    [House Hearing, 111 Congress]
    [From the U.S. Government Publishing Office]

                        OVER-CRIMINALIZATION OF CONDUCT/
                      OVER-FEDERALIZATION OF CRIMINAL LAW

    =======================================================================

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON CRIME, TERRORISM,
                             AND HOMELAND SECURITY

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 JULY 22, 2009

                                   __________

                               Serial No. 111-67

                                   __________

             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

                     JOHN CONYERS, Jr., Michigan, Chairman
    HOWARD L. BERMAN, California         LAMAR SMITH, Texas
    RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr.,
    JERROLD NADLER, New York                 Wisconsin
    ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
    MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
    MAXINE WATERS, California            DARRELL E. ISSA, California
    WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
    ROBERT WEXLER, Florida               STEVE KING, Iowa
    STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
    HENRY C. ``HANK'' JOHNSON, Jr.,      LOUIE GOHMERT, Texas
      Georgia                            JIM JORDAN, Ohio
    PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
    MIKE QUIGLEY, Illinois               JASON CHAFFETZ, Utah
    LUIS V. GUTIERREZ, Illinois          TOM ROONEY, Florida
    BRAD SHERMAN, California             GREGG HARPER, Mississippi
    TAMMY BALDWIN, Wisconsin
    CHARLES A. GONZALEZ, Texas
    ANTHONY D. WEINER, New York
    ADAM B. SCHIFF, California
    LINDA T. SANCHEZ, California
    DEBBIE WASSERMAN SCHULTZ, Florida
    DANIEL MAFFEI, New York

                Perry Apelbaum, Staff Director and Chief Counsel
          Sean McLaughlin, Minority Chief of Staff and General Counsel
                                     ------

            Subcommittee on Crime, Terrorism, and Homeland Security

                 ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

    PEDRO PIERLUISI, Puerto Rico         LOUIE GOHMERT, Texas
    JERROLD NADLER, New York             TED POE, Texas
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
    MAXINE WATERS, California            J. RANDY FORBES, Virginia
    STEVE COHEN, Tennessee               TOM ROONEY, Florida
    ANTHONY D. WEINER, New York
    DEBBIE WASSERMAN SCHULTZ, Florida
    MIKE QUIGLEY, Illinois

                          Bobby Vassar, Chief Counsel

                        Caroline Lynch, Minority Counsel

                                C O N T E N T S

                                  ----------

                                 JULY 22, 2009

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Robert C. ``Bobby'' Scott, a Representative in
      Congress from the State of Virginia, and Chairman, Subcommittee
      on Crime, Terrorism, and Homeland Security.....................     1
    The Honorable Louie Gohmert, a Representative in Congress from
      the State of Texas, and Ranking Member, Subcommittee on Crime,
      Terrorism, and Homeland Security...............................     3

                                   WITNESSES

    The Honorable Richard Thornburgh, former U.S. Attorney General,
      presently with K&L Gates LLP, Washington, DC
      Oral Testimony.................................................     5
      Prepared Statement.............................................     9
    Mr. Timothy Lynch, CATO Institute, Washington, DC
      Oral Testimony.................................................    20
      Prepared Statement.............................................    23
    Ms. Kathy Norris, Victim/Personal Impact
      Oral Testimony.................................................    33
      Prepared Statement.............................................    37
    Mr. Krister Evertson, Victim/Personal Impact
      Oral Testimony.................................................    43
      Prepared Statement.............................................    46
    Mr. Stephen A. Saltzburg, Professor, George Washington University
      Law School, Washington, DC
      Oral Testimony.................................................    52
      Prepared Statement.............................................    54
    Mr. James A. Strazzella, Temple University Beasley School of Law,
      Philadelphia, PA
      Oral Testimony.................................................    65
      Prepared Statement.............................................    67

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Prepared Statement of John Wesley Hall, President, National
      Association of Criminal Defense Lawyers........................    80

                                    APPENDIX

    Material Submitted for the Hearing Record........................    89

                        OVER-CRIMINALIZATION OF CONDUCT/
                      OVER-FEDERALIZATION OF CRIMINAL LAW

                                  ----------

                            WEDNESDAY, JULY 22, 2009

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                                  and Homeland Security
                                    Committee on the Judiciary,
                                                        Washington, DC.

        The Subcommittee met, pursuant to notice, at 3:03 p.m., in
    room 2237, Rayburn House Office Building, the Honorable Robert
    C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
        Present: Representatives Scott, Pierluisi, Nadler, Lofgren,
    Jackson Lee, Waters, Quigley, Gohmert, Poe, and Rooney.
        Staff Present: (Majority) Bobby Vassar, Subcommittee Chief
    Counsel; Jesselyn McCurdy, Counsel; Ron LeGrand, Counsel; Karen
    Wilkinson, (Fellow) Federal Public Defender Office Detailee;
    Veronica Eligan, Professional Staff Member; (Minority) Caroline
    Lynch, Counsel; and Kelsey Whitlock, Staff Assistant.
        Mr. Scott. Good afternoon. The Subcommittee on Crime,
    Terrorism, and Homeland Security will come to order.
        We are going to begin today's proceedings with an oversight
    hearing on ``Over-Criminalization of Conduct/Over-
    Federalization of Criminal Law.'' When we have an appropriate
    quorum, we will suspend the hearing and go into markup on the
    crack cocaine bill.
        We will begin today's hearing about Over-Criminalization of
    Conduct/Over-Federalization of Criminal Law.
        The issue comes after a series of conversations that the
    Ranking Member and I have had with former Attorneys General, a
    coalition of organizations, including the Washington Legal
    Foundation, the National Association of Criminal Defense
    Lawyers, the Heritage Foundation, the ACLU, Constitution
    Project, the Cato Institute, the American Bar Association, the
    Federalist Society, and others.
        They have come out of concern for what they and many others
    view as an astounding rate of growth for the Federal Criminal
    Code. They question the wisdom of continued expansion of the
    Criminal Code without taking the time to consider and review
    the process by which crime legislation is enacted.
        But more than the rate of growth in the Code, those
    concerned citizens and groups are concerned about the
    deterioration of what has occurred in the standards for what
    even constitutes a criminal offense. There is great concern of
    the overreach and perceived lack of specificity in criminal law
    standards, perceived vagueness, and the disappearance of the
    common law requirement of mens rea, or guilty mind.
        The mens rea requirement has long served an important role
    in protecting those who do not intend to commit wrongful or
    criminal acts from prosecution and conviction. Mens rea
    elements, such as specific intent, willful intent, and
    knowledge of the specific facts constituting the offense, are
    part of nearly all common law crimes. It serves as a means of
    protecting society; and, without these elements, honest
    citizens are at risk of falling into traps and being victimized
    and criminalized by poorly crafted legislation and overzealous
    prosecutors. There are a number of examples, and we are going
    to hear some of those examples today.
        When we enact criminal legislation, there is an issue of
    need: Do we need to enact more laws at the Federal level for a
    particular subject? That is, is there a valid purpose to be
    served by creating the crime at the Federal level, particularly
    if it duplicates crimes at the State level, or would it be
    better to just provide resources to States to enforce their own
    laws?
        Why should there be a Federal offense of car jacking? State
    and local laws have been investigating and prosecuting those
    cases long before Congress made it a Federal crime, and they
    have been doing the job much better. In fact, when you are a
    victim of car jacking, you do not call the FBI; you call the
    local police. Wouldn't it be better in such a situation for the
    Federal Government to provide resources in the form of
    training, professional development, use of crime labs,
    consultation about best practices in law enforcement
    investigations, and other assistance?
        These are the kinds of questions we should be asking before
    we enact more Federal criminal laws. We should also be asking
    those questions about the laws that we already have on the
    books.
        We are honored today to have a panel that includes
    distinguished experts, practitioners who have long grappled
    with these issues, as well as two individuals, private
    citizens, who will share their personal stories of the dangers
    of engaging in seemingly innocent conduct only to have their
    lives shattered when they were investigated, prosecuted, and
    incarcerated for offenses that many would scratch their heads
    and wonder, where is the crime?
        Some of the questions their testimony will raise is whether
    Congress should authorize a review of existing Federal laws,
    with specific emphasis on those laws that have been enacted but
    are not being enforced; reconsider how to best fight crime
    within the Federal system; reconsider the true Federal
    interests in crime control versus the risks of federalization
    of local crime; articulate general principles which should
    guide Congress in determining whether or not new crimes should
    be implemented and to implement mechanisms to foster restraint
    on further federalization; enact sunset provisions with respect
    to both existing laws that are not being enforced and new laws;
    and whether the proper response to Federal safety concerns is
    enactment of new Federal crime legislation or increased Federal
    support for State and local crime control efforts. Those are
    some of the questions that we will be considering today.
        But it is now my pleasure to recognize the esteemed Ranking
    Member of the Subcommittee, the gentleman from Texas, Judge
    Gohmert.
        Mr. Gohmert. Thank you, Chairman Scott. I don't know how
    esteemed, but there are times I am steamed, anyway.
        I am pleased that the Subcommittee is holding this hearing
    today on a topic that is of particular importance to me and one
    on which I and my colleague, Chairman Scott, both agree on, and
    that doesn't happen terribly often.
        But the Federal Code contains nearly 4,500 Federal crimes.
    Recent studies estimate there are nearly 56.5 new Federal
    crimes enacted each year. Over the past three decades, Congress
    has averaged 500 new crimes per decade, this despite the fact
    that the Federal Government lacks a general police power.
        As the Supreme Court noted back in 1903 in Champion v.
    Ames, ``To hold the Congress has general police power would be
    to hold that it may accomplish objects not entrusted to the
    general government and to defeat the operation of the 10th
    amendment declaring that the powers not delegated to the United
    States by the Constitution nor prohibited by it to the States
    are reserved to the States respectively or to the people.''
        Yet Congress' continuous enactment of new Federal crimes
    has systematically overturned this principle, securing a de
    facto Federal police power under which virtually all criminal
    conduct can be federally regulated. Many of these laws overlap
    with existing State laws and blur the lines between traditional
    Federal and State jurisdiction. Part of this trend toward over-
    federalization and over-criminalization is the growing
    expectation that Congress is the arbiter of criminal conduct.
        Unfortunately, Congress has responded to this pressure with
    zeal, often legislating in a vacuum with little regard for
    existing laws or the tenets of proper criminal statutes. The
    result is a labyrinth of Federal criminal laws scattered
    throughout many of the 50 titles of the U.S. Code.
        The current Code is riddled with laws that are outdated,
    redundant, or inconsistent with other provisions in the Code.
    It has been over 50 years since the Criminal Code was last
    revised.
        Our colleague, Mr. Sensenbrenner, is co-sponsoring
    legislation to simplify and modernize the Criminal Code which
    would cut over one-third of the existing Criminal Code,
    eliminate competing or duplicative definitions, and consolidate
    the criminal offenses all into Title 18. Such a rewrite would
    be a tremendous undertaking but one that would be invaluable to
    both practitioners and Members of Congress.
        Unfortunately, many of the new laws enacted by Congress are
    not targeting what we consider to be criminal conduct such as
    homicide, assault, or burglary. Many of these laws impose
    criminal penalties, often felony penalties, for violations of
    Federal regulations. But there is a significant element missing
    from many of these provisions, criminal intent.
        Some of us may not have thought much about the mens rea
    requirements since our law school days, but it is a cornerstone
    of criminal law, and it is eroding as regulatory crimes are
    being prosecuted under reduced or even nonexistent mental
    states or intent.
        For example, a 1993 decision by the Ninth Circuit, which
    speaks for itself, in U.S. v. Wiesenfeld held that criminal
    sanctions are to be imposed on an individual who knowingly
    engages in conduct that results in a permit violation under the
    Clean Water Act, regardless of whether the polluter is
    cognizant of the requirements or even the existence of the
    permit.
        The Clean Water Act has always been interpreted to allow a
    construction supervisor to be sentenced to 6 months
    imprisonment after one of his employees accidentally ruptured
    an oil pipeline with a backhoe, and a Michigan landowner was
    convicted under the Clean Water Act for moving sand onto his
    property without a Federal permit.
        Today, we are joined by two individuals with firsthand
    experience with this phenomenon. Mr. Krister Evertson was
    sentenced to 21 months in Federal prison for illegally
    transporting chemicals to a storage facility a half mile from
    his home in Idaho.
        Mr. George Norris, who is joined today by his wife Kathy,
    was sentenced to 17 months in Federal prison for what amounts
    to incorrect paperwork for importing orchids into the United
    States.
        I appreciate them joining us today to share those stories.
        I also can't resist--we are talking about over-
    criminalization. We have got a bill that may expand over-
    criminalization to new heights, for example, basically
    criminalizing all rape. But that is under the hate crime bill
    that is going through Congress now. I can't resist mentioning
    that in the topic of over-criminalization.
        Anyway, I do wish to acknowledge the efforts of the
    coalition, which include the Heritage Foundation, the ACLU, the
    Cato Institute, the National Association of Criminal Defense
    Attorneys, the American Bar Association, and others. But
    individually I also want to acknowledge our friend, Attorney
    General Ed Meese. What a great diplomat and thinker he is and
    what a pleasure to work with him.
        General Thornburgh, it is great to have you here.
        I will tell you, the level of minds that have been
    contributing to this, it has just really made me feel like the
    donkey entered into the Kentucky Derby. Comparatively, I don't
    stand a chance, but the company is wonderful.
        I appreciate all of you participating.
        With that, I yield back.
        Mr. Scott. Our first witness is the Honorable Richard
    Thornburgh. He served as the Governor of the Commonwealth of
    Pennsylvania, as Attorney General of the United States under
    Presidents Reagan and George H.W. Bush, and Undersecretary
    General for the United Nations during a public service career
    which spanned more than 25 years. He is currently counsel with
    the international law firm of K&L Gates LLP in Washington, D.C.
        Our second witness today is Timothy Lynch. Under the
    direction of Tim Lynch, Cato's project on criminal justice has
    become a leading voice in support of the Bill of Rights and
    civil liberties. His research interests include the war on
    terrorism, over-criminalization, the drug war, militarization
    of police tactics, and gun control. He has also filed several
    amicus briefs in the U.S. Supreme Court, including
    constitutional rights.
        Our third witness will be Kathy Norris, a founder and
    director of Real World Resources, a nonprofit faith-based
    organization that helps recently released prisoners reestablish
    themselves and reintegrate into the community. She has served
    in a number of conflict resolution initiatives, including the
    Houston Chapter of the Association of Conflict Resolution,
    Equal Employment Opportunity Commission's Pilot Mediation
    Project, the Alternative Dispute Resolution Committee, the
    Council of the ADR Section of the Texas Bar, Texas Mediator
    Trainer's Roundtable. She is a graduate of the University of
    Texas, where she studied English and education. She studied
    conflict resolution at Antioch University and is certified in
    choice therapy and reality therapy by the William Glasser
    Institute.
        Krister Evertson, our next witness, is a former owner and
    president of SBH Corporation, an Idaho-based corporation
    engaged in developing a process to reduce the cost of producing
    sodium borohydride, a chemical compound that is used to power
    hydrogen fuel cells. Fuel cells are a key component of the next
    generation of low-emission automobiles. He will speak about his
    experience with the Federal criminal justice system.
        The next witness is Professor James Strazzella. He teaches
    at Temple University Law School in Philadelphia, where he holds
    a James G. Schmidt Chair in law. He has been involved in both
    academic aspects of criminal law and practical attempts to
    improve the court system. Before entering teaching, he was a
    prosecutor in Washington, D.C., serving as Assistant U.S.
    Attorney for Washington, D.C. He is author of numerous
    publications, including several on the growth of Federal
    criminal law. In 1977 and 1978, he served and was a reporter
    for the American Bar Association's Bipartisan Task Force on the
    Federalization of Criminal Law.
        Our final witness will be Stephen A. Saltzburg, who has
    been the Wallace and Beverly Woodbury University Professor at
    George Washington University of Law since 2004. From 1990 to
    2004, he was professor of trial advocacy, litigation, and
    professional responsibility. He is the author of numerous books
    and articles on evidence, procedure, and litigation. He chaired
    the ABA Justice Kennedy Commission, which examined criminal law
    issues relating to punishment, sentencing, incarceration,
    racial disparity, commutations, pardons, compassionate release,
    prison conditions, and reentry. He also co-chaired the ABA
    Commission on Effective Criminal Sanctions, the successor of
    the Kennedy Commission.
        Each of our witnesses' written statements will be entered
    into the record in its entirety. I would ask each witness to
    summarize their testimony in 5 minutes or less, and to help
    stay within that timeframe there is a timing device at the
    table which will start with the green light. When it goes to
    yellow, 1 minute is remaining and will turn to red when the 5
    minutes have expired.
        General Thornburgh.

      TESTIMONY OF THE HONORABLE RICHARD THORNBURGH, FORMER U.S.
     ATTORNEY GENERAL, PRESENTLY WITH K&L GATES LLP, WASHINGTON, DC

        Mr. Thornburgh. Thank you, Chairman Scott and
        Ranking Member Gohmert, for giving me the opportunity to
    speak with you about this important topic.
        I have served on both sides of the Federal criminal aisle,
    as a Federal prosecutor for many years and currently as a
    defense attorney involved in proceedings adverse to the
    Department of Justice. I believe I have a balanced view of the
    issues before this Subcommittee and hope I can provide some
    insight and suggest some ideas to deal with the current
    phenomenon of over-criminalization.
        Those of us concerned about this subject share a common
    goal, to have criminal statutes that punish actual criminal
    acts and do not seek to criminalize conduct that is better
    dealt with by the seeking of regulatory and civil remedies. The
    criminal sanction is a unique one in American law; and the
    stigma, public condemnation, and potential deprivation of
    liberty that go along with that sanction demand that it should
    be utilized only when specific mental states and behaviors are
    present.
        Make no mistake, when individuals commit crimes, they
    should be held responsible and punished accordingly. The line
    has become blurred, however, on what constitutes a crime,
    particularly in corporate criminal cases, and this line needs
    to be redrawn and reclarified.
        The unfortunate reality is that the Congress has
    effectively delegated some of its most important authority to
    regulate crime in this country to Federal prosecutors who are
    given an immense amount of latitude and discretion to construe
    Federal crimes and not always with the clearest motives or
    intentions.
        A striking example of this is the ``honest services'' mail
    and wire fraud statute. Justice Scalia observed that the state
    of the law for honest services fraud was chaos and stated the
    practical reality of the statute as currently applied in a
    recent Supreme Court case, and I am quoting.
        The Justice said, ``without some coherent limiting
    principle to define what the intangible right of honest
    services is, whence it derives, and how it is violated, this
    expansive phrase invites abuse by headline-grabbing prosecutors
    in pursuit of local officials, State legislators, and corporate
    CEOs who engage in any manner of unappealing or ethically
    questionable conduct.''
        Since 1909, corporations have routinely been held
    criminally liable for the acts of its employees under the
    doctrine of respondeat superior. In recent history, one of the
    more significant cases is Arthur Andersen, a case with which
    this Committee is no doubt aware, in which a business entity
    received effectively a death sentence based on the acts of
    isolated employees over a limited period of time. A political
    cartoon that was published after the Supreme Court reversed the
    company's conviction showed a man in a judicial robe standing
    by the tombstone of Arthur Andersen who simply said, oops,
    sorry. That apology didn't put the tens of thousands of
    partners and employees of that firm back to work. This simply
    cannot be repeated, and reform is needed to make sure there are
    no future abuses of this sort.
        What can be done to curb future abuses?
        First, I have advocated for many years that we adopt a true
    Federal Criminal Code in place of the current hodgepodge of
    some 4,450 separate enactments with no coherent sense of
    organization. There is a template in existence, the Model Penal
    Code, that can act as a sensible start to an organized Criminal
    Code and which has formed the basis for many efforts to
    establish State criminal codes in this country.
        What is needed is a clear, integrated compendium of the
    totality of the Federal criminal law, combining general
    provisions, all serious forms of penal offenses, and closely
    related administrative provisions into an orderly structure
    which would be, in short, a true Federal Criminal Code.
        I suggested a commission should be constituted, perhaps in
    connection with Senator Webb's National Criminal Justice
    Commission Act, to review the Federal Criminal Code, collect
    all similar criminal offenses in a single chapter of the United
    States Code, consolidate overlapping provisions, revise those
    with unclear or unstated mens rea requirements, and consider
    over-criminalization issues.
        This is not a new idea. Congress has tried in the past to
    reform the Federal Criminal Code, most notably through the
    efforts of the Brown Commission in 1971. The legislative
    initiatives based on that Commission's work, in which I
    participated as then Assistant Attorney General in the Criminal
    Division, failed, despite widespread recognition of their work.
        I suggest that it is incumbent on the Congress to seek to
    make sense out of our laws and make sure that average, ordinary
    citizens can be familiar with what conduct actually constitutes
    a crime in this country.
        Second, Congress needs to rein in the continuing
    proliferation of criminal regulatory offenses. Regulatory
    agencies routinely promulgate rules that impose criminal
    penalties that are not enacted by Congress. Indeed,
    criminalization of new regulatory provisions has become
    seemingly mechanical. One estimate is there are a staggering
    300,000 criminal regulatory offenses created by agencies
    without congressional review, some of which you will hear about
    today.
        This tendency, together with the lack of any congressional
    requirement that legislation pass through the Judiciary
    Committee, those of you who are responsible for keeping an eye
    on the rationality of traditional criminal offenses, has led to
    the evolution of a new and troublesome catalogue of criminal
    offenses. Congress should not delegate such an important
    function to agencies.
        In this area, one solution that a renowned expert and
    former colleague from the Department of Justice, Ronald Gainer,
    who is with us here today, has advocated, is to enact a general
    statute providing administrative procedures and sanctions for
    all regulatory breaches. It would be accompanied by a general
    provision removing all criminal penalties from regulatory
    violations, notwithstanding the language of the regulatory
    statutes, except in two instances.
        The first exception would encompass conduct involving
    significant harm to persons, property interests, and
    institutions designed to protect persons and property
    interests, the traditional reach of the criminal law. The
    second exception would permit criminal prosecution not for
    breach of the remaining regulatory provisions but for a pattern
    of intentional, repeated breaches.
        This relatively simple reform could provide a much sounder
    foundation for the American approach to regulatory crime than
    previously has existed.
        Third, and finally, Congress should also reconsider whether
    it is time to address whether respondeat superior should be the
    standard for holding companies criminally responsible for acts
    of its employees.
        As this Committee is certainly aware, the Department of
    Justice has been troubled by this issue and has issued a
    succession of memoranda from Deputies Attorney General during
    the last decade addressing critical issues regarding charging
    corporations, particularly regarding the protection of the
    attorney-client privilege. The current guidelines may not be
    sufficient, because they continue to vest an unacceptable
    discretion in Federal prosecutors. A law, in short, is needed
    to ensure uniformity in this critical area so the guidelines
    and standards do not continue to change at the rate of four
    times every 10 years.
        Indeed, if an employee was truly a rogue or acting in
    violation of corporate policies and procedures, Congress can
    protect a well-intentioned and otherwise law-abiding
    corporation by enacting a law that holds the individual rather
    than the corporation responsible for the criminal conduct
    without subjecting the corporation and the fortunes of its
    shareholders to the whims of any particular Federal prosecutor.
        Before I close, I want to personally commend Chairman Scott
    and other Members of this Subcommittee for your role in
    securing unanimous House passage of the Attorney-Client
    Privilege Act of 2007 in November of that year. The privilege
    is one that goes back to Elizabethan times, and the
    preservation of that privilege is something about which I have
    expressed concern for many years.
        Mr. Chairman, your recognition of the issue and your
    legislation to stop coercive waivers and overreaching to gain
    access to privileged communications is precisely the type of
    legislation needed to protect this important privilege.
        With respect to the problem of over-criminalization, let me
    repeat that reform is needed. True crimes should be met with
    true punishment. While we must be tough on crime, we must also
    be intellectually honest. Those acts that are not criminal
    should be countered with civil or administrative penalties to
    ensure that true criminality retains its importance and value
    in the legal system.
        Thank you, Mr. Chairman and Ranking Member Gohmert, for
    giving me the opportunity to address this Committee this
    afternoon on this important issue.
        [The prepared statement of Mr. Thornburgh follows:]
             Prepared Statement of the Honorable Richard Thornburgh

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                   __________

        Mr. Scott. Thank you, General Thornburgh.
        We have votes pending. There are six votes, which will take
    us at least half an hour, and we will be back as soon as we
    can.
        [Recess.]
        [5 p.m.]
        Mr. Scott. The Subcommittee will now resume its hearing.
        We will have testimony from Mr. Lynch.

       TESTIMONY OF TIMOTHY LYNCH, CATO INSTITUTE, WASHINGTON, DC

        Mr. Lynch. Thank you, Mr. Chairman. I appreciate the
    invitation to appear here today.
        Before I get to the subject of mens rea and criminal
    intent, let me start off by explaining my general approach to
    the criminal law. My analysis of these issues begins with three
    facts that I think are important to keep in mind at all times.
        First, the power wielded by police and prosecutors is truly
    immense. We have to remember that all it takes is one raid on a
    home or business, one high-profile arrest, or a single
    indictment announced before the TV cameras on the courthouse
    steps and a person's life can be forever changed. Reputation
    gone, job gone, friends gone, and that is before you even get
    the opportunity to go into court to mount a defense. These
    things have already happened. Your life has already been
    altered.
        Second, as Attorney General Thornburgh mentioned, the term
    ``criminal'' carries a stigma. The term implies that the
    culprit has done something that is blameworthy. Now, that most
    definitely, is usually the case, but the term should not be
    twisted so as to apply in cases where there is no blameworthy
    choice. Criminality should be a situation where there is a
    clear line between lawful conduct and unlawful conduct and the
    person crossed over that line knowing what he or she was doing.
        Third, the Constitution contains many provisions that
    restrict the application of the criminal law. It restricts the
    power to search, it restricts excessive fines, it sets forth
    certain procedures about the notification of charges, it sets
    forth procedures for jury trials, speedy trials, the right to
    confront witnesses and so forth. Those safeguards amount to
    very little if the government can create very expansive
    theories of criminal liability that essentially obliterate
    traditional legal defenses, such as the ability to go into
    court to argue that you are doing something in good faith. If
    we are serious about maintaining constitutional safeguards, we
    have to keep a close eye on how the government creates and
    defines criminal offenses.
        With that background in mind, I want to briefly pinpoint
    the areas of our law where the problems of mens rea and
    criminal intent are especially acute.
        First, everybody here has heard of the old legal maxim that
    ``ignorance of the law is no excuse.'' But, Mr. Chairman, with
    the shelves and shelves of law books that can be found in
    libraries across the country, this doctrine no longer makes any
    sense. Even attorneys like us, it is impossible for us to keep
    up with the law these days. So, it is an old doctrine that no
    longer makes any sense, and the result of keeping this old
    doctrine on the law results in unjust prosecutions.
        My written testimony highlights the case of one Carlton
    Wilson. Mr. Wilson purchased a firearm. It was a perfectly
    lawful purchase. But, years later, when he was in divorce
    proceedings, a judge issued a restraining order; and nobody
    informed Mr. Wilson that he had a legal obligation, once the
    restraining order was issued, that he had to surrender his
    firearm. The judge didn't tell him. His own attorney didn't
    tell him. And the terms of the restraining order itself didn't
    say you had to turn in your firearm.
        Mr. Wilson got caught up in a Federal indictment and is
    serving 3 years in a Federal prison for violating a law that he
    had no reason to know about. And the Federal prosecutors just
    shrugged and said, well, ``ignorance of the law is no excuse.''
        It is time to discard this old doctrine by requiring
    prosecutors to prove that regulatory violations like this were
    willful.
        Again, in my written testimony, I show that this case
    against Mr. Wilson was not just an aberrational case where one
    prosecutor exercised poor judgment. There are many other cases
    like this; and, again, that is in my written testimony.
        Another problem area concerns the area of vague criminal
    statutes. In the situations where a particular law is brought
    to our attention, we still need to be able to understand the
    terms of that statute. We should be able to find that bright
    line between the conduct that is lawful and the conduct that is
    unlawful.
        In my written testimony, I direct the Committee to a
    situation where the Environmental Protection Agency (EPA)
    created a special hotline for the Resource, Conservation, and
    Recovery Act. They set up a special hotline to field questions,
    because they were getting lots of inquiries from people that
    wanted to know how that law applied in different situations.
    But there was a catch. The EPA said that it could not guarantee
    that the information given over this hotline would be correct,
    and prosecutors made it known that reliance on incorrect
    information would not be a defense in an enforcement action.
        Now, Congress should disavow situations like this, where
    ordinary citizens are relying on the government for guidance on
    what conduct is lawful and unlawful.
        Another thing Congress can do in this area is to direct the
    courts to follow the rule of lenity. The rule of lenity, you
    may recall, basically says that when a statute is ambiguous you
    give the benefit of the doubt to the defendant, not to the
    government.
        Mr. Gohmert mentioned we are going back to law schools to
    review some of these concepts. You might recall that in
    contracts, when a contractual provision was ambiguous, you
    would resolve that against the person who drafted the contract.
    So the rule of lenity is basically the same idea. When a
    criminal law is ambiguous, you give the benefit of the doubt to
    the citizen, not to the prosecutors and the government.
        Congress should also revisit the most expansive theories of
    criminal liability that have crept into our law. Under theories
    of strict liability and vicarious liability, persons can be
    labeled ``criminals'' but the defendants are barred from
    bringing in the extenuating circumstances of their cases to
    bring these to the attention of juries. That is because
    prosecutors and judges will make it clear even before the trial
    begins, that facts such as extenuating circumstances or
    somebody acting in good faith, these factors are irrelevant in
    a strict liability case.
        Let me provide you with one example to show you how this
    can produce an injustice.
        My written testimony highlights the case of one Dane
    Yirkovsky. He is now serving a 15-year mandatory minimum
    sentence; and, according to the reported decision in the case,
    here are the circumstances of his ``crime.''
        He was re-carpeting a room where he was living, and he
    found a bullet as he was pulling up the carpet. He took the
    bullet and put it in a box on top of his dresser.
        Months later, he got into a dispute with his ex-girlfriend
    about some property that she said he should not have taken, so
    he allowed a police detective into his room to show that he
    didn't have the property that she was talking about. But as the
    detective was walking around the room, he discovered this
    bullet; and suddenly this man, Yirkovsky, found himself caught
    up in a Federal indictment for possession of ``illegal
    ammunition.''
        He could not bring his innocent intentions or the
    extenuating circumstances of this case to the attention of the
    jury because they said it wouldn't make any difference. You are
    a felon. He had served his time. He was coming back trying to
    reestablish himself into the community. And, under the law, it
    is very strict. If you are felon, you can't possess illegal
    ammunition; and he couldn't bring the extenuating circumstances
    of his case to the attention of the jury. They just said it was
    irrelevant.
        Mr. Chairman, I have more examples and I go into more
    detail in my written testimony, but let me quickly conclude by
    affirming what Mr. Gohmert and what Mr. Thornburgh said
    earlier: The Federal Criminal Code is presently a mess.
        At a minimum, I think Congress should take, at a minimum,
    take the following steps:
        Discard the old rule that ``ignorance of the law is no
    excuse.'' It doesn't make any sense anymore.
        Second, Congress should establish the rule of lenity into
    our law. Right now, the courts are applying this rule
    haphazardly. Sometimes there is a favorable decision where they
    are applying the rule of lenity, but it is not applied
    uniformly in all Federal criminal cases, and that is something
    Congress can change by enacting a law.
        Third, Congress can abolish these most expansive theories
    of criminal liability such as strict and vicarious liability.
    They are inconsistent with the American legal tradition, and
    they hand too much power over to prosecutors, who can then
    coerce plea deals.
        Thank you very much.
        [The prepared statement of Mr. Lynch follows:]
                      Prepared Statement of Timothy Lynch

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                   __________

        Mr. Scott. Thank you.
        Mrs. Norris.

           TESTIMONY OF KATHY NORRIS, VICTIM/PERSONAL IMPACT

        Mrs. Norris. Good afternoon, Mr. Chairman and
        Ranking Member Gohmert and Members of the Subcommittee.
        I am here today to tell you about the consequences for my
    family when my husband George was arrested and imprisoned for a
    minor paperwork violation. It is not just the so-called
    criminals that suffer. It is the family as well.
        On October 28, 2003, our home was raided by Federal agents.
    I was at work, and one of my neighbors called and said, what is
    going on at your house?
        I said, what do you mean?
        And she said, well, there is a guy out in the street and he
    is stopping us as we go by, asking what we know about the
    criminal activity at your house.
        I thought, holy heavens. So I called my house five times
    before someone finally answered; and when they answered, they
    said, who is this?
        And I said, George?
        And they said, who is this?
        And I said, well, I have called my house. If you are not
    George, I have no clue who you are, so I think I am going to
    call up and call 911 and get the police over there to find out
    who you are and what you have done to my husband.
        ``I am a Federal officer.''
        I said, okay, now we are making some progress, I guess.
        He never identified himself by name, he never gave me any
    information about who he was, and it took about 5 minutes of
    talking with him to get him to let me speak with my husband,
    who was told to sit in a kitchen chair, was not allowed to move
    out of it.
        It went on for about 4 hours. They ransacked our house. We
    had no clue what this was about, why they were there. And when
    I finally talked to my husband, he was sitting there, and he
    was frightened, and he was confused, and there was no telling
    what this was about.
        So they eventually left. They took 37 boxes of documents
    out of our house and George's computer. Eventually, they
    returned eight boxes and the broken computer. It took us about
    another 4 hours to clean the house up from what they had done.
        I called the clerk of the Federal court the next morning to
    ask what it is about; and they said, it is a sealed indictment.
    You don't need to know. You can't know.
        So for about 5 months we had no idea why they had been at
    the house and what they were doing. It is pretty scary to be
    that much in the dark.
        Yes, this case is about orchids. It is not about guns or
    drugs or anything else. George had had a passion for flowers
    and for orchids for years, and he eventually built it into a
    small business. It was operated out of our backyard. He
    imported orchids from all over the world, primarily species,
    and we sold them to people that wanted to hybridize orchids and
    develop new kinds of species.
        All orchids are covered by the Convention on International
    Trade and Endangered Species. Even though they are not
    endangered, they fall under that convention, and that makes
    life working with the CITES Convention really delicate, because
    you never know when you are on track, off track, on the right
    page or off the right page.
        So as we eventually found out, George and our supplier from
    Peru, Manuel Arias Silva, who is an orchid producer and
    shipper, had shipped some of the orchids under a wrong name on
    the Customs document. What we assume is that the Federal
    Government wanted to make an example of someone in the orchid
    community, and they choose George.
        George is sitting over there in a blue shirt. We have been
    through this together all the time, and I wanted him here with
    me today.
        Our lives have never been the same, and they won't ever be
    the same. We had to fly to Miami because we weren't given a
    change of venue. My understanding is that normally when there
    is a crime and it is seen in one place that they give you a
    change of venue closer to where you live, which would have
    saved us a lot of money in flying back and forth to Miami. It
    would have given us a chance to find an attorney in a place
    where we actually knew some people. We are from the Houston
    area. There are competent attorneys there, and we at least know
    some people we could have asked.
        At first, we were going to fight the charges. We hired a
    lawyer, and we spent a lot of money traveling back and forth to
    hearings. Most of the time, we had 3 or 4 days' notice, so all
    of our flight time was at full fare, not reduced fares. Then it
    became apparent that we needed to find a more expert lawyer,
    and we found one, but, unfortunately, he was monumentally out
    of our ability to pay.
        So George pled guilty. He was sentenced to 17 months in
    Federal prison, and he served that. Money was really tight. Our
    business was gone. George's Social Security stopped while he
    was in prison. Then I got told that if I wanted him to be
    insurable after he got out of prison, I had to pay his Medicare
    premiums while he was in prison. So we had that on top of
    everything else. He had to have some money in prison, so I had
    to send him a little bit to buy things at the commissary, like
    paper and stamps and some food that he could actually eat. This
    was done on my salary running a mediation center.
        You know, it is one thing to lose your life savings when
    you are 40. But when you are 60 and 65, it is really tough,
    because you don't have any years to go back and rebuild it. So
    now we are kind of stuck with no money and a felon for a
    husband.
        There was a ton of grieving through all this, for me and
    for our children and grandchildren. The younger grandchildren
    were just told Papa George was traveling, and the older kids
    knew what was going on, and they went through their own
    grieving.
        George was in prison barely getting by. They sent him to a
    Federal medical facility. He is diabetic. He has got cardiac
    complications, arthritis, and Parkinson's disease.
        We kept wondering about his treatment in prison. We weren't
    getting normal treatment from his doctor there, so George would
    phone me, and he would tell me what was going on
    symptomatically, and I would call his doctor, and they would
    tell me, you know, up this drug, down this drug, stop that
    drug, see if you can get one like this. And when George would
    call me back, then I would relay that information to him, and
    he would go to the doctor and suggest those things, and the
    doctor would say, oh, sounds like a good idea.
        Well, about 3 or 4 months after George was released from
    prison, the doctor was taken out in shackles because it turned
    out he wasn't a doctor. He had immigrated to Canada, gotten
    doctors' papers and moved into the United States where he
    obviously couldn't pass medical exams, but he was hired by the
    Bureau of Prisons to be the doctor.
        It was kind of a thing, but, you know, we did actually make
    it through it, and George is still alive, and here we are.
        Those kind of are the easy things to describe. The hardest
    part is I lost the man I married. He came home from prison and
    he ate and he slept and he sat on the couch and looked at the
    TV, but he wasn't really watching it. We went through about 4-
    1/2 months of having him just kind of be there. It was like
    having him in a coma, almost. He wouldn't water a plant, he
    wouldn't call the grandkids, he wouldn't invite a friend over,
    he didn't want to go out to dinner. Nothing.
        He eventually got sort of reinterested in woodworking,
    which has been one of his hobbies, so his world expanded to
    include the house, the TV set, meals, and the shop where he
    worked on the wood. He still has prison nightmares.
        My world shrank, too, because I was there trying to figure
    out how to pay the bills, how to keep the house running, how to
    hold down my job, how to do what I could for the kids and
    grandkids, how to visit George in prison, and by the time I got
    all that done, there really wasn't a whole lot of time for
    anything else. And that went on for months and months.
        George is out of prison now, and he is doing some better.
    The remaining part is the paranoia. We both really are still
    looking over our shoulder waiting for the other shoe to drop,
    wondering what will happen next. There was some real concern
    when we were asked to come and testify here about are we
    painting a bull's eye on his back, will there be retaliation
    from the Department of Justice. We were assured it probably
    wouldn't, but that is the level of paranoia. I never would have
    thought to ask that question before.
        Mr. Scott. If you will summarize the rest of your
    testimony.
        Mrs. Norris. I will do it very quickly.
        I grew up in a country that wasn't like this. I grew up in
    a good part of Dallas. I didn't know anybody that had been
    arrested or put in jail. Neither had George. And to have a
    group of people storm the house in kevlar vests with guns drawn
    and change our lives forever just simply isn't something that
    should have happened. This was about orchids. It was about I
    think a total of 75 orchids, worth $8 apiece.
        I guess what I want to tell you is that the crime, the
    criminal and the punishment didn't just affect him. It affected
    our entire family. It strained all of our family, and
    henceforth he is a felon. He is not allowed to do anything with
    his grandkids like hunt. He is not allowed to have alcohol in
    the house. He is not allowed to have a bow and arrow. There is
    this whole list of can't's; and, quite frankly, the one-size-
    fits-all list of can't's doesn't fit my husband or our family.
        I am told that to get a pardon you have to have completed
    your sentence by 5 years. Well, he got released from probation
    last December, so 5 years from that we can apply for one to the
    Department of Justice. Oh, goody. I can tell you what
    confidence I have in that process.
        So there is no way to get back. There is no way to retrench
    from this.
        I also want to tell you how much I appreciate the
    opportunity to talk here. It has been a long time. We were not
    allowed a voice. If you said anything to newspapers or anyone
    else, the retaliation was really severe. So this is the first
    time I have actually had a chance to sit and talk to people
    that might have a chance at doing something different in the
    future, and I am incredibly grateful for that. Thank you.
        [The prepared statement of Mrs. Norris follows:]
                       Prepared Statement of Kathy Norris

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                   __________

        Mr. Scott. Thank you.
        Mr. Evertson.

                    TESTIMONY OF KRISTER EVERTSON,
                         VICTIM/PERSONAL IMPACT

        Mr. Evertson. Good afternoon, Mr. Chairman, Ranking Member
    Gohmert, and Members of the Subcommittee.
        Thank you for holding this hearing. I only wish that you
    had held it a few years ago before I became a victim of over-
    criminalization.
        What I have experienced in these past years is something
    that should scare you and all Americans.
        I worked on my invention in my mother's garage, and it was
    my American dream. And, instead, my dream and hard work, it
    turned into a prison term for doing something that no one would
    dream would be a crime.
        Please excuse me if I stutter a bit, but I have stuttered
    all my life. But being here is more important to me than not
    stuttering.
        I try to be an inventor, and I have done it since I was a
    kid. In school, I won the science fairs at my intermediate
    school and high school every year, and I won the third place at
    the Hawaii State Science Fair, which is pretty good at the
    State level, and that year I made a fuel cell battery using
    coconut milk. That was in 1971.
        When I started working with fuel cells, they were beginning
    to be big news, but they were expensive, so I was working on a
    new way to make a chemical called sodium borohydride that could
    be used to power fuel cells, and it is much more safe than
    other ways of making the hydrogen that you need to run the fuel
    cells.
        In 2000, I started a company to perfect my invention. I
    spent all my time working on it, but the money ran out, so I
    packed all my chemicals and equipment in stainless steel tanks
    and paid someone to watch over them.
        On May 27, 2004, my American dream about inventing turned
    into a nightmare. Two black SUVs pushed my car off the road.
    Federal agents, just like with her, dressed in black, jumped
    out with machine guns. I was arrested, interrogated, and I was
    thrown into jail.
        The charge was that I didn't put the right label on a box
    that I had lawfully sold on E-Bay. Sodium can be hazardous, so
    it has to be shipped by ground or on cargo planes. I checked
    ``ground'' on the shipping label when I shipped it. I didn't
    know that, in Alaska, UPS shipped ground by plane.
        Instead of a civil penalty for an innocent mistake, which I
    did at the time, the government prosecuted me. The prosecutors
    pushed me to plead guilty, but I refused to plead guilty
    because I knew I was innocent.
        But it didn't end there. While I was in jail on the box
    label charge, the EPA ripped open my storage tanks and declared
    everything inside them to be toxic waste and threw everything
    away. The EPA spent almost half a million dollars destroying
    everything I had worked on for almost 2 years. Nobody told me
    about what was happening when the EPA was doing this or asked
    me about the tanks. They just went ahead and did everything.
        After I was acquitted by a jury on the label charges, the
    government brought new charges for storing hazardous waste
    without a permit.
        Mr. Gohmert. I am sorry, Mr. Chairman, the acoustics in
    here are such that conversations are really distracting. I am
    having trouble hearing.
        Mr. Scott. Go ahead.
        Mr. Evertson. After I was acquitted, the government brought
    new charges. That was ridiculous. Mr. Timothy mentioned RCRA,
    and I was the same. The same charges were RCRA.
        I knew nothing was waste. My materials were extremely
    valuable and worth a lot of money. Why would I abandon valuable
    materials? I paid for them and intended to return to work on my
    invention. And they weren't hazardous. The tanks were sealed
    tight. Nothing ever leaked. No person was ever put in harm's
    way. There was no risk to the environment.
        So I pled not guilty again, because I knew I wasn't guilty,
    and if I pled guilty I would be lying. I had not abandoned my
    materials. But the judge said that the government didn't have
    to prove that my materials were hazardous waste. It was enough
    that the EPA said so.
        No one could defend himself against such charges, so I was
    convicted, and I served 18 months in Federal prison. Now I am
    in a halfway house and will be released in about a week. But I
    will always be a felon. I never wanted to be a felon. Unless
    the Supreme Court takes my case, I will not regain my rights to
    vote or to serve on a jury to possibly help other innocent
    people. And I am losing other rights. I was working on fuel
    cells, trying to improve the environment. I am an American
    inventor and a law-abiding citizen pursuing my dream, and I
    wound up in prison.
        My story proves that these things can happen to anyone.
    There are too many laws that put ordinary, well-meaning
    Americans at risk of criminal prosecution and conviction.
        An old saying comes to mind: One man's trash is another
    man's treasure. I had treasure on my invention, and the EPA
    said it was trash, and so I lost my treasure. That is why I am
    testifying today in Congress.
        Please protect our American treasures and our American
    freedoms.
        Thank you again, Mr. Chairman.
        [The prepared statement of Mr. Evertson follows:]
                     Prepared Statement of Krister Evertson

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                                   __________

        Mr. Scott. Thank you, Mr. Evertson.
        Professor Saltzburg.

    TESTIMONY OF STEPHEN A. SALTZBURG, PROFESSOR, GEORGE WASHINGTON
                 UNIVERSITY LAW SCHOOL, WASHINGTON, DC

        Mr. Saltzburg. Mr. Chairman, Ranking Member Gohmert,
    Members of the Committee, thank you for having me here today.
        I represent the American Bar Association at the request of
    Tommy Wells, its President. In my written statement you will
    see I described, along with the other members of the panel, how
    we came to be where we are with 2.3 million Americans confined
    in jail or prison on any given day, one-quarter of the Earth's
    prison population, in the land of the free and the home of
    brave.
        I was asked to talk about mandatory minimum sentences and
    how they contribute to over-criminalization and actually
    overpopulating our jails and prisons. I want to do that, but I
    also would like to say that I had the privilege of serving as
    Deputy Assistant Attorney General for General Thornburgh, and
    General Thornburgh named me his ex-officio representative to
    the United States Sentencing Commission.
        And while it is not part of my testimony today, I can say
    this: It didn't matter whether you were a Republican or a
    Democrat. When he was Attorney General, these things, if they
    came to his attention, would never have happened. There was a
    time when people understood what serious crime was and what
    petty prosecution was that should never be dishonored by the
    Federal Government. It is heartbreaking to hear these stories,
    but all too true.
        Mandatory minimum sentences in their own way are
    heartbreaking. Why do we have them? We have them because there
    was a time in the mid-1980's, particularly 1986, where Members
    of Congress believed that at least some Federal judges were
    sentencing criminal defendants too lightly. At the time, there
    was no appellate review of sentencing. There was nothing that
    could be done if a judge gave a defendant probation or a light
    sentence.
        So we ended up with the Drug Control Act, which gave us our
    first drug mandatory minimum sentences. And the end result, as
    I discovered when I was a sentencing commissioner, was that all
    of the sentences that we prescribed were driven upward, much
    higher than past practice, because of having to deal with
    mandatory minimums. That is, in order to grade offenses and
    treat more serious offenses with a higher punishment, the
    Commission had to take into account these mandatory minimums.
        Now, what is wrong with them? Well, in 1991, the Sentencing
    Commission issued a report; and the Sentencing Commission said
    exactly what justice Kennedy would say to the ABA 12 years
    later. What is wrong with them is it takes sentencing
    discretion away from judges and gives them to prosecutors, who
    often are younger and have much less experience. That is number
    one.
        Number two, it has a dramatically racially disparate impact
    on the system, particularly with respect to the crack cocaine
    mandatory minimum, which this Committee is well aware of, given
    the vote it just took on the bill that we heard about.
        Number three, the Sentencing Commission in 1991 said, when
    you have mandatory minimums, it is like driving a car up to a
    cliff. If you don't go over the edge, you are fine. Judges have
    discretion. The moment your tire goes over, you are down and
    the mandatory minimum kicks in, and it is a sentence that may
    have absolutely no bearing with respect to culpability versus
    the person whose tires stop short. It is arbitrary. It produces
    sentences that are too long.
        And how do I know that? For this reason.
        If a sentencing judge says 2 years, 5 years, 10 years, 15
    years, the mandatory minimums we have heard about are not
    necessary in a case. Today, if a judge didn't have these
    mandatory minimum sentences and the judge gave a lower
    sentence, the United States could appeal.
        We now have a system which has other defects that the
    Committee might want to take up at another time, but we have a
    system of controlled discretion. The sentencing guidelines tell
    judges where they need to start. Now, they are advisory, no
    longer mandatory, but they provide a starting point, and judges
    are required to consider the guidelines and to calculate a
    guideline sentence before finally determining what a sentence
    will be.
        We have appellate review at the behest of both the
    government and the defendant. That is, no trial judge, whether
    he or she is too severe or, in the eyes of a Congress, too
    lenient, no trial judge is a law unto himself or herself any
    longer. So we do not need mandatory minimum sentences. They
    drive up the prison population in two ways, and both of these
    ways are unnecessary.
        First, people go to prison who might not go at all. That
    is, a trial judge, but for the mandatory minimum, might
    conclude that someone could go to jail, and probation, someone
    could be put on probation.
        Second, the trial judge who might impose a sentence of a
    year may have to impose a 5-year sentence, and so the
    individual serves five times the sentence that the judge
    believes is appropriate.
        Mandatory minimum sentences may have been something that
    reasonable Congressmen would have thought were necessary at a
    time when there was no check on judicial discretion. We have a
    check. We have structure. We have balance. And still we have
    mandatory minimum sentences at a time that we don't need them.
        They are not necessary to deter crime. They are not
    necessary to control judges. They are not a good thing for
    American criminal justice. And one the best things Congress
    could do is to abolish the mandatory minimums, trust the
    Sentencing Commission to then readjust the sentences so we
    could have a system that makes sense, and let judges exercise
    discretion, not prosecutors, subject, of course, to review by
    appellate courts.
        That is the ABA position, and I urge you to take it
    seriously.
        [The prepared statement of Mr. Saltzburg follows:]
                   Prepared Statement of Stephen A. Saltzburg

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                   __________

        Mr. Scott. Thank you.
        Mr. Strazzella.

      TESTIMONY OF JAMES A. STRAZZELLA, TEMPLE UNIVERSITY BEASLEY
                    SCHOOL OF LAW, PHILADELPHIA, PA

        Mr. Strazzella. Mr. Chairman, Ranking Member Gohmert, thank
    you for your invitation to submit written testimony and to make
    some remarks.
        I will try to be brief, but I appreciate the chance to say
    a few words in the context of this broader hearing about what
    should be criminalized and talk particularly about the
    federalization of criminal law, which is increasing. That is,
    what should be made a criminal act under the Federal law,
    rather than under State law?
        My particular concern--and I want to emphasize that I speak
    for myself today. Although I obviously draw on my experiences,
    including as a reporter for the ABA's Task Force on
    Federalization, my appearance here today is on my own behalf. I
    have drawn on that report and referred to it in my written
    statement.
        My particular concern and the concern of that report had to
    do with a narrow band of activity that was already criminalized
    by State law, is traditionally criminalized by State law, has
    serious penalties, and is in the general run of cases very
    zealously prosecuted, and then for one reason or another, which
    I am sure Congressmen and women can identify quickly with, gets
    criminalized on the Federal side. That presents serious
    problems in this system that we have, a dual system that is
    quite delicate and important to us governmentally.
        It would be very difficult I think to explain to the
    average citizen--if you put aside crimes involving real Federal
    or international issues, if we put them aside, it would be very
    difficult I think to explain to the average citizen today
    whether we would ever initially set up a system that made the
    same core conduct criminal under two sets of prohibitions,
    either in the same statute books or statute books next to each
    other, particularly because those two prohibitions, as do the
    State and duplicative Federal statutes, particularly because
    they have serious consequences that are disparate.
        One of them is that the Federal statutes tend to be much
    more severe in terms of penalty, which is why many of these
    cases are brought. They kick the cases into Federal courts
    rather than State courts. They give a different jury pool than
    the State cases do. They kick in different rules of evidence,
    different procedures, all sorts of different consequences, and
    they take the defendants out of the system and put them into
    Federal jails.
        I should underscore, of course, that this duplication
    doesn't mean either/or. It can be both. That is, you can be
    prosecuted under our double jeopardy interpretations for both
    of those, compounding the sentences and the time.
        That system is the system, however, even though we wouldn't
    initially think that up, that has grown more and more common
    under our growing patchwork of accumulating Federal law.
        A number of people have referred today to the large number
    of Federal offenses that exist. There are many of us who think
    it is not possible to count them, there are so many of them.
    The accumulation of them I think is well-known to this
    Committee and is demonstrated elsewhere, including in the ABA's
    federalization report. That accumulation, as far as the local
    type of crime, which often at its core is highly visible and
    violent in nature, has come about in just the last decades.
        Any crime legislation is popular. I certainly don't need to
    suggest to this Committee the pressures on the Committee and on
    Congress to vote that some conduct that isn't desirable should
    be criminalized, and many people somehow make the leap from
    that that if it is not desirable that it also should be
    criminalized under Federal law.
        It is hard to vote against crime legislation, I realize.
    But the principled assessment of whether there is a Federal
    need referred to in the Chairman's statement and whether these
    activities which we can condemn very often ought to be made
    Federal is a really serious question.
        It is a serious question because I think there is a
    temptation to think that voting yes on a Federal crime bill is
    in many ways cost-free; and I think, as the ABA report tries to
    itemize, that is certainly not the case. There is a human toll,
    much of which you have heard about today. There is a toll in
    terms of disparity. These decisions are made by prosecutors,
    sometimes low level, sometimes high level.
        I like prosecutors a lot. I was one myself in the U.S.
    Attorney's Office in this city. But the idea that that decision
    would be made without basic review, which is the case, no
    judicial review, is troubling in its own way, because it kicks
    in lots of consequences.
        There are cost consequences. They end up in Federal jail,
    many of these defendants. There are certainly consequences in
    terms of the rights and privileges you would get in the
    process. There are disparities in sentencing, as you hear.
        There are also major consequences to our Federal-State
    governmental system. In the initial setup of the country, it
    looked to me like there were 17 Federal crimes. They were very
    site oriented in some respects, like governmental Federal-
    function oriented. That is no longer true. So a lot of these
    cases that end up in Federal Court sound to the Federal judges,
    I think, as though they are trying State cases.
        I just want to itemize quickly one more cost, which is the
    terrific penalty that Federal courts pay by having to take on
    these cases and deciding them, pushing other civil cases to the
    back or other truly Federal interest cases as well.
        I should close, if I can, by saying that the task force I
    think has identified a worthwhile notion in saying that, in the
    important debate about how to curb crime, it is critical,
    crucial, that the American justice system not be harmed in the
    process. It is a very important process to us. In the end, the
    ultimate safeguard for maintaining this valued constitutional
    system must be principled recognition by Congress of the long-
    range damage to real crime control and to the Nation's
    structure caused by inappropriate federalization.
        So I add my voice to the list that the Chairman identified
    of the real need to pay attention to whether there really is
    some Federal interest involved; and the examples he gave--and
    car jacking I think is one of those--serve well to illustrate
    that, and that the Congress uses devices that are identified in
    the report of the ABA and elsewhere to try to make it clear
    that if legislation is to result in a Federal crime it be
    carefully considered and strongly approved.
        I thank you again for having me.
        [The prepared statement of Mr. Strazzella follows:]
                   Prepared Statement of James A. Strazzella

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                   __________

        Mr. Scott. Thank you.
        We will now recognize the Members under the 5 minute rule.
        I will begin by asking General Thornburgh--and thank you. I
    understand you had to change your schedule because of the
    votes. I appreciate you remaining. If you have to leave, we
    certainly understand.
        Comments have been made about the fact that a lot of
    regulatory violations are subject to criminal sanctions. If
    they were just civil and not criminal, would they be a
    sufficient deterrent to people who might think of violating the
    regulatory rules?
        Mr. Thornburgh. I think the suggestion that I referred to
    that was made by Mr. Gainer would address that in terms of
    separating out those regulatory violations that were of
    sufficient gravity to justify a criminal penalty. I would
    remind the Committee that that would encompass those that were
    posing a real threat to persons, injury or other kinds of
    afflictions, to property interests, and to institutions
    designed to protect persons and property interests, number one.
        Secondly, a regulatory violation would qualify for criminal
    prosecution if there were a pattern of repeated intentional
    breaches of the regulation in question.
        Otherwise, I think when you absent those two
    characteristics from a regulatory violation you are left with a
    regulatory violation. And while there would be a deterrent
    capability by having someone be subject to a fine or an
    administrative penalty, you would not impose the Draconian type
    of hardship that has been described by the witnesses who
    appeared today.
        Mr. Scott. Thank you.
        You recommended the creation of a review panel or
    commission to review the Federal Criminal Code. How feasible is
    this and what happened the last time that was tried?
        Mr. Thornburgh. I am a dreamer, Mr. Chairman. I have been
    through this drill for now probably 30 years, going back to my
    time in the Criminal Division, and we got just that close with
    the Brown Commission legislation in the bill identified as S.1,
    but for a number of reasons having very little to do with the
    merits, it fell short.
        I still look for someone with the courage and the tenacity
    to come out of this Congress and tackle this important task,
    because I think if we don't soon engage the problem of this
    sprawling mass of statutes layered one on another over a period
    of years we will eventually cause an erosion in the credibility
    of the criminal law altogether.
        Again, I would refer to the poignant tales you have heard
    today from individuals who were caught up in the system. When
    you have duplication, overlap, when you have ill-defined terms,
    when you have no need to reconcile individual criminal
    legislation with the overall goals, for example, of the
    Judiciary Committees in both Houses who are schooled and expert
    in those things, then you get the current--I can't think of
    appropriately strong words to characterize it. I will be gentle
    and say mishmash of what we have in the criminal law today.
        Maybe I am not realistic. Maybe that is not going to
    happen. But we have faced up to these kinds of things.
        I remember when I was a law student in Pennsylvania, we
    studied the Uniform Commercial Code, except we were reminded
    that it was uniform only in Pennsylvania. Now it is uniform
    throughout the United States, and somebody had the wisdom and
    the tenacity and the backing of the American Law Institute,
    which constituted that, to have a Code that makes sense, that
    doesn't promote the kind of disparity on the commercial side
    that we see on the criminal side.
        It is a worthy cause for someone young enough and tough
    enough to take on; and observing the leadership of this
    Committee, I would say you folks qualify. Anyway, I hope so. It
    is a general source of concern. It doesn't make headlines. It
    is not the top of the 6 o'clock news. But for those of us who
    practice in the criminal courts, it would be a tonic for
    practice and attract I think more people into that area.
        Mr. Scott. Thank you.
        Mr. Thornburgh. I am going to take you up on your
    invitation, Mr. Chairman. I apologize for having to leave, but
    I didn't take account of the fact that occasionally votes
    interrupt your proceedings. But I thank you very much for the
    opportunity for me to be here.
        Mr. Scott. Thank you.
        Mr. Gohmert. Thank you so much.
        Mr. Thornburgh. Thank you to the Members as well.
        Mr. Scott. Professor Saltzburg, you mentioned mandatory
    minimums which proscribe a specific minimum punishment based on
    the Code section that is violated. I frequently note that the
    Code section that covers consensual sex between a 19-year-old
    high school student and a 15-year-old high school student is
    the same Code section that deals with a 40-year-old having sex
    with a 13-year-old.
        What is wrong with the mandatory minimum being based solely
    on the Code section, without regard to culpability, the roles,
    the remorse, responsibilities and that sort of thing?
        Mr. Saltzburg. Well, that is what mandatory minimums
    exclude, and there is no regard at all for the offender. It is
    totally focused on the offense. In the statute you described, a
    judge ought to be able to consider the circumstances and
    whether or not there is grave abuse or not.
        Similarly, in a drug case, we have got addicts who have
    distributed drugs, a serious problem in the States now. State
    prosecutors have taken to drug treatment as an alternative. It
    is seven times less expensive--I should say one-seventh of the
    cost. Good programs work. It can't be done in the Federal
    system, where the judge has to impose a mandatory minimum
    sentence.
        If I might add just one point in the response to the
    question you asked my former Attorney General, and that is
    whether it can be done, reform of the Federal Criminal Code.
    There is one thing that we have today that didn't exist at the
    time of the Brown Commission, didn't exist when S.1 was
    proposed or ``Son of S.1,'' as we used to call it, and that is
    the Sentencing Commission has already graded all Federal
    offenses.
        The sentencing guidelines--while there are problems with
    them--the sentencing guidelines serve as a basically a formula
    to figure out how to reform the Federal Criminal Code. They
    have grouped the offenses. They have said these are the
    offenses that are serious, that are equally serious or close to
    being equally. It is all there.
        If Congress decided it was serious and wanted the input of
    the American Law Institute and the various other groups,
    including the American Bar Association, we would give it to you
    and say, start with the guidelines, not necessarily the
    penalties that are associated with them at the current time,
    but start with them, and I think you could get that statute
    done much more easily than 30 years ago.
        Mr. Scott. Thank you.
        The gentleman from Texas.
        Mr. Gohmert. Thank you, Chairman.
        I do appreciate everybody's testimony and appreciate your
    patience waiting through a vote. I regret that General
    Thornburgh had to leave, but I am grateful that you all have
    been able to stay.
        For one thing, one of the comments that has been made is
    that the Federal law has not done a good job distinguishing
    between what should be a civil penalty and what should be a
    criminal penalty. It is something that in my first 2 years
    here, when my party was in the majority, I didn't approve; and
    I got headwards with some of our leadership who were wanting to
    criminalize what should have been a civil penalty. And it just
    seems like we could do ourselves a favor if we would make that
    distinction, so that you don't have people come do a take-down
    over failure to put a sticker on a package or checking the
    wrong box, something of that nature.
        I did want to ask Mr. Evertson, who was it that did the
    arrest of you? Was it the FBI or who?
        Mr. Evertson. I will never forget that minute that it took,
    really. When they turned around after everything happened, it
    was big letters, FBI.
        Mr. Gohmert. FBI on them.
        Mr. Poe. Just like on TV.
        Mr. Gohmert. Mrs. Norris, who was it that arrested your
    husband? You mentioned EPA.
        Mrs. Norris. U.S. Fish and Wildlife.
        Mr. Gohmert. U.S. Fish and Wildlife. U.S. Fish and
    Wildlife.
        Mrs. Norris. They had five people.
        Mr. Gohmert. They have police. As I understand it, there
    are a number of Federal agencies that may not have police, but
    they want them. They want the black Suburbans, they want the
    lights, they want the guns, they want to take people down to
    the ground, and it certainly seems that is something we ought
    to avoid.
        My experience with FBI agents back in Texas was they
    display a little more professionalism than what we were
    hearing, and I was concerned that perhaps it was a different
    agency that came after you.
        Mr. Lynch, you mentioned we need to discard the old rule
    ``ignorance of the law is no defense'', and that is a rule that
    sometimes has a very unfair result. But then again, as a former
    judge, sitting up here with another former judge, I know how
    many people would come in and say, you mean it was against the
    law to shoot him? I didn't know. Nobody told me that.
        Mr. Poe. You have been asked that already.
        Mr. Gohmert. I have heard that. They say, Judge, I just
    didn't know I couldn't shoot him.
        So it creates special problems if you completely discard
    that rule, because there was a reason for it.
        How do we get around every defendant coming in and saying,
    who knew I wasn't supposed to rape this girl?
        Mr. Lynch. Thank you for asking the question, because it is
    a common query that comes up--to say people will start feigning
    ignorance and we will have all sorts of problems. But we
    already have a very good model.
        Mr. Gohmert. But they won't start. I have already
    experienced that. It is an ongoing thing.
        Mr. Lynch. I have heard that complaint by prosecutors and
    other judges before, that we can't discard the rule. But I
    think we have got a very good model already with our tax laws.
    The tax laws are very complicated. It is complicated for lay
    people to understand. So we know some people want to evade
    taxes, and we also know other people are trying to work their
    way through the tax Code and do it honestly, but they make lots
    of mistakes.
        We have got a willfulness requirement for our tax laws,
    where basically the prosecutors have to prove that it was a
    willful violation in order for them to prove that the person is
    a real tax evader that needs to go to jail. So the tax money is
    continuing to flow to Washington, tax evaders continue to go to
    jail, and I think we should expand this model beyond our tax
    code, which is very complicated for lay people, even lawyers,
    to understand, to all the other complicated rules we have on
    the books.
        I think it is working within the tax code, and I think that
    is strong evidence that it will work in other areas as well,
    that the real culprit--prosecutors will be able to gather
    evidence, but people who are trying to struggle and try to
    understand regulations, they will not be swept up in Federal
    indictments.
        Mr. Gohmert. Let me ask quickly, as my time is running out,
    Professor Strazzella, if I heard you correctly, you said there
    were Federal judges trying cases as if they were State judges.
    What did you mean by that? Keep in mind you have two former
    State judges up here. I wasn't sure I heard you correctly.
        Mr. Strazzella. I may have misspoken myself. I was
    referring to the fact that when I speak to Federal judges, what
    many of them tell me is I feel like a State judge. I am trying
    State crimes.
        In fact, I talked to somebody not long ago who was an
    assistant district attorney in one of the cities of the United
    States. Their job is to try car theft cases. The Chairman has
    already referred to the fact that a car jacking is a Federal
    crime. There is not a high rate of prosecution. They are
    usually very visible cases with a desire to take a bad actor
    and give him more time.
        That assistant district attorney, State district attorney,
    is designated in Federal Court as a Special Assistant U.S.
    Attorney. Some days she goes over and tries exactly the same
    kind of case there.
        Mr. Gohmert. As a judge, we had that, and I couldn't agree
    more. There were too many times Federal judges were required to
    try cases that should have been tried by State judges.
        I just want to be clear. Because there were times, having
    tried cases in Federal Court and in State court and having been
    a judge, I can tell you I preferred the requirements of the
    Texas State judges, in that we could not comment on the weight
    of the evidence, whereas Federal judges take a great deal, some
    of them, take that to an extreme. ``You mean that is all you
    got, and you are going to go to the jury with that?'' That
    would be reversible error in the State court.
        So, anyway, I always appreciated the fairness that I saw in
    State courts that was not always afforded in Federal Court. But
    thank you.
        I yield back.
        Mr. Scott. The gentleman's time has expired.
        I now recognize the gentlelady from Texas. We didn't have
    statements in the markup on the crack bill, but she has done a
    tremendous amount of work on that bill, and I recognize her at
    this point for 5 minutes.
        Ms. Jackson Lee. Thank you very much, Mr. Chairman; and I
    thank the witnesses as well.
        As I listened to the recounting of the experience, I think
    the horror stories that your husband went through, and Mr.
    Evertson, I think it is important to highlight again the
    position that I have taken with H.R. 3245 and reassert the
    position that I would assert in the markup that marked up H.R.
    3245, which to you is only numbers but which has to do with
    evening or recognizing that disparities between crack cocaine
    is also--even though those were certainly not offenses you were
    engaged in--but recognize the failures of that system,
    particularly as people would come with the differing amounts
    and they would be penalized at such a high level, which, Mrs.
    Norris and Mr. Evertson, means people could not even
    rehabilitate themselves or make an argument, couldn't make a
    community argument, that, for example, Mr. Norris should have
    been able to make a community argument under circumstances of
    his arrest and ultimate prosecution. So I am asserting my
    position on H.R. 3245 by asking you questions that pertain to
    your particular dilemma.
        Mrs. Norris, what was the exact offense that your husband
    was ultimately indicted for? There was an indictment?
        Mrs. Norris. I have to be honest with you. There were seven
    counts, and I don't remember which they were. Primarily, it
    came down--by the time we got through it, it came down to a
    Customs violation. As I understand it, the final judgment was
    that he had falsified a Customs document.
        Ms. Jackson Lee. What he was bringing in? Was he a
    storekeeper that had items?
        Mrs. Norris. No, he had a greenhouse. We imported orchids
    from other countries and then we sold them.
        Ms. Jackson Lee. So he wrote something on those imported--
    --
        Mrs. Norris. He didn't exactly, because they came from
    Peru, and the people in Peru filled out the Customs documents.
        Ms. Jackson Lee. I got you. So it was a document he
    received that had been written by someone else.
        Mr. Evertson, likewise, frame what your situation was in
    terms of your indictment.
        Mr. Evertson. I was working on my invention. I left to make
    some more money; and, in the meantime, the EPA went and took
    everything and destroyed everything. And the EPA said in my
    indictment, they said, any material that is intended to be
    disposed of would be hazardous waste.
        Ms. Jackson Lee. You didn't dispose of it?
        Mr. Evertson. No. Disposal under RCRA means spilling it or
    releasing it into the atmosphere or somehow escaping.
        Ms. Jackson Lee. But you left it where?
        Mr. Evertson. At a storage facility. I paid the rent and
    everything.
        Ms. Jackson Lee. Who was the whistle-blower? How did they
    know it was there?
        Mr. Evertson. When the FBI came about me with the wrong
    label--or I didn't need a label, but they said I did--I freely
    told them, because I didn't think anything of it. I didn't
    think anything was wrong.
        Ms. Jackson Lee. Let me make sure I am posing the question
    correctly.
        Professor Saltzburg, what do you think of those two cases?
        Mr. Saltzburg. I think they illustrate about as well as you
    can illustrate the overreach of Federal criminal law. It is
    necessary to have Customs forms, but it makes no sense to
    punish people criminally for a mistake. So what we are seeing
    is several factors that the witnesses have talked about: the
    absence of a mens rea requirement in some of these statutes;
    basically the use of the criminal law when a civil sanction
    would do just as well; and one thing that you can't regulate
    and that is the common sense of prosecutors.
        These cases should not have been prosecuted. They didn't
    have to bring a criminal prosecution. But every once in awhile
    somebody decides they want to send a message to orchid growers?
    Of all the things in this country we need to worry about, we
    need to worry about the disparities between crack cocaine and
    powdered cocaine, but in places where I live, nobody is running
    around talking about ``send a message to orchid growers.''
        Ms. Jackson Lee. Or send a message to what seems to be a
    harmless inventor.
        Let me just finish this point, if I could. You said I think
    the exact right thing for the record: Where is the judgment and
    where is the common sense?
        I think the other point of it is, even though tomorrow
    someone may have a valid new bill for a valid criminal offense,
    I don't think this hearing should be stifling that kind of
    cerebral thought, but I believe what you have said is that the
    dichotomy between civil and criminal, we need to get a handle
    around it.
        And I will end by saying this cowboy--and I love cowboys--
    approach to civilians, with guns and black jackets and all of
    that, is too gestapo, and we need to stop it. And I think we
    can at least begin to handle that. We don't want to endanger
    law enforcement officers, but an orchid grower, I think they
    could have knocked on the front door.
        With that, Mr. Chairman, I will yield back.
        Mr. Scott. Thank you.
        The gentleman from Texas, Judge Poe.
        Mr. Poe. Thank you, Mr. Chairman.
        Thank you all for your patience.
        Like my friend, Mr. Gohmert, I served on the bench in
    Houston for 22 years, and I only tried criminal cases, only
    felons. And everything is a felony in Texas. Wire cutters in
    your saddle bags will get you in jail because the cattle
    industry doesn't want their barbed wire being cut.
        But I say that to say my philosophy is we have too many
    Federal crimes. We started out with piracy. That was the number
    one crime prosecuted in this country. Now we have 4,450, with
    50 more every year. So many Federal crimes that many of them
    are never prosecuted because they just aren't.
        It just seems to me that we first have to have a way to
    look at those 4,450 crimes and start eliminating them or
    categorizing them or coming up with a system that the bad guys,
    we need to lock them up and throw the key away, and these
    others things maybe shouldn't be crimes and certainly should go
    to civil sanctions over putting folks in the do-right hotel, as
    I call the penitentiary.
        I think judges need to have more discretion. Federal
    judges, you cannot make a bad judge be a good judge by
    regulating punishment. You have to come up with a good
    judge.That is what these Senate hearings are all about. And if
    you have a bad judge, you have to figure out how to get rid of
    him.
        But they need more discretion to do the right thing and
    punishment, and not have to put somebody in jail for growing
    flowers or bringing them in just because the law makes them.
    That is not justice. That is injustice.
        Mrs. Norris, in your husband's case, if he had even been
    convicted, I would have had him provide a community garden in
    the neighborhood and grow food for some people in the
    neighborhood. You are familiar with some of those things I did
    when I was a judge on the bench there. You have to use a little
    sense that I think judges should have the discretion to do.
        In Mr. Evertson's case, I would have ordered you to come up
    with a fuel cell. I would have sent you to Lamar University.
    They are working on the same thing right now.
        Mr. Evertson. I want to. I want to.
        Mr. Poe. Well, it just seems like that is what judges ought
    to have the discretion of doing if you ever end up in the
    criminal justice system.
        And I certainly think we ought to have a mens rea. What has
    occurred now is in the criminal justice system in Federal Court
    is strict liability. If you do this act, it doesn't make any
    difference if you had the intent to commit a crime or not; it
    is strict liability. And I am one that thinks we ought to have
    a guilty mind.
        Those are some of my comments. But I do have this question
    for the Professor, Mr. Saltzburg. Do you think judges need more
    discretion, Federal judges specifically?
        Mr. Saltzburg. Yes, I do. As I said, the American Bar
    Association's position has been consistent for decades now.
    That is, judges should have discretion. It ought to be
    controlled to some extent, guidelines, advisory. And now that
    we have appellate review, if you have a judge who is off the
    reservation, way high, way low, there is a way to deal with
    that. And the refreshing thing here is----
        Mr. Poe. As in appealing abusive discretion to the Circuit
    Court?
        Mr. Saltzburg. Yes. It is a reasonableness standard of
    review. It defers to the trial judge. But outrageous cases can
    be taken care of.
        It is time I think that we recognize that judges aren't the
    enemy. There was a sense for a while that somehow Congress was
    here and judges were there. And, actually, it turns out
    everybody agrees with what you said, everybody I talked to when
    I chaired the Kennedy Commission. I went to Texas and talked to
    prosecutors there. The State prosecutors there said the same
    thing: People who commit serious crimes should do serious time.
    But what we learned is not everybody needs to be locked up.
        Mr. Poe. People shouldn't go to jail for having a red fish
    that is two inches too long?
        Mr. Saltzburg. That is correct. Or for putting the mailing
    label on a UPS or Fed Ex tag not knowing that Alaska didn't
    have ground transportation. I didn't know that either. I am
    glad I wasn't filling out a form.
        Mr. Evertson. But it is connected to the U.S.
        Mr. Saltzburg. That I knew.
        Mr. Poe. Well, I am nearly out of time. But I do want to
    thank you all for being here. I would hope that this Committee
    would come up with a solution on how we can take these 4,450
    crimes and look at them and maybe reevaluate what we ought to
    do to folks that violate all these dastardly deeds, and maybe
    civil penalties ought to certainly be something we require and
    maybe defer to State court. Because under our theory, the way
    this country is set up, States are supposed to prosecute really
    the outlaws and Federal courts are supposed to do other things.
    Maybe we can get back to that.
        Thank you, Mr. Chairman.
        Mr. Scott. Thank you.
        Are there any other questions?
        I want to thank our witnesses for their testimony today.
    This has been very helpful. We may have written questions for
    the witnesses. If you would respond to those as quickly as
    possible so that your responses will be made part of the
    record.
        Without objection, the hearing record will remain open for
    1 week for additional materials.
        Without objection, we will enter into the record a written
    statement by John Wesley Hall, President, National Association
    of Criminal Defense Lawyers.
        [The prepared statement of Mr. Hall follows:]
              Prepared Statement of John Wesley Hall, President,
                National Association of Criminal Defense Lawyers

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                                   __________

        Mr. Scott. Without objection, the hearing is adjourned.
        [Whereupon, at 6:08 p.m., the Subcommittee was adjourned.]

                                A P P E N D I X

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                   Material Submitted for the Hearing Record

           Prepared Statement of the Honorable Sheila Jackson Lee, a
        Representative in Congress from the State of Texas, and Member,
            Subcommittee on Crime, Terrorism, and Homeland Security
        Mr. Chairman, I ask for leave to extend my remarks for the record.
    Mr. Chairman, I salute your leadership in convening this important
    hearing to address the issue of Over-Criminalization of Conduct/Over-
    federalization of Criminal Law. I would like to thank our distinguished
    witnesses, the Honorable Richard Thornburg, former Attorney General,
    Prof. Steve Salzburg, George Washington Univ. Law School, Tim Lynch--
    CATO Institute, Prof. James A. Strazzella, Temple University School of
    Law, Ms. Kathy Norris, and Krister Evertson.
        As a former trial state court judge, I like most jurists disfavor
    pre-set and static sentencing formulas set by the federal government
    rather than relying upon state legislators and state judges. Most
    members of the bench view federal sentences and many federal criminal
    statues as being redundant and devices that bar judges from employing
    hers or his discretion during the sentencing phase of trail. Indeed,
    such formulas shift the responsibility for selecting the penalty for a
    certain crime from the judge--an objective legal mind that spends hours
    listening to testimony and examining the facts and law of a particular
    case--to legislators who create these rigid guidelines far in advance
    of a particular criminal incident.
        As of 2003 there were over 4,000 offenses that carried criminal
    penalties in the United States code. Unfortunately, some of these
    punish conduct that is not typically considered to be criminal. This is
    because an increasing number of statutes require that the culpable
    party have only general intent, i.e. that he or she acted ``knowing''
    of the facts of the underlying conduct but not necessarily with intent
    to break the law, with knowledge that he or she was breaking the law,
    or even with knowledge that he or she was doing anything wrongful. This
    becomes especially important and relevant as Congress criminalizes more
    and more conduct that involves regulatory violations and highly
    technical misconduct.
        From the start of the year 2000 through the end of 2007, 452
    additional crimes were created, for a total of at least 4,450 federal
    crimes. This increase of 452 over the seven year period between 2000
    and 2007 averages 56.5 crimes per year--roughly the same rate at which
    Congress created new crimes in the 1980s and 1990s. In fact, in a 1998
    report, the ABA's Task Force on the Federalization of Criminal Law
    reported that more than 40% of the federal criminal law provisions
    enacted since the Civil War had been enacted since 1970.
        And while I have no fondness for federal criminal sentences, and
    redundant federal statues, I have an even greater disdain for criminal
    activity itself particularly that committed against the poor, women,
    children, and other vulnerable populations. Thus, I believe that a
    balance must be struck. A balance that seeks to protect the public
    wellbeing while expanding our judicial system by restoring the
    judiciary's power to fix penalties based upon the unique circumstance
    of particular cases.
        Mr. Chairman, as you know, many of the sentencing laws in the
    federal criminal code have led to unprecedented rates of incarceration
    over a half century. The federal prison population has quadrupled since
    the Sentencing Reform Act of 1984, and now totals over 200,000 inmates.
    More than half of all federal inmates are serving sentences for drug
    offenses. In 2007, almost thirty-five percent of all federal
    convictions were for drug offenses, and 65% of these offenders received
    mandatory minimum sentences. Many of these offenders had only low-level
    involvement in drug activity. For example, 66% of the federal crack
    cocaine offenders in 2005 had only low-level involvement in drug
    activity.
        The United States now incarcerates far more people than any other
    country in the world, with more than 700 incarcerated for every 100,000
    in the population, or one in every 54 adult males ages 18 and older.
    There are more people in the prisons of America than there are
    residents in states of Alaska, North Dakota, and Wyoming combined. Over
    one million people have been warehoused for nonviolent, often petty
    crimes. The European Union, with a population of 370 million, has one-
    sixth the number of incarcerated persons as we do, and that includes
    violent and nonviolent offenders. This is one third the number of
    prisoners which America, a country with 70 million fewer people,
    incarcerates for nonviolent offenses.
        Our federal prison system is struggling to keep up with this
    growth. At the end of last year, the Bureau of Prisons was operating at
    36% over capacity. High-security penitentiaries were operating at 46%
    over capacity. This ever-increasing rate of incarceration comes with a
    high price tag. Federal correction costs have soared in the last 25
    years, increasing 925% between 1982 and 2007 to over $5.4 billion. This
    growth in incarceration also imposes indirect costs on communities.
    Researchers estimate that at least 1.5 million children have a parent
    in prison, and the majority of these children are under ten years old.
    Researchers have also shown that children of prisoners have increased
    risks of poverty and other deprivations, abuse, foster care placement,
    difficulties in school with both academic and social failures, as well
    as increased risks of ending up in the juvenile and criminal justice
    systems.
        A close examination of this matter reveals that the hardest hit by
    federal criminal statues have been African Americans and Hispanics, who
    make up a large segment of the 18th Congressional district that I
    represent. In addition to the disparate impact upon ethnic minorities,
    federal criminal sentences also yield irrational sentencing results.
        I introduced two important remedies, starting with H.R. 265, the
    Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2009.
    This bill was intended to eliminate the unjust and unequal federal
    crack/cocaine sentencing disparity in America. I sought to achieve this
    end by amending the Controlled Substances Act and the Controlled
    Substances Import and Export Act to increase the amount of a controlled
    substance or mixture containing a cocaine base (i.e., crack cocaine)
    required for the imposition of mandatory minimum prison terms for crack
    cocaine trafficking.
        Mr. Chair, after working with you and our friends in the Republican
    leadership, I'm happy that you've incorporated the principals of my
    bill in new legislation that we hope to mark up today. I salute you and
    look forward to working with you to ensure ``our bill'' is passed and
    signed into law.
        In addition, I've introduced H.R. 61, the ``Federal Prison Bureau
    Nonviolent Offender Relief Act of 2009'' also known as a Good Time
    Bill. My bill provides for the early release of non-violent offenders
    who have attained the age of at least 45 years of age, have never been
    convicted of a violent crime, have never escaped or attempted to escape
    from incarceration, have not engaged in any violation, involving
    violent conduct, of institutional disciplinary regulations, and have
    completed at least half of their sentence.
        H.R. 61 seeks to ensure that in affording offenders a second chance
    to turn around their lives and contribute to society, ex-offenders are
    not too old to take advantage of a second chance to redeem themselves.
    A secondary benefit of H.R. 61 is that it would relieve some of the
    strain on federal, state, and local government budgets by reducing
    considerably government expenditures on warehousing prisoners.
        Mr. Chairman, I firmly believe that the disparate impact of federal
    criminal sentences on African American is not only unjust, but it also
    leaves a lasting stain on the fabric of the American judicial system.
    These laws have been shown to compromise the basic fairness and
    integrity of the federal criminal judicial system. For example, the
    U.S. Sentencing Commission found that mandatory minimum sentencing
    ``appears to be related to the race of the defendant, where Whites are
    more likely than non-whites to be sentenced below the applicable
    mandatory minimum.'' The facts reveal that White offenders were less
    likely to receive the mandatory minimum sentence than Black or Hispanic
    offenders. The African American and Hispanic communities are well aware
    of this disparity, and as such these populations have grown distrustful
    of our system of checks and balances.
        Mr. Chairman, Judge Gohmert, fellow colleagues, I salute us for
    holding this hearing to take a comprehensive examination of our federal
    criminal statues. I look forward to hearing from our witnesses and I
    yield back the balance of my time.

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