[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
REGULATORY CRIME:
IDENTIFYING THE SCOPE OF THE PROBLEM
=======================================================================
HEARING
BEFORE THE
OVER-CRIMINALIZATION TASK FORCE OF 2013
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
OCTOBER 30, 2013
__________
Serial No. 113-60
__________
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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OCTOBER 30, 2013
Page
OPENING STATEMENTS
The Honorable Louie Gohmert, a Representative in Congress from
the State of Texas, and Vice-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.................................................. 4
WITNESSES
Reed D. Rubinstein, Partner, Dinsmore & Shohl LLP
Oral Testimony................................................. 7
Prepared Statement............................................. 10
Rachel E. Barkow, Segal Family Professor of Regulatory Law and
Policy, New York School of Law
Oral Testimony................................................. 21
Prepared Statement............................................. 23
Lawrence Lewis, Bowie, Maryland
Oral Testimony................................................. 34
Prepared Statement............................................. 37
Mr. and Mrs. Steven Kinder, Grand Rivers, KY
Oral Testimony................................................. 42
Prepared Statement............................................. 44
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..................... 5
Prepared Statement of the Honorable Bob Goodlatte, a
Representative in Congress from the State of Virginia, and
Chairman, Committee on the Judiciary........................... 6
Material submitted by the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 61
APPENDIX
Material Submitted for the Hearing Record
Letter from Rachel E. Barkow, Segal Family Professor of
Regulatory Law and Policy, New York School of Law; and Reed D.
Rubinstein, Partner, Dinsmore & Shohl LLP...................... 72
Response to Questions for the Record from Reed D. Rubinstein,
Partner, Dinsmore & Shohl LLP.................................. 76
Letter from Benjy Kinman, Deputy Commissioner, Kentucky
Department of Fish and Wildlife................................ 79
Prepared Statement of the Association of Fish and Wildlife
Agencies....................................................... 81
REGULATORY CRIME:
IDENTIFYING THE SCOPE OF THE PROBLEM
----------
WEDNESDAY, OCTOBER 30, 2013
House of Representatives
Over-criminalization Task Force of 2013
Committee on the Judiciary
Washington, DC.
The Task Force met, pursuant to call, at 10:02 a.m., in
room 2237, Rayburn Office Building, the Honorable Louie
Gohmert, presiding.
Present: Representatives Bachus, Gohmert, Holding, Scott,
Conyers, Nadler, Bass, and Jefferies.
Staff present: (Majority) Robert Parmiter, Counsel; Daniel
Huff, Counsel; Alicia Church, Clerk; (Minority) Ron LeGrand,
Counsel.
Mr. Gohmert. The meeting will come to order.
Good morning. Welcome to the Over-criminalization Task
Force's third hearing.
Thus far, the Task Force has examined over-criminalization
issues in Federal statutory law. Chief among them is the
absence of a defined mens rea or intent requirement from the
Federal criminal code. Congressional statutes, though, are
merely the tip of the iceberg. Over the last 50 years, there
has been enormous growth in Federal regulatory, state and, with
it, a shift of power from elected officials to unaccountable
bureaucrats at Federal regulatory agencies.
Now the vast majority of laws governing individuals and
businesses in the United States are passed not by Congress but
are issued as regulations crafted by unelected, unaccountable
bureaucrats. There are at least an estimated 4,500 criminal
statutes on the books today, up from 165 in 1900, but as many
as 300,000 criminally enforceable regulations. In other words,
the ratio of regulatory crimes to statutory crimes is 67 to 1.
This hearing is not about the substance of all these
regulations. That is a discussion for a different day.
The question before us is solely on the propriety of
criminal rather than civil penalties. Criminal sanctions are
serious. They carry terms of imprisonment, create stigma, and
can have lasting economic consequences such as diminished
employability and ineligibility for government benefits, in
addition to other life-changing problems as the stroke that we
have seen with one of the victims of this over-criminalization.
Accordingly, they should only attach to violations that society
generally recognizes as morally blame-worthy.
This hearing is about when, if ever, such onerous criminal
sanctions are appropriate punishment for violating agency
regulations. If so, how should those crimes be defined, and
most important, who should be making those decisions?
It has become a routine practice for Congress to authorize
an agency generally to promulgate regulations while providing
that violating the yet-to-be-seen regulations will be a
criminal offense. This poses a series of fundamental problems
beyond the already familiar lack of adequate notice of intent
requirements.
First, the bureaucrats who create the regulatory crimes are
unaccountable to an electorate. This makes them immune from
public opinion which operates as a check when it is, instead,
the legislative branch making criminal law.
By contrast, legislators have the broader societal
perspective necessary to determine what behavior society deems
most blameworthy and therefore the proper subject of criminal
sanction.
Similarly, as a result of these broad congressional
delegations, the substantive regulatory standards that define
regulatory crimes are drafted by agency bureaucrats largely
shielded from public debate. Their efforts do not have the
benefit of the full open and public scrutiny that helps improve
the legislative definition of crimes in Congress. The result is
less transparency and deliberation precisely when such
procedural protections are most needed because individual
liberty is at stake.
Regulations are also much more dynamic than traditional
statutory crimes. Requirements that change with evolving
science and standards sometimes rest upon assumptions about the
efficacy of unproven technology. This complicates notice and
compliance, which seems unfair if violations are to bear
criminal penalties.
Another factor is that regulatory crimes can be created
indirectly when statutes forbidding certain general behaviors
such as lying to officials are applied to regulatory
infractions that are not otherwise criminal. The result is
criminal sanctions for activity that may be far removed from
what Congress contemplated when it delegated rulemaking
authority to the agency.
Finally, prosecutorial discretion and appeals to the courts
may not be sufficiently effective failsafes for unfair results
from regulatory crimes. A collection of liberal and
conservative groups, including the ACLU and the Heritage
Foundation, produced a pamphlet of examples of cases that I
believe most Americans would agree should never have been
brought.
In the courts, precedents have eroded intent requirements
in the context of regulatory offenses while demanding greater
deference to agencies' interpretation of the scope of their
rulemaking power. Accordingly, agencies are now able to expand
their criminal lawmaking power even to areas that Congress did
not specifically commit to the agency. In short, the enormous
growth in the regulatory state has been accompanied by an
explosion of regulatory crimes. If unaddressed, the growing
problem of otherwise law-abiding citizens jailed for violation
of ill-defined regulations is a morass of rules of which they
cannot possibly be fully aware, and that threatens to undermine
the legitimacy of the criminal law and dilute its moral force.
We have an excellent panel of witnesses with us today, and
I thank them for being here. I know you are not here because of
the pay you get, and for people that may not know, they do not
get paid. They are here because they care about what we are
doing. And so we are very grateful for your presence. And
knowing the story of some of our witnesses, I feel like an
apology is due.
But in any event, I look forward to hearing your testimony
today, appreciate you all being here.
And people sometimes ask why don't you guys in Congress get
along. Well, it depends on what the issue is.
But I now want to recognize a friend, the Ranking Member of
the Task Force, the gentleman from Virginia, Mr. Bobby Scott.
Together, we have been concerned about this issue and working
together for years. And it is an honor to recognize Mr. Scott.
Mr. Scott. Thank you. Thank you, Mr. Chairman.
As you pointed out, during the 111th Congress, when you
were Chair of the Crime Subcommittee, the Judiciary Committee's
Subcommittee held two hearings addressing the problem of over-
criminalization of conduct, over-federalization of criminal
law, and the resulting over-incarceration, a lot because of
regulatory crimes.
Earlier this year, this Task Force examined the problem of
over-criminalization in the absence of a mens rea requirement
in too many laws and regulations that carry criminal sanctions.
Through all of these hearings, there has been no dispute that
the problem exists and that something has to be done to address
and resolve this situation.
As we commence with today's hearing on the issue of
regulatory crime, we are challenged to define the problem, and
that is, is the conduct in question truly criminal? Are the
criminal elements properly defined? Is the penalty appropriate?
Does regulatory crime lead to a larger incarceration rate and
prison overcrowding? Does regulatory crime stifle job creation
and innovation? And who is wrongly affected by these
regulations?
Now, the very nature of regulatory crime means that much of
it is categorized as malum prohibitum crimes, and that is what
poses a significant challenge for us. Unlike malum in se
crimes, in which the society clearly recognizes the behavior as
inherently wrong, these regulated activities are not generally
viewed as objectionable in principle. Rather, these regulations
are intended to protect public health, the environment, public
welfare, commerce, finance, and safety. And they serve a
purpose, and to that end, they are appropriate.
But having said that, we must ensure that regulations,
especially those that impose criminal sanctions, provide fair
notice to everyone and punish only the appropriate violators.
It is incumbent upon Congress to ensure that Federal agencies
have clear and sufficient guidance when Congress delegates to
them the authority to issue regulations which carry criminal
penalties.
It is true that some individuals have, without notice or
intent to violate a law, found themselves arrested, prosecuted,
convicted, and even incarcerated for engaging in seemingly
harmless behavior which turned out to be a violation of law or
regulation. Such occurrences have caused us to criticize the
lack of prosecutorial discretion, but prosecutorial discretion
cannot replace clarity in criminal law.
We obviously need some regulations. They are necessary to
help us reduce the incidence of outbreaks of salmonella and e.
coli contamination in our food supply or to avoid tragedies
such as the explosion of BP's Deepwater Horizon oil rig in the
Gulf of Mexico. The home foreclosure crisis, the 2008 financial
crisis, and subsequent great recession all stem from the fact
that regulators lacked the direction, resources, or authority
to confront the highly reckless behavior in the financial
services and mortgage industries. So some regulatory offenses
should be criminal, but they should include offenses where
there is an endangerment of health and safety and where a
reasonable person should have known the risk. But to ensure
that the criminal statutes are clear and concise and that the
penalties are proportional, we need to make sure that any of
those criminal statutes involve a process going through the
Judiciary Committee so that we can make sure that the language
is clear and the penalties are proportional.
I look forward to the testimony of today's witnesses, and
thank you for convening the hearing.
Mr. Gohmert. Thank you, Mr. Scott.
Under the agreement of the Task Force, there were two
potential other opening statements, one by the Chairman of the
full Judiciary Committee who is not here, but the other was the
Ranking Member of the full Committee, the gentleman from
Michigan, Mr. Conyers, if he wishes to make an opening
statement. It looks by lowering the microphone, he does. So my
friend, Mr. Conyers, you are recognized.
Mr. Conyers. Thank you, Judge. I will be brief and put most
of it in the record.
But I wanted to commend everyone that has been sensitized
to the fact that over-criminalization is one of the most
challenging issues of our criminal justice system. The
explosive growth of the Federal criminal code has played an
important role in that. We incarcerate more people
proportionally than any other country on the planet, and it is
a matter of great importance to me in raising some
considerations about some principles that should be examined as
we go through the distinguished witnesses before us.
What purpose do criminal penalties serve in the regulatory
context? Do provisions that impose criminal penalties for
regulatory violations provide fair notice of the criminality of
the conduct in question? Can we reasonably expect citizens to
comply with all such regulations on pain of criminal sanctions?
So I think this is an opportunity to take a long, hard look
at the scourge of mandatory minimums. And it is my posture to
begin with that eliminating judicial discretion has failed to
make our system more fair or just. We have the statistics that
I will not go into at this point, but racial disparities are
overwhelming. African Americans make up 38 percent of the
prison population, 6 times the rate among White Americans. In
fact, some inner city communities have an incarceration rate 40
times the international average. The result of all these
excessive and ill-conceived criminal statutes is over-
incarceration.
And so the Task Force should also focus on the primary
criminal laws that lead to convictions. We spend $51 billion on
a so-called ``war on drugs,'' and we even have 700,000 arrests
for marijuana law violations. And so I am here to join with you
as we examine what the real contributors to over-
criminalization and over-incarceration are.
And I thank the Chairman for allowing me to make these
remarks. I will put the rest of my statement in the record.
[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
Mr. Chairman and Members of the Task Force, when we created this
Task Force we did so in order to address the explosive growth of the
federal criminal code and the incredible number of federal regulations
that carry criminal sanctions--an estimated 300,000! The work of the
Task Force is very important, and it's work that is long overdue.
It's vitally important that we rein in such explosive growth and
ask ourselves whether all of these laws and regulations are truly
important. What purpose do they serve? Are they redundant, obsolete or
an unnecessary duplication of state laws? We should ask whether these
laws and regulations provide fair notice of the criminality of the
conduct in question? How can we reasonably expect citizens to comply
with all of them? It's also time we asked whether all of these
behaviors truly warrant treating an individual as a criminal or should
the remedy be addressed with civil sanctions?
As we proceed with this hearing, I ask our witnesses to consider
these questions that I've raised, and I also want to raise three
points:
First, when good people find themselves confronted with accusations
of violating regulations that are vague, address seemingly innocent
behavior and lack adequate mens rea, fundamental Constitutional
principles of fairness and due process are undermined. I should note
that these regulations were promulgated by unelected officials
executive branch agencies, and without the benefit of any consideration
by this committee or any other Congressional committee.
When crimes are defined by regulation, we run the risk of Americans
encountering unpleasant surprises in the form of being confronted with
accusations that we violated criminal laws of which we not only have no
knowledge, but have no reasonable way of knowing about them. That
places all of us at risk of being arrested, prosecuted and incarcerated
for questionable reasons.
I believe that it is fair and reasonable to ask whether there
should be some mechanism or process for Congressional review of those
offenses that would potentially deprive citizens of their freedom and
impose a lifetime label of ``criminal'' on them.
Second, mens rea, the concept of a ``guilty mind'', is the very
foundation of our criminal justice system. We have established clear
standards for what constitutes most criminal conduct. The prohibited
conduct is malum in se, that is, the act is wrong by its very nature
and everyone knows it. We're talking about offenses such as murder,
rape and robbery. That's not what we're here to discuss today.
Conduct covered by regulatory offenses is generally not wrong in
itself and someone who knowingly engages in the prohibited conduct
might not be culpable in the traditional sense. Further consideration
is required before assigning criminal liability to the conduct. For
example, one might know that he or she is engaging in a particular
conduct but have neither the knowledge nor the intent to do wrong. Is
that sufficient to arrest, prosecute and convict? In previous hearings
on the subject of over-criminalization we've heard wrenching testimony
from victims who were prosecuted for seemingly innocent conduct, and it
is my understanding that we will hear testimony from more witnesses who
feel they have been caught in the web of regulatory crime.
I do not doubt that there is reason to review and, where
appropriate, rein in the promulgation of regulations that are issued
without the benefit of Congressional review.
I want to caution, however, against downplaying the benefits of
regulation and any exaggeration of its costs. The benefits of
regulation can far exceed its costs, whether those benefits are defined
in monetary terms or in terms or promoting values like protecting
public health and safety and ensuring civil rights and human dignity.
For example, value can be found in the regulations prohibiting lead
in gasoline and house paint. It has been clearly documented how the
increased I.Q. attainments of our children have benefitted from these
regulations.
Regulatory failure, on the other hand can lead to tragedies such as
the Massey coal mine explosion in 2010 which took the lives of 29
miners, or the re-emergence of black lung disease among coal miners, an
issue that was supposed to have been addressed years ago but continues
to plague miners because of lax regulation.
So, I encourage my colleagues to be measured and careful when
considering the benefit of regulation. Let's make sure that regulations
are fair, provide appropriate notice of criminal sanctions, and let's
continue to encourage prosecutorial discretion when deciding whom to
pursue criminally versus civilly.
Finally, while it makes sense to review the estimated 300,000
criminal regulations, it's also important to understand that a major
result of over-criminalization is over-incarceration. Regulatory crime
offenses make up less than 1 percent of the prison population. To the
extent that the Task Force is concerned with prison overcrowding and
steadily rising incarceration rates, I urge it to look beyond
regulatory crime. Let's put drug policy, firearms and immigration
offenses on the table for the Task Force's consideration. These are the
very real contributors of over-criminalization and over-incarceration
in the federal system.
I look forward to hearing the testimony of our witnesses.
Thank you.
__________
Mr. Gohmert. Thank you, Mr. Chairman.
Without objection, any other Members' opening statements
will be made a part of 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, for holding this hearing on
regulatory crimes.
What struck me most as I reviewed the materials was a sense of how
easy it is to become a victim. There are so many federal crimes on the
books that the government itself does not have an accurate count. And
they do not just cover inherently dangerous activities like murder,
sexual assault or robbery. The federal code is riddled with statutes
that impose criminal penalties for regulatory conduct. Certain
regulations serve the important purpose of public safety and we expect
individuals and businesses who engage in potentially dangerous conduct
to know the rules. But these rules can too often ensnare innocent
citizens. I say innocent because perhaps the most pernicious aspect of
these regulatory crimes is weak or even non-existent intent
requirements.
Often a criminal conviction requires only that a defendant
knowingly take an action; it does not require that he knew the act was
prohibited. This construct is appropriate for traditional malum in se
crimes that society at large has deemed unacceptable.
However, the question before the Task Force is whether this
construct is appropriate for malum prohibitum crimes--or conduct that
is not inherently immoral but is criminalized by statute or regulation.
We are going to hear from two victims today and there are many
more. Examples include a 23-year-old man who found a buried skull on a
hunting trip in Alaska, and turned it over to the U.S. Forest Service
only to be charged with removing an archeological resource from public
lands; or the young girl who saved a woodpecker from the family cat,
and whose parents were fined for violating the Migratory Bird Act
because it is a crime to take or transport a woodpecker. These cases
raise the issue of congressional intent. Are they representative of how
Congress intended the laws it has passed to be used? If not, it is
Congress's duty to do something. As I stated when this Task Force was
formed, ``Overcriminalization is an issue of liberty.'' We owe our
constituents nothing less than a thorough review of overcriminalization
and solutions to reverse this growing trend.
One possible solution the Task Force will evaluate is a default
mens rea provision, in large part to ensure that criminal penalties are
applied to only those who act with the requisite guilty mind. I hope
that today's hearing--coupled with our November hearing on regulatory
crimes--will lead to solutions to ensure that our federal laws
distinguish between the truly guilty and the merely unlucky.
I thank the witnesses and look forward to their testimony.
__________
Mr. Gohmert. And without objection, the Chair is authorized
to declare a recess during votes on the House floor. I think we
should be done before that happens.
At this time, I want to proceed with the introduction for
our distinguished panel. First of all, Mr. Reed D. Rubinstein.
Mr. Rubinstein is a partner in the Washington, D.C. office of
Dinsmore & Shohl, LLP, and has experience in litigation,
regulatory, legislative, and appellate advocacy representing
publicly traded corporations, small business, individuals, and
nongovernmental organizations in matters before the Departments
of Justice, Defense, Energy, and Agriculture, the Environmental
Protection Agency, the Food and Drug Administration, the U.S.
Congress, State agencies, and in the civil and criminal courts.
He joined Dinsmore after serving as Senior Counsel for
Environment, Technology, and Regulatory Affairs for the U.S.
Chamber of Commerce. Prior to joining the U.S. Chamber, he was
a shareholder of the Washington, D.C. office of Greenberg
Traurig, LLP, where he practiced environmental and
administrative law litigation, corporate, and real estate law.
He has regularly published and has spoken around the world
on environmental regulatory trends, U.S. Government programs,
anti-terrorism strategies, and litigation matters.
He also received his bachelor of arts, master of arts, as
well as juris doctorate from the University of Michigan.
And with that, let me mention to all the witnesses you may
have more of a written statement that exceeds 5 minutes, and
that will be made part of the record, is part of the record.
But for purposes of the hearing here, if you would restrict
your opening statements to 5 minutes, and you can see the light
will go from green to yellow to red, and red is time to
complete. So thank you. At this time, we will start with our
first witness.
TESTIMONY OF REED D. RUBINSTEIN, PARTNER,
DINSMORE & SHOHL LLP
Mr. Rubinstein. Thank you, Mr. Chairman, Ranking Member
Scott, Task Force Members and staff.
My name is Reed Rubinstein, as you have heard. I am here
testifying today on behalf of the U.S. Chamber Institute for
Legal Reform. ILR is an affiliate of the U.S. Chamber of
Commerce that works to make our Nation's legal system simpler,
fairer, and faster for all.
The U.S. Chamber is the world's largest business
federation, dedicated to defending America's free enterprise
system.
As, Mr. Chairman, you pointed out in your opening remarks,
regulatory over-criminalization is a big problem. It is big for
the people who are caught up in the system, and it is big from
a systemic standpoint. No one knows precisely how many Federal
regulations of possible criminal consequences. The best
estimates are in the tens of thousands. But what we do know is
that this kind of a sprawling code based substantially on
regulations is especially likely to contain crimes in which the
prohibited conduct and state-of-mind elements are incompletely
fleshed out. This kind of a code engenders abuses, especially
in agencies unencumbered by the cultural limits that restrain,
for the most part, State and Federal prosecutors.
Regulatory over-criminalization is a particularly
pernicious phenomenon for at least three reasons.
First, regulations criminalize vast expanses of conduct
without notice to the ordinary person that his or her everyday
activities may be subject to criminal punishment.
Second, regulatory crimes are the product of bureaucratic
not legislative action. Given that the criminal law is the
primary system for public communication of societal values, it
is unwise and generally improper for crimes to be defined
through convoluted agency rulemaking processes.
Third, criminalizing regulatory violations without respect
for intent has a chilling effect on small businesses,
entrepreneurs, and scientific innovation. ILR supports laws
that conserve our environment, guard the quality of our food,
and ensure the efficacy of our medicines. But it is simply
wrong to give unaccountable Federal agencies functionally
limitless discretion first to make the law by rule and then to
criminally prosecute citizens for their violations without
either predictability or proof of wrongful intent.
The human cost of regulatory over-criminalization has been
well documented, and you will hear stories today that ought to
cause this Committee's Task Force substantial concern. Reports
of armed administrative agency agents breaking into homes,
factories, and even animal shelters on the pretext of enforcing
arcane Federal and State regulations ought to be unsettling.
From a systemic standpoint, however, the chief vice of
regulatory over-criminalization is the wholesale abandonment of
the basic principle of legality upon which law enforcement in a
democratic community must rest. That is, close control over the
exercise of the delegated authority to employ official force
through the medium of carefully defined laws and judicial and
administrative accountability. The paucity of carefully defined
laws and the minimal administrative accountability that define
our current system inevitably lead to abuses.
Regulatory over-criminalization has very strong secondary
and tertiary effects that inhibit economic and personal
liberty. Generally speaking, for a company or an individual
caught up in this morass, settlement or a plea is almost always
the only cost-effective and rational strategy. Public companies
facing charges of criminal violations settle, at least in part,
because the risk of insolvency associated with an indictment is
so great that contesting a charge amounts to a breach of
fiduciary duty in many circumstances. Small businesses lack the
resources to effectively contest enforcement actions.
Therefore, it is only a very rare few who are capable and
willing to stand up and defend themselves and their rights when
facing charges.
Furthermore, agency decision-making in this environment is
rarely clear, consistent, or predictable. If a law declares a
practice to be criminal, but the agency does not or cannot
apply its policy with consistency and predictability and
fairness, the law's moral effect and public faith in government
are necessarily weakened.
Time and again in the course of my practice in many
contexts and in various ventures, I have seen large companies,
small companies, entrepreneurs, individuals assess the risks
and the uncertainty posed by regulatory over-criminalization
and then decline to build, to invest, or to grow. I do not know
and cannot point you to an empirical study that authoritatively
accounts for the jobs lost and the economic activity aborted by
regulatory over-criminalization, but the harm is unquestionably
pervasive and real.
Again, ILR strongly supports good laws that protect the
public welfare and the well-ordered administrative agencies
that implement them. But regulatory over-criminalization
needlessly conflicts with our constitutionally enshrined
commitment to individual freedom and unduly interferes with
entrepreneurship, investment, and job growth.
This Task Force and the Congress must take a hard look at a
general and clear mens rea statute for all Federal crimes,
especially those based on regulations. There are simply too
many offenses and regulations for Congress to act piecemeal.
The reality is that a large solution, a generally applicable
statute, is the only practical and effective one.
Also, we call upon this Task Force and the Congress to
explore carefully the secondary and tertiary effects of the
over-criminalization phenomenon. There ought to be mechanisms
for meaningful agency oversight, transparency, and
accountability to counteract some of the more egregious
secondary and tertiary effects of this phenomenon. These
mechanisms should include reasonable limits on agencies'
prosecutorial discretion and stronger procedural guarantees to
ensure that the targets of agency action are given an
independent, fair, and level review of their cases.
Thank you for your attention to this important matter. I am
happy to answer any questions that you might have.
[The prepared statement of Mr. Rubinstein follows:]
__________
Mr. Gohmert. Thank you very much, Mr. Rubinstein. We
appreciate the testimony.
At this time, we will hear from Professor Rachael Barkow.
She is the Segal Family Professor of Regulatory Law and Policy
and Faculty Director of the Center on the Administration of
Criminal Law at NYU. In June of 2013, the Senate confirmed her
as a member of the United States Sentencing Commission. Since
2010, she has also been a member of the Manhattan District
Attorney's Office Conviction Integrity Policy Advisory Panel.
Professor Barkow teaches courses in criminal law,
administrative law, and constitutional law.
She has written several articles on sentencing and has
explored in numerous articles the role of prosecutors in the
criminal justice system. In a series of major articles, she has
explored the relationship between separation of powers and the
criminal law and the relationship between federalism and the
criminal law. Professor Barkow has been invited to present her
work in various settings and has testified before Congress.
She previously served as a law clerk to Judge Lawrence
Silberman on the District of Columbia Circuit and Justice
Antonin Scalia on the U.S. Supreme Court.
Professor Barkow received her bachelor of arts degree from
Northwestern University and her juris doctorate from some place
called Harvard Law School. [Laughter.]
It is an honor to have you here, Professor, and we look
forward to your comments.
TESTIMONY OF RACHEL E. BARKOW, SEGAL FAMILY PROFESSOR OF
REGULATORY LAW AND POLICY, NEW YORK SCHOOL OF LAW
Ms. Barkow. Thank you so much. Thank you, Mr. Chairman,
Ranking Member Scott, and Members of the Task Force for
inviting me today to talk to you about the problem of over-
criminalization as it relates to regulatory crimes.
I want to briefly raise three issues associated with
regulatory crimes that I believe are worth further
consideration by the Task Force.
First, regulatory crimes are unique among criminal laws in
that they often lack mens rea requirements that establish that
a defendant was blameworthy when he or she acted as he or she
did. Now, some of these offenses are strict liability, and to
establish criminal liability for these offenses, all the
government has to show is that the defendant engaged in conduct
and there is no requirement that the government has to
demonstrate that the defendant knew that he or she was engaging
in the prohibited conduct. Strict liability offenses have long
been criticized by criminal law scholars because they lack any
culpability requirement that would merit criminal punishment
and the stigma of a conviction.
Other regulatory crimes are not pure strict liability but
they, nevertheless, criminalize conduct that the defendant may
not know is wrongful. The law normally adopts the view that
ignorance of the law is no excuse, and for most crimes, it is
common knowledge that the act is prohibited. With regulatory
crimes, however, this common knowledge may be lacking.
Sophisticated players may be aware of regulations, but people
who are not regular industry players may have no reason to know
there is a regulatory landscape that requires compliance at the
risk of a criminal sanction.
The Supreme Court has dealt with this issue by interpreting
some statutes to require an awareness of wrongdoing or
illegality, even when the statute is silent about that element.
But the Court has not interpreted all regulatory criminal laws
this way, and it typically does not do this if it believes that
a reasonable person should know that the area is subject to
stringent public regulation. So if Congress wishes to tie
regulatory crimes to traditional notions of criminal liability,
modification of many of these laws may be in order.
The second point I want to make is that regulatory
violations have been subject to criminal penalties on the
theory that criminalization will make the regulatory scheme
more effective. So this is an empirical question, whether
criminalization is the optimal strategy for addressing the
violation of all regulatory offenses or whether civil
enforcement and penalties could achieve the same levels of
deterrence and regulatory compliance for some provisions. Sound
criminal justice policy, I believe in all areas, not just
regulatory offenses, should rest on an assessment of the costs
and benefits of criminal punishment to determine whether
limited Federal dollars are best spent on prison terms or if
less costly options are available and just as effective.
In assessing whether criminalization is necessary for an
effective regulatory regime, I believe Congress should evaluate
particular regulatory provisions to assess their importance
instead of simply making blanket determinations to criminalize
an entire regulatory area without attention to detail. And that
leads to my final point.
So currently, Congress is typically not aware of the
specific regulations that an agency will pass when Congress
authorizes criminal punishment for their violation which
effectively delegates to agencies the authority to fill in
details about what is criminalized. So whatever the usual
merits of delegating authority to agencies, I believe criminal
law is distinct for at least four reasons.
First, criminal law is about blameworthiness and should
reflect society's moral judgments, and Congress has a decided
advantage over administrative agencies because Congress
represents the broadly held views of the electorate.
Second, constitutional principles of separation of powers
have special force in criminal law where government power is at
its height.
Third, Congress is more attuned to the problem of the
unmanageable expansion of criminal laws.
And fourth, the administrative landscape constantly changes
which means that criminal laws tied to regulations will be a
moving target. Having Congress take the lead in identifying
those situations that merit criminalization would inject more
stability and make it easier for actors to keep track of their
obligations.
Thank you again for allowing me to testify and share my
thoughts, and I would be happy to answer any questions you may
have.
[The prepared statement of Ms. Barkow follows:]
__________
Mr. Gohmert. Thank you very much, Professor.
At this time our next witness is Lawrence R. Lewis, Sr., a
licensed class one steam engineer originally from Washington,
D.C. In 2007, while working as the Chief Engineer of the
Knollwood Military Retirement Residence, Mr. Lewis was arrested
for unknowingly violating the Clean Water Act. He pleaded
guilty and was sentenced to 1 year of probation in 2008. His
story has been featured in the Wall Street Journal and in a
video series by the Heritage Foundation. He is a single father
with 2 daughters, ages 22 and 17, and resides in Bowie,
Maryland.
Mr. Lewis, it is an honor to have you here. We look forward
to your testimony.
TESTIMONY OF LAWRENCE LEWIS, BOWIE, MARYLAND
Mr. Lewis. I just wanted to share with----
Mr. Gohmert. I am sorry. Would you pull that microphone a
little closer? You are an important man and your testimony is
important, and we want to make sure everybody hears. Thank you.
Mr. Lewis. I just wanted to share with everyone the human
impact that the new Federal laws have on ordinary citizens like
myself.
You know, I was born and raised in the projects and through
the grace of God, was able to get through the criminal justice
system without being a part of it. In fact, I am proud to say
several members of my family, my sister's two daughters, are a
part of the D.C. Police Department, police officers.
And after working so hard to make my family, my parents and
my children, proud of me, I go to work at an Army military
retirement home, a place that meant something special to me,
along with other places I have been, because my father was in
the military for 20 years, and the kind of care and stuff I
expected him to have and wanted him to have--that is what I
wanted to provide for the people there.
This particular institution had a history of sewage
problems, to my knowledge, at least 28 years prior to when I
came there. And we did everything we could to prevent the
sewage from affecting the most vulnerable people, which is the
people that were in the hospice section of that retirement
home, which is on the ground floor. That is the first area that
it affected. So the protocol was when flooding started, you get
a pump, pump it to the sewage drain while you are trying to
unstop the drain. Other than doing it, you are going to flood
all these areas. And these areas are not areas that you can
just sanitize. I mean, it takes extensive sanitization. And a
lot of people were bed-ridden. You just could not move them
quickly.
And sometime in March 2007, I think on the 29th, someone
there in a nearby park saw a white substance that they thought
could be some threat. So law enforcement came about and they
traced the substance back to Knollwood. The substance was not
sewage. Sewage is not white. The substance was from a new
building the contractors were building. They were doing some
testing because the blueprints were not adequate to see where
did their sewage go where they are trying to.
Law enforcement traced that white substance back to
Knollwood, but to the new facility. So they thought since
during that same time we were having a spillage, a sewage
backup to. So they thought that was actually sewage.
I was home. I came back on site, which I was asked to come
back. And I took the men aside and showed them there is nothing
white in color in that facility in the sewage system anywhere.
We went in and we looked at it, pulled up different sections of
the sewage part of the facility and were able to verify there
was nothing in there that associated with the white substance.
At that time, I did not know the contractor was doing any
testing. I did not find out until the following morning, but I
knew it was not sewage.
In any event, the law enforcement force threatened with
arresting me, saying I violated some law and they had a pre-
written statement they wanted me to sign to implicate my
superiors that they had knowledge of it. They were saying some
of the military officers had suggested that. And I was telling
them I had no personal knowledge of them knowing the effects
that the sewage would have on anything. And for that reason, I
was threatened with a 5-year prison sentence if I did not
provide--really lie on someone, which I was not able to do. I
was taught better than that.
So subsequently I had to worry. My immediate effect of it
was worrying about where my mother and my kids are going to
live. I had a 13-year-old and a 16-year-old then and an 86-
year-old mother. Where are they going to live at for 5 years
because I cannot pay a mortgage for 5 years from prison. I knew
I had enough in my 401 to pay for a year. So I subsequently
pleaded guilty to something I really did not do in order to
make sure my family had some place to live.
So that is the impact it had on me is I really lost
confidence in law enforcement even though I had family law
enforcement. I feel like if they are prosecuting me for
something I had no knowledge of, I was not aware of--and there
was nothing in the records ever saying that it was a violation
for this to go on. They looked at all the records where the
plumbing companies came for years and years and years. Nothing
suggested that this was a violation. This stuff took place
regularly.
Also, there had been times when D.C. and Federal inspectors
which come several times a year was there when this happened.
No one--the fire department, no one--ever said this was
improper. They usually seemed to admire the fact that we were
doing everything we could to maintain and control it until we
could get a contractor in.
So, I would just like to make sure that this Committee
understands that there are real lives being affected, normal
people, because we do not know. We are not aware of the law.
And I would hope that we could send regulations to the
facilities to educate the people who work in the facilities and
send them to the schools, have it a part of schooling where
people would be aware of the new laws that exist because like
myself there are many other people who are going to experience
the exact same thing.
So I believe I have a little more time. So what I am saying
to you is that the best thing that could come from what to me
is if Congress could go back and look at the new laws and the
parts that say having knowledge or intent to get prosecuted
and/or if a fine could be implemented, in this particular case,
it would be appropriate, I would think, that you initially fine
the institution and not the individual should be the norm and
not prosecuting individuals from a history of a facility
functions.
[The prepared statement of Mr. Lewis follows:]
__________
Mr. Gohmert. Thank you, Mr. Lewis. I imagine we will be
exploring those thoughts further during our questions. And
thank you for the testimony.
At this time, we will hear from Ms. Cornelia Joyce Kinder
of Grand Rivers, Kentucky. She is the former owner, along with
her husband Steven, of two Kentucky caviar businesses. Their
business involved collecting paddlefish eggs in the Ohio River
and exporting them. They had all of the appropriate licenses,
reported all of their catches in the State of Kentucky.
However, the Ohio River forms the Ohio-Kentucky border. The
Kinders would connect one side of their net to land in Kentucky
and the other to land in Ohio. Therefore, some of the caviar
was actually harvested from Ohio waters.
Federal investigators charged the Kinders with violating
the Lacey Act, which makes it a felony to import flora or fauna
in violation of another State's or Nation's laws. The Kinders
faced up to $250,000 in fines and 5 years in prison because of
the possible steep penalties. The Kinders pleaded guilty and
were sentenced to 3 years probation and a $5,000 fine, and they
were forced to forfeit their fishing boat and a work truck.
Ms. Kinder, I look forward to your testimony. Thank you.
And, yes, go ahead and pull that close to you as well and speak
right into the microphone.
TESTIMONY OF MR. AND MRS. STEVEN KINDER,
GRAND RIVERS, KY
Ms. Kinder. I have had an asthma attack this morning.
Mr. Gohmert. Well, let's get it right up close to your
mouth so you don't have to try too hard.
Ms. Kinder. Can you hear me now?
Thank you for having me here today to tell my story. My
name is Joyce Kinder.
My husband Steve and I just wanted to run a caviar
business. We did not hurt anybody. We did not deliberately
violate any law. But in 2011, we were convicted of Lacey Act
violations because we unknowingly fished on the wrong side of
that Ohio River. We have lost everything.
I am here because I want the over-criminalization caused by
the Lacey Act and other laws to stop.
My husband and I live and work in Owenton, Kentucky. We own
Kinder Caviar and Black Star Caviar Company. We use nets to
collect the paddlefish eggs. We harvest them into caviar and we
export them to foreign countries. Ever since we started, we
fished in the Ohio River. We never connected anything that was
not to be done. We, in fact, connected one end of our nets to
the land in Kentucky and the other end to the branches out in
the water of the Ohio River on the Ohio side.
We did not come from a wealthy family, but we did work hard
and we loved our work. We were the first established caviar
company in Kentucky, and we were the first to export Kentucky
caviar. This was our American dream. We never took chances with
the law. We were fully licensed and permitted to fish in
Kentucky waters. We always have reported all of our catches. We
knew that paddlefish are a protected species. We never
deliberately fished in Ohio's portion of the water. We knew
that the Lacey Act makes it a felony to export fish in
violation of another State's laws. That is why we hired two law
enforcement officers and an ex-fish and game officer to work
for us. We thought we were obeying the law.
But on May the 5th, 2007, my husband was confronted with
Federal agents from the U.S. Fish and Wildlife Service. The
agents told him that he was fishing in Ohio because his nets
extended past the Ohio-Kentucky boundary out in that river.
On March 14th, 2011, my husband and I were charged in
Federal court in a four-count indictment with illegally
harvesting the paddlefish in Ohio waters and falsely reporting
that we caught the fish in Kentucky waters.
How were we supposed to know where the boundary line was?
There is no buoy. There is no sign, and there is no markings of
any kind on the river to identify the border. Even Kentucky and
Ohio officials were confused where the boundary was. We fished
in the clear light of day and no official ever told us to move
our nets.
We felt then and we still feel now that we did nothing
wrong. But on January 17th, 2012, we made the painful and
humiliating decision to plead guilty. We were facing prison
time. We could not suffer the emotional and financial trauma of
a trial. We did not want to risk losing our freedom, as well as
our property.
Today we are in poverty, and during our probation, we are
prohibited from fishing and from applying for or receiving an
export permit that would allow us to engage in international
business. We cannot pay our fishermen. We have lost our
customers. My husband and I are not physically able to work
anymore. We cannot make ends meet. Our conviction has
devastated us psychologically as well. We feel humiliated,
utterly helpless. We do not feel as if the law protects us
anymore right here in our own country.
The only thing that got me through this community service
that I was to serve was the hope that I could come and tell my
story so that what happened to us would not happen to anyone
else. The Government should go after people who have done
things that we all know are wrong. We still think this is the
best Government and the best country in the world. In fact, I
had hoped, after my retirement, to go into public service. But
we are living proof that it is becoming impossible for decent,
honest people to work without fear of unknowingly breaking a
criminal law and end up in prison. If this can happen to us, as
it did, it can happen to anyone.
I beg you make it stop.
I thank you for your time, and I will be happy to answer
any questions that you might have.
[The prepared statement of Ms. Kinder follows:]
Prepared Statement of Mr. and Mrs. Steven Kinder,
Grand Rivers, Kentucky
__________
Mr. Gohmert. Thank you very much, Ms. Kinder.
At this time, we will begin questioning. Each of us will
have 5 minutes, and I will recognize myself for 5 minutes.
Mr. Lewis, Ms. Kinder, as a judge, I have looked into the
eyes of many hardened criminals and sent them to prison. I have
looked into the eyes of a couple of people and ordered they be
taken and put to death. But I look in your eyes and my heart
breaks for what you have been through. And I am very sorry for
your travails that was brought on by a system that does not
seem to have worked as it should. So thank you for being here
to hopefully help us get our system corrected.
Professor, you clerked for Antonin Scalia. I was with a
group that he was speaking to, a small group. When he said what
questions you got, one of them said would you say our country
is the freest in history because we have the best Bill of
Rights. And you know Justice Scalia. He is very abrupt, and he
said, oh, gosh, no. He said the Soviet Union had a better bill
of rights than we do. And I had forgotten. I did a paper on the
Bill of Rights in college, and they did. They had more
enumerated rights than we do. That was not the key, and Justice
Scalia pointed out we are the freest Nation in history because
the Founders did not trust government. And so they made it as
difficult as they possibly could to create laws.
I see the case of Mr. Lewis and Ms. Kinder, so many others
that Mr. Scott and I have listened to over the years and read
about. And it looks like one of the biggest problems is when
none of those safeguards are utilized and agencies,
bureaucrats, totally unaccountable, make the rules, make
criminal laws.
Mr. Lewis, you mentioned a civil penalty. Obviously, this
whole thing was embarrassing, take the criminal violation
alleged out. Do you think you would have ever been a part of
sewage moving as it did if you had been fined or had your pay
docked and some civil penalty like a fine without ever going
through the criminal court? Do you think you ever would have
done that again?
Mr. Lewis. Absolutely not. In fact, everywhere I have been
since then, I made everybody around me aware, look, it's out
there you may not be aware of, and there are certain things
that I see, if I see some concerns with it, some possibilities
with it, I share that with the people around, the employer and
my coworkers. No, if I had any idea, there is no way I would
risk my family being in a shelter somewhere to stop water for
anyone. I would have never done that knowing that would result
in me going to a prison. I would have never.
Mr. Gohmert. Ms. Kinder, do you think given the
embarrassment just from having Government agents come and talk
to you--do you think if you had been civilly fined without ever
having to go through the criminal justice system, that you
would have ever violated such a regulation again?
Ms. Kinder. Of course, not, Your Honor. I would like to say
a little bit more about that.
Mr. Gohmert. Okay.
Ms. Kinder. We operated in the day of light. Our nets
were--you could see them for a long distance away. We had big
buoys that floated on top of the water. We fished that river in
those same holes for 7 years. No one ever told us that we were
doing anything wrong. No one ever told us to move our nets. No
one ever said anything that we were doing wrong. Even the Ohio
and Kentucky officials--they did not know that there was a
boundary. I guess they figured there was a boundary out there,
but no one knew how to identify it. So in 7 years, we were
never told anything that we were doing anything wrong by Ohio,
Kentucky, or the Coast Guard.
Mr. Gohmert. Thank you.
Mr. Rubinstein and Professor Barkow, just one last question
before my time runs out. And our lights have been really messed
up here.
But do you think that we can solve the biggest part of our
problem by adding an intent, a mens rea requirement to statutes
such as what captured Mr. Lewis and Ms. Kinder?
Mr. Rubinstein. Just before I answer, in answering the
questions, these are my opinions, not necessarily those of ILR.
Yes.
Mr. Gohmert. Well, it is you that is testifying, so it is
your opinion. I am not asking anybody else's.
Mr. Rubinstein. My opinion, yes. The lack of an intent
requirement, particularly when you are imposing criminal
penalties, is tremendously problematic, at a human level, as
you heard, and at a systemic level. It undermines, you know,
the basic bedrock propositions of our entire polity. It has to
be fixed.
Ms. Barkow. I agree with that. The only thing I would add
is it is complicated to draft that in a way that is not going
to raise some of the same issues because the Federal criminal
code does not have any default rules about how you apply mens
rea to different elements. So unlike lots of States that follow
the model penal code where you just assume if Congress puts a
mens rea term in there, it applies to everything. But there is
no default standard for congressional statutes. So even if you
plopped in the word ``knowingly'' or ``willfully,'' there would
still be an interpretive question for the courts of what it
applies to. So if you did do that, you would want to make clear
or pass a default rule that says it applies to all the elements
of this provision.
Mr. Gohmert. Okay, thank you. We would welcome your
submission of anything in writing you think would do that
trick.
My time has expired, and at this time, it is my pleasure to
recognize Mr. Scott for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman.
I want to thank all of our witnesses for their testimony.
This has been very helpful.
Professor Barkow, one of the questions that we had is the
effect of regulatory crime on over-incarceration. I think in
your written statement you had a comment on that. Could you
comment on the effect on over-incarceration?
Ms. Barkow. Yes. It actually does not make up a large
proportion of the number of people who are incarcerated in
Federal prisons. So the number of people in the Bureau of
Prisons who are there for regulatory crimes is not actually
categorized separately. It would fall under the category that
BOP calls ``miscellaneous.'' So it is going to include things
other than regulatory crimes as well. So at most it would be .8
percent of the total prison population and something south of
that because ``miscellaneous'' includes other things.
Mr. Scott. That is .8 of the Federal system, and the
Federal system is a small portion of the overall national
incarceration.
Ms. Barkow. That is correct.
Mr. Scott. You mentioned also that there are some crimes--
there appears to be a mens rea requirement, intent implied. How
can we ensure that health and safety regulations may qualify
for criminal prosecution when you have actually endangered
people's lives?
Ms. Barkow. So I think there are a lot of statutes and
regulations out there. So you would want to identify which
ones, if any, that you wanted to have mens rea requirements to,
and obviously, Congress has the power to decide that it wants
to have different mental state requirements depending upon the
regulatory scheme. But you could certainly distinguish those
regulations that are designed to protect health and safety and
go to the core of those issues and then decide what you thought
the appropriate mental state would be that you would want to
have.
Mr. Scott. So it should be one at a time, individualized?
Ms. Barkow. Well, right now what Congress does typically is
it just passes a general provision that basically says any
regulations that are going to be passed under this statute--
they are all subject to this criminal fine. And so what it
essentially does is it puts it in the hands of Federal
prosecutors to decide who will be charged and who will not.
What you could do instead would be to identify, after
regulations are passed, which regulations you believe should,
in fact, be subject to criminal penalties. So you could
identify those that really go to the core of these health and
safety concerns, and if you wanted to, you know, you certainly
have the power to make those strict liability or you could have
a negligence standard, whatever you saw fit, whereas you could
have more paperwork type regulations, things that you do not
view as serious, as not being subject to criminal penalties.
Mr. Scott. Thank you.
Now, Mr. Rubinstein, one of the problems we have with this
is that the regulators may not have the expertise in criminal
law to make them precise and have proportional penalties. But
we also have the problem that Congress may not have the
expertise to figure out which regulations in the nuclear plant
ought to be subject to criminal sanctions. Can you help us with
how we would actually write laws in areas where we may not have
the expertise?
Mr. Rubinstein. Well, I think it goes back to something
that Professor Barkow just said, which is that there needs to
be some communication with respect to the core health and
safety issues that are of concern. The fact of the matter is in
a large number of Federal statutes, differentiations are made
between conduct that is theoretically going to lead to criminal
penalties and conduct that is not. The problem is, though, as
the professor pointed out, that in many cases Congress will
enact a general statute that effectively criminalizes a whole
set of behavior and then leave it to the agencies to fill in
afterwards.
So what you have, practically speaking, are cases in which
there is a statutory standard but then there is an
incorporation of these regulations, and by the time you work
your way through the chain, you have situations, for example,
of that of a marine biologist named Nancy Black who just is in
the middle of a criminal matter in California as the result of
feeding orcas, killer whales, or alleged feeding. The conduct
that she was charged with was prohibited by a regulation, but
legally walking up the chain, eventually you ended up with a
much more stringent prohibition of behavior that the regulation
was really never meant to reach. And so there is a disconnect
between what Congress said in the first instance and what the
regulators ultimately did.
It is a very knotty question, I agree, but at some point,
as I said in my testimony and wrote in some detail in the
written submission, the big solution here may be the only one
that is practical, which is creating a default mens rea
provision perhaps with a carve-out for certain kinds of core
health and safety violations that are just so egregious that
per se they are wrong. But the way the system is working now,
you end up with these terrible abuses. You end up with stories
like we heard this morning, and it needs to be fixed.
Mr. Gohmert. Thank you, Mr. Scott.
At this time, we recognize the distinguished gentleman from
Alabama, Mr. Spencer Bachus.
Mr. Bachus. Thank you.
First of all, I want to commend each of you for, I think,
your pursuit of justice, which is what I think this is all
about.
Most of us had heard anecdotal evidence, stories like the
two of you shared, but I do not think any of us--and I am an
attorney who has tried many cases, including criminal cases,
murder cases early in my career. But I never imagined that this
was out there. And it is almost like an iceberg in that it is
invisible to the general public and to most of us until someone
hits it and, obviously, people hit it every day. And the result
is not a benefit to society--cost/benefit. But it also
violates, I think, our sense of justice and of democracy. It is
inconsistent--and, Professor, you said this--with our
democratic values.
In some respects, I think the Constitution as our
forefathers drafted it--they would have never imagined this. It
certainly violates, I think, our traditions and our values.
I think for most of us or all of us--we are, as the sitting
Chairman said--in a bipartisan way, the bigger problem that I
was focused on was criminalization of drug cases and that
sector and that we are, by a multiple of many times,
incarcerating more people. And I was actually shocked that
sentences are now longer than they ever have been in the
history of our country, which was a shock, I think, to me.
But the question now is not whether this problem exists. It
is how do we address it.
And my first question was, is there anyone making up, say,
a database catalog of these offenses?
Mr. Rubinstein. Not that I am aware of. There have been a
couple of studies that are published in the literature, and
some of these are older. The American Bar Association did a
very widely cited study in the late 1990's. The numbers,
though--they are estimates. I think it is about 4,500 Federal
crimes, so to speak. And then, as I said, it is pretty much
anybody's guess about the number of regulations. One professor
estimated it, I think, at about 300,000, and that seems to be
the study that is out there most significantly.
As I suggested, the problem is that the way the law is
written and the discretion that the agencies have and then that
the prosecutors have allows them to take laws that Congress
wrote, never intending to reach the conduct that the
regulations prohibit, and back into a criminal violation. And
then what you end up with, as you heard, are situations where
people who are thinking they are doing nothing wrong are put in
a position where they have to make a cost/benefit analysis
between standing up and fighting or watching their lives be
destroyed even more. So the obvious, rational thing to do is to
do exactly what they did, to do what most people do.
Mr. Bachus. And you would think discretion will be used
with good judgment, but obviously it is being used to make bad
judgments or people that do not have, I think, the legal
background.
Let me ask you this. You know, we could come at it by
saying, okay, here are all of them, and it would be almost
impossible, if you are talking about 300,000. You testified
that the actus reus of prohibited conduct is not always spelled
out in the regulations. And, of course, I think that is a
start, that we just require that. And I would like maybe to get
from you later some examples of that.
Should Congress consider codifying a mistake or an
ignorance of the law defense for regulatory offenses? I will
ask anyone. First, I am going to ask the legal experts because
your stories speak for themselves.
Ms. Barkow. So I guess I will give you the pros and the
cons. Right? So the benefits of doing that would be that it
would make a defense available to people who could say that
they were unaware of the law. The con against it----
Mr. Bachus. Of course, they would have to prove that.
Ms. Barkow. Well, now I am getting to the con part, which
is that the Government, I think if you had a government witness
here, would tell you that it may be difficult to demonstrate.
And so if that is a requirement of a statute, it is going to
make it harder for the Government to bring prosecutions.
Mr. Bachus. It ought to be hard if we are talking criminal.
Ms. Barkow. That is your decision, obviously.
Mr. Bachus. Not in civil, but if we are talking criminal.
Let me ask one more question, if I can. Under a
``knowingly'' standard, a person can be convicted of a crime
for knowingly engaging in the conduct without knowing that the
conduct is illegal. And I think that was in your testimony. And
that is the essence of it.
Ms. Barkow. Yes. Some statutes have been interpreted that
the ``knowing'' just refers to that you knowingly engaged in
the conduct, but you do not have to have the additional
knowledge that the conduct was against the law. So you could
either cure that by doing what you said, which is to have a
mistake of law defense, or you could make it clear that
``knowing'' actually applies to the knowledge that there are
regulations that you violated.
Mr. Bachus. I would think we need a default mens rea
standard, and I would invite you all to give us your thoughts
and elaborate at some point in time.
And I appreciate the Chairman's indulgence.
Mr. Gohmert. Thank you.
At this time, I will recognize the distinguished gentleman
from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman.
Underlying this important hearing is the concern that has
not been cleared up for me about whether or not mens rea should
apply in which cases. And, Professor Barkow, I wanted to engage
you in this discussion because regulatory crime violations--
sentencing is less than 1 percent, while all these other
offenses, particularly drug offenses, weapons, explosives,
immigration, robbery, all constitute the rest. Can you point
out to the Committee the circumstances under which mens rea is
determined to be a requirement or not?
Ms. Barkow. So if I understand the question correctly, you
know, I think it is a very difficult question to answer----
Mr. Conyers. It is.
Ms. Barkow [continuing]. Because I think it is really a
congressional policy call. I do not feel like I have the
expertise to give you the answer of what conduct you view as
sufficiently morally blameworthy that you want to have criminal
sanctions attached to it. I mean, I can tell you that I think
if we are talking about 300,000 regulations, that not all of
them are probably going to go to the core of health and safety
protection that I think you would want to use this very
powerful hammer on. I think if you say, well, maybe we need
criminal law in order to deter because the consequences of
violations are so great that we want to stop these things from
happening, I think it just requires careful attention to what
those consequences are that you think justify lowering the
traditional notions of mens rea and culpability.
So when all this started when Congress initially started
doing this sort of thing, you know, it was basically
industrialization and lots of products going out there and
drugs and harmful food that could kill hundreds of thousands of
people, and the idea was we have to make sure that does not
happen. So we will just pass strict liability offenses, and now
we know that these big industrial players will know that if
they make a mistake, they are going to face heavy sanctions.
And I think the question for Congress is when do you feel that
those circumstances are analogous that you want to continue to
maintain criminal penalties.
And then the second would be whether you need them because
the other thing I would add is that it may be that a civil
sanction regime where companies could lose their license, for
example, if they engage in certain conduct, that that may be
sufficient in some contexts. So you just want to know when do
you need the threat of criminal punishment because the way it
plays out in practice is exactly as we heard, which is it is a
way to get pleas and it is a way to get offenders to agree to
terms. It is something that Government prosecutors like very
much because it enables them to threaten something quite severe
in order to get the sanction that they think is appropriate.
Mr. Conyers. Well, that is a good start. We are confronted
here on this end with some incredible questions that have not
been raised before. This is a separation of the Subcommittee on
Crime, and you are on the commission. And I am wondering--this
could be the beginning of a huge inquiry into where mens rea is
required and when it is not.
What about the mandatory minimums that are found so much in
the drug offenses? Has your commission--have you inquired into
that very deeply?
Ms. Barkow. So I am testifying today in my personal
capacity and not as a member of the Sentencing Commission. So
it would not be appropriate for me to comment at this time on
the matters that are relevant to the work of the commission at
this hearing. I myself have written, before I joined the
commission, about the topic of mandatory minimums and would be
happy to talk about that in another context. But today I am
just here in my personal capacity and not as a member of the
commission.
Mr. Conyers. So we can get your testimony after you give it
today.
Ms. Barkow. My longer written statement?
Mr. Conyers. No. The one that you are going up for this
afternoon.
Ms. Barkow. I am not testifying about mandatory--in my
academic capacity, I have written quite a bit about mandatory
minimums.
Mr. Conyers. Oh, I see.
Ms. Barkow. That is separate from what the commission's
work is.
Mr. Conyers. Well, can you talk about mandatory minimums in
an individual capacity like you are here for today?
Ms. Barkow. Well, I am here today actually to talk about
the regulatory crimes and not questions about sentencing. So I
do not think it would be appropriate for me to comment now as a
member of the Sentencing Commission because there is a spectrum
of views on the commission as they relate to mandatory
minimums.
Mr. Conyers. All right. I will accept that. I do not know
if the gentleman from New York is going to let you off the hook
as easily as I do.
But at any rate, what is the bottom line that Chairman
Gohmert and us are struggling with here? And this has sort of
crept up over the years. My time is also out. This is my last
question to you then.
Is there any organized way we could go about this? Maybe
Ranking Member Scott and Chairman Gohmert could have Committee
staff go through all of the laws and recommend to us what is
mens rea and where it is not. And I say that, Chairman Gohmert,
because we have just had one of the biggest financial collapses
on Wall Street, and they are just beginning to bring people
into court charged with crimes. And it seems that there is a
stark reminder of the privilege that many white-collar
defendants enjoy when they violate regulations. Well, I guess
maybe they do not have a mens rea element. Oh, they do. Okay.
Can you help close this out with a few ideas on this
subject?
Ms. Barkow. The one thing I will say is that the Federal
system decided not to follow the model penal code, which was a
model code to try to help States put their criminal laws in
order and avoid some of the things that we have seen happen in
the Federal system. In the 1970's, Federal code reform was
considered and ultimately was abandoned. But if Congress were
serious about these issues and wanted to do something like that
again, I do think that it is possible to think of some sort of
body that could think systemically and broadly about Federal
code reform and maybe do something similar to the model penal
code project.
Mr. Conyers. Well, thank you very much.
Mr. Chairman, could I put the Public Citizen comments on
this subject that were sent to the Over-criminalization Task
Force in the record?
Mr. Gohmert. Without objection, so ordered.
[The information referred to follows:]
__________
Mr. Conyers. Thank you.
Mr. Gohmert. Thank you, Mr. Conyers.
At this time, we recognize the distinguished gentleman from
New York, Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chairman.
Professor Barkow, I cannot resist this. Without
compromising your status as a member of the Sentencing
Commission, without testifying perhaps about your current
opinions, could you tell us in a couple sentences the thrust of
the conclusions of your prior academic writing on mandatory
minimums?
Ms. Barkow. I will say this, and I will try this approach
instead. And I am going to apologize in advance that I said in
advance I was going to leave early. It is not because of this
line of questioning.
Mr. Nadler. This is my last question in that line.
Ms. Barkow. I will say that the commission as a body
recently submitted to the Senate its views on some of the
proposed mandatory minimum reform legislation that is pending
in the Senate. And so as a body, there is a statement that
reflects the commission's views on possible reforms to improve
those things.
Mr. Nadler. We could get from NYU, I assume, your prior
academic----
Ms. Barkow. You could get that from your Senate--you could
get it. It is a public document.
Mr. Nadler. Thank you.
Let me just switch topics now. Obviously, the question of
mens rea and the question of intent and the question of
knowledge is a very serious question, and it is not as simple
as it might appear at first glance.
Secondly, the obvious question of very few big-time bankers
being prosecuted, if any, for causing the catastrophe that
happened when the--obviously, many crimes were committed and
people getting away without criminal prosecutions and the blow-
up of the British Petroleum rig in the Gulf years ago shows one
extreme of not prosecuting people who perhaps should be, but
maybe they are too powerful or whatever. And here we have two
witnesses who, assuming the truthfulness of their testimony--
and I have no reason to doubt it--were obviously victims of
very bad prosecutorial decisions and perhaps badly drafted laws
and regulations.
My question is this because certainly Mrs. Kinder's
testimony raises a different problem for me. Let me ask you
this, Mrs. Kinder. Your testimony is that--first of all, I am
not familiar with the Lacey Act, but I assume from your
testimony that the Lacey Act is a Federal law which makes it a
crime to do something with fishing in the wrong State?
Ms. Kinder. Actually the State of Ohio claims that their
portion of water--the paddlefish is threatened or endangered
in. Kentucky it is not.
Mr. Nadler. Okay. So the Lacey Act makes it a crime to take
endangered fish which would only be endangered in Ohio in this
case?
Ms. Kinder. Right, in that body of water.
Mr. Nadler. Okay. It would certainly be an element of the
alleged crime that you were, in fact, taking fish in Ohio. If
you were doing it in Kentucky, it would not have been a
problem.
Ms. Kinder. That is true.
Mr. Nadler. And your testimony is that there is no way to
tell the boundary, that the GPS was confused and no one knew
anything about this and so forth. Given that, it would seem to
me that the real problem here--although that may be one
problem, but the other problem here is that the Federal
Government comes down, threatens a prosecution which you could
have, had you had the money and the time and the funds and the
lawyers, defeated because based on what you are saying, you
would not have met the--you did not commit any crime even
unknowingly because there was no delineation of the boundary
between the two States and so forth. One real problem here is
the way the Federal Government comes down on people who end up
feeling compelled to plead guilty to a lesser included offense
to avoid a risky, expensive trial. And I suspect that that is a
bigger problem, that a lot of people plead guilty to things
they are not guilty of simply because they cannot fight the
might of the Federal Government in court. Do you agree with
that?
Ms. Kinder. Thank you, sir. Thank you so much. Yes.
Mr. Nadler. And that to me is not the question of over-
regulation, although there may be over-regulation here too. I
do not know. But it is a larger problem that I think this
Committee ought to deal with, where people feel compelled to
plead guilty simply because they do not have the resources that
you need to fight the Federal Government in court. It is
something I think this Committee has to deal with quite
separately from whatever we do in the area of over-regulation
or non-over-regulation.
In coming back to over-regulation, let me just say that the
mandate of this Subcommittee is really not just regulatory
crimes. It is over-incarceration, et cetera. The regulatory
problem is a problem, but it results in less than .8 of 1
percent of the people in jail. That is not say we should not
deal with it because one person being a victim of injustice is
one person too many. But we also have to deal with 30 percent
of drug crimes. 30 percent of the people in Federal jail are
there for drug crimes, most of which in my opinion should not
be crimes at all.
So it seems to me we have three different problems here:
the alleged over-regulation, the whole function of mens rea and
state of mind being one very serious problem which leads to
witnesses and the testimony of the two academic witnesses
illustrate. Second, the problem is, of course, the whole drug
problem. The third problem is the problem of how do you deal
with people who may be coerced into plea bargains because of
the power of the Federal Government.
You look like you wanted to say something, Mr. Rubinstein.
Mr. Rubinstein. Just briefly with respect to the Lacey Act,
the Congress has been considering amendments because it does
apply without respect to knowledge, and it criminalizes not
only all United States laws but all foreign laws.
Mr. Nadler. How does it do that?
Mr. Rubinstein. Because that is what Congress said. It says
specifically that any law that deals with fish or game or
plants, so forth--a violation of that can lead to criminal
sanctions. And you may remember a case involving Gibson Guitar,
the guitar company, where agents came in in the middle of the
day, herded all the employees into the offices at gunpoint and
so forth because of allegations with respect to the illegal
importation of Indian wood. The law that was violated in that
case was an Indian domestic content regulation. And so the
United States Government in its wisdom in this particular case
decided that that warranted an armed raid on Gibson's
factories.
The Lacey Act has some significant issues. I mean,
obviously, it serves a very salutary purpose and you do not
want to throw the baby out with the bath water, but that is
actually a pretty good paradigm for the issue that we are
talking about today with respect to regulatory over-
criminalization.
Mr. Nadler. Because it violates any foreign act too, any
foreign law?
Mr. Rubinstein. Absolutely.
Mr. Nadler. So if Russia passed a law that said Americans
who fish in this area, but nobody else, are guilty, that would
make that an American claim too?
Mr. Rubinstein. That is correct. Or if you are failing, if
somebody fails to pay taxes to the local czar of whatever the
province is or so forth, yes. In that respect Lacey is unique,
but as I said, as a paradigm it works really well because
essentially what the statute says and the way that it has been
interpreted and enforced, if you violate a foreign law, even if
you did not know about it, you can go to an American prison.
Mr. Nadler. The question of regulatory relief--it sounds
like we ought to take a look at the Lacey Act too.
Thank you. I have exceeded my time. I yield back.
Mr. Gohmert. Thank you.
Ms. Bass, the Chair recognizes the gentlelady for 5
minutes.
Ms. Bass. Thank you. I actually wanted to follow up on my
colleague's question and wanted to ask you if maybe you could
give a little more history about the Lacey law, when it was
passed, why. Are there parts of it that you think are positive?
Mr. Rubinstein. Last question first. There are certainly
parts of it that are positive. The reason it was passed--and
that is actually the first of the Federal environmental laws.
It was passed really at the beginning of the last century to
prevent poaching and to prevent killing of what we today call
endangered species.
But what has happened, as typically does, over time the
expanse of the statute has grown. There was a determination
made that in order to stop the international trade in things
like elephants and rhinoceroses and so forth, that it was
important to add this extra criminalization component. Several
years ago, Congress expanded Lacey to include plants and plant
products. And so the way it is written and as the world has
become more--economies become more integrated, the way it is
written, it charges pretty much Americans with the obligation
to know foreign laws.
The Department of Justice and the various agencies charged
with enforcing it have said they are not able to provide a
database. That is one of the suggestions that stakeholders have
made. Give us a place we can go to find the laws. And the
answer is that we are not going to do that. You are charged
with knowledge. And if it is a tax law, if it is a law about
domestic content in India, if the foreign government itself you
are not in violation of the law, it does not matter. Lacey
needs some work.
Ms. Bass. Well, I think it was Professor Barkow was
mentioning about what should be done prospectively about the
law, and I wanted to know your opinions about what should be
done with the laws that are already on the book, the
regulations.
And I also want to associate myself with Congressman
Nadler's comments in regard to both of the witnesses, Lewis and
Kinder, because as I listened to your testimony, you know, I
thought of just numerous times where there were other offenses
that were not regulatory but where people really wind up
pleading to crimes they did not commit because they really did
not have the resources, you know, to defend themselves. And
that is certainly a problem here, but it is a general problem
within our system. Maybe you could respond to that.
Mr. Rubinstein. Certainly. And one of the issues with the
over-criminalization discussion generally is that to some
extent over-criminalization is in the eye of the beholder, and
there is a lot of good writing about this. Depending on sort of
where you sit, you see different aspects of the problem. So it
is important to take a step back, as the Task Force is doing,
in a bipartisan way and really get back to first principles.
And the first principles, the way the system is supposed to
work, the way we assume the criminal law works is that the
criminal law is supposed to reflect deeply held societal values
about what is or is not right and wrong, and that individuals
are able to exercise, through their own reason, the ability to
identify what is and is not right and wrong in a given
situation within limits. And obviously there are exceptions,
but generally, that is the way it is supposed to work.
The problem with the regulatory state, for want of a better
word, is that you have many moving parts. It is very arcane.
The law is very convoluted. And if you are very wealthy, you
can hire a whole raft of lawyers, people like me, to sit down
and try and tease this all out. If you are like these people,
that is just not an option. And so there is a reason that we
have laws to protect clean water, and there is a reason that we
have laws to protect the fish. But there has to be some balance
and there has to be some transparency and there has to be some
accountability. And right now, particularly with respect to
regulatory crimes, there just is not.
Ms. Bass. Let me ask you a question. It is a little bit off
topic, but your answer kind of raises it with me and that is
our drug laws, which several people have referenced. But you
talk about something that is changing in our society, and that
is certainly one area of law that is changing depending on what
State you live in. So we have on our books now, if you are a
student applying for financial aid and you want Federal
financial aid, there is a box that you have to check as to if
you have had a drug conviction. But we have States now that
have legalized the use of marijuana. So what is your thought on
that. I mean, I have legislation to try to address that, but I
would like to know your thoughts on that.
Mr. Rubinstein. It is a very complex topic. Obviously, this
is a big country and we have very different attitudes toward
all sorts of things in many of the States, and frankly, that is
reflected in many cases in the exercise of prosecutorial
discretion. Years ago, I was working in Michigan and drug
offenses in the northern part of the State would be prosecuted
very aggressively but drunk driving would not. But if you were
in the southern part of the State, you would have the exact
opposite. Drunk driving would be prosecuted very aggressively,
but drug offenses would not. And that was reflective of local
norms and mores. And that is just in one State. That is not all
over the country. So it is a very difficult topic.
Part of the problem again is just sort of a proliferation
of laws. By one count, there are over 300 Federal statutes that
deal with fraud, going to the banking question earlier. There
are plenty of laws on the books and it comes down to the
exercise of prosecutorial discretion.
The space that I know best is the regulatory one, and here
again the issue is framed in a very specific way. The solution
is, frankly, to go back to first principles, things like mens
rea, things like making it clear what the prohibited actions
are, and then perhaps letting localities, the States work it
out in the exercise of prosecutorial discretion.
Federal agencies are a different beast, and that is part of
a longer discussion frankly.
Ms. Bass. Thank you.
Mr. Gohmert. We thank the gentlelady from California.
At this time, we recognize Mr. Jeffries, the gentleman from
New York.
Mr. Jeffries. Thank you, Mr. Chair.
And let me thank the witnesses for your testimony here
today and certainly Mr. Lewis and Mrs. Kinder for your
presence, for your willingness to relive what I think we all
understand would be a difficult moment, unnecessarily difficult
moment in your lives, but also to take the opportunity to share
that moment with us in the hopes that Congress will act and
that we can prevent others from going through the similar
trauma that you have gone through. And certainly I think the
power of the narratives that you have both communicated are
compelling in that regard.
Let me ask Mr. Lewis first. It is my understanding that
initially you were charged with a Federal felony offense. Is
that correct?
Mr. Lewis. Yes, sir.
Mr. Jeffries. And then ultimately you pled to a
misdemeanor.
From the moment of the initial charge to the ultimate plea,
what was the time period.
Mr. Lewis. I believe 10-11 months, 12 months, something
like that.
Mr. Jeffries. And during that time period, did you retain
counsel or was counsel appointed?
Mr. Lewis. The company that I worked for obtained counsel
that represented me, yes.
Mr. Jeffries. And, Mrs. Kinder, initially you were charged
with a felony and ultimately pled guilty to a felony. Is that
right?
Ms. Kinder. Yes.
Mr. Jeffries. And what was the sort of duration of the
legal process from initial charge to plea?
Ms. Kinder. All together, we went through about 5 years. I
cannot remember the date today. We went through about 5 years
of wondering day to day.
Mr. Jeffries. And are you still under Federal supervision,
probation?
Ms. Kinder. We are on probation. Even though I have
satisfied all of the requirements, they still hold us on
probation. They will not let us go.
Mr. Jeffries. And as a consequence of the felony
conviction--I am not as familiar with Kentucky law in terms of
disenfranchisement, but have you lost your ability to vote?
Ms. Kinder. I am sorry. Would you ask me that again?
Mr. Jeffries. Have you lost your ability to vote as a
result of the conviction?
Ms. Kinder. Not that I know of to vote.
Mr. Jeffries. Okay. Well, I appreciate the testimony of
both of you. Obviously, under certain State laws, one gets a
felony conviction and they are prohibited from participating in
the electoral process in some instances temporarily, in some
instances permanently.
Ms. Kinder. May I elaborate on that?
Mr. Jeffries. Sure.
Ms. Kinder. They offered us a $25 fine and a misdemeanor.
So we had to weigh that. Did we want to go to trial where we
could not afford a trial to start with at that point in time
and take chances on going to prison? So we could not refuse.
Mr. Jeffries. Well, I think that both of the stories that
you have told illustrate the point that several of my
colleagues have mentioned. In facing the power of the Federal
Government and possibly in the absence of the inability to
bring to bear an equivalent level of legal representation,
folks are put in an untenable situation in terms of ultimately
having to plead guilty. And in the continuum of justice, which
moves from congressional action to administrative rulemaking to
prosecutorial discretion and judicial review, obviously there
is a breakdown, at least I believe respectfully, in that
prosecutorial discretion phase that requires some measure of
corrective action.
Mr. Rubinstein, if you can comment on sort of the notion of
one of the things that have been explored is the possibility of
default mens rea. Another possibility, maybe additive, is the
notion of applying the rule of levity to some degree which, as
I understand it, would require construing the defendant's
behavior in the best possible light as it relates to
criminality. Can you make an observation on that possibility in
addition to----
Mr. Rubinstein. That is certainly one of the tools in the
toolbox. There are a variety of options available to you to try
and solve the problem, particularly in dealing with it from the
regulatory standpoint. And part of it could be related to a
regulatory reform issue to open up the process to make sure
that there is, as I said, some transparency in terms of how
agencies make rules so that there is more notice and that
people have the ability to understand what the law is.
There are potential limits on prosecutorial discretion. For
example, the way the Department of Justice now handles RICO
violations or RICO prosecutions. There is this kind of
centralized process that might be appropriate with respect to
these kinds of regulatory decisions to take them away from the
people who are making the laws, so to speak, writing the
regulations, and giving those functions to an independent body
to make determinations about enforcement because, again,
regulatory agencies are kind of unique beasts. In many cases,
they act as--they write the laws, they enforce the laws, and
then they prosecute the violations. More often than not, those
are civil, than criminal instances obviously, but the problem
obtains in both realms.
So I think there are certainly solutions, and the one you
suggest absolutely ought to be part of the mix. It is not a
simple problem, but it is one that you need to fix and there
are fixes.
Mr. Jeffries. Thank you. I yield back.
Mr. Gohmert. I thank the gentleman.
At this time, we have finished the questioning. However, it
is important to note that all Members will have 5 legislative
days to submit additional written questions for the witnesses,
and the witnesses may have 5 additional days, if you think of
something else you would like to have submitted for the record
in this hearing.
But that at this time concludes today's hearing. Thank you
to the witnesses very much for your assistance, as we pursue
this problem. This hearing is adjourned.
[Whereupon, at 11:36 a.m., the Task Force was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record