On June 16, 2011, S. 1228: Combating Military Counterfeits Act of 2011 was introduced in the US Senate. The bill, which has bipartisan sponsorship and support, has been reported out of the Senate Judiciary Committee and is recommended for consideration by the Senate as a whole.
Undoubtedly, you're quite familiar with this pending legislation by now. In a nutshell, the legislation updates the 2010 version of the Act, which criminalizes trafficking in counterfeit military goods and services. The 2011 Act imposes increased penalties for violation: a fine of up to $5 million, imprisonment for up to 20 years, or both, for a first offense by an individual; a fine of up to $15 million for a first offense by “a person other than an individual”; and significantly increased penalties for subsequent offenses.
I've thought about this language time and again: Can a problem like counterfeiting simply be penalized away? So, I turn to analogies to help me understand what's going on. Here's one I've tried to apply. See if it works for you. When it comes to legislation or civil law, one sees many similarities in structure.
For example, in Georgia, laws related to driving while under the influence of alcohol impose higher fines and penalties for each violation, including imprisonment, just like S.1228. The good news is that according to the Georgia Department of Transportation, alcohol-impaired driving fatalities decreased in 2009 by about 20 percent, which appears to have been a nationwide trend over the last decade.
Which leads to the obvious question of what is causing the decline. The answers turn out to be numerous and complex, but one thing became clear to me during my cursory research: Fines alone were not responsible. There have been countless program implementations that went beyond fines — and what the programs did, in essence, was to influence driving-related “processes.” Let that sink in for a moment. Do you agree or disagree?
The proposed S.12228 legislation certainly is a step in the right direction and raises awareness of the potential risks counterfeit parts present, and I applaud the efforts of Senator Sheldon, who introduced the legislation, and the nine senators who were co-sponsors of the bill. But I don't think it's likely that higher fines and longer prison terms will be enough to get counterfeit components out of the supply chain. Why not? I have at least two reasons and will discuss these in my next blog.