[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
THE CRIMES ON THE BOOKS AND
COMMITTEE JURISDICTION
=======================================================================
HEARING
BEFORE THE
OVER-CRIMINALIZATION TASK FORCE OF 2014
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
JULY 25, 2014
__________
Serial No. 113-102
__________
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 2014
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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JULY 25, 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............................. 22
WITNESSES
John S. Baker, Jr., Ph.D., Visiting Professor, Georgetown Law
School, Professor Emeritus, LSU Law School
Oral Testimony................................................. 26
Prepared Statement............................................. 29
Steven D. Benjamin, Immediate Past President of the National
Association of Criminal Defense Lawyers (NACDL)
Oral Testimony................................................. 35
Prepared Statement............................................. 37
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material 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.............. 3
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.............. 24
Prepared Statement of the Honorable Bob Goodlatte, a
Representative in Congress from the State of Virginia, and
Chairman, Committee on the Judiciary........................... 25
THE CRIMES ON THE BOOKS AND COMMITTEE JURISDICTION
----------
FRIDAY, JULY 25, 2014
House of Representatives
Over-Criminalization Task Force of 2014
Committee on the Judiciary
Washington, DC.
The Task Force met, pursuant to call, at 10:20 a.m., in
room 2237, Rayburn House Office Building, the Honorable F.
James Sensenbrenner, Jr. (Chairman of the Task Force)
presiding.
Present: Representatives Sensenbrenner, Bachus, Holding,
Conyers, Scott, Johnson, and Jeffries.
Staff Present: (Majority) Brian Northcutt, Counsel; Robert
Parmiter, Counsel; Alicia Church, Clerk; (Minority) Ron
LeGrand, Counsel; Veronica Chen, Counsel; and Veronica Eligan,
Professional Staff Member.
Mr. Sensenbrenner. Committee on the Judiciary Over-
Criminalization Task Force will be in order. We have to get
this hearing in before the votes start between 11:30 and noon.
Even though it is noticed for 10:30, I think the time for
opening statements will burn up the time between now and 10:30.
So we can get to the witnesses.
I would like to welcome everyone to today's hearing on the
Judiciary Committee's Over-criminalization Task Force. The
tenth and final hearing will focus on the abundance of Federal
criminal offenses on the books, and the role of the Judiciary
Committee's jurisdiction, or lack thereof, under House rules
plays this issue.
Over the past year, the Task Force has examined many
important topics in this area, gained valuable perspective on
the issues from a number of highly qualified witnesses, two of
which rejoin us today for today's hearing.
I anticipate that they will be able to provide this body
with meaningful insight into the subject of today's hearing,
and I appreciate their continued cooperation in the furtherance
of the goals of the Task Force.
Despite the fact that it is generally accepted that the
Federal Government does not possess a general police power,
recent studies have concluded that the number of Federal
criminal offenses on the books has grown from less than 20,
which were directly related to the operation of the Federal
Government in the years following this Nation's founding, to
nearly 5,000 today, which cover many types of conduct
undoubtedly intended by the framers to be left to the
individual States.
At the current rate, the Congress passes an average of over
500 new crimes every decade. This surge is highlighted by a
particularly telling statistic. Nearly 50 percent of the
Federal criminal provisions enacted since the Civil War have
been enacted since 1970.
The sheer number of Federal crimes leads to a number of
concerns, issues of notice and fairness where legal
practitioners, not to mention the general public, have
difficulty in determining if certain conduct violates Federal
law and, if so, under which statute.
The disorganization, decentralization and duplicative
nature of the Federal collection of criminal laws needs to be
addressed. I have introduced legislation to do just that in the
Criminal Code Modernization and Simplification Act.
This bill would cut more than a third of the existing
Criminal Code, reorganize the code to make it more user
friendly, then consolidate criminal offenses from other titles
so that Title 18 includes all major criminal provisions.
There are likely a number of reasons for this rapid
expansion of Federal criminal law, including the fact that many
criminal statutes are drafted hurriedly in response to pressure
from the media or the public and, as a result, often duplicate
offenses already on the books and omit critical elements, such
as a valid mens rea or criminal intent.
Additionally, under the current interpretation of the House
Rules, it is possible and not uncommon for new criminal
legislation to make its way to the House floor without ever
receiving proper scrutiny from the Judiciary Committee.
This Committee is comprised of lawmakers and professional
staff with expertise in drafting criminal provisions and the
ability to avoid redundancy through situational awareness of
the entire body of Federal criminal law.
As we move toward wrapping up the business of the Task
Force, in addition to other potential recommendations, we
should consider pursuing an amendment to the rules clarifying
the jurisdiction of the Committee with respect not only to
criminal law enforcement, but criminalization and criminal
offense legislation as well.
Again, I would like to thank our witnesses for appearing
today and would also like to thank the Members of the Task
Force for their service over the past year. In the coming
months, I hope we can begin to come together to address many of
the concerns with over-criminalization that have been
identified.
Before introducing Mr. Scott for his opening statement, I
would like to ask unanimous consent to include for the record a
memorandum dated July 21, 2014, from the Office of the House
Parliamentarian, and a CRS report entitled ``Subject: Updated
Criminal Offenses Enacted From 2008-2013,'' dated July 7, 2014,
into the record. And without objection, it is so ordered.
[The information referred to follows:]
__________
__________
Mr. Sensenbrenner. And it is now my pleasure to introduce
the gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, we created this Task Force in recognition of
the need to address the explosive growth of the Federal prison
population and the dramatic expansion of the U.S. Criminal
Code.
For 5 decades, Congress has increasingly addressed societal
problems by adding a criminal provision to the Federal code.
Too often we have done this in a knee-jerk fashion, charging
ahead with the same failed tough-on-crime policy and addressing
the crime of the day instead of legislating thoughtfully and
with the benefit of evidence-based research.
When it comes to criminal law, only those matters that
cannot be handled by the States need to be addressed by the
Federal Government. What valid purpose is served by creating
crimes at the Federal level if they duplicate crimes being
effectively enforced by the States?
For example, why should there be a Federal carjacking
statute? State and local law enforcement have investigated and
prosecuted carjacking effectively for years, long before
Congress made it a Federal crime.
Two weeks ago, in testimony before this Task Force, Judge
Irene Keeley reminded us of the following recommendations made
by the Judicial Conference in 1995 regarding five types of
criminal offenses it deemed appropriate for Federal
jurisdiction: Offenses against the Federal Government or its
inherent interest, criminal activity with substantial
multistate or international aspects, criminal activity
involving complex commercial or institutional enterprises most
effectively prosecuted using Federal resources or expertise,
serious high-level, widespread State or local corruption, and
criminal cases raising highly sensitive issues.
We have ignored these recommendations. Earlier this month
the Congressional Research Service of the Library of Congress
informed us that 403 criminal provisions were added to the U.S.
Code between 2008 and 2013, for an average of 67 new crimes a
year.
Of those 403 new provisions, 39 were not even referred to
the Judiciary Committee. Over the past several years, we have
estimated that there were 4,500 Federal crimes. Now, the new
estimate from CRS is approximately 5,000.
In addition to the 5,000 crimes in the U.S. Code, there are
approximately 300,000 Federal regulations that are enforced
with criminal penalties.
Several witnesses at our hearings have testified that many
of the regulations lack an adequate criminal intent or mens rea
requirement to protect those who do not intend to commit
wrongful or criminal acts from prosecution.
Witnesses have suggested the enactment of a default mens
rea as well as legislating the rule of lenity for statutory
construction as an appropriate fix for existing statutes and
regulations.
We have also heard concerns about Federal agencies'
promulgation of regulations that carry criminal sanctions. It
is time for Congress to put an end to that practice, reclaim
that authority and retain sole discretion in determining which
actions are criminal and what sanctions are appropriate when
deprivation of one's liberty is at stake. Regulations can still
be enforced with civil penalties. But when criminal penalties
are considered, Congress should be involved.
The result of decades of criminalizing more and more
activities has been the growth of the Federal prison population
from about 25,000 in 1980 to over 200,000 today, making the
United States the world's leader in incarceration, about seven
times the international average.
The Pew Center on The States estimates for any
incarceration rate over 350 per 100,000, the crime reduction
value begins to diminish because, at that point, you certainly
have all the dangerous people locked up.
We have also learned from the collateral consequences that
more than 65 million Americans are now stigmatized by the
criminal convictions, bombarded by over 45,000 collateral
consequences of those convictions, making reentry and job
prospects dim.
In spite of this research that over 350 per 100,000
population yields diminishing returns and the Pew Research
Center also said that anything over 500 per 100,000 is actually
counterproductive, the United States leads the world at over
700 per 100,000.
That is because unnecessarily locking up people wastes
money that could be put to better use. Families are disrupted,
making the next generation more likely to commit crimes, over
700 per 100,000 counterproductive, and we lock up well over 700
per 100,000--500 per 100,000 counterproductive. We lock up over
700.
The testimony received during these hearings has
consistently told us that longer sentences are not the answer.
Yet, we continue to create more crimes, increase sentences and
add more mandatory minimums.
Mandatory minimums has specifically been studied
extensively and have been shown to disrupt rational sentencing
patterns, discriminate against minorities, waste the taxpayers'
money, do nothing to reduce crime, and often require judges to
impose sentences that violate common sense.
A ``code'' is defined as a systematic and comprehensive
compilation of laws, rules, regulations that are consolidated
and classified according to subject matter.
Our Criminal Code is not a criminal code by that
definition, as Federal criminal offenses have spread all over
the 51 titles of the U.S. Code, making it virtually impossible
for practitioners, not to mention an ordinary citizen, to make
any sense out of it.
It is time not only to move all criminal provisions into
one title, Title 18, but also clean up and revise it as
recommended by witnesses in previous Task Force hearings.
We need to consider how to proceed, and we also need--how
to proceed and whether or not this should be done by Congress
itself or by an appointed commission. It is time that we
consider evidence-based research and make wiser policies in our
sentencing policy.
We are wasting billions of dollars in crime policy that has
been failing for the past 4 decades. It is time we look for
more realistic and reasoned approach to the issue of
incarceration, understanding that not every offense requires a
long sentence of incarceration.
Mr. Chairman, while this is a final Task Force hearing,
there is still much more to do, and I look forward to working
with you in drafting a consensus report, presenting it to the
full Committee and taking the necessary actions to improve our
criminal justice system.
Mr. Sensenbrenner. Time of the gentleman has expired.
Without objection, all Members' opening statements will be
placed 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 I would like to welcome everyone to today's
hearing of the Judiciary Committee's Over-Criminalization Task Force.
This tenth and final hearing will focus on the abundance of federal
criminal offenses on the books and the role that the Judiciary
Committee's jurisdiction, or lack thereof, under House Rules plays in
this issue.
Over the past year, the Task Force has examined many important
topics in this area, and gained valuable perspective on the issues from
a number of highly qualified witnesses, two of which rejoin us for
today's hearing. I anticipate that they will be able to provide this
body with meaningful insight into the subject of today's hearing and I
appreciate their continued cooperation in furtherance of the goals of
this Task Force.
Despite the fact that it is generally accepted that the federal
government does not possess a general police power, recent studies have
concluded that the number of federal criminal offenses on the books has
grown from less than 20, which were directly related to the operation
of the federal government in the years following the nation's founding,
to nearly 5,000 today, which cover many types of conduct undoubtedly
intended by the Framers to be left to the individual states.
At the current rate, Congress passes an average of 500 new crimes
every decade. This surge is highlighted by a particularly telling
statistic: Nearly 50% of the federal criminal provisions enacted since
the Civil War have been enacted since 1970.
The sheer number of federal crimes leads to a number of concerns.
Issues of notice and fairness abound where legal practitioners, not to
mention regular citizens, have difficulty determining if certain
conduct violates federal law, and, if so, under which statute. The
disorganization, decentralization, and duplicative nature of the
federal collection of criminal laws need to be addressed.
I have introduced legislation to do just this in the Criminal Code
Modernization and Simplification Act. This bill would cut more than
one-third of the existing Criminal Code, reorganize the Code to make it
more user-friendly, and consolidate criminal offenses from other titles
so that Title 18 includes all major criminal provisions.
There are likely a number of reasons for this rapid expansion of
federal criminal law, including the fact that many criminal statutes
are drafted hurriedly in response to pressure from the media or the
public, and, as a result, often duplicate offenses already on the
books, and omit critical elements such as a valid ``mens rea'' or
criminal intent.
Additionally, under the current interpretation of the House Rules,
it is possible, and not uncommon, for new criminal legislation to make
its way to the House floor without ever receiving proper scrutiny from
the Judiciary Committee. The Judiciary Committee is comprised of
lawmakers and professional staff with expertise in drafting criminal
provisions and the ability to avoid redundancy through situational
awareness of the entire body of federal criminal law. As we move toward
wrapping up the business of the Task Force, in addition to other
potential recommendations, we should consider pursuing an amendment to
the rules clarifying the jurisdiction of the Committee with respect to
not only criminal law enforcement, but criminalization and criminal
offense legislation as well.
Again, I would like to thank our witnesses for appearing today and
would also like to thank the members of the Task Force for their
service over the past year. In the coming months, I hope we can begin
to come together to address many of the concerns with over-
criminalization that have been identified.
It is now my pleasure to recognize for his opening statement the
Ranking Member of the Task Force, the gentleman from Virginia, Mr.
Scott.
It is now my pleasure to recognize for his opening statement the
Chairman of the Judiciary Committee, the gentleman from Virginia, Mr.
Goodlatte.
It is now my pleasure to recognize for his opening statement the
Ranking Member of the Full Committee, the gentleman from Michigan, Mr.
Conyers.
Without objection, other Members' opening statements will be made a
part of the record.
And without objection, the chair is authorized to declare a recess
during votes on the House floor.
__________
[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
today to hear again from our distinguished witnesses as we conclude the
Task Force's series of hearings on the issues surrounding Over-
criminalization.
Today we focus on a recurring theme from the past year, the
problems associated with a bloated, disorganized and often redundant
collection of federal criminal offenses. I hope to explore potential
explanations for how we have gotten to this point, with particular
emphasis on the interpretation of the House Rule regarding committee
jurisdiction which often permits consideration and passage of
legislation creating or modifying Federal criminal laws outside of
oversight by the very lawmakers with such expertise.
The Congressional Research Service recently provided this committee
with an updated count of the federal crimes on the books, which brings
the total to nearly 5,000. Unfortunately, Congress continues to add to
this number at a rate of roughly 50 new crimes per year, and as my
colleague from Virginia, Ranking Member Scott, is often quick to point
out, the first rule of holes is, when you find yourself in one, stop
digging. That certainly seems to apply here.
There are widespread concerns with notice and fairness within this
topic. Throughout its existence, this bi-partisan Task Force has
endeavored to closely examine the problems posed by over-
criminalization and over-federalization, and to identify potential
solutions to combat the regrettable circumstances that inevitably arise
from the tangled web of federal criminal provisions. Examples of
similarly situated defendants convicted of the same conduct under
different statutes with different penalties, or individuals convicted
of offenses without proof of any level of criminal intent, have been
detailed in prior hearings and are far too commonplace.
The House Rules define the jurisdiction of the various committees,
and the Judiciary Committee is given jurisdiction over, among other
things, ``the judiciary and judicial proceedings, civil and criminal,''
and ``criminal law enforcement.'' Unfortunately, this language has been
interpreted to exclude some forms of ``indirect criminalization,''
restricting Committee jurisdiction to only new criminal provisions or
amendments to the penalties included in a criminal offense. This has
resulted in many criminal offenses being enacted without being
considered by lawmakers on the Judiciary Committee, which is the
Committee best situated to provide valuable expertise in drafting and
resolving potential conflicts with existing criminal law.
A change in the House Rules to address this issue by clarifying the
Committee's jurisdiction over criminal matters would help us ``stop
digging'' and begin remedying the many problems associated with the
overabundance of federal criminal statutes.
I would like to welcome our two witnesses back to the Task Force,
and reiterate my appreciation for the perspectives they will provide
today as we move toward addressing the issues raised during this series
of hearings. I would also like to again express my gratitude to the
members of the Task Force, including Chairman Sensenbrenner and Ranking
Member Scott, for their dedication to the issues surrounding over-
criminalization. I look forward to working closely with them moving
forward.
__________
Mr. Sensenbrenner. It is now my pleasure to introduce the
witnesses.
First is Dr. John S. Baker, Jr., who is the visiting
professor at Georgetown Law School, a visiting fellow at Oriel
College, University of Oxford, and Emeritus Professor of Law at
the LSU Law School. He also teaches short courses on the
separation of powers for the Federalist Society with Supreme
Court Justice Antonin Scalia.
Dr. Baker previously worked as a Federal court clerk and an
assistant district attorney in New Orleans and has served as a
consultant to the U.S. Department of Justice, U.S. Senate
Judiciary Subcommittee on Separation of Powers, the White House
Office of Planning, USIA and USAID.
He was a Fulbright scholar in the Philippines and a
Fulbright specialist in Chile. Dr. Baker served as a law clerk
in the Federal District Court and Assistant District Attorney
in New Orleans before joining Louisiana State University in
1975.
While a professor, he has been a consultant of the State
Department and the Justice Department. He has served on the ABA
Task Force, which issued the report ``The Federalization of
Crime.''
He received his bachelor of arts degree from University of
Dallas, his JD from the University of Michigan Law School, and
his Ph.D. in political thought from the University of London.
Mr. Steven D. Benjamin is the President of the National
Association of Criminal Defense Lawyers. The NACDL is a
professional bar association founded in 1958. Its members
include private criminal defense lawyers, public defenders,
active duty U.S. military, defense counsel, law professors, and
judges committed to preserving fairness within America's
criminal justice system. He is in private practice at the
Virginia firm of Benjamin & DesPortes.
``DesPortes''? ``DesPortes''?
Mr. Benjamin. ``DesPortes.''
Mr. Sensenbrenner. He serves as special counsel to the
Virginia Senate Courts of Justice Committee and is a member of
the Virginia Board of Forensic Science and Virginia Indigent
Defense Commission. He previously served as the President of
the Virginia Association of Criminal Defense Lawyers.
I would like to ask each of you to confine your remarks to
5 minutes. You know what the red, yellow and green lights mean.
Without objection, your full written statements will be placed
in the record.
And, Dr. Baker, you are first.
TESTIMONY OF JOHN S. BAKER, JR., Ph.D., VISITING PROFESSOR,
GEORGETOWN LAW SCHOOL, PROFESSOR EMERITUS, LSU LAW SCHOOL
Mr. Baker. Thank you, Mr. Chairman, Mr. Ranking Member and
Members of Congress.
I have testified here twice before and I appreciate----
Mr. Sensenbrenner. Turn the mic on.
Mr. Baker. I have testified here twice before, and I thank
the Task Force for allowing me to come back. Actually, I am
coming back on the issue that I started out on on my own, which
was counting Federal crimes.
And I have to concur with everything that I have heard
about the problem of Federal courts. And I began with the
numbers. And while numbers are not everything, they do tell a
certain story.
So I want to do three things quickly: One, talk a little
bit about what the numbers are; two, where are we going with
the numbers; and, three, what is the significance of these
numbers.
When I testified on November 13th, I mentioned the
tremendous number of Federal crimes and, really, the unknown
number of Federal regulatory offenses. After that, this Task
Force asked the Congressional Research Service to conduct a
count from 2008 to 2013, which is where my last count left off.
They came up with the number of 403 new Federal crimes. That is
a not counting regulatory offenses. That is just from the U.S.
Code.
And it is important to say that the counts from CRS, my
count and the Department of Justice counts have used
fundamentally the same methodology, and that is important for
consistency.
What is significant--second point--about where we are
going, it seems to me, is what this says about the average
number of crimes and the total number of crimes.
When I did the count in 2008, as of 2008, there were 4,450
crimes at least. CRS has noted that we have an additional 403
crimes. That brings us up at least to 4,853 crimes, almost
5,000 crimes. It means that, essentially, Congress is passing
500 new crimes a decade.
Now, in the ABA Task Force that I served on back in the
1990's, the notation was that, since the Civil War, 40 percent
of all Federal crimes since the Civil War had been passed since
1970, from 1970 until about 1996.
Well, when you add what has gone on since 1996, we are
approaching 50 percent of all Federal crimes ever enacted in
this country, enacted since 1970, and that was the beginning of
the war on crime, which, you know, we haven't been winning that
war too well.
What does this mean for the future? Well, the rate of
crimes appears possibly to be increasing. When I did my count,
it was 56.5 crimes a year. CRS count shows 67-point-something
per year. Now, that number may be skewed because, in 2008,
Congress passed 195 crimes.
What is the significance of all this? Well, if you talk to
an assistant U.S. attorney--and I have debated a number of
former assistant U.S. attorneys--they will tell you that the
numbers mean nothing.
They don't use all of these crimes, and they are right. In
a certain sense, they don't mean that much to the prosecutor or
to the judges because there are only so many cases that you can
bring in Federal court.
But where they are really important is in law enforcement,
that we have plenty of law enforcement agencies out there that
do searches and seizures and arrest in cases that never
actually get even an indictment, much less trial.
Given the broad array of crimes, there is virtually nothing
that you can't get a basis for probable cause on, which is the
basis for arrest, search and seizure.
There is a lot of concern in this country, rightly, about
privacy, but I think people ought to be focusing on the fact
that surveillance is not just a matter of ``privacy,'' it is a
matter of the police power.
The Federal Government, which the Supreme Court has stated
twice in recent years, has no general police power. In reality,
de facto, it has complete police power, and we are going to see
it in the surveillance.
Now, people have been focusing on NSA, but think about
drones. There is nothing a drone can't search, basically,
because there is every possibility for coming up with the basis
of it.
And some of the Federal agencies will conduct raids that
will never result in an indictment or, if it does result in an
indictment, will not result on those crimes.
It is easy to come up with a RICO charge and a money
laundering charge and go out and seize somebody's property.
That is the reality of where the real power is.
I think that this Task Force has done an amazing job of
bipartisanship in coming together and identifying the problem.
Now it is necessary for your colleagues in both houses to
understand what the problem is.
They are taking this tremendous power and dumping it in the
executive branch with various agencies that, in reality, have
their own agendas. I am not saying they are bad agendas, but
they are agendas. And there is really lack of control over what
is happening out there in the field.
Thank you for allowing me to make this statement.
Mr. Sensenbrenner. Thank you, Dr. Baker.
[The prepared statement of Mr. Baker follows:]
__________
Mr. Sensenbrenner. Mr. Benjamin.
TESTIMONY OF STEVEN D. BENJAMIN, IMMEDIATE PAST PRESIDENT OF
THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS (NACDL)
Mr. Benjamin. Mr. Chairman and Members of the Task Force,
my name is Steve Benjamin, and I am the immediate Past
President of the National Association of Criminal Defense
Lawyers, this country's preeminent Bar Association advancing
the goals of justice and due process for persons accused of
crime.
On behalf of NACDL, I commend the House Judiciary Committee
for creating the Over-criminalization Task Force, and I
congratulate the Task Force for its impressive work over the
past year.
I am especially grateful for the leadership and support of
two members of my own congressional delegation, Judiciary
Committee Chair Goodlatte and Task Force Ranking Member Scott,
whose work on this critical issue demonstrates that the danger
of over-criminalization transcends the traditional ideological
divide. This problem is real and it affects us all.
The sheer number of Federal offenses--4,800 at last count,
with 439 new enactments since 2008--competes only with our
number of prisoners, a number greater than any nation on Earth
as the most visible consequence of over-criminalization. But
the consequences of this problem extend far beyond the number
of those imprisoned or stigmatized.
One such consequence is the difficulty of being a law-
abiding citizen. Because criminal law is enforced by
punishment, fairness and reason require adequate advanced
notice of conduct that is considered criminal.
Adequate notice of prohibited conduct permits people to
conform their conduct to the law and, at the same time,
justifies punishment when they cross a clearly drawn line.
Notice is especially important in a legal system that presumes
a knowledge of the law.
Before punishing someone for breaking the law, we should at
least ensure that the law is knowable. This is especially true
where the conduct is not wrongful in itself and the offense
requires no criminal intent. Criminal laws must be accessible
not only to laypersons, but also to the lawyers whose job it is
to identify those laws and advise their clients.
The problem, however, is that the Federal statutory crimes
in the 10,000 to 300,000 Federal regulations that can be
enforced criminally are scattered throughout 51 titles of the
code and 50 chapters of the CFR.
NACDL does not have a position on whether all criminal
statutes should be organized into a single title of the code.
Common sense would dictate that most criminal provisions should
reside in a single title unless clear evidence exists that a
particular criminal provision belongings elsewhere.
Fair notice goes beyond being able to locate criminal
statutes within the code. It includes clarity in drafting
precise definition and specificity in scope.
With rare exception, the government should not be permitted
to punish a person without having to prove that she acted with
a wrongful intent, and criminal law should be understandable.
When the average citizen cannot determine what constitutes
unlawful activity in order to conform her conduct to the law,
that is unfairness in its most basic form.
Unfortunately, when legislating criminal offenses, Congress
has failed to speak clearly and with specificity, has failed to
determine the necessity of new criminal provisions, and has
failed to assess whether targeted conduct is already prohibited
or better addressed by State law.
While the cause of these failures is not clear, the
solutions are. Moving forward, Congress should approach new
criminalization with caution and ensure that the drafting and
review of all criminal statutes and regulations is done with
deliberation, precision and by those with specialized
expertise.
Given the unique qualifications of the Judiciary Committee
and their counsel, which alone possess a special competence and
broad perspective required to properly draft and design
criminal laws, this congressional evaluation should always
include Judiciary Committee consideration prior to passage.
This practice could be guaranteed by changing congressional
rules to require every bill that would add or modify criminal
offenses or penalties to be subject to automatic sequential
referral to the relevant Judiciary Committee.
The Members of this Committee are far better suited to take
on this critical role and to encourage other Members to always
seek Judiciary Committee review of any bills containing new or
modified criminal offenses.
Hopefully, such oversight would stem the tide of
criminalization and result in clearer, more specific,
understandable criminal offenses with meaningful criminal
intent requirements and would reduce the number of times
criminal law-making authority would be delegated to unelected
regulators.
These comments are limited to the issues I was invited to
address. The problems of over-criminalization are pervasive,
and the measures necessary to reform go much further than
reorganization or Committee oversight. Further discussion, of
course, is contained in my written testimony.
I thank you for your bipartisan commitment to the task of
ensuring that our Nation's criminal laws are not themselves a
threat to liberty. NACDL will continue to support and assist
you however we can.
Mr. Sensenbrenner. Thank you very much, Mr. Benjamin.
[The prepared statement of Mr. Benjamin follows:]
__________
Mr. Sensenbrenner. The Chair is going to reserve his
questioning to the end of the questions, assuming we still have
time before the bell rings.
And the Chair at this time recognizes the gentleman from
Alabama, Mr. Bachus.
Mr. Bachus. I thank the Chair.
I was looking at Mr. Benjamin's testimony--both your
testimony, but I think we are to the point where we are ready
to act, hopefully. We know the problem. It has been reinforced
several times. We have gotten the message. And I think the key
is what do we do.
And on page 9 of your testimony, Mr. Benjamin, you suggest
at least four things I hear, and I know Congressman Scott has
mentioned one or two of these.
One is by changing congressional rules to require every
bill that would add or modify criminal offenses or penalties be
subject to automatic referral to the relevant judicial
Committee, you know, and I think that is very important
because, as you say, this is the Committee with the expertise.
Two: Enact a statutory law establishing a default criminal
intent requirement to be read into any criminal offense that
currently lacks one.
Three--and it says this requirement should be protective
enough to prevent unfair prosecutions and should apply
retroactively to all or nearly all existing laws. And I
actually know that is a radical idea, but I believe in that.
And I think there ought to be something where you can go
before a judge and present some evidence or before a board,
particularly some of these environmental crimes. I could
mention several cases of where people discovered hazardous
waste on their property and reported it, but they couldn't
afford to dispose of it fast enough.
And a lot of these cases, I talked to a former
Congressman--Energy and Commerce was dealing with this--and he
said we had a lot of these cases in the 1980's and early 1990's
and we kept trying to do something, but we couldn't figure out
what to do. And maybe that is because it wasn't judiciary.
The next thing--and I am going to ask your reaction--on
strict liability, your association urges strict liability not
be imposed in a criminal law as a general matter. Where strict
liability is deemed necessary, the body only employ it only
after full deliberation and then only if explicit in the
statute. I think that, you know, we ought to say, if it is not
explicit in the statute, there is no strict liability.
And the fourth one is that--I did not know this, but--and I
will say this to the members of the panel. At the bottom of the
page, he says, ``Supreme Court has cautioned against the
imposition of strict liability and criminal law and has stated
that all but minor penalties may be constitutionally
impermissible without any intent requirement.''
You know, we have said several times in our deliberations--
and witnesses have--that, without an intent requirement, you
know, I can see a minor fine, but when you are talking about
putting someone in jail for a year and a day, that is pretty
scary.
But I would just say--I would ask both of you to give us
five or six specific statutes that we can do or your
associations can even, you know, draft some just as a model and
we could look at them, and I think that would be particularly
helpful.
I really appreciate your testimony. And, Dr. Baker, you
have been here before.
This, to me, is such an important thing because I think we
have seen travesties of justice. We have seen people with no
criminal intent. And, if anything else, the government can use
that power to force them to do things just with the threat. You
know, they don't have to get a conviction.
And you could really--it could be used in a way that we see
some countries around the world that use the judicial process
simply to put people in jail that stand in their way of
whatever their goal is. And I hate that, on certain cases,
people with agendas have maybe done that here. That is a shame
because that is not America. That is not what our
constitutional forefathers envision.
My time is up.
Mr. Sensenbrenner. Time of the gentleman has expired.
The gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Dr. Baker, what problems could occur if we defer to States
for prosecution of virtually all cases that do not have a bona
fide Federal nexus?
Mr. Baker. Well, even today, in most cases, the
overwhelming number of cases are still prosecuted at the State
level. It is more or less on a selective basis that prosecutors
pick cases.
Sometimes there are conflicts between local law enforcement
people in terms of where the jurisdiction is fighting over
certain cases--high-profile cases. Other times, it's
cooperation based on money.
When I was prosecuting in New Orleans, we had longer
sentences than the Federal, if you can believe that. And so all
of the Federal drug cases the Federal agents would steer into
our courts because of the longer sentences. Some States, the
drug people will steer the case still into State court if there
is a tougher provision on search and seizure.
So law enforcement people are very practical. And so to
give a general answer to it, you would have to be specific
place by place. I am not exactly sure what you are trying to--
would it overwhelm the State? Is that what you are talking
about?
Mr. Scott. No. Just as a general matter, we ought to defer
to the States.
One of the previous witnesses said, in ascertaining--when
you go through the list of things that you ought to consider,
the differential in penalties was not on their list of things
that were legitimate to consider.
Mr. Baker. Really?
Mr. Scott. Do you agree with that?
Mr. Baker. No.
Mr. Scott. That you can pick and choose your jurisdiction
based on the----
Mr. Baker. Absolutely. We did it.
Mr. Scott. Well, yeah, you did it.
Mr. Baker. Yeah. I mean, we did it. The question was----
Mr. Scott. And then we did it in Richmond, and people brag
about the fact that Project Exile worked.
Mr. Baker. I wrote against--I have an article against
Project Exile. I will show it to you.
Mr. Scott. Good. Well, without pointing out that, in
Richmond, the crime rate went down because it had Project
Exile, but in other cities in Virginia that didn't have Project
Exile, the crime rate went down more.
Mr. Baker. Exactly. I point that out in my article.
Mr. Scott. Mr. Benjamin, you mentioned a notice. How do you
get noted--if you had mens rea, obviously, you had notice
because you had criminal intent.
How else would you get notice out there so the people know
that they are committing a crime?
Mr. Benjamin. Well, you make the laws accessible. Now, if
someone wants to determine in advance whether their conduct--
their proposed conduct is criminal, they have got to hire a
lawyer to answer that question and then the lawyer has got to
find the statute within the 51 titles of the code.
It is nearly an impossible task. And that is why we always
hedge our bets. Few lawyers are going to say you can do that.
It is because the law permits such uncertainty. It is so
ambiguously written that it is impossible to know even by
lawyers whether proposed conduct is truly lawful or unlawful.
Mr. Scott. Is that why the rule of lenity is so important?
Mr. Benjamin. That is exactly why the rule of lenity is so
important.
Mr. Scott. Can you say a word about the overlapping crimes
in State and Federal and what it does for the so-called trial
penalty.
Mr. Benjamin. I certainly can.
The trial penalty is the penalty for going to trial,
meaning that, if you--let me back up. Because I think it is a
unique and cherished American value consistent with freedom and
liberty, that if the government accuses us of a crime and
threatens to take away our freedom, we have that right to stand
up to the government and not only deny it, but make them prove
it, to say, ``Oh, yeah? Prove it.''
But we have completely lost that right because, if we go to
trial either because we want to make the government prove their
allegation or we want to challenge the constitutionality of a
dubious statute or because we are innocent, we can no longer do
that because, if we lose our bid to challenge the government,
then we face staggering mandatory minimum sentences that can be
stacked by the prosecution to beat us into guilty pleas. That
is not how our system was designed.
Mr. Scott. Are there problems in consolidating all of our
codes into Title 18 or would it be better to have them spell
all around where the subject matter crime goes with the subject
matter like the Agriculture Code?
Mr. Baker. Well, first of all, when the proposed Federal
Criminal Code back in the 1980's came before the Judiciary
Committee, the real problem was, in organizing the code, people
didn't pay attention to all of the many provisions. In one
sense, it was a code, but in another sense the Federal
Government should not have a code, because a code is a
comprehensive statement of criminal law.
And if you believe, as I do, constitutionally that Congress
has only limited powers and has to justify it on particular
enumerated powers, then the idea of a comprehensive Criminal
Code is very difficult to create without, in effect, expanding
Federal power.
My main concern about a general code like that would--even
with an attempt to limit Federal power, it would de facto end
up expanding Federal power.
Mr. Sensenbrenner. The gentleman's time is expired.
The gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman.
I want to thank both of you gentlemen.
And this is our tenth hearing, and both of you have been
here before. So this is a good place and a good point to begin
with, is: How do you see the cumulative effect and impressions
and understanding that we have gleaned out of these ten
hearings this year and last year?
Dr. Baker, why don't you start us off on that.
Mr. Baker. Well, if I compare back to Federal criminal
trials that I sat back--through when I was a law clerk and
Federal trials today, the biggest thing that strikes me is the
imbalance of power and how the power has shifted so
dramatically toward Federal law enforcement to the point where
not everyone, but there is a certain arrogance that pervades
the prosecutors. And it goes with the territory, unfortunately.
When you give anybody too much power, they are going to use it.
And I don't mean that they are using it for what they
perceive to be bad things. They believe that what they are
doing is the right thing. Of course, when they then resign and
become criminal defense attorneys, they get a different
perspective and they realize, ``Well, maybe, maybe, we were a
little too aggressive.'' And I can tell you that I have been on
panels with former AUSAs and they have said that, now that they
are on the defense side.
The reality is there are three perspectives: The
prosecutor, the defense, and the judge or jury. And they are
not the same perspectives. And there has to be a balance
between the two sides, and I think at this point that the
balance is too much in favor of Federal prosecution.
Mr. Conyers. But, still, State crimes are far more numerous
than are Federal.
Mr. Baker. They do. But here is the difference: You know
from Detroit--and I can tell you from New Orleans--people
trying to prosecute and arrest, they are running around trying
simply to deal with the violent crimes that they have to. Very
few prosecutors in major cities have time to go looking for
things. They can't find what has already been done.
That is not the case in Federal court. In Federal court,
you convene the grand jury and you go out looking. You got the
defendant, potential target, and then you figure out, ``Well,
what has this person''``What can we nail him on?'' That is not
the way local prosecutors work.
Mr. Conyers. Attorney Benjamin, would you weigh in on this
discussion, please.
Mr. Benjamin. I agree absolutely with Dr. Baker, that the
most striking facet of the current state of the criminal
justice system and the biggest, most dramatic change when I
first began 35 years ago to defend criminal cases is the
overbalance of power. Federal criminal defense now is all about
negotiating a resolution.
Mr. Baker. That is all it is.
Mr. Benjamin. That is all it is.
It is no longer about guilt or innocence. Guilt is
presumed, at least by the prosecution, and they have the tools
available to compel the guilty plea so that that is not even a
question. It is all about snitching out, cooperating, doing
whatever you have to to get the leniency--the fair treatment
that you seek.
Mr. Conyers. So what, then, do we bring to our full
Judiciary Committee in the House of Representatives in terms of
these ten hearings that we have had this year and last year? I
mean, what can we take?
And I want to commend the Chairman and Ranking Member,
Sensenbrenner and Scott, for having put this together as they
have. But where do we go from here?
Mr. Benjamin. I think the immediate thing is reform of the
mens rea problem. The immediate band-aid that is necessary is a
default rule of mens rea where none appear in criminal statutes
and are a rule of construction that applies a mens rea to all--
at least to all material elements.
Mr. Conyers. A single mens rea standard or----
Mr. Benjamin. No. No. Uniform mens rea standards----
Mr. Conyers. Okay.
Mr. Benjamin [continuing]. Clearly defined across the
board.
Mr. Conyers. Uh-huh.
And what would you add, Dr. Baker?
Mr. Baker. Well, I would agree with that. I have been
involved a little bit in trying to draft that statute, and I
can tell you it is not an easy statute to draft because of the
way, first of all, the Federal crimes are drafted and how
differently they are.
I would add to those two things, which I endorse, clear
definitions of what is a crime, what is a felony, what is a
misdemeanor.
And a way to deal with the strict liability is simply to
say noncriminal offense so that--and this is in the model Penal
Code, but not many States adopted it. I mentioned it in earlier
testimony.
You have a provision for noncriminal offenses and that
strict liability is limited to those. So if you think they need
to be prosecuted, fine, but the stigma of crime is not on
there.
Mr. Sensenbrenner. Time of the gentleman has expired.
Gentleman from Georgia, Mr. Johnson.
Mr. Johnson. Yes. As I listened through--to the testimony
and did a little reading, I was impressed with the fact that,
Dr. Baker, in your paper, you cite statistics showing that, in
1983, it was estimated that there were 3,000 or so criminal
offenses----
Mr. Baker. Right.
Mr. Johnson [continuing]. In the code and, in 1998, you
cited DOJ figures of 3300, as of 1998.
Mr. Baker. Well, no. Those were two different studies, and
it is noted in there. One was by DOJ, the first one. The other
one involved the same person, but there were different
methodologies used and that is why the different numbers.
Mr. Johnson. I see.
But that does not indicate that there was no growth in the
number of offenses.
Mr. Baker. Oh, there was growth. But, actually----
Mr. Johnson. May or may not have been 300, but----
Mr. Baker. No. It was more. It was more than that.
Mr. Johnson. Well, okay. All right. Well--so that is a
modest assessment, 3,300 as of 1998. That was 300 more than in
1983. And then between 1998 and 2008, that 10-year period saw a
rise to 4,450, according to your----
Mr. Baker. The 1998 figure, which I explain in there, is
not a reliable figure because it did not follow the methodology
that----
Mr. Johnson. So you think it was higher?
Mr. Baker. It was much higher.
Mr. Johnson. Okay.
Mr. Baker. The DOJ methodology, which I used and which has
been by email told to me by the person who conducted it that I
use the same methodology that DOJ did, we explained that
methodology to CRS and CRS basically followed that.
But what happened in the 1998, they did not break
particular statutes down into the various crimes within one
statute. They simply counted the statutes.
Mr. Johnson. I see. Okay.
So--and between 2008 and 2013, you cite an additional 403.
Mr. Baker. Well, that is a CRS report, and the skewed year
is 2008 with 195 crimes.
Mr. Johnson. Well, it puts us, according to the reports, to
close to 5,000 offenses. And it looks like from 1983 through
2008 was an explosion, also, in the number of human beings we
have imprisoned----
Mr. Baker. Right.
Mr. Johnson [continuing]. In this country.
And then, at the same time, we have had the growth of what
I will say is the conservative movement in the country, which
has called for less government, less taxes, which, when you put
on top of that the fact that you are needing more prisons--more
jail space and more prisons, you have seen a growth in the
private prison----
Mr. Baker. Right.
Mr. Johnson [continuing]. Industry.
--and, in fact, 1983, 3,000; 2013, close to 5,000.
1984, it should be noted, is when the Corrections
Corporation of America, which is the largest private prison
for-profit corporation--that is the year that that was founded,
1984.
And since that time, they have experienced exponential
growth and--to the point where they, along with--there is
another big one. I forget the name--Georgia--not Georgia--GPC
or something like that. But those corporations are publicly
held corporations selling stock on Wall Street.
What connection do you see between the growth of the
private prison industry and the number of--and the amount of
contributions that those companies make to legislators,
including on the Federal level, and the growth in the prison
industry--the growth in the prisons industry, the growth in
lobbying, and the growth in statutes putting people in prison?
What connection do you see?
Mr. Baker. Well, I can draw a connection between the growth
and certain things. I can't between all of them. I actually
represented at one point a sheriff in Louisiana who built the
largest public prison system, and the whole thing was funded by
Federal dollars. He went in the business of taking in Federal
prisoners because the Federal rate was much higher than the
State rate. There is a definite connection in terms of the
growth of prisons.
But on the conservative side, especially in Texas and in
Louisiana, they are understanding that this is bankrupting the
States. And so now you have some conservatives flipping and
calling for a reduction even in State criminal penalties and
State prison sentences because they realize that the growth of
it, the expense is unsustainable.
Mr. Johnson. Well, I tell you----
Mr. Sensenbrenner. Time of the gentleman----
Mr. Johnson. Mr. Chairman----
Mr. Sensenbrenner [continuing]. Has expired.
Mr. Johnson. Mr. Chairman, could I make just one last
statement?
I would imagine that we will now see a rise in lobbying
costs that are incurred by the private prison industry.
Thank you, Mr. Chairman.
Mr. Sensenbrenner. Okay. The gentleman from New York, Mr.
Jeffries.
Mr. Jeffries. Thank you, Mr. Chairman.
And let me thank the witnesses for your presence here today
and your continued contributions to the efforts of this panel.
Attorney Benjamin, you mentioned something that was very
troubling--and, Dr. Baker, you agreed with it--the notion that
Federal criminal defense has simply become negotiation efforts
toward resolution.
Mr. Baker. Right.
Mr. Jeffries. And that just seems fundamentally
inconsistent with the notions that have always served to
undergird our criminal justice system, the presumption of
innocence.
If there is going to be a presumption of innocence, it
seems to me it cannot be the case that, once someone is being
investigated and/or is indicted by our government, that the
only real option available to someone who, in theory, should be
presumed innocent is to negotiate the most favorable
resolution, which ultimately will likely result in some form of
sanction and/or jail time.
Mr. Baker. Right.
Mr. Jeffries. So the question becomes: How do we unpack
this dynamic in a way that allows this Task Force, the House,
this Congress, to make a meaningful impact?
And I would suggest--and I would like to get the
observations of both of you--that it seems to me that there has
got to be some way to reign in the inappropriate exercise of
prosecutorial decision-making.
You referenced the term ``arrogance'' that exists perhaps
amongst some prosecutors, and I believe the majority are
operating in good faith, though I may not agree with the
decisions that they make.
But who, as it currently exists right now, has the capacity
to oversee prosecutorial behavior and/or decision-making? And
what consequences are there when inappropriate public policy
decisions are being made?
Start with Attorney Benjamin, and we will go to Dr. Baker.
Mr. Benjamin. Well, the power of oversight and the power to
reign in Federal prosecutors resides in either DOJ and the
Attorney General or the U.S. attorney for a given district. The
reality, however, is that rarely will these individuals want to
interfere with the career prosecutors who have been doing this
all their lives and are on the line.
And so the answer is to take a look at the tools that are
being used to produce this result. And I think that the biggest
problem is the existence and the expansion of the use of
mandatory minimum sentences. That is what gives the
unfathomable power to Federal prosecutors, because they can, in
their charging decisions, threaten 10, 20, 30 lifetime
mandatory sentences.
That takes the judge completely out of it. If somebody is
convicted, what we will say to our clients is, ``Yes. Sure. I
understand you are innocent. And maybe you have a triable case.
But if you lose, you will get a life sentence.''
Mr. Jeffries. Right. I appreciate that observation.
Dr. Baker, I want you to respond. But, also, I want to add
this observation: Currently, Federal prosecutors have absolute
immunity, as I understand it.
Mr. Baker. As long as they are--well----
Mr. Jeffries. In the context of their----
Mr. Baker. Prosecution--as long as they are not getting out
of prosecution. Sometimes they get involved in investigation.
Mr. Jeffries. Okay. In the context of the prosecution, they
have got absolute immunity. Law enforcement has got qualified
immunity, as I understand it.
Is that something that we should explore?
Mr. Baker. I guess, as a former prosecutor, I liked
absolute immunity when I had it.
I haven't given it enough thought. I think that there is a
reason for immunity, whether it should be qualified and more
like law enforcement. The assumption is that a prosecutor is
under the control, to some extent, of a judge in a way that law
enforcement is not.
Mr. Jeffries. Right. That is the assumption.
But I think the testimony that we have received is that
that is no longer the case, that even Article III Federal
judges to some degree have lost control.
So I am trying to figure out----
Mr. Baker. But the real responsibility is with the
President and then the Attorney General.
Mr. Jeffries. Right.
Mr. Baker. The political reality is that--I don't care what
party you are talking about--that it depends on the particular
U.S. attorney and how he or she got appointed and whether they
have got a Senator protecting them. That is really what it
comes down to.
Mr. Jeffries. One last observation. The problem that we
confront is both to rectify the damage that has been done, but
also figure out how, moving forward, we can prevent a return to
just the cycle of endless criminal statutes being added to the
books. And it is often the case that elected officials react to
the passions of the public. In fact, that is the kind of
constitutional charge of the House of Representatives.
Mr. Baker. Right.
Mr. Jeffries. But in the criminal context, when you respond
to the passions of the public, particularly as it relates to a
particularly heinous crime, that results in perhaps doing
things that, in retrospect, aren't in our best interest.
And I would just encourage all of us, certainly those who
are contributing to this effort, to think about that dynamic as
we move forward.
Mr. Sensenbrenner. Thank you very much. The time of the
gentleman has expired.
Let me recognize myself for 5 minutes to wrap up, and this
will be more of comments looking at the last year and what we
have been able to discover.
First of all, I want to thank the witnesses for appearing.
The two authorizations of this Task Force I think have only
scratched the surface of what needs to be done because,
literally, the Congress and a lot of the agencies have been
putting more and more layers on the onion and we are beginning
to start to peel off the ones on the outside, and that just
asks more questions.
You know, looking at how we got to this and, I think, in
order to stop this from getting worse, we do have to very
vigorously pursue a change in House Rules. And some of the
lapses that have allowed other Committees that really don't
know very much about the criminal law--to make criminal law is
the fact that the Judiciary Committee has not been very
vigorous in asserting its jurisdiction, and that has got to
stop.
The parliamentarians have always said that, once we lose
jurisdiction, because we didn't claim it, then it is much
harder to get it back and they will just forget about us when
they refer bills. So exchanges of letters for further
legislation, I think, is necessary.
We are going to need help in developing a default mens rea
statute. ``Default'' means, when there is not a specific
criminal intent in a statute, there will be one. If there is a
specific criminal intent, the default statute would not apply.
And at least you have to have a criminal intent as one of the
elements in terms of obtaining an indictment or a conviction.
Now, in order to get at the proliferation of criminal
penalties--some of them are statutory; some of them are done
administratively--I would like to see the Judiciary Committee
draft and get passed and enacted into law a sunset provision of
all administrative criminal penalties. It should be a fairly
long sunset.
And the Committee, I think, can then ask each agency to
come in and justify which of those criminal penalties they wish
to have continued on the statute books and why. And if they
can't justify that in order to get a reenactment through the
Congress, then those administrative penalties would simply
vanish and we wouldn't have to worry about them anymore.
Now, I think a way to start on the anti-duplication
provisions of the code is to start scrubbing the bill that I
have introduced in this Congress and the two preceding
Congresses, which was designed to reorganize the code and to at
least put some sense in it so that people could look and see
what activities were criminal in nature without having to go to
a lawyer who can never give them a definitive answer because,
no matter how hard the lawyer tries, he will never be able to
find what statutes are involved in that.
And I know that, in the few days that we have left in this
Congress, none of this is going to be accomplished; however, I
would hope that, as we prepare to start the next Congress, we
will be able to in a bipartisan manner, which has certainly
permeated this particular Task Force, pick up each of these
areas to figure out what to do and to figure out what we can
get enacted into law.
And I think the American public--while they will not see an
immediate change in how we approach criminal issues, that there
will be something that will be long term that will deal with
many of the results of our over-criminalization.
So, again, I want to thank the witnesses.
I want to thank the Members of this Task Force for putting
in a lot of time and doing a lot of good work. Remember, we
have got probably the first two layers off the onion, but there
are many more layers that we have got to go.
So, without objection, this Subcommittee hearing is
adjourned.
[Whereupon, at 11:20 a.m., the Subcommittee was adjourned.]