to rile up the electorate while we’re at it. But I digress…
To be fair, the MTBA (the law at issue) should require some culpable mental state. In these cases, there is no evidence that either company did anything wrong. Nor is there evidence that either company intended any harm to the birds. Strangely, the law doesn’t require any real wrongdoing. You are strictly liable for the death of a migratory bird.
Strict liability has no place in criminal law. As this law is written, even the most zealous animal lover could be prosecuted for a federal crime should the family pet happen to drag home a migratory bird.
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