In our previous blog article about the census A Solari Report— The 2010 Census, we indicated that under 13 U.S. Code § 221, failure to respond to the decennial census was punishable by a fine of up to $100.
So it was a shock when we were told that a subscriber who listened to Fox News had heard that the fine was $100 per question. And then an even greater shock: various reports that there was a $5,000 fine! We determined to do some additional research to learn what was the source of confusion and whether non-responders faced fines of up to $5,000 rather than $100.
The “Census” and Other Censuses
What most of us know as “the census” is the census taken every ten years by the U.S. Census Bureau, which resides within the Department of Commerce. The basis of a federal census is a mandate to count by the US Constitution, which requires only an enumeration for purposes of determining representation in the House of Representatives.
As described in more detail in a previous blog article A Solari Report—The 2010 Census, the current census is a ten-question form mailed to every household/farm in the country. Due to the proliferation of Census Bureau advertising, few could miss the fact that the as-of date of the current decennial census is April 1, 2010 and that a census worker can be expected to follow up if the form is not received by the Census Bureau by the end of April.
In addition to the decennial census, the Census Bureau conducts other censuses at various intervals, including governmental censuses, business-related censuses and the American Community Survey.
The American Community Survey replaces the long-form census of households and farms that used to be conducted randomly as part of the decennial census. Unlike the long-form decennial census, however, the American Community Survey is conducted on an ongoing, monthly, rolling basis, not just once every ten years. According to the Census Bureau, approximately one household in forty is selected for the American Community Survey each year. It includes 48 questions, like whether the household has flushing toilets, what is the income of the household, what is the value of the home and whether the home is subject to a mortgage. Some of the articles for which links are provided at the end of this article list some of the objections on privacy and other grounds to some of the more personal questions in the American Community Survey as well as arguments that the existence of the survey and its questions are unconstitutional.
Issue #1: What Is the Fine for Refusing to Fill Out and Send In the Decennial Census Form?
The question is, if an individual or family, as an act of civil disobedience or otherwise, is found to have refused or willfully failed to answer any census question, is that individual subject to a fine of up to $100, a fine for each unanswered question of up to $100 (making the total fine for the decennial census form up to $1,000) or a fine of up to $5,000? A related question is whether the fine for refusal to answer questions on the decennial census is the same as for refusal to answer questions on the American Community Survey.
Title 13 of the U.S. Code, §221 says:
“Whoever, being over eighteen years of age, refuses or willfully neglects, when requested by the Secretary, or by any other authorized officer or employee of the Department of Commerce or bureau or agency thereof acting under the instructions of the Secretary or authorized officer, to answer, to the best of his knowledge, any of the questions on any schedule submitted to him in connection with any census or survey provided for by subchapters I, II, IV, and V of chapter 5 of this title, applying to himself or to the family to which he belongs or is related, or to the farm or farms of which he or his family is the occupant, shall be fined not more than $100.”
A Solari Report subscriber wrote us to say that Fox News had reported this provision levies a per question fine of up to $100. (1) Note that the statute says that the failure to answer “any questions” in the questionnaire is punishable by a fine of $100. Arguably, failure to answer one question and refusal to send in the form both constitute failure to answer “any questions.” We found no reported case law interpreting this provision, and it appears there have been few, if any, prosecutions under this statute. (2) The rules of statutory construction would dictate that in the case of any ambiguity, a court should interpret a penal statute in favor of the defendant (McNally v. United States, 483 U.S. 350 (1987)). This statute says nothing about a [higher] “per question” fine. Therefore, it should be read to provide for a fine of up to $100 for failing to send in the form.
The U.S. Census Bureau site states:
“The American Community Survey is conducted under the authority of Title 13, United States Code, Sections 141 and 193, and response is mandatory. According to Section 221, persons who do not respond shall be fined not more than $100. Title 18 U.S.C. Section 3571 and Section 3559, in effect amends Title 13 U.S.C. Section 221 by changing the fine for anyone over 18 years old who refuses or willfully neglects to complete the questionnaire or answer questions posed by census takers from a fine of not more than $100 to not more than $5,000.”
We looked up 18 U.S.C. §§3571 and 3559 to see the “amendment” of the census penal provision that the Census Bureau website assures us is there. Based upon the Census Bureau’s summary of the “amendment”, we expected to see something like “the penalty for refusing or willfully neglecting to complete the American Community Survey questionnaire or answer questions posed by census takers is punishable by a fine of up to $5,000.”
Instead, what we found was:
(1) § 3571 sets forth the classifications of federal offenses generally in the event that a punitive statute doesn’t classify them (e.g., an offense punishable by a term in prison of 25 years or more is a Class A felony and an offense that carries no imprisonment is an “infraction”) and
(2) §3559 sets forth the punishment applicable under each classification (e.g., up to three months for a Class C misdemeanor and up to six months for a Class B misdemeanor).
Section 3559 also says that the maximum term of imprisonment is as provided in the specific statute on the offense. (3) No mention of the American Community Survey or the census takers in either section.
We did a search for “’American Community Survey’ + $5,000” on Google and found articles repeating the statement made on the Census Bureau website, with no statutory interpretation whatsoever. No one questioned the Census Bureau’s assertion that failure to answer the American Community Survey can result in a fine of up to $5,000.
We looked on Wikipedia at the “American Community Survey” entry and found:
“. . .Section 221 of Title 13 U.S.C., makes it a misdemeanor to refuse or willfully neglect to complete the questionnaire or answer questions posed by census takers and imposes a fine of not more than $100. This fine is changed by the Sentencing Reform Act of 1984 from $100 to not more than $5,000. To date, no person has ever been charged with a crime for refusing to answer the ACS survey.”
Which several U.S. Representatives have challenged as unauthorized by the census act and violative of the Right to Financial Privacy Act. The Department of Commerce states that it is “not an enforcement agency.”
We called a friend who used to be a city prosecutor and is now a criminal defense attorney. We asked him if he knew whether the Sentencing Reform Act of 1984 provided some mechanism for the changing of a statutory fine from $100 to $5,000. He didn’t know, but he suggested that maybe 13 U.S.C. §221 was a civil statute and that there could be another, criminal statute dealing with the same offense. He said that the government’s position is that it can fine an offender for a single offense under both a civil and criminal statute without violating the prohibition against double jeopardy. He advised us to call the U.S. Attorney’s Office if we couldn’t find any criminal statute dealing with failure to answer census questionnaires.
We didn’t find any criminal provision citing the census statute. So we called our local Office of U.S. Attorney and requested clarification. Here’s what a very nice Assistant U.S. Attorney explained:
(1) Section (a)(9) 18 U.S.C. § 3559 : US Code – Section 3559: Sentencing classification of offenses, tells us that an offense that is not punishable by any imprisonment is an “infraction,” (4) and
(2) Section (b),18 USC 3571 – Sec. 3571. Sentence of fine, tells us that an individual who has been found guilty of an offense may be fined no more the greatest of (a) the fine provided in the section describing the offense (in this case, up to $100 under 13 U.S.C. §221), (b) the amount under subsection (d) [which is inapplicable for this purpose], (c) for a felony, not more than $250,000, (d) for a misdemeanor resulting in death, not more than $250,000, (d), for a Class A misdemeanor not resulting in death, not more than $100,000, (e) for a Class B or C misdemeanor not resulting in death, not more than $5,000 and (f) for an infraction, not more than $5,000.
We asked the AUSA if our understanding was correct, that 18 U.S.C. §§ 3559 and 3571 [sections that, apparently, were added to the U.S. Code as part of the Sentencing Reform Act of 1984] generally make all other sections of the U.S. Code listing penalties for specific offenses inapplicable. He said “yes,” that was his interpretation. I asked him if he would seek a $5,000 fine from an individual for failing to answer a census questionnaire when the census statute itself says the fine can be no higher than $100. He told me he would seek direction from the parole board as to whether to impose any fine at all. Any fine would depend upon the offender’s past criminal record. He acknowledged that a fine of $5,000 for failing to fill out a census form would be an action worthy of coverage in the newspaper.
Issue #2: Why does the Census Bureau threaten those who fail to send in the American Community Survey with a $5,000 fine but not make similar threats in connection with the decennial census form mailed to every household in the U.S.?
Recall (see above) that 13 U.S.C. § 221 says that the fine for an individual who willfully neglects or refuses to answer “any of the questions on any schedule submitted to him in connection with any census or survey provided for by subchapters I, II, IV, and V of chapter 5 of this title,” may be fined up to $100. This means that the surveys in subchapters I, II, IV and V are treated the same for purposes of the fine. Here is what these subchapters cover:
- Subchapter I: Manufactures, Mineral Industries, and Other Businesses
- Subchapter II: Population, Housing and Unemployment
- Subchapter IV: Interim Current Data
- Subchapter V: Geographic Scope, Preliminary and Supplemental
- Statistics, and Use Of Sampling
For obvious reasons, failure to respond to questions covered by Subchapter III, which relates to censuses of governments, is not covered by the penal provisions. Under the Census Bureau’s interpretation of 18 U.S.C. §§ 3559 and 3571, failure of a business to refuse to answer the business census form could result in a fine of up to $10,000, (5) which is one hundred times the $100 penalty set forth in the census statute. Further, because the Census Bureau’s authority for conducting the American Community Survey is the same as that cited for the decennial census, under this reasoning, any individual (or family) in the country who, as an act of civil disobedience or otherwise, refuses to send in the decennial census form may be fined up to $5,000. Although we found nothing on the Census Bureau website to suggest that there is a $5,000 penalty for refusal to answer any decennial census questions, a March 15, 2010 Associated Press story carried by Fox News U.S. Census Forms Arrive In The Mail: What To Expect does report such a penalty (without citing any statutory authority or Census Bureau statement to that effect) to wit: “Failure to respond to the census carries a fine of up to $5,000, although that law is rarely enforced.”
After researching this matter, we stumbled upon the following in an FAQ on the Census Bureau site following a statement about the potential $5,000 penalty for failing to complete the American Community Survey:
“The Census Bureau is not a prosecuting agency. Failure to provide information is not likely to result in a fine. The Census Bureau staff work to achieve cooperation and high response rates by helping the public understand that responding to the ACS is a matter of civic responsibility, and prefers to encourage participation in this manner rather than prosecution.”
Let’s be clear what has happened and the current state of census affairs means. The U.S. Constitution provides for an enumeration of the population every ten years for the purpose of determining appropriate redistricting for the House of Representatives based upon relative population changes. The Census Bureau, under questionable Constitutional authority, reads this Constitutional provision as its authority to (1) ask some additional questions about race and ethnicity, and geocode the information in government databases established and maintained by private defense contractors who have, among other things, a history of criminal prosecutions (Corporate Crime Data), including one corporation who assisted the Nazis in tracking the Jews in Eastern Europe6, (See The Data Beast—Part III) and (2) mandate that one household in forty every year answer 48 additional, highly personal questions.
The Congress passes a law that says failure of anyone to complete any federal government census may incur a relatively modest fine of up to $100. Experiencing a declining rate of response from the population and finding no other means of forcing compliance, the Census Bureau digs up criminal statutes that (1) classify any federal violation punishable by a fine as an “infraction” and (2) override any lesser statutory penalty for the “infraction” with a $5,000 fine to justify threatening randomly-selected ACS recipients with a fine of up to fifty times the fine determined by Congress for the violation. And then the Census Bureau says, in effect, “don’t worry, we can’t force the U.S. Attorney to fine you $5,000—we are just informing you of the draconian weapons in the government’s arsenal that may be available in case you don’t cooperate.”
Perhaps next we will hear that each member of the family of a dissident who litters in a National Park owes $5,000 to the government for this “infraction,” based upon 18 U.S.C. §§ 3559 and 3571. Or that the government has decided to address the massive budget deficits from bailing out the likes of Goldman Sachs and JPMorgan Chase by fining every household $5,000 for a little-known and rarely-enforced Federal offense.
If nothing else, the Census Bureau has succeeded in reminding us why the wise founders of this country saw fit to severely limit the rights of the federal government and vest in the states authority to make all laws in matters that are not expressly reserved to the federal government in the Constitution. And in alerting us to the danger of the Sentencing Reform Act of 1984 to those who might dare to incur the wrath of the New World Order.
Do you want the largest defense contractors in the world to have precise geographic data for you and your family that can be aggregated with all the data the federal government has accessible, including the digital health care records which will be required with “health reform?”
(1) The only Fox News article we found on the Internet about the fine says the fine is “as much as” $100. Of course, we have no way of knowing what a Fox radio show may have said. But see Census 2010—The American Race, which does make the assertion that the fine is $100 per question.
(2) Interestingly, the 1976 amendments to 13 U.S. Code § 221 struck out an earlier provision that imposed a prison sentence of up to six months for refusing or willfully failing to answer census questions.
(3) This is relevant because, as we will see below, the Census Bureau’s position on the issue of fines for violation of the census statute is that these general criminal statutes override the clear intent of the census statute to fix the fine at $100.
(4) The application of this section raises the question whether Congress intended to convert what appears to be a civil fine in 13 U.S. C. § 221 into a potential criminal offense. See, LawInfo, “Infraction, Misdemeanor or Felony: What’s the Difference?” (May, 2008) at Free Legal Forms. Might this affect one’s SecurityClearances?
(5) Title 18 of the U.S. Code, § 3771 provides that the fine for an infraction by a business is $10,000.
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