Many years ago, when I was a federal prosecutor, I understood that one of the worst things that can happen to a person is to come to the attention of a federal prosecutor. Mark Houck, a pro-life leader and founder of the Catholic men’s ministry The King’s Men, is now finding that out the hard way. And his case is raising disturbing questions of prosecutorial overreaching and the excessive use of force by the police.

The Power of Federal Law Enforcement

Before getting to Mr. Houck’s story, it’s important to understand just how powerful federal law enforcement can be.

Unlike local prosecutors, U.S. Attorney Offices and agencies like the FBI have almost unlimited discretion over what cases they will investigate and prosecute. They can decide whom they will target, and then use their tremendous resources in manpower and finances to find a crime that person may have committed. The number of federal crimes on the books is so large that even the Justice Department doesn’t know how many there are. Grand juries are so notoriously compliant that there’s truth to the old joke that a prosecutor can get them to indict a ham sandwich. And federal prosecutors are appointed, so they never have to face an election and be held accountable by the people.

Once a person is charged, they’re in a very bad situation. Vanishingly few federal criminal cases ever go to trial—only about 3 percent according to most studies. The rest are resolved by a guilty plea pursuant to a plea bargain. In those cases, there is always a strong element of prosecutorial coercion, frequently with the support of judges, who want to clear their docket and don’t want to go to the trouble of a trial.

Potential maximum sentences can be very severe, and there are many offenses with long mandatory minimum sentences. And there is the “trial penalty”—where a defendant is threatened with a much more severe sentence if he dares to assert his constitutional right to go to trial. So there is tremendous pressure on defendants to take a plea to reduce their potential exposure, and even to falsely confess to crimes they didn’t commit or to which they have a legitimate defense. The risk is just too high.

With so much power and discretion, it is essential for the rule of law that prosecutors and agents act with neutrality and integrity. The last thing anyone should want is selective prosecution based on politics.

Which brings us to Mark Houck, who has unfortunately found himself in the feds’ crosshairs.

The Morning Raid

At about 7 a.m. on Friday, September 23, at least 20 federal agents from the FBI arrived at Mark Houck’s home. (Note: what follows is based on news accounts of what happened, but obviously I cannot verify their accuracy.) He was home with wife and seven young children. The agents repeatedly and loudly knocked on the door, displayed their weapons—which included military-style rifles—and demanded to enter the house. Once the door was opened, they continued to display their weapons in the presence of Mr. Houck’s children and placed him under arrest.

Mr. Houck was arraigned later that day in federal District Court for the Eastern District of Pennsylvania on an indictment that charged him with two felony violations of the federal Free Access to Clinic Entrances Act (18 U.S.C. § 248). He was released by the court on his own recognizance, which means that he didn’t even have to post cash bail or a bond to guarantee his future appearance in court.

The alleged offense took place in October 2021, outside a Planned Parenthood in Philadelphia. Specifically, he was charged with shoving to the ground a man who was escorting patients to an abortion clinic, causing unspecified injuries to the escort. News reports indicate that the alleged victim suffered minimal injuries. It should also be noted that Mr. Houck’s attorneys dispute that account. They concede that he had confronted the man, but say that it was to protect his young son from harassment.

If convicted, he faces a potential maximum sentence of 11 years in federal prison and as much as 3 years of supervised release (the federal equivalent of parole).

Given the extremely high conviction rate in federal court, and the possibility of a “trial penalty” if he goes to trial, Mr. Houck faces a very significant possibility of going to federal prison for what appears to be a fairly minor offense.

What’s Odd About this Case

Based on my experience as an attorney who served as a federal and local prosecutor, there are many things that are very unusual about this case.

Mr. Houck was indicted in federal court over eleven months after the alleged offense, after the case was initially dismissed in local court.

That is an extremely long pre-indictment delay for a such a minor offense. In my experience, a common reason for such a delay is that federal prosecutors have many more serious cases to deal with and minor crimes are often left to languish. Federal prosecutions, especially in a large city, typically focus on heavy crimes like gang violence, large-scale drug or gun trafficking, bank robbery, major financial frauds, and so on.

This case is clearly nowhere near that level, even if we take the government’s case as a given. And the local case wasn’t even worth pursuing. So it’s hard to see why anyone would make a federal case out of it.

Consider also the way Mr. Houck was arrested. You would think that such an overwhelming display of force would take place when there was a severe risk of violent resistance or hostage-taking.

But there is no evidence whatsoever that Mr. Houck posed a threat to anyone, much less 20 heavily armed FBI agents. In fact, his attorney had been in touch with the U.S. Attorney’s Office and offered to bring him in to surrender and face the charges. And the court obviously found that he was no risk to public safety or that he would flee, since he was released later that day without even having to post bail.

Law enforcement has become much more militarized over the last few decades. There have been many widely publicized instances where these tactics have resulted in tragedies to innocent bystanders. So it’s hard to see why they chose to arrest a clearly non-violent man, while he was at home with young children in the house, as if he were some kind of dangerous desperado.

The Incongruity

The obvious and inescapable explanation for Mr. Houck’s special treatment is that the Justice Department has made protection of “reproductive rights” a high priority, which really means that they have decided to target pro-lifers. It’s certainly not too cynical to suspect that after Dobbs, the Justice Department sent a message to the U.S. Attorneys’ Offices to pursue any potential FACE Act cases against pro-lifers, no matter how small.

This heavy-handed approach stands in bold contrast to the general apathy about attacks against pro-lifers. The Attorney General has made numerous public statements about protecting abortion, but he has said nothing at all about the scores of incidents of arson and vandalism aimed at churches and pro-life centers. To be fair, those offenses are usually handled at the local level, but the Attorney General’s silence about any federal investigations or prosecutions is deafening.

The way Mr. Houck has been treated smacks of politically motivated targeting by the Justice Department. And that’s a very frightening thing for him, especially when you consider how powerful federal law enforcement can be. He is the one suffering right now. But if this is any indication of what may happen in the future, other pro-lifers have reason to be very concerned as well.

What’s a Pro-life Activist to Do?

In this fraught situation, I have some recommendations.

People should get advice from a lawyer. Federal, state, or local clinic access laws are generally triggered by using or threatening to use physical force to injure, intimidate, or interfere with a person seeking or providing an abortion. But some places also have court orders or legislated bubble zones around clinics that prevent certain activities, like “following and harassing.” So you need to know what kinds of behavior are prohibited in your specific jurisdiction.

In any event, everyone has to absolutely avoid any use or threat of physical force. Our movement has always been rooted in non-violent resistance against the fundamentally unjust laws that permit lethal violence against innocent unborn children. Don’t give in to provocation, even if you think you’re justified in acting in self-defense. In this hostile environment, it is very likely that you will still be accused of an offense.

Still, at the end of the day, we cannot be intimidated by the threat of unjust persecution. We always have the constitutional right to free speech and peaceful prayer outside of clinics. As long as we remain within the boundaries of the law, there is no reason to stop pro-life witness at abortion clinics.