[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
MENS REA: THE NEED FOR
A MEANINGFUL INTENT REQUIREMENT IN
FEDERAL CRIMINAL LAW
=======================================================================
HEARING
BEFORE THE
OVER-CRIMINALIZATION TASK FORCE OF 2013
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
JULY 19, 2013
__________
Serial No. 113-46
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio JUDY CHU, California
TED POE, Texas TED DEUTCH, Florida
JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania KAREN BASS, California
TREY GOWDY, South Carolina CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Over-Criminalization Task Force of 2013
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
LOUIE GOHMERT, Texas, Vice-Chairman
SPENCER BACHUS, Alabama ROBERT C. ``BOBBY'' SCOTT,
RAUL LABRADOR, Idaho Virginia
GEORGE HOLDING, North Carolina JERROLD NADLER, New York
STEVE COHEN, Tennessee
KAREN BASS, California
HAKEEM JEFFRIES, New York
Caroline Lynch, Chief Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
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JULY 19, 2013
Page
OPENING STATEMENTS
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Chairman, Over-
Criminalization Task Force of 2013............................. 1
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Ranking Member, Over-
Criminalization Task Force of 2013............................. 3
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 3
WITNESSES
John S. Baker, Jr., Ph.D., Visiting Professor, Georgetown Law
School, Visiting Fellow, Oriel College, University of Oxford,
Professor Emeritus, LSU Law School
Oral Testimony................................................. 8
Prepared Statement............................................. 11
Norman L. Reimer, Executive Director, National Association of
Criminal Defense Lawyers
Oral Testimony................................................. 24
Prepared Statement............................................. 26
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 4
Prepared Statement of the Honorable Bob Goodlatte, a
Representative in Congress from the State of Virginia, and
Chairman, Committee on the Judiciary........................... 6
Prepared Statement of the Honorable Robert C. ``Bobby'' Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Over-Criminalization Task Force of 2013........ 6
Material submittted by the Honorable Robert C. ``Bobby'' Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Over-Criminalization Task Force of 2013........ 55
MENS REA: THE NEED FOR A MEANINGFUL INTENT REQUIREMENT IN FEDERAL
CRIMINAL LAW
----------
FRIDAY, JULY 19, 2013
House of Representatives
Over-Criminalization Task Force of 2013
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 9 a.m., in room
2237, Rayburn House Office Building, the Honorable F. James
Sensenbrenner, Jr. (Chairman of the Task Force) presiding.
Present: Representatives Sensenbrenner, Goodlatte, Bachus,
Gohmert, Labrador, Holding, Scott, Conyers, Nadler, and
Jeffries.
Staff Present: (Majority) Robert Parmiter, Counsel; Alicia
Church, Clerk; and (Minority) Ron LeGrand, Counsel.
Mr. Sensenbrenner. The Task Force will come to order.
Today I would like to thank our witnesses for agreeing to
appear at this hearing, which is the second in a series of
hearings on the growing problem of over-criminalization and
over-federalization. This Task Force held its introductory
hearing on the scope of the over-criminalization problem a
month ago, at which time we heard from a panel of excellent
witnesses. Today our work continues.
As the title indicates, today's hearing will focus on the
need for a meaningful intent requirement in Federal criminal
law. A common criticism of the expansion of Federal criminal
law is that it has included an erosion of the mens rea
requirement. Mens rea, Latin for guilty mind, is the state of
mind the government, to secure a conviction, must prove that a
defendant had when committing a crime.
As Justice Jackson explained some 60 years ago, ``The
contention that an injury can amount to a crime only when
inflicted by intention is no provincial or transient notion. It
is as universal and persistent in mature systems of law as
belief in freedom of the human will and a consequent ability
and duty of the normal individual to choose between good and
evil.''
Historically, most common law criminal offenses were malum
in se offenses, meaning inherently immoral, antisocial acts
such as murder, arson, or rape. However, the expansion of the
Federal Criminal Code has been accompanied by an ever-
increasing labyrinth of Federal regulations, many of which are
malum prohibitum offenses; that is offenses that are crimes
merely because Congress has decided to pass a law saying so.
Many of these offenses have no guilty mind requirement,
which means that American citizens can be convicted of crimes,
and sometimes serve jail time, for unwittingly committing
crimes such as failing to file paperwork or fishing without a
license, vague definition in these mala prohibita laws ensure
that those who did not intend to break the law and who believe
in good faith that their conduct was lawful. This is an
unacceptable state of affairs, and surely not what Congress nor
America's common law system intended.
To complicate matters, many of the terms commonly used in
the Federal Code to denote intent lack clear definitions. For
example, the Supreme Court has opined that, ``willfully,'' is
an ambiguous term which can have different meanings in
different contexts. Judge Learned Hand excoriated the term
willful. ``It is an awful word. It is one of the most
troublesome words in a statute that I know. If I were to have
to have an index purge, willful would lead all the rest in
spite of its being at the end of the alphabet.'' I do not think
we are going to do that in this Task Force, but with Google
searches and things like that it is easier than it was when
Judge Hand wrote that opinion.
In this session of Congress, I have reintroduced
legislation to modernize and streamline the Federal Criminal
Code. That legislation would bring uniformity to the code by
using the term ``knowingly'' to define the requisite intent for
every crime except for those criminal offenses that require
some additional and more specific intent.
In 2010, the Heritage Foundation and the National
Association of Criminal Defense Lawyers, definitely an odd
couple, published a report entitled ``Without Intent: How
Congress is Eroding the Criminal Intent Requirement in Federal
Law.'' This report was the result of a study of legislation
containing criminal offenses introduced in the 109th Congress,
which found that over 50 percent of the offenses considered by
that Congress contained inadequate mens rea requirements. This
is a shockingly high number.
The study found that despite the House and Senate Judiciary
Committees' expertise and subject matter jurisdiction over
Federal criminal law, over half of the offenses noted in the
study were not referred to either Committee. However, the study
also found that when the bills were considered and marked up by
the two Judiciary Committees, the quality of mens rea
requirements was significantly improved. We thank them for
that.
It is clear going forward that congressional leadership
could ensure that the Judiciary Committees receive referrals on
any legislation containing criminal penalties. Inadequate
drafting by other Congressional Committees should not lead to
prison time for American citizens. The lack of an adequate
intent requirement in the Federal Code is one of the most
pressing problems facing this Task Force, and I look forward to
engaging in a substantive discussion with our distinguished
panel of witnesses today.
It is now my pleasure to recognize for his opening
statement the Ranking Member of the Task Force, the gentleman
from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
For centuries the American legal system has defined a crime
to require both a guilty act and a guilty mind. The latter is
commonly referred to as criminal intent. To win a conviction,
the government must prove beyond a reasonable doubt that the
accused committed the prohibited act with criminal intent.
For the past several years, a number of groups from diverse
political philosophies have come together to express their
concern over the lack of specificity in criminal law standard
of proof for holding a person accountable for criminal conduct.
They have complained of vagueness in the standard, with many
defendants not knowing whether or not they are even guilty of a
crime because of the absence of the common law requirement of
the guilty mind of mens rea.
The mens rea requirement has long served as an important
role in protecting those who did not intend to commit a
wrongful act from prosecution or conviction. Mens rea elements,
such as specific intent, willful intent, or knowledge of the
specific facts constituting the offense, were part of nearly
all common law crimes. They have served as a means of
protecting individuals from state action to deprive them of
liberty and rights. Without these protective elements in our
criminal laws, honest citizens are at risk of being victimized
and criminalized by poorly crafted legislation and overzealous
prosecutors.
For centuries, citizens in this country have only faced a
few dozen Federal criminal offenses, but in recent years the
number of crimes has exploded. Thousands of Federal crimes are
now covered not only in Federal jurisdictions, but also are
covered by duplicative areas where state and local crimes also
cover Federal crimes. It is estimated that there are also, in
addition to that, hundreds of thousands of additional crimes
imposed by regulatory action.
As we have seen from testimony from the Crime Subcommittee
previously, and this Task Force specifically, many provisions
lack criminal intent requirements to protect accused persons
from unjust criminal punishment, such as those imposed on
persons who may violate a regulation that they did not even
know was a crime. To inspire the widest possible trust and
confidence, we should ensure that all criminal provisions
provided for traditional protections against unjust punishment
by ensuring each person convicted has the specific mens rea
requirement.
One of the areas that we need to specifically look at are
some of the regulations and whether or not some of those
regulations ought to carry criminal penalties at all. There are
some that I think need to cover criminal penalties, but we will
discuss those as the Committee goes forward. I look forward to
listening to the witnesses and hear their views on this issue.
And thank you, and yield back the balance of my time.
Mr. Sensenbrenner. The Chair recognizes the Ranking Member
of the full Committee, the gentleman from Michigan, Mr.
Conyers.
Mr. Conyers. Thank you, Mr. Chairman.
I think this is an important Task Force. And I would merely
add that a fundamental principle of our criminal justice system
is that an individual should not be subjected to prosecution
and conviction unless he or she intentionally engages in
wrongful conduct or conduct that they knew was unlawful. And so
for the hearing on mens rea, the need for a meaningful intent
requirement in Federal criminal law is an important issue
before the Over-Criminalization Task Force. Only under these
circumstances should an individual be deserving of punishment.
Unfortunately, here in the Congress we have increasingly
strayed from the basic principle, as evidenced by the fact that
Federal criminal law is no longer limited to crimes that are
readily recognizable. So as the Task Force undertakes its
analysis of this issue, there are several matters we should
address.
To begin with, the lack of mens rea standard presents a
real risk that truly innocent individuals may be wrongly
convicted and punished. The omission of mens rea essentially
sets citizens up to be, in effect, ambushed. No one should be
at risk of prosecution, conviction, and possible imprisonment
for engaging in actions that are not inherently blameworthy
unless he or she knew that the act involved was illegal. An
individual can be found criminally liable for violating certain
commercial, regulatory, and environmental laws without any
proof that they intended to violate these laws or that their
conduct was clearly blameworthy. In fact, without an
articulated mens rea standard, it may not even be clear that
the crime has even been committed.
Now, the Heritage Foundation study conducted by our witness
who is testifying today estimated that 17 of the 91 Federal
criminal offenses enacted between 2000 and 2007 lacked any mens
rea requirement at all. A joint report by the National
Association of Criminal Defense Lawyers and the Heritage
Foundation examined the Federal criminal law process during the
109th Congress. The study revealed that over 57 percent of the
offenses introduced, and 64 percent of those enacted into law,
contained inadequate criminal intent requirements, putting the
innocent at risk of criminal prosecution. As a result, everyone
in the criminal justice system, including the defendant,
prosecutor, and judge, is left wondering what mental state, if
any, applies.
For those inclined to place their trust in prosecutorial
responsibility and discretion, I say that the responsibility
lies with us, the Congress, to pass legislation that is fair,
unambiguous, and protects the rights of all. That is why this
Task Force is so important.
I will put the rest of my statement in the record.
Mr. Sensenbrenner. Without objection.
Mr. Conyers. Yield back the balance of my time.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
A fundamental principle of our criminal justice system is that an
individual should not be subjected to prosecution and conviction unless
he or she intentionally engages in wrongful conduct or conduct that
they knew was unlawful.
Only under these circumstances should an individual be deserving of
punishment.
Unfortunately, Congress has increasingly strayed from this basic
principle as evidenced by the fact that federal criminal law is no
longer limited to crimes that are readily recognizable.
So as the Task Force undertakes its analysis of this issue, there
are several issues that we should address.
To begin with, the lack of a mens rea standard presents a real risk
that truly innocent individuals may be wrongfully accused, convicted
and punished.
The omission of mens rea essentially sets citizens up to be
ambushed.
No one should be at risk of prosecution, conviction and
imprisonment for engaging in actions that are not inherently
blameworthy unless he or she knew that the act involved was illegal.
An individual can be found criminally liable for violating certain
commercial, regulatory, and environmental laws without any proof that
he or she intended to violate these laws or that his or her conduct was
clearly blameworthy.
In fact, without an articulated mens rea standard, it may not even
be clear that a crime has even been committed.
According to a Heritage Foundation study conducted by John Baker
who is testifying here today, it is estimated that 17 of the 91 federal
criminal offenses enacted between 2000 and 2007 lacked any mens rea
requirement at all.
A joint report by the National Association of Criminal Defense
Lawyers and the Heritage Foundation, entitled ``Without Intent: How
Congress is Eroding the Criminal Intent Requirement in Federal Law'',
and released in May 2010, examined the federal criminal law process
during the 109th Congress (2005-2006).
That study revealed that over 57 percent of the offenses introduced
and 64 percent of those enacted into law contained inadequate criminal
intent requirements, putting the innocent at risk of criminal
prosecution.
As a result of this failing, everyone in the criminal justice
system--including the defendant, prosecutor, and judge--is left
wondering what mental state, if any applies.
For those inclined to place their trust in prosecutorial
responsibility and discretion, I say that the responsibility lies with
us--the Congress--to pass legislation that is fair, unambiguous and
protects the rights of all citizens.
That is our duty. Congress must require that a conviction be based
on proof that a person purposefully intended to break the law.
To leave it to the prosecutors and courts to determine Congress'
intent is a dereliction of our sworn duty.
Another concern that I have pertains to how we define what
constitutes ``mens rea.''
While we all can agree that the knowledge or mens rea element of a
criminal law statute is critical, there continues to be debate about
the difference between the terms ``willfully'', and ``intentionally''
or ``knowingly.''
``Willful'' is often used to describe a state of mind where the
person consciously and purposefully breaks the law or violates widely
known legal duty.
Is it negligence, knowledge, criminal intent, or strict liability?
And, this standard is to be distinguished from the situation where
a person violates a criminal law without any purpose of doing so, or he
makes a good faith mistake when interpreting a complex area of law.
So, as we become more scrupulous about requiring mens rea in
criminal offenses, we must also ensure that the specific mens rea or
``guilty mind'' elements of federal offenses capture only blameworthy
conduct.
Finally, I want the witnesses to address the issue of whether proof
of willfulness should be required for regulatory crimes.
Specifically, if the standard for these offenses is not
willfulness, what should the standard be?
Would it be more appropriate to impose civil penalties and
administrative sanctions for those who violate a regulation but do not
meet the requirements from criminal conviction?
Are there certain types of regulatory crimes that should be exempt
from a mens rea standard?
What justification exists for imposing criminal liability for
regulatory crimes?
I look forward to hearing the responses to these questions from the
witnesses and I commend the Task Force for examining the critical issue
of mens rea.
__________
Mr. Sensenbrenner. The Chairman of the full Committee, Mr.
Goodlatte, is unable to make it today. I ask unanimous consent
that his opening statement be placed in the record.
[The prepared statement of Mr. Goodlatte follows:]
Prepared Statement of the Honorable Bob Goodlatte, a Representative in
Congress from the State of Virginia, and Chairman, Committee on the
Judiciary
Thank you Chairman Sensenbrenner. I am very happy to be here today
at the second hearing of the Over-Criminalization Task Force. Today's
hearing will afford Task Force members the opportunity to hear from a
distinguished panel of outside experts who have studied the issue of
criminal intent very closely for a number of years.
At our first hearing last month, the witnesses unanimously agreed
that the erosion of the mens rea requirement in Federal law is the most
pressing issue facing this Task Force.
Anyone who has been to law school knows that, at common law,
finding an individual guilty of a crime required the government to show
a convergence of harmful conduct (the actus reus) with the intent to do
something that the law forbids (the mens rea, or ``guilty mind''
requirement). It required, as the Supreme Court has stated,
``concurrence of an evil-meaning mind with an evil-doing hand.''
However, as my colleagues and many commentators have noted, the
expansion of the federal code--to some 4,500 criminal statutes today,
as well as tens of thousands of regulations carrying criminal
penalties--has resulted in a code that no average American citizen
could be expected to read and understand, let alone conform his conduct
to. As a result, the news is replete with stories of Americans who have
been convicted of crimes--and sometimes, sentenced to lengthy prison
terms--when they had no intent to break the law.
A primary cause of this predicament is Congress itself. That is,
recent Congresses have crafted scores of new federal criminal laws that
lack adequate criminal intent requirements and define the criminalized
conduct in unacceptably vague and overbroad terms. As noted in the
Without Intent study done by the Heritage Foundation and the National
Association of Criminal Defense Lawyers, over 57 percent of the
offenses introduced in the 109th Congress--and 64 percent of those
enacted into law--contained inadequate intent requirements.
The good news coming out of this study is that regular order by the
House Judiciary Committee--that is, the marking up and reporting out of
a bill--does improve the quality of mens rea requirements. As Chairman
of the Judiciary Committee, it should come as no surprise to anyone
that I strongly agree with that conclusion.
I can assure my colleagues that this Committee will continue
working to ensure that federal criminal laws are responsibly drafted
and considered.
I look forward to hearing from our witnesses today about the need
for a definitive mens rea requirement in the Federal code, and what
steps this Task Force and the Judiciary Committee can take to address
the issue.
As I stated at the beginning of our first hearing, concern for this
issue is bipartisan, and requires bipartisan perspectives. I commend
all of my colleagues here today for your excellent work on the Task
Force, and I yield back the balance of my time.
__________
Mr. Sensenbrenner. And I also ask unanimous consent that
other Members' opening statements may be placed in the record.
Without objection, so ordered.
[The prepared statement of Mr. Scott follows:]
Prepared Statement of the Honorable Robert C. ``Bobby'' Scott, a
Representative in Congress from the State of Virginia, and Ranking
Member, Over-Criminalization Task Force of 2013
Good morning,
For centuries, the Anglo-American legal system has defined a crime
to require both a guilty act (actus reus) and a guilty mind (mens rea).
The latter is commonly referred to as a criminal intent requirement. To
win a conviction, the government must prove beyond a reasonable doubt
that the accused committed a prohibited act with criminal intent.
Over the past several years, a number of groups, from diverse
political philosophies have come together to express their concern over
the lack of specificity in criminal law standard of proof for holding a
person accountable for criminal conduct. They have complained of
vagueness in the standard with many defendants not know whether or why
they were guilty of a crime, all because of the absence of the common-
law requirement of mens rea, or ``guilty mind'' as a required standard
of proof to be held accountable for a crime.
The mens rea requirement has long served an important role in
protecting those who did not intend to commit wrongful or criminal acts
from prosecution and conviction. Mens rea elements such as specific
intent, willful intent and the knowledge of specific facts constituting
the offense were part of nearly all common-law crimes. They have served
as a means of protecting individuals from state action to deprive them
of liberty and rights. Without these protective elements in our
criminal laws, honest citizens are at risk of being victimized and
criminalized by poorly crafted legislation and overzealous prosecutors.
For centuries, citizens in this country faced only a few dozen
federal criminal offenses. In recent decades, however, the number of
federal criminal offenses has grown explosively. Thousands of federal
crimes now cover not only uniquely federal jurisdictional subject
areas, but also subject areas duplicative of crimes under state and
local jurisdiction. And estimates indicate that there are hundreds of
thousands of additional criminal provisions imposed through regulatory
actions by federal agencies implementing federal criminal statutes.
As we have seen from testimony before the Crime Subcommittee
previously, and recently before this Task Force, many of these
provisions lack clear criminal-intent requirements to protect accused
persons from unjust criminal punishment, such as those imposed upon
persons who may violate a law or regulation only accidentally or
inadvertently, without any criminal intent. To inspire the widest
possible trust and confidence in the federal criminal justice system,
we should ensure that all criminal provisions provided for traditional
protections against unjust punishment by ensuring that each has a
specific mens rea requirement.
I welcome today's witnesses, and look forward to suggestions as to
what provisions, if any, should be added to federal law to protect
accused persons from an improper risk of criminal punishment.
It is my hope that this Task Force, with the assistance of
witnesses such as those appearing before us today, will identify
bipartisan efforts to make the federal criminal code smaller and more
understandable. It is also my hope that through this process we will
give Americans a reasonable opportunity to understand what the criminal
law requires of them before they act.
__________
Mr. Sensenbrenner. Also, without objection the Chair will
be authorized to declare recesses during the hearing of the
Task Force today.
Let me say in the beginning that we are scheduled to have
about an hour-and-a-half's worth of votes between 10:20 and a
little bit before noon. I think it would be incumbent on all of
us, particularly the witnesses, if we could wrap this up before
we have to go across the street to vote, because I do not think
it would be very fair for the witnesses to have to sit around
and wait to come back.
Having said that, let me introduce the witnesses.
Dr. John S. Baker, Jr., is the visiting professor at
Georgetown University Law School, a visiting fellow at Oriel
College at the University of Oxford, emeritus professor of law
at the LSU Law School. He teaches short courses on separation
of powers for the Federalist Society with Supreme Court Justice
Antonin Scalia.
Dr. Baker previously worked as a Federal court clerk and
assistant district attorney in New Orleans, and has served as
consultant to the U.S. Department of Justice, U.S. Senate
Judiciary Subcommittee on Separation of Powers, the White House
Office of Planning, USIA and USAID. He was a Fulbright scholar
in the Philippines and a Fulbright specialist in Chile.
Dr. Baker served as a law clerk in the Federal District
Court and as an assistant district attorney in LA before
joining LSU in 1975. He served on an ABA task force which
issued the report ``The Federalization of Crime'' in 1998. He
received his bachelor of arts degree from the University of
Dallas, his J.D. Degree from the University of Michigan Law
School, and his Ph.D. degree in political thought from the
University of London.
Mr. Norman L. Reimer is the executive director of the
National Association of Criminal Defense Lawyers. As executive
director, Norman Reimer heads a professional staff based in
Washington, D.C., serving the NACDL's district, local, and
state and international affiliate organization members. Since
joining NACDL, he has overseen a significant expansion of the
association's educational programming and policy initiatives.
Previously, he practiced law for 28 years, most recently at
Gould, Reimer, Walsh, Goffin, Cohn, LLP. Mr. Reimer assumed the
presidency of the New York County Lawyers Association in 2004.
In addition to that role, he has served as a delegate to
both the American Bar Association's House of Delegates and the
New York State Bar House of Delegates. He formerly served as
chair of the Central Screening Committee of the Assigned
Counsel Plan, Appellate Division, First Department, overseeing
the qualification of several hundred attorneys. He served on
the Federal Criminal Justice Panels for the Southern District
of New York, where he was certified to represent criminal
defendants in felony prosecutions, capital prosecutions, and
habeas corpus proceedings. He was also certified by the New
York State Capital Defender to handle death penalty
prosecutions in the New York State courts.
So we ask you to limit your oral testimony to 5 minutes.
You are all familiar with the red, yellow, and green lights
before you. Without objection, your full statements will appear
in the record.
And, Dr. Baker, why don't you go first?
TESTIMONY OF JOHN S. BAKER, JR., Ph.D., VISITING PROFESSOR,
GEORGETOWN LAW SCHOOL, VISITING FELLOW, ORIEL COLLEGE,
UNIVERSITY OF OXFORD, PROFESSOR EMERITUS, LSU LAW SCHOOL
Mr. Baker. Mr. Chairman, Mr. Ranking Member, and Members of
Congress, thank you for holding this hearing. And I especially
thank you----
Mr. Sensenbrenner. Is your mike on?
Mr. Baker. It appears to be.
Mr. Chairman, Mr. Ranking Member, and Members of Congress,
thank you for holding this hearing, and thank you in particular
for the Task Force. The issue of over-federalization is the
main issue I have worked on for decades, and so it is very
gratifying to be here and have this opportunity to testify.
In your first meeting you heard from Mr. John Malcolm. And
I had planned to say that I was going to pick up where he left
off with the Morissette case and the quote from Justice
Jackson. The problem is that Mr. Sensenbrenner covered most of
what I was going to say, and then Mr. Scott and Mr. Conyers
doubled down on it.
So it is wonderful to start knowing that we all agree
apparently on what the problem is. The difficulty is to figure
out a solution. And it is not an easy thing to do. And that
means understanding how we got in the mess in the first place
is critical to crafting the solution.
I think it is important not so much for Members of this
Committee, but for other Members of Congress to understand the
difference between state criminal law and Federal criminal law.
But first of all, we have identified the strict liability
problem of no mens rea. But the inadequate mens rea problem,
where you have a knowingly requirement that does not really
amount to a mens rea issue is also critical.
The important thing, it seems to me, is to understand that
mens rea is a principle, and that under it come particular
rules. And the rules vary with the nature and the type of the
crime. And when we look at state criminal law, it is relatively
easy, even though states have added many non-common law crimes,
it is easy because the meat and potatoes of a local prosecutor,
which I was, in murder, rape, robbery, theft, burglary, that is
what we dealt with. And most juries do not have difficulty
figuring out what those crimes are. Indeed, in most state
prosecutions the issue is not whether there was a crime, the
issue is whether the defendant is the person who did it.
In Federal law it is just the opposite. The issue is not
whether the defendant did something; it is whether what he did
was a crime. And we know with 4,500 statutes out there, there
are plenty to pick from. And it is easy to pick up one that
has, if not a lack of mens rea entirely, a confused mens rea.
And the classic example is the mail fraud statute, which the
Justice Department constantly is litigating and pushing the
envelope on.
So how is it then that you go about dealing with it? Well,
first of all, in understanding the difference between state and
Federal criminal law you have to understand, as you do, but
other Members of the Congress may not, that we have simple
crimes at the state level and we have crimes at the Federal
level that look more like the Tax Code. And as a result, people
cannot understand what they are.
And how did we get into this situation? Well, it has to do
with something called the Constitution. There is no general
police power, as you know, in the Federal Government. The
Supreme Court keeps trying to remind the Congress of this. And
sometimes it gets through and sometimes it does not. But when
you have to put a jurisdictional element in the statute, that
immediately complicates the statute. The statute becomes more
and more complex.
And indeed, when you are dealing, as you are in most cases,
with the power under the Commerce Clause, that means you put in
an affecting commerce provision, your powers are limited,
supposedly limited, and it does not end up looking, in most
cases, like a crime. It is in most cases really a regulation
that happens to carry a criminal penalty.
So what is the solution? Well, in one sense the solution
would appear to be easy: a default rule. The Model Penal Code
has a default rule. The difficulty is default rules in the
Model Penal Code--which by the way were not adopted necessarily
by most of the states that adopted the Model Penal Code--the
difficulty is the default rule works and is crafted relatively
easily when you have a coherent code.
What we call the Federal Criminal Code is not a coherent
code. It is simply a list of statutes. Because these statutes
have been drafted over time by different sessions of Congress,
there is no coherence to these crimes. Therefore, when you
attempt to come up with a default rule, as the Heritage
Foundation has drafted, it is a difficult, intricate thing to
put together.
The most important thing I would say in dealing with the
default rule especially is to give guidance to a Federal court,
which, no matter what you say, is going to have to interpret
it. And if Congress comes down, as the three Members who spoke
this morning did, very firmly in favor of enforcing a mens rea,
that message will get across to the Federal courts. With that
message, when you adopt the particular underlying rules that
follow from it, the court will understand to err on the side of
mens rea rather than erring on the side of strict liability.
And if you look at default rules as they have been
interpreted in the states under the Model Penal Code, the
differences turn on whether the particular state supreme court
leaned toward mens rea or whether it leaned toward strict
liability, and that makes all the difference in the world.
You know, at the state level we know that we found many
people who are innocent in jail because they were factually not
guilty. The problem in Federal criminal law is that we have
innocent people being convicted not because we have the wrong
person, but because they really did not commit a crime.
Thank you very much.
[The prepared statement of Mr. Baker follows:]
__________
Mr. Sensenbrenner. Thank you, Dr. Baker.
Mr. Reimer.
TESTIMONY OF NORMAN L. REIMER, EXECUTIVE DIRECTOR, NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
Mr. Reimer. Thank you, Chairman Sensenbrenner and Ranking
Member Scott and Ranking Member Conyers and Members of the Task
Force. Thank you for inviting me to address the critically
important issue of intent requirements, or the lack thereof, in
Federal criminal statutes.
The problem is a core aspect of the larger over-
criminalization problem. But this is one which is uniquely
within the power of Congress to fix.
At the outset, I note that this is one issue on which the
most important ingredient for reform is already present; that
is, impressive bipartisan consensus. The House Judiciary
Committee has now been looking at over-criminalization for more
than 3 years. NACDL has been privileged to work with you,
specifically on intent problems in three different Congresses,
and even with a shift in the majority.
So why is there a growing consensus around this issue? It
is because we are looking at a problem that cannot be traced to
any political party or philosophy, but rather is a byproduct of
a growing reliance upon the criminal provisions as a panacea
for every perceived problem in society. This problem transcends
ideology. It is not about right or left, it is about right and
wrong.
In speaking for the criminal defense bar, I am not here
solely looking at the problem through the eyes of a
practitioner, but rather through the eyes of the individual who
is accused of a Federal crime, the eyes of the people, the
people who become our clients, the members of our community who
have to answer to these laws. While a part of this Task Force's
mission is to look at whether we have too many criminal laws
imposing penalties for far too many things that either should
not be regulated, or if they are should not carry criminal
punishment and the life-altering stigma of criminal convictions
that go with that, that is not what we are here about today.
Today is not about what you decide to make criminal, it is
about how something is made criminal.
Reasonable people can disagree about what should be a
crime, but not about how to make it a crime. To remain tethered
to a moral anchor, when the government decides to criminalize,
it has an obligation to do so with precision and clarity so
that the individual, the average person can clearly understand
what is illegal. That is why the question of how you define a
crime is so critical.
This is a practical concern. When you look at a criminal
provision, can you clearly see what is the test for whether it
has been violated? What notice does the public have of exactly
what conduct was prohibited? What is the mental state that
makes the criminal act? And what, if anything, is it that a
prosecutor has to prove? If these questions cannot be readily
answered, then there is a problem.
Without a clear intent requirement, the individual will not
realize when they are crossing the line. That is not fair, it
is not effective. If people do not know that something is
wrong, they will not be deterred from doing it. And that is the
whole purpose of creating the criminal law in the first place.
Now, you have heard from Professor Baker, and in both of
our written testimonies you have had many examples of the
problems. I am now going to offer a suggestion for how to fix
it in four simple steps.
First, it is time to enact a default mens rea statute. I
agree with Professor Baker that that is essential, a law that
will establish a baseline intent for all elements of all
offenses in which the state of mind is not spelled out in the
statute. This should apply to all existing statutes and
regulations, and certainly to all future laws. If there are to
be any exceptions, they should be rare, specific, and
absolutely necessary.
Two, and I know, Chairman Sensenbrenner, we will probably
have some additional discussion about this, but we believe that
the default mens rea should be willful conduct, which means, as
it has been defined by the courts, a person must act with the
knowledge that the conduct was unlawful. That is far from the
highest standard of intent, but it is better than knowingly,
which is vague and does not require proof of a bad purpose, and
is subject to judicial tinkering.
The public should not be left to the vicissitudes of
different judges in different circuits to fashion instructions
to save a statute. A person should not have to wait until the
jury is instructed at the end of a prosecution to find out what
state of mind made the act criminal.
Third, recognizing that there are some who believe that
strict liability has a place in the criminal law, it should be
limited to situations in which Congress has explicitly
considered the ramifications and expressly opted for strict
liability. Now, NACDL does not favor strict liability in the
criminal law. We are just against it. We think it is wrong. We
recognize there is a place for civil strict liability. But if
you are going to do it, you should do it with precision.
Fourth and finally, and you have heard this before, and I
will say it again, there should be sequential referral to the
Judiciary Committee before any new criminal provision is
enacted. Crimes should be reviewed by a Committee with the
proper expertise to evaluate how those crimes are defined. We
understand the challenges with this. But at a minimum, it seems
to me this Committee could assign a Member to every bill that
may be enacted to comb through it for criminal provisions and
make sure that the intent requirements are clear and
understandable.
I submit that these four steps will markedly improve how
you make the law, and justice and fairness will be served. You
know, we have come a very long way over these last few years on
this issue. We have maintained a magnificent bipartisan
cohesion on this issue. And I submit now it is time to act.
Thank you.
[The prepared statement of Mr. Reimer follows:]
__________
Mr. Sensenbrenner. Thank you, Mr. Reimer.
The Chair is going to withhold his questions to see how we
go meeting up with the votes that will be called on the floor.
So I will wait until the end. And I am also going to put all
the Members on notice that so that everybody can have a chance,
the 5-minute rule will be strictly enforced. To begin, the
Chair will recognize the Chairman of the full Committee, Mr.
Goodlatte of Virginia.
Mr. Goodlatte. Well, thank you, Mr. Chairman. I very much
appreciate you holding this hearing. And I want to thank both
the witnesses for an excellent presentation and a good
prescription for how this Committee should consider proceeding.
I noted in my opening statement, which is now enshrined in
the record for all to memorialize, that the Supreme Court has
stated that mens rea means the concurrence of an evil-meaning
mind with an evil-doing hand. And that I think is something
that we ought to strive to get to in as many circumstances as
possible.
So, Mr. Reimer, you have already answered this question,
and, Dr. Baker, let me ask you, would passing legislation
establishing a default mens rea rule for all statutes, past and
present, that do not currently contain one stop the expansion
of Federal criminal law?
Mr. Baker. Would it stop it? It would stop a lot of
prosecutions.
Mr. Goodlatte. And it would probably stop people from
putting it in statutes that go into legislation that go to
other Committees.
And, Mr. Reimer, you will be glad to know that we have a
very concerted effort in this Committee to identify all bills
that are moving through the Congress and insist that we assert
our jurisdiction when it contains a criminal provision, and
many other provisions that are the jurisdiction of this
Committee, but particularly criminal provisions.
Dr. Baker's testimony notes that even in cases where a
Federal statute includes the mens rea provision it may be a
very weak one, such as knowing. Dr. Baker, do you agree with
Mr. Reimer's prescription that it should always be a willful
conduct standard?
Mr. Baker. Yes and no. It depends on how you draft a
statute. I can draft a statute that will accomplish the same
purpose using a specific intent. I am using state law terms,
not Model Penal Code, but common law terms. I can do it with
either specific intent or general intent, say, in a battery
statute.
It is not the mens rea by itself, it is in relationship to
the actus reus, which includes not only the act, it includes
the circumstances and the consequences. It is difficult to give
a very simple answer to what you say. But given the complexity
of Federal law and given that you are not going to redo and
create a Federal Criminal Code, I would agree with Mr. Reimer
that that as a practical matter is the best result.
Mr. Goodlatte. Mr. Reimer, both of you discuss in your
written testimony whether there is a workable one-size-fits-all
mens rea requirement that can be applied to the entire Federal
code. Would you care to expand on that further?
Mr. Reimer. Yeah. I think that, first of all, any draft
legislation should have a provision that gives the Congress the
option to define the intent in a particular statute how they
see fit for that statute. The default would apply only where
the Congress has not done that, or it would kick in if it is
not in the statute itself.
So if you felt, for example, that you could define a
distinction between knowingly and willfully, for a particular
purpose you wanted to use knowingly, that would be fine. You
could do that. We are just simply saying that if it is not
there, or if the new law does not contain the provision,
willfully adds the essential ingredient that the person knew
that they were doing something that was unlawful.
And we have a footnote 12 in our testimony which talks
about some of the key cases. Bryan is an interesting case
because that is where we get the willful formulation from. And
actually the willful formulation, which is the holding in the
case, is not as strong as what the dissenting justices would
have preferred. They would have preferred that you knew you
were violating the specific statute.
I point that out only because those dissenting justices who
did not get their way in that case were quite an interesting
mix. It was the late Chief Justice Rehnquist, Justice Scalia,
and Justice Ginsburg. But what the court gave us was at least
that in a willful act you have to show that the person was
violating a law.
Mr. Goodlatte. Let me in my short remaining time ask Dr.
Baker if he wants to add or dispute anything that Mr. Reimer
just said.
Mr. Baker. The difficulty with knowing, if you go back to
the common law crimes like receipt of stolen goods, the reason
why the intent on the act of receipt is insufficient is simply
receiving goods that happened to be stolen should not be
wrongful because you might not know it. Therefore, knowing was
added as an additional element to the basic general intent.
The difficulty in Federal criminal law and in the Model
Penal Code is the ambiguity about the word ``knowing.'' And
knowing can be, as it should be in state law, the equivalent of
general intent. And general intent really refers to the intent
to do the act. So if knowing means the intent to do the act,
the difficulty is, if the act is not always itself wrong, the
fact that you knew you were doing the act proves nothing. If
you do not have----
Mr. Goodlatte. So you agree with Mr. Reimer.
Mr. Baker. I do.
Mr. Goodlatte. My time has expired. Thank you, Mr.
Chairman.
Mr. Sensenbrenner. The gentleman's time really is expired.
The gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you. And just following up on that, just
writing a ``knowing'' into each section does not resolve that
ambiguity.
Mr. Baker. Not at all.
Mr. Scott. So how do we resolve----
Mr. Baker. Because I know I came here this morning. So what
does that tell me? All it means is that I was conscious of what
I was doing.
Mr. Scott. Well, so how do we write statutes to solve the
ambiguity?
Mr. Baker. Very carefully. Legislative drafting is a
difficult process.
Mr. Scott. Is intentional or reckless ignorance of the law
an excuse? You did not know it was wrong because you did not
try to find out it was wrong?
Mr. Baker. There is a general principle that you have to
know the law. But that principle derives from the common law
where we had a few crimes that were basically called the Ten
Commandment crimes, and people knew that murder, rape, robbery
was wrong. They did not need a statute.
Today, when you have statutes that are malum prohibitum,
and nobody would know what they are, you have to have a
stronger mens rea. And that is why Mr. Reimer is urging the
willfulness, because if you have willful then it makes it
easier to hold a person liable because they actually knew that
the act was wrong.
Mr. Scott. And so what happens when, with all the
regulations and everything else, you did not know that it was
illegal?
Mr. Baker. Well, there is a duty on the part of the
government to promulgate laws, and we do this in different
ways. I mean at the state level if you rent a car and you drive
it out of the airport there is usually a sign that says buckle
your seatbelt, it is against the law. If you are in the
securities industry, before you are going to work in that
industry you are going to go through training that gives you a
background in what is and is not required.
Mr. Scott. But do you have to prove that the defendant
actually knew the law?
Mr. Baker. Not as a general principle you don't. The
difficulty is where there is good faith ignorance and the mens
rea is not adequate. If you have a strong mens rea, like
willful, then it is much more likely that the defendant will
not be guilty of willful misconduct if they did not know what
the law was.
Mr. Scott. Many of these problems occur because we allow a
criminal prosecution for what is a regulatory violation, and
essentially the regulators write the conduct, and that becomes
the crime. Some of those really need to be criminal, some not.
How do we decide which should be criminal and which should not?
Mr. Baker. Well, the difficulty is that when Congress
passes what is deemed to be a regulatory offense, somebody
seems to throw in a criminal penalty. I use the TREAD Act a
lot, which after----
Mr. Scott. The which?
Mr. Baker. The TREAD Act. After the Ford Firestone fiasco,
Congress--it was sponsored by Senator McCain and Representative
Billy Tauzin. And it was to deal with product liability. But at
the end they put on a criminal penalty, which was not used for
several years. And what happens is things that start out as
regulatory and the Justice Department does not criminalize them
at first, after a while somebody says, well, why don't we
criminalize things? And that is what happened basically with
environmental enforcement under the Clinton administration in
the 1990's.
Mr. Scott. There are some that need to be--you know, health
and safety violations, where people are violating the
regulations and endangering people, shouldn't they be criminal?
Mr. Baker. You could distinguish between what is a
violation and what is a true crime. The difficulty of a true
crime is that when a person is convicted there is a stigma that
goes along with it. You could have a process, whether you want
to call it criminal or noncriminal, where it is understood that
the result is an offense that is not truly a criminal
conviction.
Mr. Scott. Well, some you want to be criminal. I mean, if
there are serious health and safety violations and you have
some people violating those statutes, maybe you want it to be
criminal.
Mr. Baker. You may, but that is where you also have the
mens rea. And one of the mentus rea that you could have would
be recklessness. If people do something where they do not
intend to do the wrong, but they are so careless that it rises
to the level of recklessness, recklessness is a mens rea.
Mr. Scott. Mr. Reimer, when would you need strict
liability? What kinds of cases would you want strict liability?
Mr. Reimer. Well, as I said, we do not think the criminal
law should have strict liability offenses in it. First of all,
the so-called public welfare exception, which was recognized in
the Morissette case, in what, 1951, 1952, was a very different
world. Very minor crimes did not carry the unbelievable, life-
altering collateral consequences that people are scarred with
nowadays. So, we do not think that they should be there.
Certainly Congress could say in a certain situation, yes, we
need it. And all we are saying then is be explicit that that is
what you want.
I would like to, if I may, just to pick up on the question
that you asked Professor Baker about these regulatory offenses
and how strict liability actually operates. I know that
everybody on this Committee, I am pretty sure everybody on this
Task Force, is familiar with the Bobby Unser case. Bobby Unser
testified at one of the hearings. So I just went back, because
we have talked about that as a sort of a good example of an
abuse, and if you look at the statute and the reg that made
that a Federal crime, you really see what the problem is.
The statute, which is 16 U.S.C. 551, basically is a general
provision that gives the Secretary of Agriculture the authority
to make provisions for the protection of the national forest
and to issue rules and regulations that carry a criminal
penalty. That is the statute. That is it. And then the
regulation does not say anything about it being a crime. It
just says the following are prohibited at the national forest
wilderness. And one of those is operating a motor vehicle
without Federal authority.
Mr. Sensenbrenner. The time of the gentleman has expired.
The gentleman from North Carolina, Mr. Holding.
Mr. Holding. Thank you.
I want to follow up on the line of questioning that my
friend Mr. Scott has started regarding strict liability, and
turn to you, Dr. Baker. In the orbit of Federal crimes there
must be some that should be strict liability. And what would
you say that they are?
Mr. Baker. I, too, am against strict liability. I think,
first of all, we need to define what crime is. You could have
offenses that are not true crimes that are strict liability.
Part of the problem is confusing things and calling things
crimes that are not crimes. So if I run a stop sign, that is
strict liability even if I did not see the stop sign. But that
is not a crime. It is an offense.
And we could solve a lot of the problem by making that
distinction. And you could punish it in various ways. But you
do not call it a crime, it does not carry the stigma, and
people do not go to jail for it.
Mr. Holding. So that is the distinction between an offense
and a crime, is whether you go to jail for it or not?
Mr. Baker. Well, that is a long discussion. There are
various historical definitions of what a crime is. The one that
we are focusing on here is the element of actus reus and mens
rea as being the common law definition of crime. As Justice
Jackson says, it marks a mature legal system. Many countries in
the world, especially in Asia, do not have mens rea. They just
punish based on a bad act, even if it was a mistake. We are a
mature legal system.
Mr. Holding. What about areas of the law, you know, we have
talked a lot about migratory birds and so forth.
Mr. Baker. That is a good one. No, I want to talk about
that one.
Mr. Holding. All right. All right. I will give you a minute
do that.
Mr. Baker. How about that U.S. aircraft that Captain
Sullenberger landed on the Hudson? He violated the Migratory
Bird Act. He killed those birds. Now, nobody is going to
prosecute him. But why isn't it that the Department of
Interior's, what, the Wildlife Division, why have they not
issued clear regulations to distinguish the guilty from the
nonguilty? They have not. And they do not want to because they
want the discretion to prosecute when they want to prosecute.
And so are they going to prosecute bad oil companies but not
prosecute good wind farms?
Mr. Holding. That is good. In some of the areas of strict
liability I think you run into a situation where you were
talking about the stockbroker who has had to go through all of
the training to get the various series of licenses and so
forth. So any violation of that becomes a strict liability
because it is just assumed, presumed that they know the law.
Mr. Baker. They have been given notice, they have been
given notice.
Mr. Holding. Right. So is that a strict liability that you
would----
Mr. Baker. Well, they have got the notice, but still the
question in that context, it might well amount de facto to
recklessness. They have had the knowledge, they have taken an
action. You still have the problem of mens rea. And it is still
possible that you might end up convicting someone where there
was no mens rea. But there is a high presumption that they have
been trained, they ought to understand what is going on, and it
is in all likelihood that they were reckless.
But still we are dealing with a regulation. The question is
whether for a violation of a regulation you want to put it at
the same high level of a felony. Do you want to make that level
of stigma?
Mr. Holding. In the whole realm of Federal criminal law,
you know, are there particular areas which are uniquely suited
to Federal investigation and prosecution?
Mr. Baker. Yes. In fact, you know, I speak a lot on over-
federalization. And when I am debating a former assistant U.S.
Attorney they always say, well, we only focus on four areas
mainly--drugs, corruption, immigration, and gun laws. Well,
certainly on immigration and drugs there is no question the
Federal Government has the authority. When it comes to public
corruption, that is a different matter because there is a real
question about the authority. When it comes to the gun laws,
likewise.
But there are other areas that the Federal Government is
not really devoting its resources. You know, after 9/11 Mueller
said the FBI has got to get back to what it does best. The
Federal Government has a lot it needs to do that the states
cannot do.
I had my identity stolen recently. Okay. So I called and
tried to get through to the FBI. One, I couldn't get through.
But when they sent me to--I think it was the SEC or the Federal
Trade Commission--they said call your local police. I said,
wait a minute, my local police have no ability to deal with
this issue. It seems like everybody's dealing with somebody
else's issue. We need Federal law enforcement in the Internet
issues, anything that is crossing state lines. No state is able
to deal with these things. There is plenty for the Federal
Government to do. The problem is much of what they are doing
belongs to the state.
Mr. Holding. Thank you.
Mr. Sensenbrenner. The gentleman from Michigan, Mr.
Conyers, the Ranking Member of the full Committee.
Mr. Conyers. Thank you.
I am trying to keep this down at a realistic as possible
level. And I wanted to ask you, as the leader of many of the
defense lawyers, Mr. Reimer, how does the mens rea problem
relate to prosecutorial discretion when you have minority
defendants in the criminal justice system that might be subject
to discretion by the prosecutor that may or may not be fair to
the defendant himself or herself?
Mr. Reimer. Well, it is a very timely question since we
just 2 days ago released a report on disparity, which was done
jointly with a number of groups, including the American
Prosecutors Association. And so that is a problem in our
criminal justice system in general.
But this issue of prosecutorial discretion, you mentioned
the migratory bird case, and of course that is the classic
example of trusting prosecutors to not push the envelope out of
what the law was intended for. And of course there they pushed
it ridiculously, and people were humiliated and spent a
fortune, had their reputations damaged, ultimately were
exonerated.
The problem with all of this is that nobody can afford to
go to trial in this country anymore. Trials are essentially
gone. So once you are charged you are in a terrible, terrible
spot. The cost, the potential extreme trial penalty if you take
the case to trial, it has tipped the balance to such an extent
that the only way you have any protection is if you build into
the law some clear aspect of intent.
And I want to talk about that just in terms of these
questions about strict liability because we all know what we
are thinking about. We want to make sure that the public is
safe. The question I have is this. If there genuinely is no
knowledge, no recklessness, no negligence, nothing, the person
just received, for example, in the case of food, if you receive
food that has adulterated products in it and you put it on the
shelf, you really have no knowledge of that. It happened
somewhere else. But you could be prosecuted under the laws.
And that is not really right. You have to save the criminal
law for people who are knowingly doing something that is wrong.
And if you do not do that, then it loses its value. It
certainly does not, as I said in my statement, it does not
deter anything. It does, if it is a corporate situation, the
prospect of severe penalties, economic penalties will deter.
Mr. Conyers. Well, you make me remember that in many
criminal courts the defense lawyer may say to his client, look,
you can take a plea, or look, if we go to trial they have
already indicated they are going to throw the book at you. And
that is why your statement about once you get into the trial
you are in big trouble, whether you know it or not. And I would
like to ask Dr. Baker to add to this discussion.
Mr. Baker. I am happy to. I would like to distinguish that
it is easier to endure a state trial, because unlike a few
highly publicized ones that have gone a long time, you can
afford to defend most state trials. And there is going to be a
public defender there.
What you really cannot afford is to defend a Federal trial.
I mean, you are talking hundreds of thousands and into the
millions of dollars. Skilling, who took his case to the Supreme
Court, got there because he had a $42 million bankroll to get
there. It was an insurance policy. Ollie North, to get his case
reversed, he spent $40 million. The numbers are just mind-
boggling.
Mr. Conyers. Well, mens rea is an issue that surrounds this
discussion of really the fairness of trials. And, Mr. Chairman,
I think that that kind of leads us into another very important
area.
Mr. Sensenbrenner. I thank you.
The gentleman's time has expired. The gentleman from
Alabama, Mr. Bachus.
Mr. Bachus. Thank you. I think one of the problems here is
that I think most Members of Congress do not know the
difference in civil and criminal. I mean they have no
understanding there is a difference. I mean, we have thrown
around the term strict liability and negligence. Well, those
are civil. I mean, unless you are maybe a manslaughter case.
But, you know, so many of these statutes, and Dr. Reimer,
you mentioned Dodd-Frank, where you disclose that there is a
systemic risk determination, you know, not only does there not
have to be any intent, but you do not even have to know about
that there has been one. You do not even have to have notice
that you are disclosing something. You do not even have to know
that it even exists.
But that also, that statute also would appear to violate
freedom of speech because you could say that a company was
collapsing.
Mr. Reimer. Well, the provision, that is a very interesting
one, because that one, it is called reckless disclosure of
systematic risk, and it does have a reckless provision to it.
The problem with that statute is it does not define exactly
what it is--what disclosure was prohibited. It does not require
that the disclosure was done knowingly. And you do not even
have to know precisely what it is you are disclosing. So if you
are properly communicating to somebody about this risk and
someone else overhears it, have you recklessly disclosed the
systematic risk?
But the thing about that statute which is so--you know, I
talked about the situation with Unser, when you look at what
the statute was you see what the problem is. Here is another
example. This was a financial reform bill. And, you know, this
was buried in there. And I do not think that if anyone had
really thought about that--I understand what they are trying to
get at. We do not want people disclosing information that can
affect the markets. But you have got to be a little bit fairer
to the people who are going to be subject to these
prosecutions.
Mr. Bachus. Yeah. But, you know, you would actually had--if
you said specific intent, that it had been determined a
specific intent, but you do not even have to know there is a
statute.
Mr. Reimer. If it were willful, it would be a much
different story, because then the person would be doing it with
the intention to violate the law.
Mr. Bachus. You know, prosecutorial discretion, you know, a
lot of this prosecutors, in my opinion, should not even bring
the case and then judges ought to throw the cases out.
Mr. Reimer. Well----
Mr. Bachus. Why aren't they doing that?
Mr. Reimer. Well, I am not going to speak to why judges do
not throw cases out. We probably have some judges here who
could--former judges who could speak to that, but I will say
this, okay, as I said, look, prosecutors do not have a
difficult time getting convictions in Federal court. That is
just a fact of life. But the other thing to remember is this:
it should not be easy to convict somebody of a crime. It should
be a difficult chore. It should be required to prove that they
deserve to be punished. It is not asking for too much.
Mr. Bachus. And punished criminally.
Mr. Reimer. And punished--if it is going to be criminal,
yes.
Mr. Bachus. Because, I mean, I think, you know, you are
talking about fines and talking about traffic offenses.
Mr. Reimer. There are a lot of things we can do to deter
conduct and to make people pay a penalty to be more vigilant,
but if you want to brand somebody with what in this country has
really become a permanent disability, and that is an issue that
I hope maybe the Committee will take up as well, the whole
problem of collateral consequences is just out of control, but
if we are going to do that, it is not unreasonable to do it
with precision and make prosecutors come into a court and prove
it beyond a reasonable doubt.
Mr. Bachus. Well----
Mr. Sensenbrenner. The gentleman's time has expired.
Mr. Bachus. Let me just ask about lenity, just----
Mr. Reimer. I am sorry?
Mr. Bachus. Could len---I think it is----
Mr. Reimer. The rule of lenity.
Mr. Bachus. Lenity. These ambiguous statutes, you are
supposed to construe them in the defendant's favor.
Mr. Baker. Well, first of all, I do not favor the use of
the term ``lenity.'' The original term is strict construction.
And as Chief Justice Marshall explained in the Wiltberger case,
the reason why courts should strictly construe statutes is
because it is the obligation of the Congress to write them
clearly. What has happened is we have gone to the rule of
lenity, and the Court has in many cases actually flipped it,
and it is not lenity at all.
Mr. Sensenbrenner. Okay. The gentleman's time now has
expired. We are having blinking red lights here. The gentleman
from New York, Mr. Nadler.
Mr. Bachus. That is a traffic offense.
Mr. Nadler. Thank you. I thought I was going to have--I was
not able to think up enough questions, but listening to you, I
now have too many. I will try to get them in.
Mr. Baker. I must not have been clear.
Mr. Nadler. When you said the Federal criminal court--the
Federal criminal law is not coherent, and I understand what you
meant by that, and I am thinking about it, it is obviously
true. Do you think we should have a commission maybe or
something and to try to rewrite the entire--the Federal
criminal law, have a recodification of it to make it coherent
and up-to-date?
Mr. Baker. Well, actually I was on the Senate Judiciary
Committee staff at the time that was attempted in the early
1980's, and a lot of people threw up their hands. The
difficulty with a criminal code the way it was drafted, it
assumed that there was a general police power in the Federal
Government.
Mr. Nadler. Well, without that assumption, could we draft a
somewhat different criminal code?
Mr. Baker. I would hope, but it would not be an easy task,
but I know Mr. Sensenbrenner has taken a stab at it.
Mr. Nadler. Thank you. And the second thing, Mr. Reimer,
you said that, which is also obviously true, you cannot get a
trial today because it costs you $40 million, or it is
prohibitive. No one goes to trial, and therefore the prosecutor
has the total, total leverage in any plea bargain arrangement
because you have to take a plea, because unless you are a
millionaire you cannot go to trial. That is essentially what
you said?
Mr. Reimer. Well, that was Professor Baker who said that.
And----
Mr. Nadler. Okay.
Mr. Reimer. And I would just--I would make this point. I
think--well, why don't you complete your question and----
Mr. Nadler. My question is shouldn't we then try to do
something about that? In other words, have the Federal
Government pay for----
Mr. Reimer. Well----
Mr. Nadler [continuing]. Defense, not just if you are a
pauper, but a middle class person who cannot afford it, or
award total costs to some--total costs from the government if
you are acquitted or whatever?
Mr. Reimer. Well, I represent what I like to call as the
poor person's bar association. Most criminal lawyers in this
country are small and solo practitioners. And while I
appreciate the examples of Skilling and Colonel North and
others like that, the fact is that most people cannot afford
that kind of a defense and most people do not get that kind of
a defense. We do have, hopefully if we can solve some of the
problems that are lurking with respect to funding the Federal
indigent defense, to put a plug in for that, we have had up
till now a very good Federal indigent defense system.
Mr. Nadler. Do you think it is possible for a middle class
person who thinks he is innocent to actually go to trial?
Mr. Reimer. No. And it is not just--it is partly money, but
it is much more than that, Representative Nadler. It is, in
fact, the trial penalty. We have created a situation in this
country where prosecutors are holding all of the cards, all of
the discretion, and they routinely make people pay an
extraordinary price for the simple act of going to trial.
Mr. Nadler. Is that because of mandatory minimums or
something else?
Mr. Reimer. It is a combination of mandatory minimums,
complete control over the charging function. And it is also a
function of the difficulty of defending oneself with these
kinds of vague laws, and judges who, quite frankly, and this is
one of the big problems with knowingly, is when there is a
vagary, it is the judges who then decide to bring in doctrines
like willful blindness or conscious avoidance, and so all of
these things are stacked up against you. And, frankly, it is
because people cannot go to trial, because the cost
economically and the cost in terms of lost years of their life
is so extraordinary, that prosecutors are emboldened to bring
charges. And you see this all the time. You see it certainly on
the corporate side, you see that. The threat of a criminal
prosecution is so Draconian, that you get these plea
arrangements----
Mr. Nadler. Okay. Now, let me----
Mr. Reimer [continuing]. Deferrals and things like that.
Mr. Nadler. That gives us a wide range of problems to deal
with. Let me sort of go to the other side.
Professor, you said that we should not have crimes from
regulations, I think. And you also said that corporate--you
really should not prosecute corporations, you can deter them by
huge--excuse me. Let me rephrase that. You said that you can
deter misconduct, corporate, large scale misconduct by fines.
Now, isn't it the case that large corporations can just
regard even $50 million fines as a cost of doing business, and
you really need criminal penalties is if you are going to deter
if some of these cases?
Mr. Baker. Well, I do not think I really said much about
corporations here, although I have written on the issue. What
has happened, and you could hold another hearing on this--the
Sentencing Commission, which in 1992 decided to impose criminal
penalties on organizations. What it thereby did was create the
compliance industry, and the Justice Department went to
corporations and said you might be able to get a lesser penalty
if you are indicted and convicted if you go into compliance.
And there has been a long debate and discussion about what the
Department of Justice was doing on so-called white-collar
crime, and people focused on the corporation, but the reality
is that middle management in corporations do not really
understand the situation. They think that the corporations are
going to defend them, when, in fact, at least until recently,
corporations were throwing their employees under the bus under
the pressure of these compliance plans and other things, and
that would take a long discussion. But, again, you cannot jail
a corporation. And if a corporation is really an organized
crime entity, then you ought to destroy it. That is one thing.
But the corporations we have destroyed through prosecution----
Mr. Nadler. You can prosecute the President.
Mr. Baker. Well, the Anderson, Anderson----
Mr. Sensenbrenner. The gentleman's time has expired. The
gentleman from Idaho, Mr. Labrador.
Mr. Labrador. Thank you, Mr. Chairman.
Dr. Baker, in your written testimony, you stated that the
fundamental principle that ignorance of the law should not
excuse the crime rests on the assumption that the law is
knowable. What steps should we take to make sure that the law
is knowable. And I think it was Mr. Rime--is it Rimer?
Mr. Reimer. I say Reimer, but I never correct anyone who
says Rimer.
Mr. Labrador. Reimer. Okay. That is fine. Mr. Reimer. I am
Labrador, and people say it all sorts of different ways.
So I think Mr. Reimer said that it does not really deter
anything to have these laws that are unknowable. Can both of
you kind of address those issues?
Mr. Baker. Well, the framers of the Constitution and the
Federalists wrote that if you have too many laws, you do not
have the rule of law, because nobody can know what the law is.
We have got at least 4,500 Federal crimes, not counting a lot
of the regulatory crimes.
The difficulty we are getting into is that literally
everybody is a criminal. There is nobody that cannot--over 18
who cannot be indicted for something. And when that happens,
then the stigma, the legitimate stigma of the criminal law does
not attach. You want people to believe that being convicted is
such a terrible thing that they never have would happen to
them, but when innocent people are convicted, then--and anybody
can be convicted, it is like the lottery or getting struck by
lightning: you just figure, well, I hope I do not get struck by
lightning. And if that is the situation, you do not have the
same respect for the law. Too much in the way of law can
undermine the rule of law.
Mr. Labrador. Okay. Mr. Reimer, can you comment on that a
little bit?
Mr. Reimer. It was a judge who famously said you can indict
a ham sandwich. Well, you should not be able to convict a ham
sandwich, and that is really what this is all about. You
certainly should not be able to convict a baloney sandwich.
And, you know, it really just comes down to fundamental
fairness. If you do not know it is wrong and therefore you are
not acting with any intent or even recklessness or even
negligence, which you could put into a statute, then what do
you get in return for having criminalized this person?
Mr. Labrador. You know, as a conservative, I--and I do not
want to introduce politics necessarily, but it always amazes me
that conservatives talk about how we do not want a strong
Federal state, you know, we do not want a state control, we do
not want all these things, but yet as I have watched Congress
over the years, they continue to give the Federal Government
more and more authority to take away people's rights and
liberties. And I think there is somehow we need to figure out
here in Congress that--and I think there is something that
maybe both parties can agree to, that we have given the Federal
Government way too much control over people's lives, property
and really the pursuit of happiness when you are making so many
criminal laws.
Mr. Reimer. You know, the problem here really, you know, it
really is not coming from either political party or any
philosophy. The problem is that when something bad happens, it
is really easy to say, I will pass a law, I will make it a
crime. It looks like it does not cost anything. Of course it
does, it is just not an actual direct cost. It is an indirect
cost that comes about over many, many years and it just grows
and grows and grows. I was appearing actually before a
conference in Texas where a group of legislators were looking
at how many regulatory offenses they had in Texas. And
basically what had happened was each interest group had come in
and said, well, you know, I need a law to protect this, protect
that, and before you know it, you had, like, 400 laws in just a
few sessions. So, the problem is that our legislators all over
the country have not really taken the time to think about the
significance of passing a criminal provision.
Mr. Labrador. Yeah. I have been thinking about the whole
hearing, the maxim I have learned in law school that not every
wrongful act has a legal remedy and not every wrongful act
should definitely have a criminal penalty attached to it. There
are some things that we should not do.
Now, one last question. Have either of you done any studies
on what crimes should be only at the state level? Is there a
report out there, anything that maybe would educate us on how
we could, not just reform the Criminal Code, but just get rid
of a bunch of the crimes that are in the Criminal Code?
Mr. Baker. Well, I think whenever any of us write on this
issue, it is against that background. The Constitution leaves
general police power in the states, because if the Congress has
a general police power, then we do not have a government of
limited powers.
Mr. Sensenbrenner. The gentleman's time has expired. The
votes have been moved up to 10:15. And, you know, the Chair
will note that he has restrained himself from asking questions,
but I will not recognize anybody new after the bell rings for
votes.
The gentleman from New York, Mr. Jeffries, is recognized.
Mr. Jeffries. Thank you, Mr. Chairman.
On the mens rea spectrum from, most severe to most lenient,
seems that you have got, four possible categories: there is
willfulness, then you have got recklessness, then you have got
negligence, then you have got strict liability. And there
appears to be at least a growing consensus amongst the
witnesses, amongst the distinguished Members of the Task Force
that we should be moving toward instances where willfulness or
something more severe as it relates to mens rea is required in
most instances, and that we should really limit, if not
completely eliminate, strict liability as a mens rea
requirement.
I am interested in your observations as to what
circumstances would it be appropriate, if any, where we have
got sort of these in between standards enshrined into Federal
statute, either a recklessness statute--recklessness or
negligence mens rea requirement.
Mr. Baker. Well, again, you have got to relate it to the
other elements of the statute. Even in the context of
negligence, negligence de facto can end up being a strict
liability and really simply a civil tort statute. So obviously
where you--let me just take a simple example of burglary. Okay?
Where when you enter a house or a building without
authorization, that is a trespass. How do we distinguish a
trespass from a burglary? We add a specific intent, with the
intent to commit a felony therein, or a theft. Okay. What we
are doing is out of all the possible intents that a person
could have when they enter, we want to make sure we only
criminalize the one that deserves criminality. So suppose
somebody trespasses and they come into the house because it is
raining. They are still guilty of a trespass, but it is not
really burglary, because they were coming in to get out of the
rain. It is still wrong, but trespass is not burglary. So by
requiring a specific intent, you make sure that you have
limited, the purpose of a specific intent is to limit the
category of people and the actions that are deemed to be
seriously criminal.
Mr. Jeffries. Okay. Mr. Reimer, in your testimony, you
mentioned the recommendation of a default mens rea requirement
as one of the ways in which to protect the liberties of people
against the phenomenon of over-criminalization and aggressive
prosecutorial discretion exercised in an inappropriate way.
Do you think it is also appropriate for us to think about
building affirmative defenses into statutory law in any way,
shape or form that will hopefully minimize or limit the abuse
of prosecutorial discretion or create circumstances where one's
ability to defend themselves at a trial is enhanced?
Mr. Reimer. That is a very difficult question to answer. It
is a great question. It is difficult to answer. The problem
with affirmative defenses are they are simply that. They are
defenses and they shift the burden of proof to an accused
person. They may be appropriate in certain circumstances. The
law recognizes a number of them, but I would not recommend that
as the solution to inadequate intent.
And I want to be clear about our proposal for a default
statute. We are not saying that you should rely on the default
in the first instance. If you are creating a new statute,
Congress should decide what is the level of intent that is
required under--as Professor Baker says, what is the wrong that
is involved? Make your judgment. The default would kick in only
if Congress has failed to do that or it would conceivably apply
retrospectively.
Mr. Jeffries. Professor Baker, you mentioned good faith
ignorance as sort of a situation that should countenance
against possible prosecution of criminal liability. Could you
elaborate?
Mr. Baker. Well, as Mr. Reimer has said, if you have a
willfulness or a strong mens rea, that protects against the
problem of ignorance of the law. I know that Congress does not,
and nobody wants to countenance the notion that ignorance of
the law is a defense, but in order to maintain it, it is
incumbent upon the Congress to ensure that there is a clear
mens rea so that people cannot fall into the situation where in
good faith they did not know.
Mr. Jeffries. Now, lastly, you mentioned the prosecutorial
abuse of the mail fraud statute, or the aggressive
interpretation.
Mr. Baker. I was----
Mr. Jeffries. Could either of you comment----
Mr. Baker. Sure. I was----
Mr. Jeffries [continuing]. As to whether we should address
that specific situation?
Mr. Baker. I had the pleasure of meeting the Justice
Department on one of their expansions in the Fifth Circuit a
few years ago. The difficulty is, and I will comment what he
would not, when there is an indictment, Federal district judges
do not want to be reversed. I do not care what party appointed
them. They do not want to be reversed. In a criminal case, the
safest way, when the defense argues that the government has
gone beyond its power, to avoid getting reversed is to simply
rule against the defendant. Then the chances are 95 percent
that the defendant is going to plead guilty.
Mr. Jeffries. Thank you.
Mr. Sensenbrenner. The gentleman's time has expired. The
gentleman from Texas, Mr. Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman.
And I know you have given us deference. Yes, it is tough to
legislate, but I will submit to you what makes it really tough
to legislate is the fact that there are, having been a former
judge and chief justice, I can tell you that there are judges
who are educated far beyond their biologically intellectual
ability to assimilate information and come out with wisdom, and
it creates real problems. So it should not be difficult for a
legislature to say, you shall do something, and yet we have
judges that say, well, now, that term ``shall'' is really
ambiguous. Not if you have common sense, but places like the
Ninth Circuit, that it is not common, it is just sense. But I
know our Chairman had made a valiant effort at one point to try
to reorganize the Federal circuit court system, and I still
think we should have confined the Ninth Circuit to disputes
that were arising within their building, but I want to just cut
to the chase here. You know, a lot of great points have been
made, and this is an area where there is true bipartisanship,
because you do not want innocent people to be hurt by what we
do here in Washington.
I have been hearing and I have read the information last
night that was being proffered. Is it possible that we could
draft a law that would be sufficient as one law to require mens
rea and intent without having to go in and redo 5,000 criminal
statutes? Do you think we need to go in and actually clean up
every law, or could we be precise enough that we could affect
every law to get the state of mind requirement in there?
Mr. Reimer. I think the proposal that we are suggesting
will go a long way toward taking care of the existing statutes.
I am not saying----
Mr. Gohmert. But a long way is not----
Mr. Reimer. May not be perfect, Representative Gohmert. I
am not going to sit here and say, well, it is an absolute
perfect fix, but I think it would really take care of most of
the situations that we have been talking about, and then, of
course, going forward to make sure it does not continue to
happen.
Mr. Gohmert. And do you a comment, Mr. Baker, on that?
Mr. Baker. No. I agree with that.
Mr. Gohmert. With regard to the issue of regulations that
can result in incarceration, do you think if we drafted a
sufficiently specific law that in effect said no regulation
that has not been approved specifically by Congress could
require incarceration as part of the penalty? That would be
adequate to cover some laws where we actually leave that much
discretion to regulators?
Mr. Reimer. I have no capacity to say what this would mean
for your workload, but, yes, I would love to see it if you
would require that any reg that imposes a criminal penalty has
to be approved by Congress. However, the Unser example I gave
you is the classic problem. The statute gives the secretary of
that department----
Mr. Gohmert. Right.
Mr. Reimer [continuing]. The right to make regulations, and
they are criminal. The regulation itself does not say it is a
crime. It just says, thou shalt not use a motor vehicle in the
forest.
Mr. Gohmert. But so you think we could have one law that we
passed that would take away any ability for, whether it is a
secretary or----
Mr. Reimer. Yes.
Mr. Gohmert [continuing]. A bureaucrat in a tiny cubical to
be able to pass regulations that carry----
Mr. Reimer. The default we are proposing, which would apply
to all laws and regulations, would mean that in that situation,
you would have to--because it is silent as to intent, you would
have to apply what we are suggesting should be a willful
standard, which means that they would have to--they would have
had to have proved that Bobby Unser drove that vehicle knowing
that he was breaking the law.
Mr. Gohmert. Okay. Thank you very much.
Thank you, Mr. Chairman.
Mr. Sensenbrenner. Thank you very much. The only person who
has not asked questions before the bell rang is the Chair, and
the Chair is going to impose his rule that we are not going to
recognize anybody after the bell rings on himself.
Are the Members to my right listening to this?
Mr. Gohmert. I hear you.
Mr. Sensenbrenner. Okay. The gentleman from Virginia has
some UC requests.
Mr. Scott. Mr. Chairman, I ask unanimous consent that an
outline from the Criminal Justice Policy Foundation be entered
into the record.
Mr. Sensenbrenner. Without objection, so ordered.
[The material referred to follows:]
Prepared Statement of Eric E. Sterling, President,
The Criminal Justice Policy Foundation
summary of recommendations to the task force
(1) Assure that federal crimes are grounded in the text of the
Constitution. If the enumerated powers are inadequate to the needs of
the government to carry out its responsibilities, the Constitution
should be amended, but the meaning of its words should not be twisted
or ignored.
(2) Review federal crimes to assure that they only punish misconduct
that deserves the loss of liberty. The moral authority of the
government to deprive a citizen of his or her liberty exists only when
a citizen's misconduct is wrongful.
(3) Commission a study of the actual cost to the American economy of
over-criminalization and over-punishment. 20 million Americans have a
felony conviction, and about 65 million have a criminal record. Most
companies consider convictions an influential factor in not extending a
job offer. Without a paycheck there is no car loan, credit card, or
home mortgage. Overcriminalization means the economic participation of
tens of millions of Americans is severely stunted which hurts almost
every company. Thus, as I comment on my blog, www.profitsunchained.com,
every American investor is hurt by overcriminalization. The American
auto industry shrank as America's prison population mushroomed from
250,000 to 2.3 million, and the number of Americans with criminal
records rose. Fewer Americans could buy Fords, Chevrolets and Dodges,
or other goods.
(4) Review federal crimes to assure that they all have the proper mens
rea.
(5) Study the problem of excessive punishment. Wasted punishment is
extremely expensive and fails to deter crime effectively, as well as
being manifestly unjust. For many federal offenses, the sentences need
to be shorter.
(6) Enact a mechanism to end sentences upon rehabilitation, such as
sealing conviction records 5 or 10 years after sentence completion. The
collateral consequences of a conviction should not be a life sentence.
(7) Scrutinize Justice Department case selection practices and the
supervision of prosecutors to identify overcriminalization in practice.
Congress should stop DoJ's excessive focus on low-level cases revealed
by U.S. Sentencing Commission studies of federal drug cases.
(8) Revise the quantitative criteria for identifying high-level drug
traffickers in the Anti-Drug Abuse Act of 1986. The current triggers
were a hastily drafted mistake.
__________
prepared statement
Chairman Sensenbrenner, Representative Scott, and Members of the
task force:
I congratulate you for convening this task force to discuss the
serious problems of overcriminalization of behavior and the over-
federalization of crime.
As assistant counsel to the House Committee on the Judiciary from
1979 to 1989, I began my career in Washington working on the Criminal
Code Revision Act in the 96th Congress (H.R. 6915, 96th Cong. 2d
Sess.). I have spent over thirty years of my legal career thinking
about these problems and the appropriate scope of Congress's power to
punish under Article I, Section 8 of the Constitution.
In the 97th through the 100th Congresses, on the staff of the
Subcommittee on Crime under Chairman William J. Hughes (D-NJ), I was
the attorney principally responsible for federal drug laws, gun
control, pornography, organized crime, money laundering and other
matters. My career on the Hill is best known for my role assisting the
Crime Subcommittee develop the mandatory minimum drug sentences in
August 1986 as part of the Anti-Drug Abuse Act of 1986 (P.L. 99--570,
Sections 1002 and 1302).
In addition, over the past three decades I have taught courses in
crime and criminal justice at American University and George Washington
University, and lectured to academic, professional and civic audiences
all over the country. I have served as President of the Criminal
Justice Policy Foundation since 1989, working on projects to improve
the nation's criminal justice system.
As you begin the work of this task force, I have the following
eight recommendations:
First, the task force (or its successors) should undertake a review
of all federal crimes to assure that they are grounded in the text of
the Constitution and the scope of Congress's power to punish conduct.
The Constitution gives limited powers to Congress in Article I,
Section, 8, especially in the area of criminal law. If those enumerated
powers do not provide the authority for the proposed crime, there is a
strong argument that it should not be a federal crime at all. When
misconduct threatens society or individuals in a new manner not
prohibited by law, then perhaps a new crime is necessary, but it must
be grounded on powers of Congress found in the text of the
Constitution.
When the current federal law is inadequate to address the crime and
to protect public safety, but there is no authority in the Constitution
for Congress to act, then instead of twisting the meaning of the terms
in the Constitution, the Constitution should be amended. The
Constitution is in writing in order to preserve its meaning at the time
its provisions were written.
Over the past 80 years, Congress has grounded many criminal laws,
including, for example, the Controlled Substances Act, on the power in
Article I, section 8,
``to regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes.''
When the Constitution was written and ratified, commerce simply
meant trade. It was not a synonym for all economic activity or for the
use of money. Unfortunately, for many decades Congress has relied on a
meaning of the term ``Commerce'' that is far more broad than when the
Constitution was written, and uses that broad reading of its commerce
power to regulate a great deal of activity of the American people.
A way to understand the absurdity of this broad reading is to
consider the many varieties of conduct that take place primarily within
a state that are now being regulated by Congress as affecting
interstate or foreign ``Commerce,'' and imagine Congress claiming the
power to regulate that conduct when it takes place in every ``foreign
Nation'' because it affects ``Commerce.'' The doctrine that marijuana
use which takes place wholly in California is subject to federal
regulation because it affects ``Commerce'' (asserted by the U.S.
Supreme Court in Gonzales v. Raich 545 U.S. 1 (2005)) logically means
that, under that clause of the Constitution, Congress also has the
power to prohibit the use of marijuana within European states because
the market for drugs there also affects the price and supply of drugs
in the United States. There is nothing in the broad interpretation of
the ``Commerce'' power that has extended federal power to purely
intrastate activity that limits that power when that kind of activity
takes place within a foreign nation. (Surely the distinction can't rely
on the difference between ``regulating Commerce with'' and ``regulating
Commerce among.'') If the nation needs Congress to regulate the
economy, then the nation should revise the Constitution to provide
Congress with such power. If the nation needs the federal government to
prosecute use and sale of drugs that takes place wholly within a state,
the nation should amend the Constitution to do so.
``Overcriminalization'' endangers liberty and undermines the federal
system and the powers of the states when Congress declares conduct to
be criminal when it has no power to do so in the Constitution.
Second, the task force (or its successors) should review federal
crimes to assure that the law only punishes misconduct that deserves
the loss of liberty. The moral authority of the government to deprive a
citizen of his or her liberty for violating a law exists only when a
citizen's misconduct is wrongful. Conduct is only wrongful when it
hurts someone else--e.g., it is an assault, a theft, or the abridgement
of a right--or is the failure to carry out an important duty, such as
paying taxes. The authority to punish is not triggered because the
conduct is simply immoral or offensive (even if in the view of a
majority of the population). Conduct such as adultery, breach of
contract, lying, cheating at cards or other games, plagiarism, etc. are
wrong or immoral, but they are not wrongful in the narrow sense that
those who do so deserve punishment by the government and the
deprivation of the liberty of the offender. (I suggest you consider the
analyses on these points of Douglas Husak, Professor of Philosophy and
Law, Rutgers University in his book, Overcriminalization: The Limits of
the Criminal Law (Oxford University Press, 2008)).
Third, the task force (or it successors) should commission a study
of the economic cost to the society of over-criminalization and over-
punishment. One team of sociologists has estimated that 20 million
Americans have a felony conviction.\1\ Another study estimates that 65
million Americans have a criminal record.\2\ These criminal records
result in unemployment and underemployment, and devastate the earning
capacity of an enormous fraction of the population. Because our economy
is strongly consumer driven, that 20 million Americans cannot fully
participate in the legitimate economy diminishes the sales and profits
of a majority of American businesses.\3\ No other nation punishes its
people so extensively, and I suggest no other economy is paying such a
high price for over-criminalization.
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\1\ Sarah Shannon, Christopher Uggen, Melissa Thompson, Jason
Schnittker, and Michael Massoglia, GROWTH INTHE U.S.EX-FELON AND EX-
PRISONER POPULATION, 1948 TO2010, Population Association of America,
Washington DC, 2011.
\2\ Michele Natividad Rodriguez and Maurice Emsellem, 65 Million
``Need Not Apply'': The Case for Reforming Criminal Background Checks
for Employment, National Employment Law Project, March 2011. http://
www.nelp.org/page/-/65_Million_Need_Not_Apply.pdf?nocdn=1.
\3\ John Schmitt and Kris Warner, Ex-Offenders and the Labor
Market, Center for Economic and Policy Research, November 2010. http://
www.cepr.net/documents/publications/ex-offenders-2010-11.pdf.
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A January 2010 survey by the Society for Human Resource Management
found that more than three-quarters of American companies consider a
felony or misdemeanor conviction (even non-violent misdemeanors) an
influential factor in not extending a job offer to an applicant.\4\
This practice is self-defeating. When most companies won't hire tens of
millions of Americans who would otherwise be qualified for a job, tens
of millions of Americans can't get a paycheck. With no paycheck, tens
of millions of Americans can't get a car loan, credit card, or home
mortgage.
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\4\ Society for Human Resource Management, Background Checking--
Conducting Criminal Background Checks SHRM Poll, January 22, 2010.
http://www.shrm.org/Research/SurveyFindings/Articles/Pages/
BackgroundCheckCriminalChecks.aspx.
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As I comment on my blog, www.profitsunchained.com, every American
investor is being hurt by over-criminalization. Simply think about the
consequences for the American auto industry as the size of the prison
population steadily has grown from 250,000 to 2.3 million over 40
years. Now there are two million more Americans who are no longer in
the market for a Ford, Chevrolet or Dodge than there were in the 1960s
and 1970s.
The problem for the American economy is much larger. With tens of
millions of felons and misdemeanants unable to find employment that
pays them what they could earn but for ``overcriminalization,'' their
reduced income means there is reduced consumption of almost every good
and service produced in America. A comprehensive Pew study found that
ex-offender earnings are significantly reduced: Subsequent wages are
approximately 11% lower, annual earnings are approximately 40% lower,
and the total number of weeks worked is almost 20% fewer.\5\ An ex-
offender who cannot obtain a credit card can't buy from Amazon.com nor
order tickets to a basketball game from Ticketmaster. Across the board,
every American business suffers from reduced sales, and thus every
American investor obtains a smaller return on investment. The entire
American GDP is stunted.
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\5\ Bruce Western and Becky Pettit, Collateral Costs:
Incarceration's Effect on Economic Mobility, Pew Charitable Trusts,
2010.
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No doubt you have heard the attack upon the private prison
industry. A business whose growth model depends upon a continued
increase in a supply of prisoners is dubious investment on many
grounds. But whatever profits it makes because of overcriminalization
are infinitesimal when measured against the losses endured by the whole
American economy society due to over-punishment. The task force should
not let a critique of the profits of the private prison industry
distract it from the big economic picture: all over the country,
American workers and investors are being hurt because about 65 million
persons have criminal records that last a lifetime. These economic
costs are doubly unnecessary because these life-long records are often
the result of youthful misconduct that ought to have been forgiven and
forgotten within a few years.
Fourth, the task force (or its successors) should review federal
crimes to assure that all crimes have proper mens rea. Intrinsic in the
problem of over-criminalization has been the failure of Congress (and
state legislatures) to require the traditional element of criminal
culpability be proven in all cases.
One possibility might be to enact a general rule to set forth
minimum mens rea requirements to be proven for all federal offenses for
which mens rea has not been specified for every element of the offense.
Of course, a different degree of mens rea might be necessary based the
variety of conduct, the variety of circumstances, and the variety of
consequences that are elements of various offenses.
Fifth, the task force (or its successors) should recognize that an
essential element of the problem of over-criminalization is that it
``produces too much punishment.'' \6\ This task force should reduce
sentences and sentencing guidelines that are longer than necessary to
meet the purposes of sentencing, and enable ex-offenders--after a
period that evidences their rehabilitation--to no longer have to
identify as ex-offenders. The task force should assure that most ex-
offenders do not have a life-long record.
---------------------------------------------------------------------------
\6\ Douglas Husak, Overcriminalization: The Limits of the Criminal
Law, Oxford University Press, 2008, p. 3.
---------------------------------------------------------------------------
My experience as counsel to the House Judiciary Committee is that
Congress sets punishments with the most serious criminals in mind to be
appropriately punished. That makes sense, but the reality is that the
overwhelming majority of criminals prosecuted by the Justice Department
never approach that level. For example, when Congress created the
mandatory minimum and maximum penalties for drug offenders in 1986, we
expected the Justice Department would use these penalties for men like
Pablo Escobar. Tragically for most federal drug offenders those minimum
and maximum sentences are unjustly long. A classic example of this kind
of wholesale miscarriage of justice is the case of former college
student Clarence Aaron, who is still serving three terms of life
imprisonment for a small role in a Mobile, Alabama crack conspiracy.\7\
Punishments should be proportionate to culpability. Efforts to reform
disproportionate sentences, such as the mandatory minimum sentences,
have too often been challenged by exaggerations that any reduction in
sentences is an excusing of conduct, even when the maximum sentence
would remain 40 years or life.
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\7\ FoxNews.com, ``Locked Up for Life,'' Dec. 4, 2008, http://
www.foxnews.com/story/0,2933,461747,00.html.
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Not only are these long sentences unjust, they are ineffective and
wastefully expensive. For deterrence to be effective, quick punishment
is required, not the threat of a potentially long sentence. This
requires prison and jail cells be available for the large mass of
offenders and puts a premium on apprehension, not long expensive
incarceration. Prison overcrowding undermines the ability of the
justice system to create effective deterrence.\8\ Prison overcrowding
has made it more expensive to operate the federal prisons. The per
capita cost has risen from $19,571 in FY 2000 to $26,074 in FY 2011.\9\
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\8\ Mark A.R. Kleiman, When Brute Force Fails: How to have less
crime and less punishment, Princeton University Press, 2010.
\9\ Nathan James, The Federal Prison Population Buildup: Overview,
Policy Changes, Issues and Options, Congressional Research Service,
R42937, Jan. 22, 2013, p.2.
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Sixth, the task force (or its successors) should take action to
assure that sentences come to an end. In our grammar, every sentence
ends with a period. But in our criminal justice records, no sentence
has a period, it lasts forever. It is a tragic instance of
``overcriminalization'' that every offense now carries what is
effectively a life sentence. The Task Force should enact reforms to
assure that rehabilitated ex-offenders are not subject to a ``life
sentence,'' and that collateral consequences terminate at some point
after a nominal sentence has been served. Because every misdemeanor or
felony is now, in effect, a ``life sentence,'' we have seriously
undermined the value and importance of rehabilitation. The task force
should enact mechanisms that provide that five or ten years after
service of a sentence is completed, the criminal record is sealed and
no longer overshadows a record of recovery and rehabilitation.
Seventh, the task force (or its successors) should engage in
searching oversight of the case selection practices of the Department
of Justice. When the federal government prosecutes cases that have no
genuine federal nexus, this is overcriminalization in a very practical
sense. For example, in 2005, over 75% of crack offenders and 25% of
powder cocaine offenders operated only at the neighborhood and local
level, according to the United States Sentencing Commission.\10\ Over
50% of offenders in both categories did not even rank above street
dealers.\11\ These are drug offenders who are properly punished by
state authorities. These numbers also tell us that the Justice
Department is misusing the statutes and disregarding Congressional
intent that high level offenders be the focus of federal drug
enforcement.\12\
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\10\ U.S. Sentencing Commission, Report to Congress: Cocaine and
Federal Sentencing Policy, May 2007, Figure 2-7, p. 22.
\11\ U.S. Sentencing Commission, Report to Congress: Cocaine and
Federal Sentencing Policy, May 2007, Figure 2-4, p. 19.
\12\ H.Rept. 99-845, Part 1, to accompany H.R. 5394, Narcotics
Penalties and Enforcement Act of 1986, enacted in P.L. 99-570, Title I,
Subtitle A--Narcotics Penalties and Enforcement Act of 1986. (``The
Committee strongly believes that the Federal government's most intense
focus ought to be on major traffickers, the manufacturers or the heads
of organizations, who are responsible for creating and delivering very
large quantities of drugs.'' at pp. 11-12.)
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The average weight of 41 federal crack cocaine cases was 3.1 grams
in the District of New Hampshire in 2006.\13\ Unless these offenders
were actually murderers or intimidating witnesses, their federal
prosecution for these tiny quantities of drugs was a waste of the
energies of federal agents, the talents of federal prosecutors, the
judgment of federal judges and space on precious federal prison beds.
In 2006, over one-third of federal crack cases involved less than 25
grams, half the weight of a candy bar.\14\ This is the waste of
investigational and prosecutorial energy properly directed at
international drug lords or criminal gangs that keep cocaine flowing to
the crack houses. In FY 2012, the largest category of federal drug
cases involved marijuana (6,992), far exceeding the number of heroin
cases (2,192) and crack cocaine cases (3,511).\15\
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\13\ U.S. Sentencing Commission, Report to Congress: Cocaine and
Federal Sentencing Policy, May 2007, Table 5-2, p. 108.
\14\ U.S. Sentencing Commission, Report to Congress: Cocaine and
Federal Sentencing Policy, May 2007, Table 5-3, p. 112.
\15\ U.S. Sentencing Commission, 2012 Sourcebook of Federal
Sentencing Statistics, Table 33.
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Eighth, the task force (or its successors) should revise the
criteria regarding whom to incarcerate and for how long. Congress
wanted the Justice Department to focus on high level offenders by
enacting the Anti-Drug Abuse Act of 1986 \16\ but Congress selected
relatively small quantities to trigger the mandatory sentences.\17\ For
decades, everyone has understood that those quantities--selected in
haste--were a mistake and are too low. These quantities enable
prosecutors to force low-level offenders to testify against others in
an attempt to obtain a departure from the mandatory sentence by
providing ``substantial assistance.'' \18\ Even those sentences are
terribly long. More importantly, only a tiny number of high-level
traffickers are actually snared. The Justice Department almost never
uses the king-pin statute, 21 U.S.C. 848, according to the U.S.
Sentencing Commission.\19\
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\16\ H.Rept. 99-845, Part 1, see Note 11, supra.
\17\ E.g., 100 g. of heroin, 500 g. of cocaine, 5 g. of cocaine
base (``crack''), 10 g. of PCP (or 100 g of a mixture containing a
detectable amount of PCP, 1 g. of LSD, 40 g. of fentanyl, 100 kg. of
marihuana. (P.L. 99-570, 100 STAT. 3207-3; 21 U.S.C. 841(b)(1)(B)).
\18\ P.L. 99-570, section 1007(a); 18 U.S.C. 3553(e).
\19\ U.S. Sentencing Commission, 2012 Sourcebook of Federal
Sentencing Statistics, Table 33.
http://www.ussc.gov/Research_and_Statistics/
Annual_Reports_and_Sourcebooks/2012/Table33.pdf.
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conclusion
The limitations on federal government power in the Constitution
mean that the federal criminal justice footprint should remain a
relatively small part of the nation's criminal justice system. But the
Acts of Congress are powerful examples for the legislatures of the 50
states. When Congress enacted mandatory drug sentences, many states
followed. Similarly, the actions of this task force could have profound
positive effects across the nation and our criminal justice system.
Overcriminalization has led to an enormous increase in the federal
prison population. According to a 2013 Congressional Research Service
Report, the federal prison population has risen almost 800% in 30
years, from 25,000 in 1980 to 219,000 in 2012.\20\ Overall, the federal
prison system is operating at 39% over capacity. We do not need to
spend $236 million in FY2014 to build more federal prisons on top of
$8.5 billion for operations, as the Administration requested; \21\ we
could let thousands of low-level, low-risk offenders out of federal
prison.
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\20\ Nathan James, The Federal Prison Population Buildup: Overview,
Policy Changes, Issues and Options, Congressional Research Service,
R42937, Jan. 22, 2013.
\21\ Department of Justice FY2014 Budget Request, Press Release,
April 10, 2013. http://www.justice.gov/opa/pr/2013/April/13-ag-
413.html.
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The American population under correctional control has grown
enormously. If this task force helps shrink the population subject to
federal punishment, the effect on the total punished population may be
small, but it could have a large indirect effect as state legislatures
follow Congress's example.
The convening of this task force is one of the most positive
developments in criminal justice policy in many years. I commend you
for this undertaking. If there is any way that the Criminal Justice
Policy Foundation can assist your work, do not hesitate to contact us.
__________
Mr. Sensenbrenner. I would like to thank both of the
witnesses for their very useful testimony. I will get back to
one of you or both of you with the hot idea that I have, which
might be off the record, because the bell has rung, and that
might be just as good. So I thank everybody for their very
useful participation. I think we got a lot of the issues out
that we need to deal with. And without objection, the Task
Force is adjourned.
[Whereupon, at 10:20 a.m., the Task Force was adjourned.]