[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

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                               __________

    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

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                               __________

    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

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                               __________

    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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                               __________

    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

                              ----------                              


               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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