[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
CRIMINAL CODE REFORM
=======================================================================
HEARING
BEFORE THE
OVER-CRIMINALIZATION TASK FORCE OF 2014
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 28, 2014
__________
Serial No. 113-71
__________
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 ZOE LOFGREN, California
SPENCER BACHUS, Alabama SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas JUDY CHU, California
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]
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
C O N T E N T S
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FEBRUARY 28, 2014
Page
OPENING STATEMENTS
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Chairman, Over-
Criminalization Task Force of 2014............................. 1
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Ranking Member, Over-
Criminalization Task Force of 2014............................. 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 2
WITNESSES
Michael Volkov, CEO, The Volkov Law Group LLC
Oral Testimony................................................. 10
Prepared Statement............................................. 13
Julie Rose O'Sullivan, Professor, Georgetown University Law
Center
Oral Testimony................................................. 23
Prepared Statement............................................. 24
Roger A. Fairfax, Jr., George Washington University Law School
Oral Testimony................................................. 24
Prepared Statement............................................. 27
John D. Cline, Esquire, Law Office of John D. Cline
Oral Testimony................................................. 41
Prepared Statement............................................. 43
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable F. James Sensenbrenner, Jr.,
a Representative in Congress from the State of Wisconsin, and
Chairman, Over-Criminalization Task Force of 2014.............. 2
Prepared Statement of the Honorable Robert C. ``Bobby'' Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Over-Criminalization Task Force of 2014........ 3
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
Witness Biographies/Introductions submitted by the Honorable F.
James Sensenbrenner, Jr., a Representative in Congress from the
State of Wisconsin, and Chairman, Over-Criminalization Task
Force of 2014.................................................. 7
CRIMINAL CODE REFORM
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FRIDAY, FEBRUARY 28, 2014
House of Representatives
Over-Criminalization Task Force of 2014
Committee on the Judiciary
Washington, DC.
The Task Force met, pursuant to call, at 9:01 a.m., in room
2237, Rayburn Office Building, the Honorable F. James
Sensenbrenner, Jr. (Chairman of the Task Force) presiding.
Present: Representatives Sensenbrenner, Goodlatte, Bachus,
Gohmert, Labrador, Conyers, Scott, Cohen, Johnson, Bass, and
Jeffries.
Staff Present: (Majority) Robert Parmiter, Counsel; Alicia
Church, Clerk; and (Minority) Ron LeGrand, Counsel.
Mr. Sensenbrenner. The Over-Criminalization Task Force
hearing will come to order, and without objection, the Chair is
authorized to declare recesses of the Task Force at any time.
I will recognize myself for an opening statement. Good
morning and welcome to the fifth hearing of the Judiciary
Committee's Over-Criminalization Task Force. During its first 6
months, the Task Force conducted an in-depth evaluation of the
over-criminalization problem. We held four hearings, focusing
on the lack of a consistent and adequate mens rea requirement
in the Federal code, and the problems associated with
regulatory crime.
Earlier this month, the Committee took the important step
of reauthorizing the Task Force for an additional 6 months. We
intend to conduct hearings on a variety of topics, including
penalties, over-federalization, and the perspectives of various
executive and judicial agencies. Today's hearing will focus on
criminal code reform.
The criminal code is a mess. Rather than a well-organized,
systematic tool for enforcing important Federal criminal
statutes, the code is riddled with provisions that are
outdated, redundant, or simply inconsistent with more recent
modifications to reflect today's modern approach to criminal
law.
This is due, at least in part, to Congress' penchant for
legislating in a vacuum in a politically popular manner, or in
a rapid response to a crisis or a national news story, instead
of thoughtfully and deliberately.
The resulting code is a vast chaotic, disorganized
amalgamation of Federal criminal statutes that is difficult to
use for practitioners and nearly incomprehensible for the
average American. The size and disorganization makes it
extraordinarily difficult to ferret out the law applicable to a
particular factual situation, which does a great disservice to
the public.
Because we will be voting at 10:30 this morning, and I
doubt anybody is going to come back after the votes, I am going
to ask unanimous consent to put the rest of my statement into
the record, and hope that other Members will do the same.
And with that, I will recognize the gentleman from
Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, a code is defined as a systematic and
comprehensive compilation of laws, rules, regulations that are
consolidated and classified according to subject matter. What
we refer to as our criminal code is anything but systematic.
Taking a clue from the Chair, we have asked the
Congressional Research Service to give us the most accurate and
current count of the criminal provisions in the code. Their
initial response is that is too hard to do. We hope to hear
from them in the near future.
But rather than take time to utilize evidence-based
research in drafting criminal law legislation, we have
responded in a knee-jerk fashion, charging ahead with the
failed tough-on-crime legislation. In order to appease public
opinion by addressing the crime of the day, we fail to use
evidence-based approaches to fashion criminal penalties.
For example, we frequently use absurd mandatory minimums to
address drug laws when we know that evidence has suggested that
it is much more effective in treating and prevention, than
mandatory minimums and long sentences.
Mr. Chairman, I look forward to the rest of the testimony,
and I will put the rest of my statement in the record.
Mr. Sensenbrenner. With the same hint that Mr. Scott has
taken, I will recognize the gentleman from Michigan, Mr.
Conyers.
Mr. Conyers. Thank you, Chairman Sensenbrenner. I, too,
will follow the leads that have been set out for me.
I just want to emphasize that we have an explosive growth
of the Federal criminal code. We have counted 4,450 Federal
crimes on the books.
And this hearing, among other things, is to determine how
the criminal code should be modernized. And the cost, I have
detailed here in my opening statement, and I will make some
more comments about it.
And I will put the rest into the record, and I yield back
the balance of my time.
Mr. Sensenbrenner. I thank the gentleman.
Without objection, all Members' opening statements will
appear in the record at this point.
[The prepared statement of Mr. Sensenbrenner follows:]
Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a
Representative in Congress from the State of Wisconsin, and Chairman,
Over-Criminalization Task Force of 2014
Good morning and welcome to the fifth hearing of the Judiciary
Committee's Over-Criminalization Task Force. During its first six
months, the Task Force conducted an in-depth evaluation of the over-
criminalization problem. We held four hearings, focusing on the lack of
a consistent and adequate mens rea requirement in the federal code and
the problems associated with regulatory crime. Earlier this month, the
Committee took the important step of re-authorizing the Task Force for
an additional six months. We intend to conduct hearings on a variety of
topics, including penalties, over-federalization, and the perspectives
of the various Executive and Judicial agencies. Today's hearing will
focus on Criminal Code Reform.
The federal Criminal Code is a mess. Rather than a well-organized,
systemic tool for enforcing important federal criminal statutes, the
Code is riddled with provisions that are outdated, redundant, or simply
inconsistent with more recent modifications to reflect today's modern
approach to criminal law. This is due, at least in part, to Congress's
penchant for legislating in a vacuum, in a politically popular manner,
or in rapid response to a crisis or national news story, instead of
thoughtfully and deliberately. The resulting Code is a vast, chaotic,
disorganized amalgamation of criminal statutes that is difficult to use
for practitioners and nearly incomprehensible to the average American.
This size and disorganization makes it extraordinarily difficult to
ferret out the law applicable to a particular factual situation, which
does a great disservice to the public.
Another major problem for the Code is the lack of clear, concise
definitions; indeed, some scholars consider the real problem of over-
criminalization to be qualitative, not quantitative. Last year, the
Task Force encountered this problem with respect to the disparate and
ill-defined criminal intent requirements scattered throughout the Code.
However, mens rea is certainly not the only area where this is a
problem. The Code is replete with undefined and inconsistently-applied
terms. For example, the term ``serious bodily injury'' is used hundreds
of times throughout the Code. However, there are at least two different
definitions of this term. There are many instances where the term is
undefined, or where the section refers the reader to another section of
the Code, which criminalizes wholly unrelated conduct, for a definition
of the term.
The Code also suffers from problems of redundancy. For example, the
Supreme Court estimated in 1997 that there were at least 100 separate
sections in the Code criminalizing false statements--and we know that
the penalties imposed by these separate sections are all over the map.
This redundancy means that two people may be punished differently under
federal law for the same conduct, depending on which statute the
government chooses to use. That is clearly not what Congress intended,
and is a particular concern of mine.
Over the last several sessions of Congress, I have introduced
legislation to consolidate and streamline the federal code. The
Criminal Code Modernization and Simplification Act cuts more than one-
third of the existing Criminal Code, reorganizes the Code to make it
more user-friendly, and consolidates criminal offenses from other
titles so that Title 18 includes all major criminal provisions. During
its work on code reform, I hope the Task Force will carefully consider
the drafting principles contained in H.R. 1860. The bill is a mere
1,200 pages, so it should be easy for the Task Force to vett it.
The issue of code reform is a worthy exercise for the Judiciary
Committee and this Task Force. We have a responsibility to ensure that
the criminal laws passed by this body--which can deprive citizens of
life, liberty, and property--are carefully and thoughtfully drafted,
and clearly identify the prohibited conduct.
I want to thank all the witnesses for appearing today, and
especially want to welcome Mr. Volkov back to the Committee. I look
forward to hearing your perspectives on this important issue.
__________
[The prepared statement of Mr. Scott follows:]
Prepared Statement of the Honorable Robert C. ``Bobby'' Scott, a
Representative in Congress from the State of Virginia, and Ranking
Member, Over-Criminalization Task Force of 2014
Thank you, Mr. Chairman.
A ``Code'' is defined as, ``a systematic and comprehensive
compilation of laws, rules, or regulations that are consolidated and
classified according to subject matter.''
What we refer to as our criminal code is anything but systematic.
It is neither thoughtful nor is it organized in a way that gives
citizens fair notice of which behavior is lawful and which might land
them in jail.
For years we and others have acknowledged that federal criminal law
has dramatically expanded in size and scope over recent decades. We're
very familiar with the history of this increase. Federal criminal law
grew from 165 offenses in the year 1900 to 2,000 offenses by 1970, and
then expanded to 4,000 federal crimes in 2003. By June 2008, 452 more
criminal provisions had been added.
The problem has become so serious that the term, ``over-
criminalization'' has been coined to describe how Congress has
criminalized behavior that too often is not, by its very nature
``criminal''.
Truthfully, we don't really know the actual number of federal
criminal provisions. We've asked the Congressional Research Service of
the Library of Congress to give us their most accurate and current
count of provisions in the Code, although their initial response was
that it would be hard to calculate; we hope to hear from them in the
near future, although their initial response was that it would be hard
to calculate.
What we do know is that the current body of laws that we refer to
as the Federal Criminal Code is overly broad and very often poorly
defined. We have unnecessary and redundant federal crimes that overlap
state criminal justice systems. They create a network of criminal
statutes that exponentially increase citizens' exposure to prosecution
with no regard to the crushing economic, human and societal costs of
over-incarceration.
Too often we haven't considered these costs. Too often this
increase or expansion in the Federal Criminal Code is an outcome of a
politically expedient response to a public crisis or a tragic event.
That crisis might be a surge in gang activity, a breakdown on Wall
Street, or a perceived increase in misconduct or corruption on the part
of public officials.
Rather than take the time to utilize evidence-based research in the
drafting of legislation, we have responded in knee-jerk fashion,
charging ahead with failed ``tough on crime'' determination in order to
appease public opinion by addressing the crisis of the day. We have
failed to use evidence based approaches to shape the penalties imposed.
For example, we have frequently resorted to the use of absurd mandatory
minimums and long sentences for drug possession when prevention and
treatment consistently are found to be more effective than the drug
war.
As a result, the United States imprisons more people per capita and
in actual numbers than any nation on the planet. We have two and a half
million people behind bars here. While the United States represents 5%
of the world's population, we've got 25% of the world's reported prison
population. While most of the world incarcerates at a rate of about 50-
200 people per 100,000, the U.S. is the world's worst incarcerator with
over 700 per 100,000. Research tells us, however, that anything over
500 per 100,000 is considered counterproductive. As a nation, we've
made some very bad choices. We've adopted well-meaning, but wrong-
headed policies that have turned America's criminal justice system into
one over-ridden with slogans and sound bites that do nothing to reduce
crime.
With all of the focus on ``tough on crime'' and ``locking people up
and throwing away the key'', we've devoted too little attention to
these policies' actual effect on crime and to the tragic and life-
altering consequences that face individuals, families and communities
after conviction.
It's time we pressed the ``Pause'' button and asked ourselves,
``What is it that we seek to accomplish?''
Despite the differences we've encountered from time to time, as
Members of Congress, we all share many of the same set of goals, and I
believe that we're striving to fulfill the same responsibilities. For
example, we want to:
protect the safety of our fellow citizens and the
security of our nation;
safeguard the civil rights to which everyone in this
country is entitled;
prevent and combat violent crime, financial fraud,
and threats to the most vulnerable members of society;
improve the effectiveness of our criminal justice
systems.
We've invited today's witnesses, all experts, to give us their
thoughts about criminal code reform. How do we achieve reform? What
should be the process? Who are the stakeholders to be included in the
discussion? Is the creation of another commission necessary, similar to
the Brown Commission created a few decades ago? What lessons can be
learned from that and other commissions and task forces that have taken
on this challenge in the past? Where do we begin?
In the Crime Subcommittee as well as in this Task Force we have
discussed specific reforms suggested by various coalitions. Those
suggested reforms have included recommendations that Congress establish
a default criminal intent mens rea standard to assure that there is a
criminal intent standard for any existing criminal provision that does
not specify one. It's also been suggested that Congress provide written
analyses of, and justification for, all new or modified criminal
offenses and penalties.
The recommendations further provided that, in order to avoid adding
to the problems of over-criminalization, Congress should ask these hard
questions before enacting new criminal laws:
Do we need to enact more criminal laws at the federal
level for a particular type of conduct, or would civil
penalties accomplish our goals?
Is there a valid purpose to be served by creating
criminal law at the federal level when it duplicates an
existing state level law?
Would it be a better use of resources for the federal
government to supplement state enforcement of criminal laws
rather than replicating their efforts at the federal level?
And Congress should also be asking these same questions about the
thousands of civil laws that can be found throughout the federal code.
__________
[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
In past hearings, this bipartisan Over-Criminalization Task Force
has recognized the explosive growth in the federal criminal code. We
now have more than 4,450 federal crimes on the books.
More than 1,500 of these crimes are codified in Title 18 of the
U.S. Code, and many others are scattered elsewhere, such as Title 8,
which deals with immigration, and Title 21, which concerns controlled
substances.
Today we consider whether and how the Criminal Code should be
modernized.
In undertaking this task, however, there are several factors we
should keep in mind.
To begin with, the financial ramifications of our Nation's criminal
system should be considered.
Federal prisons currently house more than 200,000 people at an
annual cost to taxpayers in billions of dollars.
More than half of these inmates, however, are serving time for drug
offenses, many of which are non-violent. And, 11% of the prison
population has been convicted of immigration violations.
We must also not forget the fact that the United States spends $51
billion annually on the ``war on drugs'' and its disproportionate
impact on minorities.
It is clear that drug and immigration laws are very real
contributors to over-criminalization and over-incarceration, all of
which come with a huge cost.
Second, further clarification of the Criminal Code's mens rea
requirements is needed.
For example, 17 of the 91 federal criminal offenses enacted between
2000 and 2007 lacked any mens rea requirement.
In the absence of such a standard, innocent individuals can be
convicted for acts where it may not even be clear that a crime has been
committed.
But the mens rea standard must be clear. Laws in the Criminal Code
exist that provide so many paths by which mens rea can be evidenced for
a single criminal act, that it becomes incredibly confusing to
prosecutors and the courts to determine which standards must be met.
As Professor Julie O'Sullivan has written, and who I am happy to
say will be able to shed more light on the subject today through her
testimony, the Code includes over 100 types of mens rea standards,
which may not be applied uniformly even within a single statute.
This has led to a massive expansion of prosecutorial discretion,
which is one of the problems this Task Force has been created to
address.
Lastly, the ever-expanding prosecutorial discretion inherent in the
Criminal Code must be addressed.
Too frequently, the Code contains multiple statutes that have
overlapping provisions for a single offense.
Often these overlaps provide different evidentiary requirements
that must be proven to result in a conviction, some easier and some
more difficult.
This allows prosecutors to cherry pick the statutes with which they
will charge defendants, which will usually be those containing the
easier to prove elements.
Even more concerning is that these vague and internally
inconsistent criminal statutes regularly contain different maximum
sentences for what would otherwise be considered identical crimes.
For instance, a defendant accused of destroying documents he or she
knew would be subpoenaed by a grand jury can be charged under 18 U.S.C.
1503, 1512, 1519, or 1520, all of which have different evidentiary
standards, and which have maximum sentences ranging between 10 and 20
years.
Accordingly, I look forward to hearing the testimony of our
witnesses.
__________
[The prepared statement of Mr. Goodlatte follows:]
Prepared Statement of the Honorable Bob Goodlatte, a Representative in
Congress from the State of Virginia, and Chairman, Committee on the
Judiciary
Thank you, Chairman Sensenbrenner. I am very pleased to be here at
the first hearing of the Over-Criminalization Task Force following its
reauthorization. I particularly appreciate your leadership on the issue
of criminal code reform.
As we all heard last year, the U.S. Code currently contains an
estimated 4,500 federal crimes, and Congress is adding new crimes at a
rapid rate--approximately 500 per decade. The fact that this is only an
estimate means that no one knows exactly how many provisions in the
federal Code subject American citizens to criminal sanctions. The
explosive growth of the Criminal Code is due in large part to what many
have termed ``legislation by accumulation,'' which means that Congress
has simply accumulated new offenses for two hundred years or so, with
little examination or reformulation of existing offenses. This has
resulted in serious, chronic overlaps in coverage and irrationalities
among offense penalties, which create new possibilities for disparity
in treatment and for double punishment for the same harm or evil. This
sort of ``legislation by accumulation,'' or by anecdote, is undoubtedly
contrary to Congressional intent, not to mention the fair
administration of justice.
As Chairman of the Judiciary Committee, I have a particular
interest in ensuring that the provisions in the Criminal Code are
carefully and thoughtfully drafted. Last year, the House passed
legislation to ensure that the criminal prohibitions against cigarette
smuggling apply to the U.S. territories of American Samoa, Guam and the
Northern Mariana Islands just as they do in the rest of the country.
Without this fix, cigarettes sold in those territories without evidence
that taxes were paid would not fall within in the definition of
``contraband cigarettes.'' The House passed similar legislation last
Congress, but it was not taken up by the Senate, so we had to pass it
again this Congress. This legislation was necessary because something
as simple as a general, uniform definition of the term ``state'' does
not exist in title 18. This is an example of Congress having to go back
and fix a problem it created by imprecise drafting. We should be able
to be specific when drafting laws that affect Americans' fundamental
liberties.
Additionally, many of the criminal offenses contained in Title 18
are not graded according to their relative severity. Distinguished
scholars--including Professor Julie O'Sullivan of Georgetown
University, who is with us today--have described this problem. For
example, the statutory maximum penalty for violating certain sections
of the Animal Welfare Act--five years--is the same as the penalty
prescribed for female genital mutilation of girls under eighteen. The
fact that these crimes are punished equally by the Criminal Code speaks
volumes about the need for reform.
The Judiciary Committee has an excellent track record when it comes
to careful and precise drafting, particularly with respect to the
quality of criminal intent requirements. However, the federal Criminal
Code, over which this Committee maintains jurisdiction, still suffers
from severe problems of redundancy, overlap, and a lack of clear,
consistent definitions. Under my leadership, this Committee is
dedicated to ensuring that the legislation we produce employs clear and
defined terms, and clearly outlines the conduct that is prohibited. The
American people deserve no less.
I thank our distinguished panel of witnesses, and look forward to
their testimony.
__________
Mr. Sensenbrenner. I will give abbreviated introductions of
all of the witnesses. And without objection, the full text will
be put in the record at this time.
[The information referred to follows:]
__________
Mr. Sensenbrenner. The first witness is Mr. Michael Volkov,
who is the CEO of the Volkov Law Group, which has expertise in
areas of compliance, internal investigation, and enforcement
matters, and an alumnus of the staff of this Committee.
Ms. Julie Rose O'Sullivan is the associate dean for the
J.D. program at Georgetown Law School. She has written many
articles and has the leading casebook on white-collar crime,
and is a recognized expert in both Federal sentencing
guidelines and white-collar criminal law.
Mr. Roger Fairfax, Jr., is professor of law at G.W.
University Law School, where he teaches and writes on criminal
law and procedure, and criminal justice policy.
And finally, Mr. John Cline practices in the Law Office of
John Cline in San Francisco. His practice focuses on Federal
criminal defense at trial and appellate levels. He has tried
criminal cases nationwide, and argued before a number of
Federal courts of appeals and the United States Supreme Court.
I thank all of the witnesses for appearing. Without
objection, your full statement will appear in the record.
The Chair would request that witnesses confine their
testimony to 5 minutes. You all have experience with red,
yellow, and green lights. You know what they mean.
Mr. Volkov, you are first.
TESTIMONY OF MICHAEL VOLKOV, CEO,
THE VOLKOV LAW GROUP LLC
Mr. Volkov. Chairman Sensenbrenner, Ranking Member Scott,
Ranking Member Conyers, and other Task Force Members, thank you
for the opportunity to appear and testify before the Task
Force.
First, let me say it is an honor to return to the
Committee, where I worked on the staff for several years. I am
very comfortable with addressing the Task Force Chair as Mr.
Chairman. As a matter fact, he requires that, and I still do
that, too.
It is also an honor to return to the Committee to appear
before Ranking Member Scott, with whom I worked for many years
on important criminal justice issues, debated a lot of issues.
And I am sure the Committee and you miss our colleague,
Bobby Vassar, who contributed so much to the Committee's work.
My years on the Judiciary Committee staff were the
highlight of my professional career, and I will always be
grateful to all of you and to the Committee for the opportunity
to serve the public.
Now I welcome the opportunity to address the Task Force on
the important issue of Federal criminal code reform. This is an
issue that is near and dear to my heart.
Mr. Chairman, you have led the charge on this issue by
introducing over the last 4 years the Criminal Code
Modernization and Simplification Act. Having worked as a staff
member on this important legislation, I know the effort that is
required to introduce this bill each year. It is a Herculean
task. Your work represents an important bipartisan invitation
and challenge to enact meaningful criminal code reform.
I want to take a moment to commend your former staff
director, Phil Kiko, and I am sure there is no objection to
that, hopefully.
Mr. Sensenbrenner. Without objection, so ordered.
[Laughter.]
Mr. Volkov. And Legislative Counsel Doug Bellis--he just
appeared--and Legislative Counsel Doug Bellis, who both devoted
significant time to this effort, as well as your staff in the
last three congressional sessions.
We can all agree on one thing: The Federal criminal code,
if left unchecked, will continue to resemble the United States
Tax Code. That is not a good thing. In fact, it threatens any
hope we have of equal justice.
Each year, a new edition of the current United States
Criminal Code with a new color, or at least portions of it, is
delivered to lawyers, congressional staff, and practitioners.
Each year, it accretes new crimes, resembling the old Yellow
Pages, if anyone here remembers those days.
I am reminded of one of my favorite scenes from a Marx
brothers movie, ``Duck Soup,'' when Groucho Marx is the
president of the mythical country Fredonia. He is given a
report by one of his ministers, who asked Groucho if he
understands the report. Groucho replies, ``Of course, I
understand the report. Why, even a 4-year-old child could
understand this report.'' Groucho looks down at that report,
starts to read, and then says, ``Run out and get me a 4-year-
old child. I can not make head or tail of it.'' The same can be
said about our Federal criminal code.
No one can make heads or tails of the code, except
possibly--possibly--prosecutors, judges, and defense counsel.
Our citizens have no idea the scope of Federal crimes, nor are
they aware of the coverage of specific Federal crimes.
The Federal criminal code is unusable, unwieldy, and a maze
of Federal criminal offenses, few of which are drafted
consistently and even fewer of which provide clarity to law-
abiding citizens.
The danger of the Federal criminal code is well known to
the Task Force, as reflected in the title and the charter right
here: ``Over-Criminalization.''
The Federal criminal code gives Federal prosecutors even
more power and discretion to exercise against defendants. It
enables them to manipulate the criminal justice system to
charge similarly situated defendants with a variety of crimes.
Prosecutors can exercise this power without violating the
double jeopardy clause of our Constitution. This is
inconsistent with our commitment to equal justice.
Our Federal criminal code needs to reflect three clear
principles. First, it must be written clearly. Second, it must
be concise with a minimal use of clear and defined terms. And
third, it must be accessible.
Right now, the Federal criminal code sits as a monstrosity
that no one has the time or the inclination to tackle, much
less understand.
The issue of reform is much more serious than references in
the criminal provisions to prevent improper use of ``Smokey
Bear,'' ``Woody Owl,'' or protecting the emblem of the Swiss
Confederation.
As it now stands, the code is littered with criminal
offenses that are used in the criminal justice system to obtain
desired results without regard to Congress' intent.
The Over-Criminalization Task Force is at the right place
and at the right time to advance revision of the Federal
criminal code. I urge you, as a former Federal prosecutor and
now a defense lawyer, and an alum of the staff here, to
recommend that the Federal criminal code be reviewed and
revised with a goal of providing clarity, applying consistent
drafting principles, and reducing the number and reach of
Federal crimes in order to protect our constitutional system of
justice and respect federalism.
First, let me just go over the principles that should guide
any type of reform--and I appreciate the Chair's hammering, and
I will submit my statement, obviously, for the record.
[The prepared statement of Mr. Volkov follows:]
__________
Mr. Sensenbrenner. Without objection.
Ms. O'Sullivan?
TESTIMONY OF JULIE ROSE O'SULLIVAN, PROFESSOR, GEORGETOWN
UNIVERSITY LAW CENTER
Ms. O'Sullivan. Thank you, Mr. Chairman, Ranking Member
Scott, and the Task Force. I am honored to be invited to speak
to you today about a topic about which I have written quite a
bit. I feel a little bit like a weekend hacker advising the
wizards on their defense. It strikes me as a little
presumptuous for an academic to come and tell expert lawmakers
how to revise a code. That said, you have invited me, so I am
delighted to participate.
Thus far, those of us who have written in this field have
witnessed a remarkable phenomenon in Washington; that is, the
ACLU sitting cheek by jowl with the federalists and Cato and
everybody else. Concerned groups on the left and the right
agree that the code is broken, and it has to be fixed.
I do not think that there is real question about that any
longer. The question is what is to be done.
I would imagine that this Kumbaya moment is going to be
fleeting. I assume it will break down fairly quickly, once we
start getting into the specifics of code revision, because the
parties that are coming together now actually have very
different underlying values.
So for example, the ACLU is principally concerned, as I
understand it, with over-incarceration, racial equity, juvenile
justice, and overly harsh drug sentencing. By contrast, I think
a lot of the conservative groups who have made their voices
heard are much more concerned with federalism issues, with the
overabundance and vagueness of white-collar offenses, and with
deficiencies in mens rea that permeate the code.
What does this mean? Two things. First, once the actual
process of code reform begins, we are going to see a
splintering, and the politics are going to become much more
contentious. And second, in light of that, although it is
arguable, it may be best to take the entire project on at once,
so that those with different priorities will be forced to
negotiate, horse trade, compromise, with the result that we
actually get something done.
Prior efforts to reform the code ended in frustration, but
they eventually bore fruit. I believe that the U.S. Sentencing
Commission was created in part because one could not fix the
code in the front end--that is, fix the actual code--so the
decision was made to rationalize the back end, rationalize the
punishment.
The issues surrounding sentencing are as contentious, if
not more contentious, than formulating a criminal norm. But the
Sentencing Commission was very successful in appearing
bipartisan and expert. As part of its processes, it regularly
called in experts and solicited the views of all stakeholders,
and it still does.
Many people are unhappy with the guidelines, but that is
the nature of the enterprise. We are not going to make
everybody happy. For present purposes, what is really important
is that the commission got the job done, that Congress, at
least at that point, was unable to do. And it got the job done
in a credible and expert fashion.
With this in mind, I urge lawmakers to create a permanent,
expert, bipartisan body, perhaps this one, whose charge it is
to overhaul and continuously respond to emerging issues and
problems that percolate up from the courts. This type of body
is essential to ensure a devotion to this difficult task that
otherwise may well ebb and flow with political seasons, the
tenure of committed Members of Congress, and the like.
It would also provide the means by which consultation with
all stakeholders, and many experts could actually be
institutionalized. And this kind of consultation strikes me as
absolutely essential to the kind of credibility and viability
of a revised code.
It would also ensure uniform drafting and consistent use of
mens rea terms, and it would allow Congress to remedy much more
promptly problems emerging in the application of the statute.
For example, this expert body no doubt would have advised
Congress to respond sooner to problems with the honest services
doctrine than the 20 years it took the Supreme Court to decide
that all the people who--not all, but many of the people who
went to jail for 20 years did not, in fact, commit a crime.
Obviously, how such a body is structured, financed, to whom
it reports, the weight given its work product, and myriad other
issues, would have to be resolved consistent with
constitutional and practical constraints. But I think that code
reform may well continue to be just a fond dream without such a
permanent commitment to the code.
Thank you.
[The prepared statement of Ms. O'Sullivan follows:]
Prepared Statement of Julie Rose O'Sullivan, Professor,
Georgetown University Law Center
For my written statement, which is an article entitled ``The
Federal Criminal `Code' Is a Disgrace: Obstruction Statutes as Case
Study,'' published in the Journal of Criminal Law and Criminology in
2006, please go to the following link:
http://www.federalwhitecollarcrime.org/pdf/criminal--Law--and--
Criminilogy.pdf
Additional thoughts can be found in:
Julie Rose O'Sullivan, The Federal Criminal ``Code'': Return of
Overfederalization, 37 Harv.J.Law & Public Policy 57 (2014).
__________
Mr. Sensenbrenner. Thank you very much.
Mr. Fairfax?
TESTIMONY OF ROGER A. FAIRFAX, JR.,
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
Mr. Fairfax. Chairman Sensenbrenner, Ranking Member Scott,
and Members of the Task Force, I thank you for the kind
invitation to participate in this hearing on criminal code
reform. And at the outset, I would like to voice my
appreciation for the hard work and dedication of this Task
Force, the Members of which are exhibiting exactly the kind of
leadership and bipartisan cooperation necessary for the
improvement of our Nation's criminal justice system.
I come to this topic as a former Federal prosecutor who has
handled cases brought under the Federal criminal code, and as
an attorney who has defended individuals and corporations
charged under statutes in the code, and as a legal scholar who
has dedicated much of his work to the improvement of our
Nation's laws and the justice system.
And Members of this Task Force have been instrumental in
exposing and responding to the deficiencies of the Federal
criminal code. Of course, Chairman Sensenbrenner has introduced
the Criminal Code Modernization and Simplification Act. In
addition, Mr. Scott, when he was Chairman of the Subcommittee
on Crime, Terrorism, and Homeland Security, held hearings
soliciting views and concerns regarding the state of the
Federal criminal code.
Many well-respected commentators have criticized the
Federal criminal code for its excessive length, lack of
organization, redundant provisions, and outdated offenses.
There also have been calls for certain substantive changes to
the code, such as the bolstering of mens rea requirements, the
decriminalization of some regulatory and other offenses, and
the reduction in the number of mandatory minimum sentences.
Many of these and other critiques are quite persuasive, and
there is no doubt that most observers would agree that the
Federal criminal code is in need of reform.
However, before we contemplate how Congress might best
streamline, reorganize, refine, and modernize the Federal
criminal code, it is essential to draw lessons from past
efforts.
The seeds of serious modern-day efforts at comprehensive
code reform, Federal code reform, were sown in the 1950's and
early 1960's by the American Law Institute's Model Penal Code,
which with its technical precision, elegant organization and
draftsmanship, and its attention to principles of culpability
and mens rea, spurred many States to undertake significant
revisions of their criminal codes.
With the Model Penal Code and President Johnson's 1965
crime commission as the backdrop, Congress established in 1966
the National Commission on the Reform of Federal Criminal Laws,
commonly known as the Brown commission.
The 1971 final report of the Brown commission proposed a
new Federal criminal code. This proposed code included a
general part that set out definitions, defenses, principles for
liability, and general standards for the exercise of Federal
criminal jurisdiction.
The proposed code also featured a special part containing a
comprehensive collection of all the Federal felony offenses.
Despite the Brown commission's tremendous efforts over 4
years, however, the proposed comprehensive Federal criminal
code never was enacted into law, although there were repeated
attempts in the House and the Senate over a period of almost 12
years.
So it may be time to revisit Federal criminal code reform.
And to be sure, many of the challenges that face Congress after
the Brown commission remain. Nevertheless, I believe that we do
have a meaningful opportunity for reform, because today, a
strong bipartisan consensus has been developing around the idea
that we should be smart on crime.
And given the current receptivity to evidence-based
innovation in criminal justice policy, the time may be ripe for
reconsideration of Federal criminal code reform.
I do have a number of suggestions for consideration, if
Congress were to contemplate embarking on an effort to revise
the Federal criminal code.
The first is the establishment of a new broadly
representative commission, just much like the Brown commission,
to draft Federal criminal code reform legislation or to work
with existing legislation, like Chairman Sensenbrenner's bill.
The second is a partnership with established and respected
law reform entities, such as the American Law Institute or the
ABA Criminal Justice Section, and the utilization of the
technical assistance of members of the legal academy and
experts in criminal justice policy community.
And third, the establishment of a permanent, professionally
staffed criminal law revision commission in Congress that can
assist Members and Committees with the technical analysis
regarding the question of whether a contemplated new criminal
law or penalty is actually needed, and also the design and
drafting of criminal statutes so that they are well constructed
and fit appropriately within the larger criminal code.
I believe that these ideas, derived from the work of
individuals who have been involved in criminal code reform
efforts for decades, are worthy of consideration. And if the
Members have questions later, I will be happy to elaborate on
any or all of these ideas and discuss how criminal code reform
might fit into the larger bipartisan criminal justice reform
agenda, responsive to concerns about over-criminalization.
[The prepared statement of Mr. Fairfax follows:]
__________
Mr. Sensenbrenner. Thank you, Mr. Fairfax.
Mr. Cline?
TESTIMONY OF JOHN D. CLINE, ESQUIRE,
LAW OFFICE OF JOHN D. CLINE
Mr. Cline. Mr. Chairman, Ranking Member Scott, and Members
of the Task Force, thank you for the opportunity to share my
views as a criminal defense lawyer.
A comprehensive revision of the Federal criminal code
should focus on five main points: reducing the number of
Federal crimes, ensuring that the revised code strikes a proper
balance between Federal and State law enforcement, clearly
defining the appropriate levels of mens rea, establishing
uniform rules of construction, and revising the overly harsh
punishment system. I will take those in turn.
First, reducing the number of Federal offenses. The list of
Federal crimes has grown from a handful in the Crimes Act of
1790 to thousands today. This growth has occurred in part
because the country has become more complex, but it also occurs
because every time there is a national crisis, the reaction is
to enact new Federal crimes. The result is a morass of
overlapping statutes.
For example, there are more than two dozen different false
statements statutes in Chapter 47 of Title 18. There are seven
different fraud statutes in Chapter 63 of Title 18. And I count
19 different obstruction offenses in Chapter 73 of Title 18.
This proliferation of Federal offenses has two main
practical consequences, from my perspective. First of all, the
sheer number of crimes creates a notice problem. Justice Holmes
declared that ``fair warning should be given to the world, in
language that the common world will understand,'' talking about
notice of crimes. But with the statutory scheme that now
exists, fair warning is a fiction.
Second, the existence of multiple Federal statutes that
address the same conduct encourages Federal prosecutors to
overcharge. Some prosecutors take advantage of overlapping
offenses to charge the same course of conduct in multiple
counts under multiple statutes. The result is often juror
compromise. Jurors who can not agree unanimously on guilt or
innocence decide to split the baby, to convict on some and to
acquit on others, thinking that they are giving the defendant a
break by doing that. But they can not be told, but the truth
is, that a conviction on one count in Federal court is
typically as bad as a conviction on all counts.
So reducing the number of Federal crimes will reduce
overcharging. It will reduce juror compromise. And it will help
ensure fairness to defendants.
Revising the Federal criminal code affords the opportunity
to address other troublesome areas as well. I will just touch
briefly on one of those, which is conspiracy.
Justice Jackson warned about the elastic, sprawling, and
pervasive conspiracy offense. The offense of conspiracy to
defraud the United States is especially amorphous. A revision
of the code affords an opportunity to think carefully about
conspiracy, and to focus more clearly on who truly deserves to
be caught up in its net.
The second principle is restoring the Federal and State
ballots. Our Federalist system initially contemplated that the
States would have the primary role in law enforcement. Over the
last 50 years, however, Federal criminal jurisdiction has
exploded to the point that almost any culpable conduct can be
brought within the Federal ambit.
As a result, just to cite some examples from my own
practice, we see vote buying in local elections charged us
Federal RICO offenses. We see nondisclosure under State
campaign finance laws charged as mail fraud or wire fraud. And
we see violation of local anti-patronage laws being charged as
Federal honest services fraud. And of course, there are drug
laws where the gap between Federal enforcement and State
enforcement seems to grow.
Reforming mens rea, I will just touch on one area there,
which is willful blindness. There is a Federal doctrine of
willful blindness, which is a judge-made notion that allows the
awareness of a high probability of a fact, and a deliberate
effort to avoid knowledge, to substitute for actual knowledge,
which is the element that Congress has provided. That is a
dangerous provision for defendants, because it weakens the mens
rea requirement, which is often the only element that is
disputed in a Federal criminal case. Revising the Federal
criminal code affords an opportunity to take a look at willful
blindness and make a reasoned decision as to whether it should
be used or not.
The fourth area is uniform rules of construction. I will
touch on one, the rule of lenity. Now it is applied in sort of
a haphazard, ad hoc way by courts. A revision of the Federal
criminal code affords an opportunity to make that a uniform
rule of construction, so that doubts about the meaning of a
Federal criminal statute are uniformly resolved in favor of the
defendant. That is important to fair notice. It is important to
fairness, generally.
And finally, revision of the code affords an opportunity to
fix some of the harsh punishment provisions now, especially
mandatory minimums, that have resulted in an enormous and
unnecessarily large Federal prison population.
Thank you very much.
[The prepared statement of Mr. Cline follows:]
__________
Mr. Sensenbrenner. Thank you very much, Mr. Cline.
The Chair will now recognize Members under the 5-minute
rule, and I will start by recognizing myself.
One of my goals in this effort is to try to avoid the traps
of having an omnibus revision of the criminal code becoming a
debate on numerous criminal justice policies, from the death
penalty to mandatory minimums to disparate sentences and the
like. So in order not to repeat the record of failure of past
attempts to revise the criminal code over almost 50 years, I am
trying to have at least the first attempt at this be policy
neutral.
I would like each of the four witnesses to give us some
advice on how to try to keep it policy neutral, because if it
is not, I think this effort will go down in flames, just like
the previous ones.
Mr. Volkov. Thank you, Chairman Sensenbrenner.
I see this as the most important principle, which is to
stay policy neutral, because there are so many issues that have
to be addressed with regard to drafting, with regard to
inconsistencies, with regard to penalties, that we need to get
a foundation document that is almost like the beginning of
building a house that is clear and is done in the right way,
with technically making the right choices, and consistency.
From that point, everybody can then debate the issues. What
is the right penalty? Should we have a death penalty?
But we first need a document that make sense. And the way
to do that, and I share the recommendation of some type of
body. And you started the anti-trust modernization commission
back in 2006, when we did the Department of Justice
reauthorization bill. That would be some model that could work
for rewriting the code in a policy-neutral basis. Just make
that their charge and get a group of people together who are
experts in the field to do that.
Mr. Sensenbrenner. Ms. O'Sullivan?
Ms. O'Sullivan. Thank you for an excellent and challenging
question.
What I would suggest is that you begin with what I think
Roger mentioned as the general part, which is addressing the
sort of default rules for statutory construction, maybe
legislating the rule of lenity.
But also providing default provisions for mens rea,
definitions of mens rea, definitions of when omissions are
actionable or not actionable. So you could deal with a lot of
the endemic problems of the code by articulating a general
part, much like the ALI's Model Penal Code, that would be sort
of neutral, because there would be no context. It applies to
drug cases; it applies to white-collar cases, right? So you
would be forced, people would be forced to deal with these
issues in the abstract on a criminal law basis rather than a
political or public policy basis.
Mr. Sensenbrenner. Thank you.
Mr. Fairfax?
Mr. Fairfax. I agree with both suggestions, Mr. Chairman. I
would really urge the idea of having a separate entity, a body
with broad representation, perhaps undertake a first cut at a
lot of these issues. I think it is much better to have things
that perhaps do not even seem like they are controversial in
the first instance, but that later turn out to be somewhat
controversial taken up by a commission or by a group in the
first instance, rather than for the first time in the course of
legislative debate. I also agree with Mr. Volkov.
Mr. Sensenbrenner. Thank you.
Mr. Cline?
Mr. Cline. Mr. Chairman, I think true policy neutrality is
hard to obtain. I think in almost any judgment, for example,
about mens rea, there are policy judgments that need to be
made.
I think the best way to achieve a politically acceptable
result is to have the sort of commission that Mr. Fairfax
talked about. I am on the ABA Criminal Justice Standards
Committee. We have prosecutors, defense lawyers, judges,
stakeholders, who meet and try to agree on standards. I think
that approach is probably the best way to get to a result that
could actually be enacted into legislation.
Mr. Sensenbrenner. Thank you very much.
I yield back the balance of my time.
The gentleman from Virginia, Mr. Scott?
Mr. Scott. Thank you, Mr. Chairman.
Mr. Fairfax, you mentioned a couple times the idea of being
smart on crime. Compared to what we are doing on drug abuse,
what would be a smarter approach?
Mr. Fairfax. Well, you know, it is interesting. A lot of
innovation is taking place right now in the States. And I have
been involved with the American Bar Association Criminal
Justice and State Policy Implementation Project. And the goal
of that project is to show States how they can enhance public
safety, reduce crime and recidivism, enhance justice and
fairness, and save the taxpayer dollars, which is a win-win-win
across the board.
And States that have been successful in working in this
area have looked at changes to their sentencing policies in the
same way that legislation that I know you have cosponsored in
the Smarter Sentencing Act. And then also with regard to
reentry of ex-offenders, Michigan, for example, through their
prisoner reentry initiative, has slashed their budget for
corrections and has reduced the overall number of prison beds
that they need.
So I think there are lots of great ideas in the States, and
I am starting to see them come up to the Federal level.
Mr. Scott. There have been several mentions of mandatory
minimums. How do mandatory minimums comply with a smart-on-
crime approach?
Mr. Fairfax. Well, I think that the legislative trends we
are seeing right here in the Congress, again with the Smarter
Sentencing Act, is really starting to take that question head-
on.
I was actually very heartened a couple weeks ago. I know
that you, Mr. Scott, were present at a roundtable at which
Attorney General Eric Holder, Senator Mike Lee, Senator Rand
Paul, Senator Sheldon Whitehouse, participated in a discussion
about these very issues, mandatory minimum sentences. And all
of the aforementioned individuals have either cosponsored
legislation or supported a new approach to mandatory minimums.
And I think that that is the trend that we are seeing.
Mr. Scott. Ms. O'Sullivan, did you want to comment on that,
and also on the value of having all the criminal code in one
place, what the value of that would be?
Ms. O'Sullivan. I would be delighted to.
I think mandatory minimums are wasteful and unjust. They do
not permit the kind of even rough estimate of culpability that
is necessary to a fair justice system. And I think that they
also target certain populations.
In any case, the second part of your question was?
Mr. Scott. Putting all the----
Ms. O'Sullivan. What benefits there are.
It is not just tidiness--right?--that argues for a tight
and discrete code. I can tell you that, as a former prosecutor,
it is almost impossible to figure out the obstruction chapter.
It is overlapping. It is confusing. It makes no sense.
It also, for example, you can charge the same crime under a
20-year count or a 10-year count or a 5-year count, which gives
prosecutors a lot of power that can be used for good or ill.
And so I think that it is a much more efficient--you do not
have prosecutors making mistakes. You do not have things being
cleaned up on appeal. Everybody knows what the rules are. You
have notice. And then are able, once you have this code, to
make thoughtful judgments about relative culpability.
So, for example, in my article I talk about these two
statutes. One statute is fleeing from an INS checkpoint. The
other statute outlaws female genital mutilation. They are both
5-year counts. That makes no sense. But you do not know that
until you have a code that you are able to sit back, look at
the sections, and say, how culpable is this?
So, for example, obstructing a judicial proceeding is a 10-
year count. Did you know that obstructing a congressional
investigation is only 5 years? I do not know why there is a
disparity. [Laughter.]
Mr. Scott. I want to get in one more question.
Mr. Volkov, I wanted to give you an opportunity to go
through your principles that you did not have an opportunity to
do.
Mr. Volkov. Actually, that was the first point I wanted to
make. With regard to the principles, and I know I am preaching
to the choir here, but there has to be a single Committee in
the Congress that supervises, reviews, and legislates with
regard to criminal offenses.
Right now, we have other Committees that put criminal
offenses into the code, and it is an absolute disaster. And we
had to fight that on the staff all the time. And right now, we
need to get all of the criminal offenses that are all
throughout the code, and bring them into Title 18, and let the
Judiciary Committee supervise it and monitor it.
Mr. Sensenbrenner. The gentleman's time has expired.
The Chair of the full Committee, the gentleman from
Virginia, Mr. Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman.
Mr. Volkov, I like the way you think about that, and I have
a pretty good idea which Committee should have that
responsibility for all aspects of the criminal code.
[Laughter.]
Mr. Goodlatte. I would like to ask all of you to talk a
little bit about drawing the line between where something
should be civil and regulatory, and where should it be a
criminal offense.
Before we get into figuring out what kind of consistency we
can have with regard to mens rea, I think we also need to think
about what kind of consistency we need to have or can have, if
possible, between what things should be civil and regulatory,
and what things should be criminal offenses.
So I will start with you, Mr. Volkov, and we will go right
across. You can tell me how to draw that line.
Mr. Volkov. I think that goes right to the work that you
have been doing up to this point, that the Task Force has been
doing, which is we get to criminal offenses versus civil
offenses based on the impact or the action, the conduct or the
failure to act, and the requisite intent. That is how we do it.
We do not say that, for example, something that you have no
responsibility for but occurred on your watch, or you had
nothing to do with it, that you should be criminally punished
for it. There are civil obligations that can come up in that
context, if you have a duty to act.
But before we make something criminal, there has to be an
important part of conduct that we are trying to protect and
prevent; and number two, that there is a culpable state of
mind. And you always have to be consistent with that.
And what has happened, as you all know from all of your
work up to now, is that issue has been diluted. And it has been
diluted down to such a point that Congress does need to act in
some respects to fix the intent issue.
Mr. Goodlatte. Thank you.
Ms. O'Sullivan?
Ms. O'Sullivan. I very much agree with Mr. Volkov's
comments. You would have to look at the harm, culpability, and
the mens rea.
I have to say this is a particularly important question in
the regulatory sphere. As you know, Congress very frequently
delegates the authority to formulate regulations to an agency
and then in advance provides that any knowing violation of the
future regulation constitutes a crime.
Mr. Goodlatte. So we are creating a crime without knowing
what crime we are creating.
Ms. O'Sullivan. Exactly. We do not know what the content
yet is.
But more seriously, I do not think anybody is going to
count the number of criminalized regulatory offenses. I think
at last count there were 300,000. That strikes me as crazy.
Also, the courts have interpreted ``knowingly violated'' to
mean know that you are doing the conduct that violates the
provision, not that you knowingly violated the law, but that
you knowingly shipped sulfuric acid without the right label on
it. People can go to jail. That is a felony offense.
That is a problem, and that language is used, and that
Supreme Court interpretation of that language, is used
consistently across all of these regulatory offenses. So that
persons who are mixing two types of turpentine, or not making
scaffolding in compliance with OSHA regulations, could actually
go to jail.
Now, we know they are not all going to do that. We do not
have the resources to pursue all those people. But the problem
is, the prosecutors--and I was one, so I trust them, for the
most part--but they get to pick and choose. And you obviously
have potential there for arbitrary and discriminatory
enforcement. You have almost guaranteed it.
Mr. Goodlatte. Mr. Fairfax?
Mr. Fairfax. I do not have much else to add, other than to
say that this actually connects to the initial point, which is
what body, perhaps even within Congress, should have
responsibility for implementing, for drafting, and passing
criminal laws. Whether it is an exclusive jurisdiction
arrangement or referral arrangement, as was discussed in the
Heritage and NACDL ``Without Intent'' policy paper, or whether
it is a criminal law revision commission within Congress, as
was suggested, I think those types of solutions can help to
address that problem.
Mr. Goodlatte. Thank you.
Mr. Cline?
Mr. Cline. I think part of the problem, part of the reason
we are here, is that whenever there is a crisis, the first
reaction is to enact new crimes to address problems. That is
what has led to all the overlapping crimes that we have, at
least in part.
I think the analysis should work the other way. I think the
first question should be, is an administrative or civil film
civil penalty provision, something along those lines,
sufficient to deal with the problem? And only if it is not,
then proceed to look to criminal legislation.
I think the analysis is on its head right now. It needs to
be reversed.
Mr. Goodlatte. Thank you, Mr. Cline.
Mr. Sensenbrenner. The gentleman from Michigan, Mr.
Conyers, the Chairman emeritus of the Committee.
Mr. Conyers. Thank you, Mr. Chairman.
This is one of the more important discussions we have been
having on this Task Force, and I commend the Chairman for
inviting these witnesses that are here. And I hope that I can
work with him on his legislation, which to me presents a few
problems that we will get into at the appropriate time.
Let me say that, Professor O'Sullivan, and anyone else can
join in afterward, you talked about creating a standing
commission or task force to reform the criminal code all at
once, so that we can begin this work. And I see that as an
enormous challenge in the legislative system in our country.
Might you and others comment about who might be, what kind
of person would be on this commission?
Ms. O'Sullivan. Yes. Thank you for the question.
One concern is constitutional. Obviously, the creation of
the Sentencing Commission sparked a great deal of litigation
about whether, constitutionally, you can vest the power to
create sentencing in an independent agency. So I am very aware
that the Committee would have to confront how much you could
actually delegate, and the like.
I think that you would have to have a situation much like
the commission, where you have judges, you have practitioners,
and here, obviously, you would have to have Members of Congress
who participate.
I would see it as a fairly broad ranging group with a
variety of experience and expertise.
Mr. Volkov. Could I comment?
I actually do not see the commission as being that broad. I
clearly would not recommend going toward another Sentencing
Commission, because we have a commission which is dealing with
nonbinding type of guidelines these days, and I do not think
that there is any reason to go to that.
I do think, though, an expert group of practitioners,
defense counsel, judges, prosecutors, sitting in a room and
saying--the last time the code was reviewed, Mr. Gainer put one
woman in a room and had her go through every page until she was
finished. Six months later, she came out with, ``Here is
everything that I found,'' in the 1980's.
We need a group of practitioners, just put us in a room and
say get the job done. No elaborate commissions. Not a lot of
money. And just get a group of people and do the work.
Mr. Conyers. Interesting.
Anyone else want to comment? Yes, sir?
Mr. Fairfax. So I would say, I actually think that the
balance of representation we saw on the Brown commission was
relatively well thought out. I would say that there would need
to be more representation. I agree with Mr. Volkov that there
would need to be more representation from the practitioner
community, and particularly from career and political folks at
DOJ, because what happened in the aftermath of the Brown
commission is that there was not buy-in from the executive
branch, and that produced an executive bill. And I think that
the goal is, particularly if you want to pass this in the
lifespan of one Congress, is to have one bill from the outset.
And I think getting the engagement and the buy-in of all
stakeholders early on is essential.
Mr. Conyers. Thank you so much.
Let me ask, Attorney Cline, do you have any thoughts about
how prosecutors overcharge and the consequences of such a
practice, even when a jury decides to convict only on a few
counts?
Mr. Cline. I do. Thank you for asking that question.
It is a real problem. I understand why prosecutors want to
do it. They are advocates, and they want to win their case. But
what happens is, the same course of conduct is charged in a
whole series of counts. Jurors are not told the consequences of
a partial conviction. They think they are giving the defendant
a break, or maybe splitting the loaf by convicting on some and
acquitting on others. But under the sentencing guidelines, and
under the sentencing practices, generally, a conviction on one
count is really no different than a conviction on every count.
So the defense lawyer has to pitch a no-hitter, in essence, if
he wants to win the case.
Jurors do not know that, and the result is compromised
verdicts that pose real problems.
Let me give you an example of a prosecuting agency that
does it in what I would say is the right way. The Antitrust
Division, when they bring a price-fixing case, a Sherman Act
case, they typically charge one count--just one count. And so
the jury has an up or down decision, guilty or not guilty.
That is the fair way to do it. But the multiplication of
offenses now makes it very rare that that occurs outside the
antitrust context.
Mr. Conyers. Thank you very much.
Thank you, Mr. Chairman.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Alabama, Mr. Bachus.
Mr. Bachus. Thank you.
Professor O'Sullivan, you had talked about some of us focus
on one thing, others focus on other things. I think that is
true.
I will tell you, though, that the harsh sentences, I think
there is general agreement that some of the longer sentences
are actually not working. They are probably causing harm. They
are almost institutionalizing or causing young people to become
criminals, and our system is failing for it.
I think some of the hard questions are plea-bargaining. I
have gone back and I have talked to defense attorneys. I have
talked to prosecutors. Prosecutors say to me, and I used to be
an assistant attorney general, we have to plea-bargain, and if
you take this away from us, we are not going to be able to get
people to plea.
But they are pleading for the wrong reasons. They are
pleading not because they think they are guilty, a lot of
times, but because if they plead, it is just 6 months and a
misdemeanor, sometimes. If they try the case, it can be 5 years
or 10 years imprisonment. And Mr. Cline, as he said, there are
actually examples of people who are offered 6 months or a year
and no time served who refuse to plead because they really
thought they were innocent, and were indicted on 15 counts,
were found innocent on 14 of those with the offer out there of
a year and a day if they pled, and went to jail for 5 years.
And the jury, there was a case in Birmingham I am aware of,
because it was widely reported, where that the jury came out
and congratulated the defendant's family. Yet they convicted
him on one count and he went to jail for 5 years. And some of
the jury said we had no idea here. We thought that was one of
the more minor charges.
We are talking about discretion, how much discretion to
give judges, everything from complete to no discretion. No
discretion has been a failure. I think it is how far do we
leave it until we obtain it.
But let me emphasize something else. There is also a
problem that we have as Members of Congress, and we have dealt
with this on the civil and criminal side, we pass a law and
then the regulators or the agencies decide that they are going
to make it a crime. We pass a statute, and I am not even sure
we have that realization.
I was Chairman of Financial Services. We passed things and
suddenly read they are using those things in the criminal
courts. We never even imagined that we were passing a criminal
law.
So I think you have to take some discretion away from the
agencies, like OSHA, EPA.
Finally, let me say this, one of the most complex things,
and I am a Congressman from Birmingham, Alabama, so I feel like
I am handling a stick of dynamite, it is obvious when you look
at the numbers, the high incarceration rate for young Blacks.
It is kind of difficult for us to talk about.
That is a very complex issue, and I do not believe there is
an intention with 99 percent of prosecutors and judges to be
racially motivated. I really do not. I think with the cocaine,
crack, that obviously resulted in a terrible problem.
But if you listed the reasons, there would probably be 50
reasons why incarceration is higher among young Blacks, even
the presence of police. I can drive through my suburban
community and not see a police car. There is no police
presence. You can drive through some areas, and there is a
police car every two blocks, just a high concentration of
police officers. The crime, the violent crime in those
communities, the higher evidence of that.
So I do not know how we address that. I know some of it I
think is we approach it not as a criminal matter, but more as
an educational matter, or divert some of these cases.
But that is something we have to look at.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentlewoman from California, Ms. Bass?
Ms. Bass. Thank you, Mr. Chair.
And thank you for your testimony today.
It seems like the panel kind of agrees that the way we
should go about this is an outside commission, although I think
you were describing a committee inside as well as outside.
Mr. Volkov. No, I actually share the same--whether you want
to call it a commission or whatever, we need to have all of the
practitioners in the room, and their charge is to come up with
a document that makes sense, instead of having overlapping
crimes, enabling stacking by prosecutors, all of that. We need
to have one rational document to work from.
Ms. Bass. I guess you were saying, then, on the Judiciary
Committee, that when other Committees pass laws, they should
all come through here.
Mr. Volkov. Right. And that is probably one of the most
important recommendations I can make, because as a staff member
here, we had to go and fight other Committees that were
legislating crimes, and they really did not know what they were
doing. In this Committee is a repository of knowledge, history,
expertise, that every criminal offense that is enacted in this
country should be reviewed by the Judiciary Committee, enacted,
and you can have successive referrals if they want to look at
it, too. But we all spent too much time watching the territory
to make sure that things were not done stupidly by other
Committees, to be honest with you.
Ms. Bass. Are you suggesting Members of Congress did not
know what they were doing? [Laughter.]
Mr. Volkov. I am telling you----
Ms. Bass. You do not need to respond to that.
Mr. Volkov. Ms. Bass, we were brought into situations where
a Committee would bring to the floor, okay, all of a sudden on
the floor of the House were 25 criminal offenses being added to
the criminal code in different statutes. Mr. Vassar and I had
to run immediately to the parliamentarian and say, what is
going on, go to the Committee, argue with the Committee, and
tell that Committee to remove the amendment from the floor.
Ms. Bass. Okay. Let me ask about a couple situations.
I really appreciate, Ms. O'Sullivan, the way you were
describing the differences in values and goals coming from two
different directions, and I would certainly want to associate
myself with the side that is concerned about over-
incarceration, especially with the drug laws, especially now,
in light of drug laws changing within the States. So when it
comes to purpose of mind, I just want to ask in terms of
directionthat the Committee was going with the draft, how do
you think a situation would be viewed--this is hypothetical,
although there were a lot of cases, in particular with women
who were involved with men, examples of females being a blind
mule, not knowing that they were being asked to transport
drugs. I do not know if that falls into what you were saying,
in terms of being blind, I believe, is the way you described
it.
Or a female who might be stuck in an abusive relationship.
There are drugs in the house. The house is raided, and she is
caught up as well.
Ms. O'Sullivan. That is a difficult thing to legislate.
That strikes me as something that is quintessentially a
prosecutorial judgment, but it is one that has to be an
educated judgment. I am not sure that the mule problem is
restricted to women, although certainly a big issue.
I actually had a defendant who was 18. He took a gym bag
from point A to point B. He had no idea--he probably knew it
had drugs in it. He did not know what type. He did not know how
much. He got five bucks for it. And he was looking at 10 years.
One thing you could do in the drug area is require proof,
provide gradations of offenses by amount and type, and require
the person to know what type of drug they are carrying and
approximate quantities. Right now, people get sentenced for
whatever type or quantity actually exists, and they do not have
to know how much. But it is relevant to culpability.
May I just add one thing to what Mr. Volkov said?
Ms. Bass. Sure.
Ms. O'Sullivan. As far as the commission, I think this
Committee is really busy. I assume that you are already fully
tasked. So that is one of the reasons I propose--I did not
necessarily mean a totally independent committee, more of a
commission that is sort of advisory to you all.
So, for example, if the SEC issues regulations, before you
vote to criminalize them, that commission would review them, so
you do not have to review all that stuff, and advise you on
what they think is appropriate.
It would be helping this group do what they needed to do,
because what we are all proposing that you do is probably the
work of 20 people forever.
Mr. Sensenbrenner. The gentlewoman's time has expired.
The gentleman from Texas, Mr. Gohmert?
Mr. Gohmert. Thank you, Mr. Chairman. And I thank each of
you for being here and for your insights.
Mandatory minimums have been, obviously, quite
controversial over the years. When I was a judge, a district
judge, handling State felonies, I had absolutely no problem
with being given a wide range of punishment and let me have the
discretion to consider all of the factors and set a punishment
within that range. But I get the impression that if we
completely eliminate mandatory minimums, that means the range
will always be from no punishment whatsoever to whatever cap we
want to put on them.
Are any of you advocating that for everything that Congress
makes a crime, there should be the possibility of absolutely no
punishment whatsoever? Or is it okay to have a range and give
judges that discretion?
Mr. Cline. I will be glad to start. I think mandatory
minimums are a bad idea, pretty much across the board.
Mr. Gohmert. My question was about having a range, because
when we talk about mandatory minimums, that may completely
eliminate having anything as a bottom for a range. So my
question is--so we do not get into, ``Well, what does he really
mean by mandatory minimums?''--do you have a problem with a
range being set by Congress and giving the judge discretion
within that range, or is it your adamant contention that there
should never be a crime which the least punishment is not
nothing, no punishment whatsoever? You want that as a
possibility in every single crime, is that correct?
Mr. Cline. I think it is. And I say that----
Mr. Gohmert. So every State that has ranges of punishment,
like in Texas, third degree, 2 to 10; second degree, 2 to 20;
first degree, 5 to 99 years or life. Texas is completely wrong
in having that minimum of 2 or 5 years? That is your
contention?
Mr. Cline. Well, I hesitate to say that Texas is wrong
about anything. I am a Texas law graduate. [Laughter.]
But let me say this, I think that Federal judges in the
pre-guidelines era, and since the guidelines became advisory,
have demonstrated that they have the ability to impose rational
and fair sentences without mandatory minimums.
Mr. Gohmert. Absolutely. Most of them do. Most of them do.
Mr. Cline. I disagree with plenty of sentences, but most
Federal sentences do not carry mandatory minimums, and you do
not see very many serious offenders getting away with----
Mr. Gohmert. Yes, but you get into the range, and I
remember when the Sentencing Commission came in, Federal judges
were absolutely livid that their discretion was being hampered
like that. And then I was shocked 10 years later to find many
of them liked not having to make the tough calls, and it
narrowed their decisions and made sentencing so much easier. I
was shocked.
Mr. Cline. I think where the guidelines stand now, which is
advisory, a factor to be considered, but not mandatory, I think
Federal judges, I am guessing, find those to be of real value.
Ms. O'Sullivan. May I add something?
Mr. Gohmert. Yes.
Ms. O'Sullivan. I am a fan of mandatory guidelines. I
actually wrote probably the only article defending the
guidelines. I do not think judges are born with some wisdom
that the rest of us do not possess. And I think that the
evidence of racial and gender and other really unacceptable
disparities that existed prior to the guidelines really were
shocking. And actually, if you look at the statistics since the
guidelines have become advisory----
Mr. Gohmert. My time is about to expire, and I want to ask
one other thing very quickly.
With regard to regulations, I appreciate what you say. I ca
not think of a regulation that I think we ought to make a crime
without Congress ever considering it. Don't you think there
should be no regulation ever being a crime without Congress
actually voting to make it a crime? Does anybody disagree?
Mr. Volkov. I agree.
Ms. O'Sullivan. I agree.
Mr. Gohmert. And if we make it a requirement that any bill
that has a criminal penalty has to come through Judiciary, I
think that would help a lot. A bipartisan problem has been both
sides of the aisle, when we want to show we are really tough on
something, then throw a criminal penalty. And it has resulted
in vast injustice.
And I appreciate all of you bringing that forward.
Mr. Sensenbrenner. Well, now we have found where there is
policy agreement, so let's keep on with this roll.
The gentleman from Tennessee, Mr. Cohen?
Mr. Cohen. Thank you, Mr. Chairman. I do thank you for
putting this together.
I do not necessarily agree with the concept that we could
not agree, and I may be wrong. Most of you all have been here a
lot longer than me. But I think what the ACLU is interested in,
and what I think what maybe Professor O'Sullivan said
Republicans are looking at, that we could all agree on it, that
there is a lot of white-collar crime that should not
necessarily penalized as it is, and there are a bunch of people
being put away for drugs that should not be either.
And we all value liberty. That is one thing we come
together on. And taking someone's liberty is a serious offense,
and it is a costly offense, $30,000 a year.
So I think we could work together on the policy.
Professor Fairfax, you are familiar with the controlled
substances schedules, I presume? Do you think they may make
sense?
Mr. Fairfax. Well, I think that as part of the project of
looking at the Federal criminal code, a reconsideration of the
controlled substances schedule would be in order. But I think
that raises one of the points made earlier, that we really need
to rely on expertise, right? And we need to supply to the
Committee and the Congress----
Mr. Cohen. But you think there are problems with the
controlled substances, or do you think it is all logical?
Mr. Fairfax. Well, not necessarily all logical. So I think
that there can be differences of opinion with regard to the
schedules.
Mr. Cohen. Do you think marijuana should be in the same
class as heroin?
Mr. Fairfax. Again, my mother is a pharmacist and has much
greater expertise, and I have neither never used either
substances, but I can tell you----
Mr. Cohen. You do not have to use the substances.
[Laughter.]
Mr. Fairfax. I know, but so again----
Mr. Cohen. You probably know some people that have used one
of the substances more than the other. [Laughter.]
Mr. Fairfax. But I do think that a rational approach to
making gradations among the various controlled substances, and
determining which substances even belong on the schedule,
should be part of the conversation, yes.
Mr. Cohen. Mr. Cline, Attorney Cline, do you have a thought
about it?
Mr. Cline. First, I want to ask for immunity for Mr.
Fairfax. [Laughter.]
Mr. Fairfax. I do not need it.
Mr. Cline. I think the drug laws are a mess, partly because
of the substantive provisions and the way different substances
have been lumped in together, largely because of the mandatory
minimums, which just produce these ridiculously harsh sentences
and distort the whole rest of the system.
There was a discussion about plea-bargaining. When a
prosecutor has as a mandatory minimum in his back pocket, the
plea-bargaining is going to take a much different form than
when he does not. And it is going to produce, in many cases, an
unjust result.
Mr. Cohen. And, Professor O'Sullivan, you said that you are
one of the rare people who support the guidelines, and I am
against any racial, ethnic, blah, blah, blah. But is not the
effect of that is that there is now injustice for all, rather
than just for most?
Ms. O'Sullivan. I do not actually think so. I think, yes,
they are too harsh, but they are too harsh because the
statutory maximum, they are built on the statutory maximum that
Congress set. I am not accusing you. But I think if Congress
decided to scale down the penalties, there is nothing
inevitable about the amount of time that the guidelines provide
for.
What I like is the structure, that there is a guaranteed
set of considerations that we view as necessary to a particular
sentence. It is relevant how much loss there is for fraud.
And I just think that we are all human. And it used to be,
and it is now today, true, that if you walked into courtroom A
and this judge thought antitrust was terrible, you could get 20
years. If you walk into courtroom B and this judge does not
have a problem with it, you can get probation.
Mr. Cohen. As you said, we are all human, and every case
has individual factors. What if one person had a certain drug--
marijuana--and the second person had it, and they both
possessed it in same quantity, but one person had it because
their spouse was dying, and the State had not allowed medical
marijuana, but the spouse needed it and wanted it. And the
other was doing it because it made their dinner better. Do not
you think the judge should be able to distinguish in those
cases?
Ms. O'Sullivan. And there are two ways you could do it
under the guidelines. You could do it by looking where within
the range you should sentence people, and you could depart. The
original contemplation of the guidelines was that departures
would be freely given based on offender circumstances because
offender circumstances could not be reduced to formulas the
way----
Mr. Cohen. Let me go to your favorite subject. You wrote
about the Honest Services Act. I have to admit, I have not read
you law review article, which maybe I should.
Do you give a proposed statute to cure the problem with
honest services there?
Ms. O'Sullivan. No.
Mr. Cohen. Thank you.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Idaho, Mr. Labrador?
Mr. Labrador. Thank you very much for being here today.
And, Mr. Chairman, thank you again for this I think very
important Committee. It is one of my favorite things that I am
doing here in Congress.
But Justice Scalia said a few years ago that maybe we
should take more cases to trial, that one of the problems with
our criminal system is that we do not have enough incentive to
go to trial. And I believe, as a conservative, that what he was
talking about is I think what Mr. Cline said, or somebody said,
that liberty should be a very difficult thing to take away from
an individual.
Our Constitution was not contemplating a bunch of people in
prison. Our Constitution, our Founding Fathers, were
contemplating a very difficult time for the state to take
somebody's liberty away.
So as we are contemplating redoing the criminal code, and
all those things, how much should we consider that it should
actually be more difficult to try cases, not easier to put
people in prison?
Mr. Volkov. Well, I think that you are getting at a very
big point. Remember this, only 7 percent of the Federal cases
go to trial; 93 percent end up in a plea bargain. What is the
best tactic that prosecutors have? I have been at meetings, I
was a prosecutor for 20 years, it is called stacking.
You take the crime, you put as many offenses into it as he
can, and you stack it up. I have had people and prosecutors
tell me straight up when I was working up here on the
Committee, I would say, why do we have this 18 U.S.C. 371
conspiracy? It is a 5-year maximum. They said, ``Don't ever
take that away. I stack it up and I use it for plea-bargaining
leverage, so that I can take a case, and if I want to say,
instead of charging a 20-year offense, a 10-your offense, and
making someone plea to it, I will say, you know what? Your
circumstances are not so bad. I will give you this 5-year
offense.''
They are dispensing justice, not the judge, in that
circumstance. And I do not think that this Committee or
Congress ever thought that that is the way the system was going
to work.
Mr. Labrador. So I would take other comments from the rest
of the panelists.
Mr. Cline. I am happy to address that. There are so few
trials in the Federal system these days because the prosecutor
holds all the cards. The defense knows that. And so the plea-
bargaining process is a very imbalanced procedure.
I am not saying do away with plea-bargaining. I think it is
always going to have an important role.
Mr. Labrador. Correct.
Mr. Cline. But when you have mandatory minimum sentences,
you have a multiplicity of charges that can be brought against
the defendant. You have forfeitures, often mandatory, that can
ruin somebody financially. You have extremely harsh sentences.
You have vague doctrines like willful blindness that increase
the chances of conviction.
When that is the arena and a defendant is looking at a
choice between pleading guilty, even if he thinks he is not,
and getting 2 or 3 years, and risking going to trial and
perhaps getting 20 years and a multimillion dollar forfeiture,
many defendants are going to decide to cut their losses.
I think to have more trials, many different interrelated
aspects of the Federal system need to change in the direction
of fairness.
Ms. O'Sullivan. I will just bring one other point up,
because I do white-collar. I ca not remember the last time a
corporation went to trial, because it is literally impossible
for corporations to resist prosecutors these days, because of
the fine, market value problems, all kinds of different kinds
of penalties that are applicable to corporations, including
debarment and suspension from government contracting or
delicensing, like Arthur Anderson.
So I can tell you that the accepted wisdom in the defense
bar is do not even think about resisting a Government overture
for a plea in a corporate context.
And now the Government is just going with what are called
D.P.s. They are not even resolving these cases criminally
because that is too difficult. So the Department of Justice
reaches a civil resolution.
Mr. Labrador. Thank you. Just for the Committee, I just
think that is something we should think, especially on our side
of the aisle, as conservatives, I think we should be very
concerned about the state having so much power that criminal
defense attorneys are afraid to go to trial, because they know
that they take more risk going to trial than defending liberty
and property, and the things that the Government should not
easily take away from defendants.
But thank you very much. I yield back my time.
Mr. Sensenbrenner. I am told that we will be voting between
10:20 and 10:30.
The gentleman from Georgia, Mr. Johnson?
Mr. Johnson. Thank you. It is not so much the sheer volume
of criminal laws on the books and how they are apportioned
among the various titles of the U.S. Code. It is really a
matter of what is the impact of over-criminalization on
society.
And I think that from the standpoint of how the Committee
should approach this issue, I think we should do it in a
piecemeal fashion as opposed to an overall solution, because it
will simply take too much time to get at the worst aspects of
over-criminalization.
In my mind, it has to do with the realm of drug
prosecutions. And to piggyback on one of the issues that Mr.
Labrador raised, the defendant's ability to take a case to
trial, any time you can get a 2 percent to 3 percent offense
level downward departure for acceptance of responsibility, then
it means that if you go to trial, then you are going to be
deprived of that downward departure.
And, in fact, you would probably end up at the top end, if
you dared to go to trial and then testify. So you actually get
punished for having a trial and taking the stand and
testifying. You may do so because you feel like you are not
guilty, but you end up getting punished on top of the base
offense level and whatever criminal history you may or may not
have. You are going to get punished for going to trial.
So that is one thing that I can do pretty easily to address
Mr. Labrador's concern.
But when it comes to the overall sentencing guideline
concept, what we have is the transfer of discretion from the
judge in terms of disposition, to the prosecutor in terms of
charging. So a prosecutor can decide to charge a person with a
crime that has a base offense level higher than perhaps one
that would be better suited for the conduct alleged.
So with that prosecutorial decision having been made, then
it limits the judge in terms of how to best dispose of the
case, taking into mind the crime itself, the condition of the
victims, the status of the defendant, or prior criminal
history, those kinds of things.
And I think that we can get to those kinds of issues and
address the problem that President Obama highlighted yesterday
with his call for this My Brother's Keeper concept that would
keep so many young Black males, would really enhance their
ability to become first-class citizens of society, as opposed
to this second-class citizenship, which some call Jim Crow.
Would anyone comment on that?
Mr. Fairfax. Thank you, Mr. Johnson.
Your comments raise a couple points. One is the issue of
collateral consequences. That is a significant issue and it
relates to what Mr. Cohen and I were discussing, and what Mr.
Baucus alluded to in his earlier comments on the impact of
collateral consequences, particularly on those convicted of
lower-level, nonviolent drug offenses. It is just tremendous.
And there is a project under way right now under the
auspices of the Department of Justice, and being conducted by
the American Bar Association, to essentially catalog all of the
collateral consequences in jurisdictions all around the
country, so that practitioners and policymakers and lawmakers
can understand the implications of the criminalization that
they engage in when they make these criminal laws.
Mr. Sensenbrenner. The gentleman's time has expired.
And last but not least, the gentleman from New York, Mr.
Jeffries.
Mr. Jeffries. Thank you, Mr. Chair, and I thank the
witnesses for their very thoughtful testimony.
It seems that as it relates to the problem of over-
criminalization that this Task Force is encountering, there are
potentially three areas of exploration as it relates to the
problem we seek to address.
We have a tremendous explosion of the Federal criminal
code, as it relates to regulatory offenses, as it relates to
drug offenses spanning a wide spectrum.
You have limitations on judicial discretion, perhaps
inconsistent with a view of an independent judiciary as a third
branch but co-equal branch of government.
And then I think a related issue that some of you have
begun to mention, and some of my colleagues have talked about
during their time, is prosecutorial overreach.
That third area, prosecutorial overreach, seems to be
enhanced by or made more difficult by both an explosion of the
Federal criminal code and a limitation on judicial expression.
And so I would be interested, and perhaps we can start with
Mr. Cline, how do we deal with the problem of prosecutorial
overreach and the imbalance or the harm that is caused by it,
and the imbalance and the threat to liberty, when you have an
overly aggressive prosecutor taking advantage of the explosion
of Federal crimes, and, in certain instances, the limitation of
judicial discretion?
Mr. Cline. Let me start by distinguishing between
prosecutorial misconduct and prosecutorial overreach.
Misconduct is, for example, the failure to turn over
exculpatory information, improper comments in closing
arguments, that kind of thing. And I take it that is not what
you are talking about.
What you are talking about, I think, is prosecutors as
advocates using the tools they have to extort--I use that word
advisedly--harsh plea agreements, to coerce defendants into not
going to trial.
I do not view that, necessarily, as anything bad on the
part of prosecutors. They are advocates. They want to win their
cases, and they use the tools available to them.
The key is many of those tools I view as unfair. Mandatory
minimums are a perfect example, but there are others as well--
the whole doctrine of willful blindness, some aspects of the
sentencing guidelines, forfeitures.
There are tools prosecutors have that they should not have.
If you take those tools away, if you level the playing field, I
think you will see many fewer instances of prosecutorial
overreach.
Another example, by the way----
Mr. Jeffries. I appreciate that distinction. I want to hone
in on it for a second, as long as things that can be done to
deal with prosecutorial overreach.
As it relates to misconduct, the withholding of exculpatory
evidence, for instance, do you think that the law currently has
sufficient incentives built into it to punish or deter
prosecutorial misconduct?
Mr. Cline. Absolutely not. I realize that is not the topic
of this hearing, but I feel very strongly that discovery reform
is necessary. Brady is not working.
Mr. Jeffries. Professor O'Sullivan?
Ms. O'Sullivan. I completely agree. There have been scandal
after scandal after scandal on the Brady front.
I agree with your point about prosecutorial discretion. The
difficulty, of course, is that constitutionally it would be
very difficult for Congress to constrain their discretion
directly. And that is why we all think code reform is such a
good thing, because you can affect their discretion by
affecting what tools have.
Mr. Jeffries. Yes?
Mr. Volkov. The best way to constrain what you see as
prosecutorial overreach is to have a clean code, a code that
does not allow stacking, does not allow multiplicity of
offenses.
One act can result in 10 charges. It should not work that
way. You should have the ability to constrain that discretion.
One important point, though, when we go back to the
guidelines, that has not been raised, is that Senator Kennedy
was probably the biggest proponent of the guidelines for fear
of what he saw was racial discrimination in terms of the
sentencing by judges at that time.
Mr. Jeffries. Now what is interesting about that question,
I think you are going to have human error, and you are going to
have human bias in any judicial system. And I think the one
thing for us all to explore is whether we think that that human
error, human bias, is more likely or more dangerous when vested
in the prosecutorial area or whether it is more likely or more
dangerous when found in the judicial branch.
And I think the Founders, at least, built a system in place
as it relates to lifetime tenure that that was designed to
mitigate out at least the possibility of human bias in the
judiciary.
And that is something we should all think about, and I
yield back.
Mr. Sensenbrenner. The gentleman's time has expired.
I think that this has been another very interesting hearing
that this Task Force has had with a lot of ideas.
I get back to the fact that I think that the challenge of
getting this done is to have the first step be policy neutral.
So with that happy admonition, without objection, the Task
Force is adjourned.
[Whereupon, at 10:27 a.m., the Task Force was adjourned.]