On Friday, George Will wrote a harrowing column about the Justice Department’s prosecution — courtesy of the Environmental Crimes Division — of Nancy Black, a marine biologist. Black captains a whale watching ship. Finding herself under investigation for “harassment” of a marine mammal, the alleged harassment consisting of whistling at whales to keep them near the ship for a while, she submitted a tape of the incident. Black edited the tape slightly to highlight the whistling, according to Will. The feds found no harassment, but indicted Black for editing the tape, calling this a “material false statement” to federal investigators.
They also charged Black with feeding killer whales. But, according to Will, what Black actually did was photograph the killer whales eating a whale they had already killed. Her only contribution to the feast was to cut a hole in one of the floating slabs of blubber and, through the hole, attach a rope to stabilize the slab while a camera on a pole recorded the whales’ underwater eating.
Will notes that the federal persecution of Black has crippled her scientific career, cost her more than $100,000 in legal fees so far, and might see her sentenced to 20 years in prison. What is going on here?
Will sees this horror story as an illustration of overcriminalization seeping into law, especially federal law. He points to Harvey Silverglate’s book, “Three Felonies a Day: How the Feds Target the Innocent,” which argues that the mad proliferation of federal criminal laws — which often are too vague to give fair notice of what behavior is proscribed or prescribed — means that “our normal daily activities expose us to potential prosecution at the whim of a government official.”
Will isn’t wrong and neither is Silverglate. But Bill Otis at Crime and Consequences sees an additional, and I believe more salient, culprit — the infusion of ideology into criminal law and, in particular, the infusion of political correctness.
Sprawling criminal statutes are, to be sure, the necessary backdrop to what is happening to Ms. Black. But the real driving force is PC — a hodgepodge of supposedly enlightened and “compassionate” liberal causes. As we now see, these causes are to be advanced, not, as always promised, by education (since actual education would be the end of them), but by the snarling threat of jail.
Ms. Black’s journey to Kafkaland is what happens when political correctness and its entourage of slogans (here, the slogans of fruitcake environmentalism) take over criminal law. What her case most reminded me of was the Duke lacrosse prosecution, another episode in which political correctness (there, fruitcake feminism combined with racial pandering) brought about the indictment of three Duke lacrosse players (all white and — even more sinfully — from well-off families) for a non-existent rape peddled by a drunken stripper.
In Ms. Black’s case, the entry of PC ideology into law gets illustrated by the fact that an environmental “offense,” if that’s the right word, gets pursued to the ends of the earth, far beyond what any non-PC prosecutor could think it’s worth to public order. This could not happen unless environmentalism had become a PC Holy Cow — just as the Duke lacrosse hoax could not have happened unless White Guilt had become a PC Holy Cow. If prosecutors had used traditional, neutral standards to evaluate either case, both would have been dumped in the round file.
Moral of story: Keep politically correct ideology away from criminal law. When we learn this lesson, the hazards of the sprawl of federal criminal law, while still worrisome, will look and be considerably less ominous.
Overzealous prosecutors are a standard hazard in criminal law. Normally, we associate such overzealousness with the ambition and ego of given prosecutors. But I doubt that this sort of traditional overzealousness would have landed Nancy Black in her current fix. Only nutty left-wing ideology could have produced that nightmare.