- Well Professor JamesDuane from Regent University
School of Law joins me now.
He's a former defenseattorney and author of a book
called You Have theRight to Remain Innocent.
So it's a pleasure towelcome Professor Duane.
- Thank you.
- Good to have you with us, thanks.
- Good morning, thank you very much.
- Hey, what about this?
Is it true that thesebureaucrats have set in
something like 500,000potential crimes that we commit?
- Yes, that's a reliable estimate.
Part of the problem is nobodyknows the exact number,
and it probably changes every day.
- Well how do they havethe power to do this?
- Well, unfortunatelyit's because Congress
and the Supreme Court have delegated
an excessive amount ofdiscretion on the part of
federal regulatory agenciesto write these regulations
that are then incorporated by reference
to the provisions offederal criminal statutes,
that make it a crime toviolate any of the regulations.
So every time they write a new regulation,
even if it's never beenreviewed or read by Congress,
suddenly there's a newcriminal law on the books.
- It's a crime to,
alright, give me some examplesof some of the horribles
that are in there, you knowa few of them I'm sure.
- Oh sure.
Well, it's a federal crimefor example to be found
in possession of the seedsof a water hyacinth plant
that have been transportedacross state lines,
even if you didn'ttransport them yourself.
- A water hyacinth plant?
- Yes, even just for the seeds,
cannot be crossed state lines.
Or if you run anadvertisement in the paper
indicating that you are willingto transport hyacinth seeds
across state lines,(Pat laughs)
that's a criminal offense, too.
Here's another one.
It's a federal criminaloffense to sell or possess
margarine in a containerif there's more than
one pound of margarineinside the container.
If you split it up intotwo different containers
you're fine, but you put morethan one pound of margarine
in a single container andyou've committed a crime
under federal law.
- How many years do you get for that?
- I think you can get onlyup to six months in a federal
prison for that one.(Pat laughs)
But there are countless otherexamples of the same thing.
And the problem is that theseare so counter-intuitive.
Nobody relying only on theirGod-given common sense--
- [Pat] Yeah.
- Would ever imagine that I can go to jail
for taking a child to afight between roosters
before his 16th birthday,
but you can go to jail for that one, too.
- Wait a minute, I take achild to a rooster fight
before his 16th birthday,I can go to jail?
- Don't make that mistake again.
- (laughs) The last thingI'll do, I'll tell my wife
not to take your grandchildrento a rooster fight.
(laughs)Can Trump, by executive order,
nullify a great manyof them if he wants to?
- Yes, yes.
The president, fortunately for all of us,
the president has thepower to do an awful lot
to ameliorate the situationin two different ways;
either by directing his agencies to repeal
all of these regulationsor a great number of them
as we know PresidentTrump has already done;
or to instruct the AttorneyGeneral of the United States
to instruct his subordinates to see to it
that they exercise their discretion
to not bring prosecutionsagainst individuals
who are guilty of violatingrules and regulations
that nobody in their rightmind would have ever imagined
could have been on the books,
and that don't pose anydanger of harm to anyone.
They could do that.
- Do you think anybody will?
- That somebody will actually do that?
- [Pat] Yeah.
- I think there's a greatdeal of resistance, you know,
to this sort of thing, and it's possible
that in the long run we may see some
marginal improvement in the situation,
but it's not likely to happen overnight
because part of the problem is
that despite all if his powers,
there's only so much the president can do
to limit the discretionof the untold number of
hundreds of thousandsof investigative agencts
who work for the federal government.
It's not just the FBI and the DEA.
Almost every federalagency now has, as I said,
over 100,000 in total regulatory agents,
investigative agents, whowork for the Department of
Land Management and Indian Affairs,
and the National Park Service,and the Library of Congress
has its own investigative agents,
and they're all outthere working full-time
trying to prosecute and make cases
and to justify theirexistence by making cases
against individuals who are guilty of
nothing more than petty offenses.
- Do you have any idea of whatthe cost to this nation is
of all that stuff?
- We don't know, and Ithink it's fair to say
that nobody knows the exact amount,
but it's a staggering sum.
- Staggering?- Yes.
- What does it do to people when they get
put in jail under these things?
Have we worked out thesociological implications
of what it does to the humanbeings who are prosecuted?
- Well the sociologicalimplications are devastating.
Even if we try to comfortourselves with the knowledge
that well, we only gave thisone six months in prison,
that's still six monthsof an individual's liberty
that has been takenaway from them forever.
And now they they've gota criminal conviction,
if it was a felony conviction
they won't be able to possess firearm,
they've lost theirSecond Amendment rights,
they may not be able to vote again
depending on the laws ofthat particular jurisdiction.
So it's not a small matterto put somebody behind bars,
even for just a short time.
- You wrote a very intriguing book,
You Have the Right to Remain Innocent.
You told people not to sayanything if they get arrested,
tell us about that.
- Well, one of the things because,
the bad news is as you said in your story
over-criminalization hasput us in a situation
where every one of us is always subject to
being possibly prosecutedfor doing something
that we didn't know was a crime.
The good news, the silver lining, is
that as Congress andthe regulatory agencies
have grossly expandedthe scope of federal law,
criminal law, the expanseof the Fifth Amendment
at the same time has been expanded
so that now you canfairly say under almost
any conceivable circumstancesthat I can't answer questions
that are posed to me without warning
by any kind of a federalagent because I don't know
whether I may be implicating myself
in the commission of a crime.
- So you're pleading thefifth on every one of them?
- That's my advice to everybody.
- It is. (laughs)
I mean everyone, whensomebody is accused of
one of these things, youimmediately plead the fifth?
- Well certainly youcan't take the risk of
admitting you did somethingand then find out later
that actually, unbeknownst to you,
that the possession of thisparticular sort of a fish
was in violation of the lawsof some other foreign nation
and they can therefore beprosecuted in federal court.
There's a federal law on thebooks called The Lacey Act
that makes it a federalcrime for you to be
found in possession of any animal or plant
or form of wildlife if the possession of
that particular item is forbidden under
the laws of any other countryon the face of the Earth.
One man was sent to a federal prison
because he was found in possessionof a Honduran bony fish,
the possession of which was not illegal
under American law, butthe federal government
took the position that it was illegal
to export such a thing from the Honduras.
- Come on, you can't be serious.
- It's a fact, he went tofederal prison for that.
- He went to prisonbecause he had a bone fish
that was illegal in anothercountry, in Honduras?
- Exactly, and this is also I might add,
why the Fourth Amendment is nowmore vital than ever before.
If the police officers ask you
do you mind if I search yourtrunk, or look inside your car,
or search your apartment,without a warrant
you've got to say no, nounder any circumstances.
You don't know what they might find.
Did you know that under Virginia law
it is a crime to possess a seashell?
- Come on.
- It is a crime, yes.
There is a law here inVirginia on the books
that says it is a crime tobe found in possession of
anything that ever was oncea part of the carcass of
anything that was ever a wild animal.
Well that includes aseashell and a sand dollar
and the little necklace with a shark tooth
that your granddaughterbrought back from the Bahamas.
(laughs)- I can't believe it.
- Well that's why you've got to make sure
you don't let the police search your car,
they might find something you brought back
from the beach by accident.- Oh my goodness.
I mean the kids are out there on the beach
picking up shells all the time,
and they're committing crimes?
- Here in Virginiathere was an actual case
where a man was told byagents in the state capitol,
he was found in possessionof a couple of antlers
that had been shed bydeer on his property.
Nobody had harmed the deer, much less him.
They had been naturally shed.
He thought these might lookgood on my office wall,
he picked them up and hewas advised by state agents
in Richmond that you can'tpossess that under state law
because that was oncepart of a wild animal.
So the solution, likeI said, is to make sure
that all of your listenershave an understanding of
the fact that the Fifth Amendmentand the Fourth Amendment,
which have always beenindispensable requirements
and protections againstgovernmental overreach,
are now more important than ever before.
I don't mean any disrespectto law enforcement officers.
- We owe them a tremendousdebt of gratitude
for what they do for our protection.
It's not their fault, butbecause of the way Congress
and state legislatures are out of control,
it's absolutely criticalnow that you don't agree
to let the police search your place,
or that you don't answer their questions.
- Is this a syndrome of the left
that they want to punish peoplewho don't agree with them,
or is this across the board?
- I think the problem is across the board.
There was a recent Supreme Court case
involving one of these crazy prosecutions
where Justice Elena Kagan,a well-known liberal,
Democratic appointee to the Supreme Court,
she said the problemwe're seeing in this case
is a reflection of what she called
a deeper pathology in theAmerican criminal law.
She said it was over-criminalization,
and the problem, we've got way too many
laws on the books that aretoo vague, too over-broad,
too ambiguous, with excessive penalties
that give the prosecutionfar too much discretion
in deciding how to prosecutewhat might ordinarily
seem like a fairly minor offense.
- What do you teach at Regent yourself?
You teach courses on this, I hope?
- I'm a man under authority,I do what I'm told.
The dean says you teachthis class and I go here
and I go there.
- (laughs) I think you've got to teach
these things for sure.
- [James] Well we do, we teach those.
- I'll do what I can to make it happen.
- [James] I appreciate it.
- Your book, can peopleget a copy of this,
You Have the Right to Remain Innocent?
- Yes they can, and they should.
It's available on Amazon which is also
the publisher of the book.
- Okay, James Duane, You Havethe Right to Remain Innocent.
What an interesting thing,please come back will you?
It's good to have you with us.
- Certainly, it'd be mypleasure, thank you very much.
- God bless you, thank you.
Distinguished professorfrom a great university,
Regent University Professor James Duane.