    [House Hearing, 112 Congress]
    [From the U.S. Government Publishing Office]

           CRIMINAL CODE MODERNIZATION AND SIMPLIFICATION ACT OF 2011

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

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON CRIME, TERRORISM,
                             AND HOMELAND SECURITY

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                          ONE HUNDRED TWELFTH CONGRESS

                                 FIRST SESSION

                                       ON

                                   H.R. 1823

                                   __________

                               DECEMBER 13, 2011

                                   __________

                               Serial No. 112-81

                                   __________

             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

                          LAMAR SMITH, Texas, Chairman
    F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
        Wisconsin                        HOWARD L. BERMAN, California
    HOWARD COBLE, North Carolina         JERROLD NADLER, New York
    ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT,
    BOB GOODLATTE, Virginia                  Virginia
    DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
    STEVE CHABOT, Ohio                   ZOE LOFGREN, California
    DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
    MIKE PENCE, Indiana                  MAXINE WATERS, California
    J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
    STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
    TRENT FRANKS, Arizona                  Georgia
    LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
    JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
    TED POE, Texas                       JUDY CHU, California
    JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
    TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
    TOM MARINO, Pennsylvania             JARED POLIS, Colorado
    TREY GOWDY, South Carolina
    DENNIS ROSS, Florida
    SANDY ADAMS, Florida
    BEN QUAYLE, Arizona
    MARK AMODEI, Nevada

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

            Subcommittee on Crime, Terrorism, and Homeland Security

                F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman

                      LOUIE GOHMERT, Texas, Vice-Chairman

    BOB GOODLATTE, Virginia              ROBERT C. ``BOBBY'' SCOTT,
    DANIEL E. LUNGREN, California        Virginia
    J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
    TED POE, Texas                       HENRY C. ``HANK'' JOHNSON, Jr.,
    JASON CHAFFETZ, Utah                   Georgia
    TIM GRIFFIN, Arkansas                PEDRO R. PIERLUISI, Puerto Rico
    TOM MARINO, Pennsylvania             JUDY CHU, California
    TREY GOWDY, South Carolina           TED DEUTCH, Florida
    SANDY ADAMS, Florida                 SHEILA JACKSON LEE, Texas
    MARK AMODEI, Nevada                  MIKE QUIGLEY, Illinois
                                         JARED POLIS, Colorado

                         Caroline Lynch, Chief Counsel

                         Bobby Vassar, Minority Counsel

                                C O N T E N T S

                                  ----------

                               DECEMBER 13, 2011

                                                                       Page

                               OPENING STATEMENTS

    The Honorable F. James Sensenbrenner, Jr., a Representative in
      Congress from the State of Wisconsin, and Chairman,
      Subcommittee on Crime, Terrorism, and Homeland Security........     1
    The Honorable Robert C. ``Bobby'' Scott, a Representative in
      Congress from the State of Virginia, and Ranking Member,
      Subcommittee on Crime, Terrorism, and Homeland Security........     3
    The Honorable John Conyers, Jr., a Representative in Congress
      from the State of Michigan, and Ranking Member, Committee on
      the Judiciary..................................................     4

                                   WITNESSES

    The Honorable Edwin Meese, III, Ronald Reagan Distinguished
      Fellow in Public Policy, Chairman of the Center for Legal and
      Judicial Studies, The Heritage Foundation
      Oral Testimony.................................................     8
      Prepared Statement.............................................    10
    The Honorable Dick Thornburgh, Counsel, K&L Gates LLP
      Oral Testimony.................................................    28
      Prepared Statement.............................................    29
    Tim Lynch, Director, Project on Criminal Justice, CATO Institute
      Oral Testimony.................................................    33
      Prepared Statement.............................................    35
    Stephen Saltzburg, Wallace and Beverley Woodbury University
      Professor, George Washington University School of Law
      Oral Testimony.................................................    43
      Prepared Statement.............................................    45

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Prepared Statement of the Honorable John Conyers, Jr., a
      Representative in Congress from the State of Michigan, and
      Ranking Member, Committee on the Judiciary.....................     5
    Wall Street Journal article, ``A Sewage Blunder Earns Engineer a
      Criminal Record,'' by Gary Fields and John R. Emshwiller.......    60

                                    APPENDIX
                   Material Submitted for the Hearing Record

    Letter from the American Civil Liberties Union (ACLU) to the
      Subcommittee on Crime, Terrorism, and Homeland Security........    79
    Section-by-Section of H.R. 1823, the ``Criminal Code
      Modernization and Simplification Act of 2011''.................    83

           CRIMINAL CODE MODERNIZATION AND SIMPLIFICATION ACT OF 2011

                                  ----------

                           TUESDAY, DECEMBER 13, 2011

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

        The Subcommittee met, pursuant to call, at 10 a.m., in room
    2141, Rayburn House Office Building, the Honorable F. James
    Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding.
        Present: Representatives Sensenbrenner, Gohmert, Goodlatte,
    Chaffetz, Scott, Conyers, Pierluisi, Chu, and Deutch.
        Also Present: Representative Quigley.
        Staff Present: (Majority) Caroline Lynch, Subcommittee
    Chief Counsel; Sam Ramer, Counsel; Lindsay Hamilton, Clerk;
    (Minority) Perry Apelbaum, Minority Staff Director and Chief
    Counsel; Bobby Vassar, Subcommittee Chief Counsel; Ron LeGrand,
    Counsel; and Veronica Eligan, Professional Staff Member.
        Mr. Sensenbrenner. The Committee will come to order. Today
    we will have a hearing on H.R. 1823, the ``Criminal Code
    Modernization and Simplification Act of 2011.'' I would like to
    welcome our witnesses today and thank them for coming, and also
    thank the Ranking Member, the gentleman from Virginia, Mr.
    Scott.
        Today's hearing continues the Subcommittee's bipartisan
    review of overcriminalization and overfederalization that began
    last Congress. Hearings convened in the last Congress by my
    colleague, Mr. Scott, resurrected important policy discussions
    that had been dormant for over 2 decades about the breadth and
    scope of Federal criminal law. Today, the Subcommittee will
    examine legislation I have sponsored in this Congress and the
    preceding three Congresses to reform the Federal Criminal Code.
        There are an estimated 4,500 Federal crimes in the U.S.
    Code today. According to a study by the Heritage Foundation,
    over the last 3 decades Congress has been averaging 500 new
    crimes per decade. It has been over 50 years since the Criminal
    Code was last revised. The existing Criminal Code is riddled
    with provisions that are either outdated or simply inconsistent
    with more recent modifications to reflect today's modern
    approach to criminal law.
        H.R. 1823, the ``Criminal Code Modernization and
    Simplification Act of 2011,'' reforms and codifies Title 18 of
    the U.S. Code. This is not a frivolous exercise. As my
    colleagues and our witnesses know, this effort to reform the
    Federal Criminal Code has resulted in a bill that exceeds 1,200
    pages in length. And this bill encompasses only part 1 of Title
    18. If nothing else, the sheer volume of this bill brings into
    specific focus the breadth of the Criminal Code and the need to
    reform it.
        Federal prosecutions constitute less than 10 percent of all
    criminal prosecutions nationwide. Congress must ensure that the
    Federal role in criminal prosecutions is properly limited to
    offenses within Federal jurisdiction and within the scope of
    constitutionally delegated Federal powers.
        Through the years, the Criminal Code has grown more and
    more, with more and more criminal provisions, some of which are
    antiquated or redundant, some of which are poorly drafted, and
    some of which have not been used in the last 30 years, and some
    of which are unnecessary since the crime is already covered by
    other existing criminal provisions. The bill cuts more than a
    third of the existing Criminal Code, reorganizes it to make it
    more user friendly, and consolidates criminal offenses from
    other titles, in particular drug crimes from Title 21, and
    immigration crimes from Title 8, so that Title 18 includes all
    major criminal provisions.
        The bill applies several drafting principles. First, it
    reorganizes the chapters to streamline the code and make it
    more user friendly for attorneys, judges, and Congress. In
    doing so, the bill joins similar offenses together within one
    chapter.
        Additionally, in reviewing the code, there were instances
    where the same terms were defined differently. In most cases,
    there was no evident policy basis for the different
    definitions. To eliminate this problem, a common set of
    definitions is established in the first section of the revised
    Code.
        The bill makes two broad changes to bring greater
    uniformity to the Code. First, it creates a general attempt
    statute and a general conspiracy statute that punish these
    offenses in the same manner as a completed offense unless
    otherwise provided for in the Code. Legal scholars may dispute
    whether inchoate crimes should be punished to the same degree
    as completed offenses, but the Model Penal Code instructs that,
    quote, ``The objective of the criminal law would not be
    sufficiently served if the only action which could be taken
    against an attempt were an on the spot prevention of the crime
    on that particular occasion, for an attempt yields an
    indication that the actor is disposed toward such activity, not
    alone on this occasion, but on others,'' unquote.
        Although other legislative bodies may choose to assign a
    lower punishment for attempts or conspiracies, Congress now
    routinely includes these offenses in new or amended criminal
    provisions. H.R. 1823 merely codifies what is now commonplace
    in modern day criminal Federal drafting, and uniformly applies
    it to all offenses in the revised Code.
        The bill also seeks to bring uniformity to the Code by
    adopting a straightforward approach to the mens rea
    requirement. Where possible, the term ``knowingly'' is used to
    define the requisite intent for every crime except those
    criminal offenses that require some additional and more
    specific intent.
        I believe that all proponents of overcriminalization reform
    support the proper use of mens rea and the need to expressly
    articulate it within the Code. Some may disagree, however, on
    which mens rea is appropriate, urging the use of a willful
    standard in place of knowingly. The bill preserves the willful
    standard for a number of offenses in Title 18 that can be
    characterized as regulatory. But to quote Judge Learned Hand,
    who criticized the use of the term ``willful,'' ``It is an
    awful word. It is one of the most troublesome words in the
    statute that I know. If I were to have the index purged,
    'willful' would lead all the rest in spite of its being at the
    end of the alphabet.'' Although a willful standard may have its
    place in certain offenses, particularly regulatory ones, where
    specific knowledge of the law should be proven, such a
    requirement should not extend to all offenses, especially malum
    in se offenses.
        Again, as with the general attempt and conspiracy statutes,
    the bill's use of knowingly mens rea reflects modern day
    drafting practices, and brings a greater uniformity to a code
    riddled with a wide range of mens rea, or in some instances no
    articulated mens rea at all.
        I wish to welcome our witnesses today, and thank you for
    participating in the hearing. I appreciate your comments and
    suggestions on the bill, and look forward to continuing the
    dialogue on Criminal Code modernization. It is now my pleasure
    to recognize for his opening statement the Ranking Member of
    the Subcommittee, the gentleman from Virginia, Mr. Scott.
        Mr. Scott. Thank you, Mr. Chairman. I am pleased to join
    you for this hearing, and appreciate your interest in
    modernizing and simplifying the Federal Criminal Code. By
    introducing this bill, you have inspired continuing dialogue
    about the Criminal Code and the process for improving and
    revising it. Moving all Federal crimes into one title, Title 18
    of the U.S. Code, makes tremendous sense. It organizes groups
    of crimes by category, and it enables judges, practitioners,
    and everybody else to more easily locate criminal statutes. The
    process of identifying and grouping crime statutes would also
    enable us to identify and eliminate redundancies, and also
    address conflicting or inconsistent statutes.
        Mr. Chairman, I appreciate the steps you have taken in H.R.
    1823 to clarify and remove inconsistencies in the mens rea
    requirement needed to hold someone criminally liable. I hope a
    significant focus is placed on this issue, particularly the
    idea of strict criminal liability and the effect that the
    nuanced difference between knowingly and willingly has.
        As we reorganize the Federal Code, I also hope we will take
    the opportunity to address overfederalization by reducing the
    role and breadth of the Federal Government in crime,
    particularly in the prosecution of ordinary street crime, which
    should be prosecuted in State courts, and other crimes which do
    not seem to need a Federal response even though they may
    technically fall within Federal jurisdiction.
        The task presented by H.R. 1823 is an enormous undertaking,
    and I look forward to working with you. The Code has grown
    dramatically since it was last recodified about 50 years ago.
    Some significant house cleaning and purging is obviously in
    order. There are statutes that are redundant, and some that
    never should have been enacted in the first place. It is also
    time to eliminate those provisions which have not been enforced
    or utilized by prosecutors for years. Doing it right and
    effectively will require a major commitment of time and must
    involve participation and input not only from members of both
    parties in the House and the Senate, but also a diverse
    gathering of other interested parties, including, but not
    limited to judges, criminal law professors, prosecutors and
    defense counsel, the Federal law enforcement community, and
    representatives of the judiciary and U.S. Sentencing Commission
    and other interested officials.
        Major recodification will be difficult, but it will
    obviously become impossible if we have to concurrently debate
    substantive changes in the law. I therefore thank you for your
    policy decision that there be no policy--that the changes will
    be policy neutral unless there is a clear consensus on changes.
    With the issue of, as you have indicated, attempts and
    conspiracies, I think this, we will have to look to see if this
    complies with that policy decision, because I think there may
    be some difference between two people who, on the way to
    robbing a bank decide it is not a good idea, turn around and go
    home; whether they should be punished the same as two people
    who go and actually rob the bank. But there are a number of
    other concerns with the bill, many of which I expect our
    witnesses to address.
        But again, I appreciate your efforts to bring this issue
    before the Committee for discussion, Mr. Chairman. I am also
    pleased that you have a distinguished list of witnesses, all of
    whom have testified before on the issue of overcriminalization
    of conduct and overfederalization of criminal law. So I look
    forward to their testimony and look forward to working with you
    as we deal with this issue.
        Mr. Sensenbrenner. Thank you. The Chairman emeritus of the
    full Committee, the gentleman from Michigan, Mr. Conyers.
        Mr. Conyers. Thank you, Chairman Sensenbrenner. This is an
    important hearing. I want to compare it with what I consider to
    be some of the most important issues the Judiciary has tackled
    in recent years, copyright reform, patent reform, and voter
    rights revision, which at least one, maybe two of these
    occurred during your chairmanship, Chairman Sensenbrenner. And
    that is why I was enthusiastically supporting your picture to
    be added to the walls of the House Judiciary Committee. Now I
    hope you will return the favor next year.
        But the importance of those three items now almost seem
    small compared to the enormity of the task we are called upon
    to discuss today. And I am glad the Attorney General is here.
    We welcome him, and all the witnesses. And I think that the
    whole notion of putting the crimes under Title 18 is something
    that we ought to deal with today. We ought to get rid of the
    old myth that you are presumed to know the law. We have--how
    many agencies did you say--464 agencies who are writing the
    criminal law. I mean the whole idea that this is all going on
    without ever coming through either legislative body, especially
    not the Judiciary Committee of each House, which has the
    jurisdiction over the Criminal Code. And so this presumption,
    with exactly 4,450 Federal crimes that now exist, makes the
    mens rea requirement--well, sometimes they don't even require a
    mens rea requirement, they don't even need that.
        And so I would like to add to the Chairman and the Ranking
    Member's excellent discussion introducing this subject. Why
    don't we consider ``purposefully'' as a compromise between
    willfully and knowingly, both of which have been stretched out
    of recognition and real usefulness?
        And so I think that this idea of modernizing and reforming
    the Federal Criminal Code is one that is going to go well into
    next year. Maybe it can't even be done in the 112th Congress.
    It is very important. And I support this fact, and I am very
    pleased with the witnesses that have been invited today. To
    have Meese and Thornburgh here with us I think reflects very
    significantly upon their activities and their continued concern
    about what and how we can make the law, the actual operation of
    the law fit with the constitutional descriptions of what a
    democratic society is all about.
        I will put the rest of my statement in the record.
        [The prepared statement of Mr. Conyers follows:]
    Prepared Statement of the Honorable John Conyers, Jr., a Representative
     in Congress from the State of Michigan, and Ranking Member, Committee
                                on the Judiciary
        For the past several decades, Congress has decided that the answer
    to most every problem is to create a new federal crime with stiff
    penalties.
        I believe all agree that the Criminal Code is long-overdue to be
    modernized. Recodifying the Criminal Code and bringing all federal
    criminal laws into Title 18 makes sense. As we go about this task,
    however, we must make sure our actions clarify and address the Code's
    current shortcomings, without creating new problems and expanding
    prosecutorial discretion.
        To begin with, the sheer volume of federal crimes is out of
    control. We now have more than 4,450 federal crimes--many of which lack
    any mens rea requirement. Not surprisingly, our Nation has the highest
    incarceration rate in the world.
        While we're at it, let's also remember that there are an estimated
    300,000 federal regulations that impose criminal penalties. This is the
    perfect opportunity to address and end the shift from Congressional
    responsibility to delegated Agency power.
        Worse yet, the number and severity of these criminal punishments
    has grown over the years.
        I believe any discussion of reform must also address sentencing and
    mandatary minimums which I am not sure has happened in this current
    bill.
        But to get back to the point, no longer are regulations merely
    civil offenses with monetary penalties, but many regulatory infractions
    constitute felony crimes with significant prison exposure.
        It should be noted that these regulations were neither subjected to
    scrutiny by this Committee nor any other Congressional committee.
    Rather, they were promulgated by unelected officials at various federal
    agencies.
        Because of the fundamental rights implicated, criminal penalties
    should not be within the ambit of the Executive Branch.
        And, given the incredibly vast number of regulatory crimes, it is
    absolutely unfair and unreasonable to adhere to the maxim that
    ``ignorance of the law is no defense.''
        Who could possibly know about every single one of these provisions?
        Second, these problematic trends in criminal law have been well-
    documented by our Committee. In prior Congresses, the Crime
    Subcommittee has conducted several hearings on the over-criminalization
    of conduct and the over-federalization of criminal law.
        At these hearings, we received testimony documenting the rapid
    growth of actions penalized under the Federal Criminal Code and federal
    regulations.
        Witnesses testified at these hearings that many of the 4,450
    federal criminal offenses are poorly defined and lack the common law
    requirement of mens rea, or ``guilty mind'' that has long served an
    important role in ensuring that those who lacked intent would not be
    subject to criminal prosecution.
        This is also true of the 300,000 federal regulations that impose
    criminal penalties.
        We must stop passing laws that do not require a mens rea, but we
    also must be careful in not weakening a standard to open wide
    prosecutorial discretion.
        I have concerns about this bill. I am concerned that eliminating
    the ``willful'' mens rea requirement, and applying a standard
    ``knowing'' intent may further increase incarceration rates. I am
    concerned about the proposal to expand both attempt and conspiracy, and
    apply them to every federal crime, rather than having them specifically
    mandated by Congress on the current statute-by-statute basis. To make
    matters worse, conviction under either of these proposed provisions
    would result in the same punishment as the completed offense. I also
    have concerns about any provisions that eliminate fines as a sentencing
    alternative.
        Which brings me to my final point. Today's hearing on H.R. 1823,
    the ``Criminal Code Modernization and Simplification Act of 2011,''
    provides an opportunity for us to examine how we should best fashion a
    solution to this serious problem.
        Indeed, the very length of this bill reflects the enormity of the
    challenge.
        Our analysis, however, requires a prudent process hopefully
    conducted in a policy-neutral manner.
        To that end, we will need to form a working group involving input
    from my colleagues from both parties in the House and the Senate, as
    well as a broad spectrum of experts, including representatives from the
    prosecutorial and defense bars, law professors, members of the
    judiciary, the ACLU, the ABA, the Heritage Foundation, the National
    Association of Criminal Defense Lawyers, CATO, the Sentencing
    Commission, and the Federalist Society, among others.
        All of these groups already agree that the Federal Criminal Code is
    seriously in need of updating. All have agreed that over-
    criminalization and over-federalization are serious problems that need
    to be addressed. Their participation and input in the revising,
    reorganization, and recodification of the Criminal Code is essential if
    we are to be successful.
        So let's all roll up our sleeves, bring in the experts, and get
    this job done.
        As a first step, and as I mentioned previously, we need to consider
    the intent standard under H.R. 1823 that appears to replace
    ``willfully'' with ``knowingly.''
        I have grave concerns that changing this standard is not as simple
    as replacing the word. We need experts to determine the following
    issues:

              Does this have the effect of weakening the mens rea
            elements for many crimes?

              If so, does it increase the possibility that some
            defendant will be convicted who would not be convicted under
            current law?

              Does the term ``knowingly'' provide greater clarity,
            or is it also subject to varied interpretations?

        Accordingly, I appreciate my colleague's desire to address a long
    overdue opportunity to reform. I very much look forward to discussing
    these issues with our witnesses today, and I recommend that more
    hearings be held in order to have a more in-depth examination of the
    points I have mentioned as well as other issues.
                                   __________

        Mr. Sensenbrenner. Without objection. And without
    objection, other Members' opening statements will be made a
    part of the record. Also, and without objection, the Chair will
    be authorized to declare recesses during votes on the House
    floor.
        It is now my pleasure to introduce today's witnesses. Edwin
    Meese, III, holds the Ronald Reagan Chair in Public Policy at
    the Heritage Foundation. He is also the Chairman of the
    Heritage Center for Legal and Judicial Studies, and a
    Distinguished Visiting Fellow at the Hoover Institution at
    Stanford. Mr. Meese served as the 75th Attorney General of the
    United States from February 1985 to August 1988. January 1981
    to February 1985, Mr. Meese held the position of counselor to
    the President, where he functioned as the President's Chief
    Policy Adviser. He also served as Chairman of the Domestic
    Policy Council and of the National Drug Policy Board. From 1977
    to 1981, Mr. Meese was a Professor of Law at the University of
    San Diego, where he was also Director of the Center for
    Criminal Justice Policy and Management. He served as Governor
    Reagan's Executive Assistant and Chief of Staff in California
    from 1969 through 1974, and as Legal Affairs Secretary from
    1967 through 1968. Before joining Governor Reagan's staff in
    1967, he served as a Deputy District Attorney in Alameda
    County, California. He graduated from Yale University in 1953,
    and holds a law degree from the University of California at
    Berkeley, and is a retired colonel in the Army Reserve.
        The Honorable Dick Thornburgh is Counsel to the
    international law firm of K&L Gates, LLP, in Washington.
    Previously, he served as Under Secretary General at the United
    Nations from 1992 to 1993. He served as the 76th Attorney
    General of the United States from 1988 to 1991 in the Cabinets
    of Presidents Reagan and George H.W. Bush. Mr. Thornburgh
    served as Director of the Institute of Politics at the John F.
    Kennedy School of Government from 1987 to 1988. And previously,
    he was elected twice as Governor of Pennsylvania, and was Chair
    of the Republican Governors Association. He served as U.S.
    Attorney in Pittsburgh from 1969 through 1975, and as Assistant
    Attorney General in charge of the Criminal Division from 1975
    through 1977. He received a bachelor's degree in engineering
    from Yale in 1954, and an LLB from the University of Pittsburgh
    Law School in 1957.
        Mr. Tim Lynch is currently the Director of the Project on
    Criminal Justice at the Cato Institute. He has been with Cato
    since 1991. In 2000, he served on the National Committee to
    Prevent Wrongful Executions. He has filed several amicus briefs
    in the U.S. Supreme Court in cases involving constitutional
    rights. He is the Editor of In the Name of Justice: Leading
    Experts Reexamine the Classic Article ``The Aims of Criminal
    Law,'' and After Prohibition: An Adult Approach to Drug
    Policies in the 21st Century. He earned his bachelor of arts
    and doctor from Marquette University.
        Steven Saltzburg is currently a Wallace and Beverly
    Woodbury University Professor of Law, and co-director at the
    Litigation and Dispute Resolution Program at George Washington
    University School of Law. He joined GW Law in 1990. Before
    that, he taught at the University of Virginia Law School. In
    1996, he founded and directed the masters program in litigation
    and dispute resolution at GW. The Chief Justice of the United
    States appointed him as reporter for, and then a member of, the
    Advisory Committee on the Federal Rules of Criminal Procedure,
    and as a member of the Advisory Committee on the Federal Rules
    of Evidence. Professor Saltzburg has had a variety of
    governmental positions, including Associate Independent Counsel
    in the Iran-Contra investigation, Deputy Assistant Attorney
    General in the Criminal Division of the U.S. Department of
    Justice, the Attorney General's ex officio representative on
    the U.S. Sentencing Commission, and Director of the U.S.
    Treasury Department's Tax Refund Fraud Task Force. He received
    his bachelor degree from Dickinson College, and his juris
    doctor from the University of Pennsylvania.
        All of the witnesses' statements will be entered into the
    record in their entirety. I ask that each witness summarize his
    or her testimony in 5 minutes or less. And we do have the
    lights in front of you to advise you how fast the clock is
    ticking. I will first recognize Mr. Meese for 5 minutes, and
    welcome.

      TESTIMONY OF THE HONORABLE EDWIN MEESE, III, RONALD REAGAN
     DISTINGUISHED FELLOW IN PUBLIC POLICY, CHAIRMAN OF THE CENTER
        FOR LEGAL AND JUDICIAL STUDIES, THE HERITAGE FOUNDATION

        Mr. Meese. Thank you, Mr. Chairman, Ranking Member Scott,
    Vice Chairman Gohmert, Members of the Committee. Thank you for
    the opportunity to appear before you and to comment on what has
    already been described accurately as a very important task
    which this Subcommittee has undertaken. I certainly commend you
    for this effort, which I think will benefit all those that are
    involved in the criminal justice system and the Federal system,
    as well as in the States, in view of some of the
    recommendations that have already been discussed by the
    Chairman, and I am sure many of us will concur, and that is to
    separate the Federal responsibilities and criminal prosecutions
    and investigations from those which are carried on very
    successfully by State and local governments.
        It may be of interest to the Committee to note that this is
    a task that has been ongoing over many years. In cleaning out
    my basement a week ago, I happened to come across the Committee
    report from the late 1970's, when a commission under then-
    former Governor Pat Brown of California, chaired a commission
    in which they put together a volume of equal size to what is
    before the Committee today. Unfortunately, those efforts
    lapsed, and I think that this Subcommittee picking them up will
    make a very real contribution.
        Let me first of all say that I think we have to look at the
    objectives of any revision of criminal laws. One of them, of
    course, is, as has just been suggested by the Chairman, to
    streamline the Code itself. Second, we would I think agree,
    should be increased visibility, fair warning to people of what
    it is that they could be in jeopardy of by certain types of
    behavior. And thirdly, as Mr. Scott has already in his
    chairmanship worked very hard on, and that is decreasing
    overcriminalization, reducing the Criminal Code to those types
    of behavior which actually are offenses against the public
    safety.
        Four major areas are included in my written testimony, and
    I will comment briefly on each of them. Many of them have
    already been discussed by the Chairman in his opening remarks.
        But the first is to consolidate criminal laws, all the
    Federal criminal laws into Title 18. It is important that these
    laws be readily available so that people know, as I mentioned
    earlier, what it is that is prohibited. And it would certainly
    be a great service.
        It also would have one other added feature that I think is
    important, and that is that because of the jurisdiction of this
    Committee and the Judiciary Committee generally, it would mean
    that all laws carrying a criminal penalty would be subject to
    review by the Judiciary Committees of the two Houses. And this
    would mean that the expertise that is represented by both the
    Committee Members and its staff would be brought to bear on
    whether a particular subject matter should be subject to
    criminal penalties, and secondly, which would have a force, I
    believe, in making the penalties more proportionate and
    coordinated in their severity. So I think that would be an
    added benefit beside having all the laws in one place.
        A second aspect is that there are, as has been pointed out,
    too many redundant, superfluous, and unnecessary criminal laws.
    Mr. Conyers mentioned 4,500 statutes, I believe, criminal
    statutes. This is in addition to over 300,000 other regulations
    that don't appear in the Federal codes but which nevertheless
    carry essentially criminal penalties, including imprisonment.
    So the vast array of traps for the unwary, you might say, that
    lurk out there in the Federal criminal law is more extensive
    than I think most people realize.
        The third point is that it is important therefore that
    administrative agencies not be allowed to issue regulations
    that subject individuals to criminal penalties. If something is
    important to send a person to prison, the Congress itself
    should actually enact that as a statute.
        And finally, as the Chairman mentioned, mens rea is a
    necessary revision to make sure that all laws carrying criminal
    penalties properly include the mental element that has been
    traditionally required of crime, and that is the so-called
    guilty mind, or mens rea. And that should be set forth in a way
    that clearly identifies willfully or purposefully, whatever the
    phrase is, but it ought to be defined as meaning that the
    person definitely intended to commit the crime and to violate
    the law.
        Mr. Chairman, those are a brief summary of my suggestions.
    I think one thing the Committee will notice, each of us
    prepared our testimony separately. But when we exchanged them
    last night, there was a remarkable similarity which I think you
    will find as the other people testify this morning.
        Thank you, Mr. Chairman.
        [The prepared statement of Mr. Meese follows:]

                                   __________
        Mr. Sensenbrenner. Thank you, General Meese. Well, I guess
    we must be starting out on the right track.
        Mr. Thornburgh.

    TESTIMONY OF THE HONORABLE DICK THORNBURGH, COUNSEL, K&L GATES
                                  LLP

        Mr. Thornburgh. Thank you, Mr. Chairman, Ranking Member
    Scott, other Members of the Subcommittee here present. I want
    to disclaim any conspiracy on the part of the four witnesses
    here. I remember in the antitrust law there was a theory known
    as conscious parallelism. It was ultimately held not to be
    violative of the antitrust laws, and I think that is what you
    are looking at here.
        I appreciate the chance to appear before this Subcommittee
    this morning. I have not reviewed all 1,200 pages of H.R. 1823
    line by line, but I would like to highlight today the
    phenomenon of overcriminalization, and to suggest that any
    reform legislation address solutions to the problems that this
    phenomenon has engendered. It may seem odd to some for me, as a
    former prosecutor, to focus on the perils of
    overcriminalization. We live in a time where concern remains
    high in our society about the problem of crime in general, and
    corporate crime in particular. But considerable misgiving about
    overcriminalization and the threat it poses to established
    institutions and ways of life have brought together a number of
    disparate public advocacy groups to deal with this problem and
    ensure that we have criminal statutes that punish actual
    criminal acts and do not seek to criminalize conduct that is
    better dealt with by the seeking of civil or regulatory
    remedies.
        I have served on both sides of the aisle in criminal cases
    during my career, as a Federal prosecutor for many years, and
    most recently as a defense attorney involved in proceedings
    adverse to the U.S. Department of Justice. This I think
    balances my view of the issues that we are talking about today.
    I want to move from my prepared statement into the suggestions
    that I offer to you as steps to curb abuses in the area of
    overcriminalization. I have both long and short term
    suggestions.
        First, I have advocated for many years that we adopt a true
    Federal Criminal Code. And I commend you, Mr. Chairman and your
    colleagues, for taking this issue up. While this may not be the
    first thing that comes to mind when people analyze issues of
    concern in the criminal justice system, it is an important one
    that should be undertaken without delay. The some 4,450 or more
    separate criminal offenses are a hodgepodge scattered
    throughout 50 different titles of the United States Code,
    without any coherent sense of organization. One commentator
    noted our failure to have in place even a modestly coherent
    code makes a mockery of the United States' much vaunted
    commitment to justice, the rule of law, and human rights.
        This is not a new idea, of course. Congress did try nobly
    in the past to reform the Federal Criminal Code, most notably
    through the efforts of the Brown Commission, as noted, in the
    1970's. I was Assistant Attorney General in charge of the
    Department of Justice Criminal Division at the time, and I well
    remember the disappointment felt among department leadership
    over the inability to focus the attention of legislative
    leaders on this important issue. And thus, it has been ever
    since until you have taken up this cause.
        Second, Congress needs to rein in the continuing
    proliferation of criminal regulatory offenses. Regulatory
    agencies routinely if not automatically promulgate rules
    imposing criminal penalties that have not been enacted by the
    Congress. Indeed, criminalization of new regulatory provisions
    has become seemingly mechanical. One estimate is there may be a
    staggering 300,000 criminal regulatory offenses created by U.S.
    Government agencies. This tendency, as pointed out, together
    with the lack of any congressional requirement that legislation
    pass through the Judiciary Committees, has led to an evolution
    of a whole new and troublesome catalogue of so-called criminal
    offenses. Congress should not delegate such an important
    function to the agencies.
        In this area, one solution that a renowned expert and
    former colleague of Ed's and mine from the Department of
    Justice, Ronald Gainer, 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 present criminal penalties from
    regulatory violations, notwithstanding the language of the
    regulatory statutes themselves 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 only for a pattern of intentional, repeated
    breaches.
        My third suggestion is that the Congress should consider
    whether it is time to address the standards whereby companies
    are held criminally responsible for the acts of their
    employees. The Department of Justice has issued four separate
    memoranda from deputy attorneys general during the last dozen
    years or so to set forth ground rules when a corporation should
    be charged criminally for the act of its employees. It should
    be noted that in its most recent memorandum, the government
    stated it may not be appropriate to impose liability upon a
    corporation, particularly one with a robust compliance program
    in place, under a strict respondeat superior theory for the
    single isolated act of a rogue employee. A law is needed to
    ensure uniformity in this critical area.
        I have set forth in my prepared statement some steps that I
    feel should be taken by the Department of Justice itself, and I
    would refer to those specifically, because the Department has a
    role, most important, to actively support as a matter of policy
    the effort to enact a true Criminal Code.
        Thank you for your attention and the opportunity to speak.
        [The prepared statement of Mr. Thornburgh follows:]
         Prepared Statement of the Honorable Dick Thornburgh, Counsel,
                                 K&L Gates LLP
        Chairman Sensenbrenner, Ranking Member Scott, and other
    Subcommittee members here present: Thank you for the opportunity to
    appear and testify before this Subcommittee. While I have not reviewed
    the 1,200 pages of H.R. 1823, line-by-line, I propose to address
    specifically today a subject that has commanded increasing attention
    here and in other countries around the world. My testimony today is
    intended to highlight the phenomenon of over-criminalization and to
    suggest that any reform legislation address solutions to the problems
    it has engendered.

                                       I.

        It may seem odd to some for me as a former prosecutor to focus on
    the perils of over-criminalization. We live in a time when concern
    remains high in our society about the problem of crime in general and
    corporate crime in particular. But considerable misgiving has developed
    about this subject and the threat it poses to established institutions
    and ways of life. This misgiving has brought together such disparate
    public advocacy groups as the American Bar Association, the National
    Association of Criminal Defense Lawyers, and the ACLU on the liberal
    side with the Heritage Foundation, the Washington Legal Foundation, and
    the Cato Institute on the more conservative end of the spectrum.
    However divergent the interests of these groups may be otherwise, they
    all share a common goal in this area: 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 civil or regulatory remedies.
    This goal, as simple as it sounds conceptually, has turned out to be
    difficult to attain and needs to be addressed by this body.
        I have served on both sides of the aisle in criminal cases during
    my career--as a federal prosecutor for many years and more recently as
    a defense attorney involved in proceedings adverse to the United States
    Department of Justice. This provides me, I believe, with a balanced
    view of the issues in today's criminal justice system. This testimony
    will suggest some thoughts as to how to deal with what I see as the
    growing challenge of over-criminalization.
        First, let me refine that challenge.
        By way of background, let me remind all of us of some basic
    fundamentals of the criminal law. Traditional criminal law encompasses
    various acts, which may or may not cause results, and mental states,
    which indicate volition or awareness on the part of the actor. These
    factors are commonly known as the requirements of mens rea and actus
    reus, Latin terms for an ``evil-meaning mind [and] an evil-doing
    hand.'' Most efforts to codify the law of common-law jurisdictions
    employ a variety of requisite mental states--usually describing
    purpose, knowledge, reckless indifference to a consequence, and, in a
    few instances, negligent failure to appreciate a risk.
        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 have traditionally demanded that it should
    be utilized only when identified mental states and behaviors are
    proven.
        With respect to what has now become known as ``over-
    criminalization,'' objections are focused on those offenses that go
    well beyond these traditional, fundamental principles and are grounded
    more on what were historically civil or regulatory offenses without the
    mental states required for criminal convictions. Without a clear mens
    rea requirement, citizens may not be able to govern themselves in a way
    that assures them of following the law and many actors may be held
    criminally responsible for actions that do not require a wrongful
    intent.
        Such ``strict'' liability in a criminal action, incidentally, does
    have a long history--almost three thousand years ago, an Emperor of
    China is said to have decreed that it would be a criminal offense,
    punishable by death, for a governor of a province to permit the
    occurrence, within the province, of an earthquake. And man's inability
    to control earthquakes, we have been reminded recently, can have tragic
    consequences.
        This is obviously an extreme, but our criminal justice system has
    not been entirely modest. Many scholars and the Department of Justice
    have tried to count the total number of federal crimes, but only rough
    estimates have emerged. The current ``estimate'' is a staggering 4,450
    crimes on the books with a projected additional 500 per year in years
    to come. If legal scholars and researchers and the Department of
    Justice itself cannot accurately count the number of federal crimes,
    how do we expect ordinary American citizens to be able to be aware of
    them? Additionally, a recent report states that federal statutes
    provide for over 100 separate terms to denote the required mental state
    with which an offense may be committed, and another review observes
    that a number of the federal criminal offenses enacted in the last ten
    years had no mens rea requirement at all. Such trends cannot continue
    and suggested legislative reform in the nature of a default mens rea
    requirement when a statute does not require it is worthy of priority
    consideration. Moreover, a recent assessment of the new Dodd-Frank Wall
    Street Reform and Consumer Protection Act finds that it creates dozens
    of new federal criminal offenses, many lacking adequate criminal-intent
    requirements, which are ambiguous and duplicative of existing federal
    and state regulations.

                                      II.

        Make no mistake, when individuals commit crimes they should be held
    responsible and punished accordingly. The line has become blurred,
    however, on what conduct constitutes a crime, particularly in corporate
    criminal cases, and needs to be redrawn and re-clarified.
        Since 1909, business entities have, with few limitations, routinely
    been held criminally liable for the acts of their employees. In recent
    history, one of the more significant cases involved the accounting firm
    of Arthur Andersen, a case of which you are no doubt aware, in which
    the company effectively received a ``death sentence'' based on the acts
    of isolated employees over a limited period of time. I gave a speech
    some time ago at the Georgetown Law Center in Washington regarding
    over-criminalization. I mentioned the Arthur Andersen case and
    referenced a political cartoon, published after the Supreme Court
    reversed the company's conviction, in which a man in a judicial robe
    was standing by the tombstone for Arthur Andersen and said: ``Oops.
    Sorry.'' That apology didn't put the tens of thousands of partners and
    employees of that entity back to work. This unjust result simply cannot
    be replicated, and reform is needed to make sure there are no such
    future miscarriages of justice.
        Over-breadth in corporate criminal law, for example, can lead to a
    near-paranoid corporate culture that is constantly looking over its
    shoulder for the ``long arm of the law'' and wondering whether a good
    faith business decision will be interpreted by an ambitious prosecutor
    as a crime. Perhaps even more significant is the impact on corporate
    innovation--if an idea or concept is novel or beyond prior models, a
    corporation may stifle it out of concern about potential criminal
    penalties. This stifling may render some businesses unable to compete
    in a global marketplace just to ensure compliance with domestic laws.
    And that may mean fewer jobs and reduced economic growth in this
    country.
        The unfortunate reality is that Congress has effectively delegated
    some of its 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 recent example of over-criminalization is the now-
    discredited ``theft of honest services'' provision of the mail and wire
    fraud statute, 18 U.S.C. Sec. 1346, which was recently narrowed by the
    Supreme Court in the high-profile United States v. Skilling and United
    States v. Black decisions. The Court held that a criminal statute must
    clearly define the conduct it proscribes so as to give fair notice of
    the nature of the offense to those who might be charged. It was this
    statute, by the way, that formed the basis for the notorious
    prosecution of my client, Dr. Cyril Wecht, in my home state of
    Pennsylvania for felony counts relating, among other things, to his
    alleged use of the medical examiner's office fax machine and official
    vehicles for legitimate outside personal business activities. This
    statute was subject to scrutiny in the Skilling case because of its
    expansion from traditional public corruption cases to private acts in
    business or industry that are deemed to be criminal almost exclusively
    at the whim of the individual prosecutor who is investigating the case,
    becoming essentially a ``moral compass'' statute. The Supreme Court
    rejected the government's expansive view of the statute and returned
    the statute to its core purpose--prosecuting kickback and bribery
    schemes. Interestingly, the Court went a step further and specifically
    cautioned Congress regarding creating further honest services statutes,
    stating that ``it would have to employ standards of sufficient
    definiteness and specificity to overcome due process concerns.''
    Another commendable decision came recently by a United States District
    Judge when he dismissed an indictment and reminded the government of
    the Court's purpose--``[t]he Court is not an arbiter of morality,
    economics, or corporate conduct. Rather, it is an arbiter of the law.''
    That signals to me a welcome judicial return to the rule of law.

                                      III.

        What can be done to curb these abuses? I have both long and short
    term suggestions. First, I have advocated for many years that we adopt
    a true Federal Criminal Code. While this may not be the first thing
    that comes to mind when analyzing the issues of concern in the criminal
    justice system, it is an important one that should be undertaken
    without delay. As I mentioned, there are now some 4,450 or more
    separate criminal statutes--a hodgepodge scattered throughout 50
    different titles of the United States Code without any coherent sense
    of organization. As one commentator noted: ``Our failure to have in
    place even a modestly coherent code makes a mockery of the United
    States' much-vaunted commitments to justice, the rule of law, and human
    rights.''
        There is a template in existence, the Model Penal Code, which can
    act as a sensible start to an organized criminal code, and 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.
        This not a new idea--Congress has tried in the past to reform the
    federal criminal code, most notably through the efforts of the so-
    called ``Brown Commission'' in 1971. The legislative initiatives based
    on that Commission's work failed despite widespread recognition of
    their worth. As Assistant Attorney General in charge of the Department
    of Justice's Criminal Division at the time, I well remember the
    disappointment felt among Department leadership over the inability to
    focus the attention of legislative leaders on this important issue. And
    thus it has been ever since. It is therefore doubly incumbent on this
    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 imposing criminal penalties that have not been enacted by
    Congress. Indeed, criminalization of new regulatory provisions has
    become seemingly mechanical. One estimate is that there may be a
    staggering 300,000 criminal regulatory offenses created by U.S.
    government agencies!
        This tendency, together with the lack of any congressional
    requirement that the legislation pass through Judiciary Committees, has
    led to an 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 renown expert and former
    colleague from the Department of Justice, Ronald Gainer, 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 present criminal penalties from
    regulatory violations, notwithstanding the language of the regulatory
    statues, 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 criminal law. The second exception would permit
    criminal prosecution, not for breach of the remaining regulatory
    provisions, but only 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 currently exists.
        My third suggestion is that Congress should consider whether it is
    time to address the standards whereby companies are held criminally
    responsible for acts of their employees. The Department of Justice has
    issued four separate Memoranda from Deputy Attorneys General during the
    past ten years or so setting forth ground rules for when a corporation
    should be charged criminally for the acts of its employees. It should
    be noted that in the most recent memorandum, the government stated:
    ``[i]t may not be appropriate to impose liability upon a corporation,
    particularly one with a robust compliance program in place, under a
    strict respondeat superior theory for the single isolated act of a
    rogue employee.'' A law is needed to ensure uniformity in this critical
    area so that the guidelines and standards do not continue to change at
    the rate of four times in a decade. Indeed, if an employee is 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 specifically holds the individual
    rather than the corporation responsible for the criminal conduct
    without subjecting the corporation to the whims of any particular
    federal prosecutor.
        One other aspect of over-criminalization should not escape our
    notice. A former colleague of mine at the Justice Department noted that
    there is something self-defeating about a society that seeks to induce
    its members to abhor criminality, but simultaneously brands as
    ``criminal'' not only those engaged in murder, rape and arson, but also
    those who dress up as Woodsy Owl, sell mixtures of two kinds of
    turpentine, file forms in duplicate rather than triplicate or post
    company employment notices on the wrong bulletin boards. The stigma of
    criminal conviction is dissipated by such enactments and the law loses
    its capacity to reinforce moral precepts and to deter future
    misconduct. Our criminal sanctions should be reserved for only the most
    serious transgressions and to do otherwise, in fact, can cause
    disrespect for the law.
        While nearly all of the remedies I have suggested today would
    require legislative action, there are some steps that could be taken by
    the Department of Justice itself to aid in the process of reducing
    over-criminalization. Let me mention just three.
        First, the Department should require pre-clearance by senior
    officials of novel or imaginative prosecutions of high profile
    defendants. One of Justice Scalia's major objections to the ``honest
    services'' fraud theory, for example, was its propensity to enable
    ``abuse by headline-grabbing prosecutors in pursuit of [those] who
    engage in any manner of unappealing or ethically questionable
    conduct.'' A second look before bringing any such proposed prosecutions
    would, I suggest, be very much in order.
        Second, a revitalized Office of Professional Responsibility within
    the Department of Justice should help ensure that ``rogue'' prosecutors
    are sanctioned for overreaching in bringing charges that go well beyond
    the clear intent of the statute involved.
        Finally, of course, the Department should actively support, as a
    matter of policy, the effort to enact a true criminal code.
        These are changes that truly merit our attention if we are to
    remain a government of laws and not of men. And they merit attention by
    all three branches of government--the legislative, the executive and
    the judicial--if productive change is to be forthcoming.
        Interestingly enough, this concern is not confined to the United
    States or our legal system alone. Because of recent abuses in the
    Russian Federation, a group of reformers is seeking to overhaul
    criminal laws and procedures in that country to combat over-
    criminalization as well. I have visited with these reformers, both here
    and in Moscow, and presented testimony before a round-table discussion
    in the Russian Duma, their legislature, sharing our experiences and
    suggestions for changes in our system. The primary focus of their
    examination is the abuse of criminal laws by business competitors to
    secure market advantages and efforts to deal with vaguely-worded
    statutes that purport to create criminal offenses to deal with
    ``fraud'' and ``illegal entrepreneurship.''
        I also had occasion myself to appear recently as an expert witness
    in the Moscow Arbitrazh Court, Russia's commercial tribunal, in a case
    brought against a major U.S. bank to recover $22.5 billion in damages
    for alleged violations of the U.S. RICO statute. The case settled for a
    fraction of the amount sought without reaching the question of whether
    a U.S. statute predicated on violations of the U.S. criminal law can
    proceed in a Russian commercial court, but the mere filing of such a
    claim evidences the type of potential hazard U.S. companies face
    abroad.
        With respect then to the problem of over-criminalization, let me
    summarize. 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 our legal system. And
    the Department of Justice must ``police'' those empowered to prosecute
    with greater vigor.
        I hope and trust that you will include remedies to the challenge of
    over-criminalization in whatever modernization and simplification
    initiatives result from your present considerations.
        Thank you for the opportunity to share these thoughts with you
    today.
                                   __________

        Mr. Sensenbrenner. Thank you, General Thornburgh. Mr.
    Lynch.

                   TESTIMONY OF TIM LYNCH, DIRECTOR,
              PROJECT ON CRIMINAL JUSTICE, CATO INSTITUTE

        Mr. Lynch. Thank you, Mr. Chairman. I also appreciate the
    invitation to testify here today. Many excellent points have
    already been made. I think I will start off by highlighting why
    I think the subject of Federal Code reform has generated such
    interest from across the political spectrum.
        We are talking about the rules by which people from our
    communities can be arrested, indicted, and sent to prison.
    Conscientious people in the criminal law field should not lose
    sight of the fact that even when somebody has not been
    convicted of a crime, their lives can be forever altered by the
    application of the criminal law. All it takes is a single raid,
    highly publicized, and a business can go under. An arrest can
    end somebody's career. Even in situations where a person can
    actually win an acquittal at trial, the financial burden
    involved in mounting a legal defense these days can break most
    families.
        Now, what is most disconcerting of all is that nowadays the
    scope of our Federal criminal law has been so expansive, as the
    other witnesses have said, that ordinary hardworking people can
    easily find themselves on the wrong side of the law without
    even knowing it. It is really time to take a fresh approach to
    the Federal Code.
        And I also commend the Committee for taking this subject
    up. But not just reorganizing it, it needs to be scaled back.
    And we need to provide procedural safeguards for persons
    accused of wrongdoing. The bill under consideration here, H.R.
    1823, identifies scores of provisions that are duplicative and
    unnecessary. But there are a few points that I wish to
    highlight because I wish the bill had gone further.
        First, the bill does not do enough to shield ordinary
    people from the legal and regulatory minefield that presently
    exists. The criminal standard that presently exists in the tax
    area I think is the model to follow. We all know how
    complicated the Federal Tax Code is. So right now, to protect
    people who honestly try to get their tax returns right without
    accusations of tax evasion, prosecutors have to prove that the
    person willfully violated the tax law. In other words, the
    prosecutors have to show that the person knew what the law
    required, but went ahead and violated the law anyway. I think
    we need that willfulness standard in place for all regulations
    that cover conduct that is not intrinsically wrongful.
        The second point I wish to highlight is that to protect
    citizens from situations where statutes have ambiguous terms,
    Congress should codify the rule of lenity across the board.
    Right now the rule of lenity is applied kind of sporadically by
    the courts. They do it no some areas of the law, but not in
    others. Congress should codify this rule of lenity across the
    board so that doubts will be resolved in the defendant's favor.
    Mr. Chairman, there is a principle in contracts law that says
    that when there are terms of a contract that are ambiguous, it
    will be resolved against the person or party or organization
    that drafted the contract. And the rationale there is that the
    person who drafted the contract was in a better position to
    resolve the ambiguity because they were drafting the language.
    It is a sensible rule. And if we have that rule in place in
    contracts, I think in the criminal law, where the stakes are
    even higher, that rule of lenity should be applied so that the
    law should be clearly written and ambiguities should be
    resolved in favor of people who are accused of crime, not in
    favor of the prosecution.
        The third point that I wish to highlight, and has been made
    by the other witnesses, is that Congress needs to pull the plug
    on agency rulemaking. I know that Members of Congress are busy,
    I know that you are pulled in different directions all the time
    to go ahead and address different subjects. But aside from the
    decision to go to war, it is hard for me to think of a more
    important responsibility than attending to the legal rules by
    which people can be indicted and sent off to prison. I know
    certain agencies have developed certain expertise. I think we
    should let them make their recommendations to the Congress. But
    when it comes to rules that affect people's liberty where they
    can be sent to prison, I think the agencies should send these
    recommendations over to the Congress where they can be voted
    upon by our elected Representatives.
        I do have other comments and recommendations in my written
    testimony, and I would respectfully request they be made part
    of the record.
        [The prepared statement of Mr. Lynch follows:]
    Prepared Statement of Tim Lynch, Director, Project on Criminal Justice,
                                 Cato Institute
                         i. introduction and background
        My name is Tim Lynch. I am the director of the Cato Institute's
    Project on Criminal Justice. I appreciate the invitation to testify
    this morning on H.R. 1823, which aims to modernize and simplify the
    federal criminal code. I am supportive of this undertaking because the
    federal code is a mess. As one writer has observed, the federal code is
    a

            loose assemblage of criminal law components that were built
            hastily to respond to perceptions of need and to perceptions of
            the popular will, and that were patterned more upon hindsight
            than foresight. Of the 3,000 provisions carrying criminal
            penalties, each was produced at a different time by different
            draftsmen with different conceptions of law, the English
            language, and common sense. Any relationship of one to another
            is more often than not accidental. The criminal statutes have
            never been subjected to a substantive reform, only a minor
            paring and partial rearrangement into a peculiar form of
            alphabetical order.\1\
    ---------------------------------------------------------------------------
        \1\ Ronald L. Gainer, ``Report to the Attorney General on Federal
    Criminal Code Reform,'' Criminal Law Forum (1989).

        Justice Antonin Scalia recently noted that Congress has unwisely
    expanded the federal criminal system in a manner that allows drug
    prosecutions to burden the judiciary.\2\ In an attempt to address that
    burden, Congress expanded the number of federal judgeships, but that
    has resulted in a reduction in the quality of judicial appointments
    according to Justice Scalia.
    ---------------------------------------------------------------------------
        \2\ Mark Sherman, ``Scalia: Judges `Aint What They Used to Be,' ''
    Associated Press, October 5, 2011.
    ---------------------------------------------------------------------------
        I should note at the outset that since H.R. 1823 runs more than one
    thousand pages, I have not yet had sufficient time to study all of its
    provisions and thus all of the consequences (both intended and
    unintended). To assist the committee in its deliberations, however, I
    will first outline some general principles which I think ought to guide
    federal code reform. I will then offer a preliminary analysis of H.R.
    1823. Last, if there are any questions that I am unable to answer
    today, I will endeavor to develop an answer following the hearing and
    respond with a letter to the committee.
                  ii. principles to guide federal code reform
    A. Constitutional Basis for Federal Statutes
        The American Constitution created a federal government with limited
    powers. As James Madison noted in the Federalist no. 45, ``The powers
    delegated by the proposed Constitution to the federal government are
    few and defined. Those which are to remain in the State governments are
    numerous and indefinite.'' Most of the federal government's ``delegated
    powers'' are specifically set forth in article I, section 8. The Tenth
    Amendment was appended to the Constitution to make it clear that the
    powers not delegated to the federal government ``are reserved to the
    States respectively, or to the people.''
        Crime is a serious problem, but under the Constitution, it is a
    matter to be primarily handled by state and local government.
    Unfortunately, as the years passed, Congress eventually assumed the
    power to enact a vast number of criminal laws pursuant to its power
    ``to regulate Commerce with foreign Nations, and among the several
    States, and with the Indian Tribes.'' \3\
    ---------------------------------------------------------------------------
        \3\ See Robert Suro, ``Rehnquist: Too Many Offenses Are Becoming
    Federal Crimes,'' Washington Post, January 1, 1999. See also Timothy
    Lynch, ``Dereliction of Duty: The Constitutional Record of President
    Clinton,'' Capital University Law Review 27 (1999): 783, 832-38.
    ---------------------------------------------------------------------------
        In recent years, Congress has federalized the crimes of gun
    possession within a school zone, carjacking, wife beating, and church
    arsons. All of those crimes and more have been rationalized under the
    Commerce Clause.\4\ In United States v. Lopez, the Supreme Court
    finally struck down a federal criminal law, the Gun-Free School Zone
    Act of 1990, because the connection between handgun possession and
    interstate commerce was simply too tenuous.\5\ In a concurring opinion,
    Justice Clarence Thomas noted that if Congress had been given authority
    over matters that simply ``affect'' interstate commerce, much, if not
    all, of the enumerated powers set forth in article I, section 8 would
    be unnecessary. Indeed, it is difficult to dispute Justice Thomas'
    conclusion that an interpretation of the commerce power that ``makes
    the rest of Sec. 8 surplusage simply cannot be correct.'' \6\
    ---------------------------------------------------------------------------
        \4\ See American Bar Association, The Federalization of Criminal
    Law (Chicago: American Bar Association, 1998); John S. Baker, Measuring
    the Explosive Growth of Federal Crime Legislation (Washington: The
    Federalist Society for Law and Public Policy Studies, 2005).
        \5\ United States v. Lopez, 514 U.S. 549 (1995).
        \6\ Ibid., pp. 657-58 (1995) (Thomas, J., concurring). See also
    John Baker, ``National izing Criminal Law: Does Organized Crime Make It
    Necessary or Proper?'' Rutgers Law Journal 16 (1985): 495.
    ---------------------------------------------------------------------------
        Whether or not the Supreme Court adopts a more narrow
    interpretation of the Commerce Clause, Congress can and should
    acknowledge constitutional limits on federal jurisdiction and repeal
    federal statutes that merely duplicate local crimes.
    B. No Delegation of Lawmaking Power to Administrative Agencies
        Beyond the thousands of federal criminal statutes enacted by the
    Congress, there are also thousands of federal regulations that carry
    criminal penalties. (And what is worse is that some of those
    regulations contain vague terms; others carry inadequate mens rea
    terminology.) Members of Congress are busy, but it is their
    responsibility to carefully consider what infractions can result in a
    criminal conviction and prison time.
        The case law that has thus far allowed delegation has drawn
    criticism. Federal Judge Roger Vinson, for example, has observed:

            A jurisprudence which allows Congress to impliedly delegate its
            criminal lawmaking authority to a regulatory agency such as the
            Army Corps--so long as Congress provides an ``intelligible
            principle'' to guide that agency--is enough to make any judge
            pause and question what has happened. Deferent and minimal
            judicial review of Congress' transfer of its criminal lawmaking
            function to other bodies, in other branches, calls into
            question the vitality of the tripartite system established by
            our Constitution. It also calls into question the nexus that
            must exist between the law so applied and simple logic and
            common sense. Yet that seems to be the state of the law. Since
            this court must apply the law as it exists, and cannot change
            it, there is nothing further that can be done at this level.\7\
    ---------------------------------------------------------------------------
        \7\ United States v. Mills, 817 F. Supp. 1546, 1555 (1993).

        As noted above, whether or not the Supreme Court chooses to revisit
    and restrict the ability of Congress, on constitutional grounds, to
    delegate the lawmaking power, Congress can and should recognize that
    federal law--especially federal criminal law--ought to be made by the
    people's elected representatives.\8\
    ---------------------------------------------------------------------------
        \8\ Robert A. Anthony, ``Unlegislated Compulsion: How Federal
    Agency Guidelines Threaten your Liberty,'' Cato Institute Policy
    Analysis, no. 312 (August 11, 1998).
    ---------------------------------------------------------------------------
    C. Ignorance of the Law is Now a Valid Excuse
        The sheer volume of modern law makes it impossible for an ordinary
    American household to stay informed. And yet, prosecutors vigorously
    defend the old legal maxim that ``ignorance of the law is no excuse.''
    \9\ That maxim may have been appropriate for a society that simply
    criminalized inherently evil conduct, such as murder, rape, and theft,
    but it is wholly inappropriate in a labyrinthine regulatory regime that
    criminalizes activities that are morally neutral. As Professor Henry M.
    Hart opined, ``In no respect is contemporary law subject to greater
    reproach than for its obtuseness to this fact.'' \10\
    ---------------------------------------------------------------------------
        \9\ See Timothy Lynch, ``Ignorance of the Law: Sometimes a Valid
    Defense,'' Legal Times, April 4, 1994.
        \10\ Henry Hart, ``The Aims of the Criminal Law,'' reprinted in In
    the Name of Justice (Washington, D.C.: Cato Institute, 2009), p. 19.
    ---------------------------------------------------------------------------
        To illustrate the rank injustice that can and does occur, take the
    case of Carlton Wilson, who was prosecuted because he possessed a
    firearm. Wilson's purchase of the firearm was perfectly legal, but,
    years later, he didn't know that he had to give it up after a judge
    issued a restraining order during his divorce proceedings. When Wilson
    protested that the judge never informed him of that obligation and that
    the restraining order itself said nothing about firearms, prosecutors
    shrugged, ``ignorance of the law is no excuse.'' \11\ Although the
    courts upheld Wilson's conviction, Judge Richard Posner filed a
    dissent: ``We want people to familiarize themselves with the laws
    bearing on their activities. But a reasonable opportunity doesn't mean
    being able to go to the local law library and read Title 18. It would
    be preposterous to suppose that someone from Wilson's milieu is able to
    take advantage of such an opportunity.'' \12\ Judge Posner noted that
    Wilson would serve more than three years in a federal penitentiary for
    an omission that he ``could not have suspected was a crime or even a
    civil wrong.'' \13\
    ---------------------------------------------------------------------------
        \11\ United States v. Wilson, 159 F.3d 280 (1998).
        \12\ Ibid., p. 296 (Posner, J., dissenting).
        \13\ Ibid. The Wilson prosecution was not a case of one prosecutor
    using poor judgment and abusing his power. See, for example, United
    States v. Emerson, 46 F.Supp. 2d 598 (1999).
    ---------------------------------------------------------------------------
        It is absurd and unjust for the government to impose a legal duty
    on every citizen to ``know'' all of the mind-boggling rules and
    regulations that have been promulgated over the years. Policymakers can
    and should discard the ``ignorance-is-no-excuse'' maxim by enacting a
    law that would require prosecutors to prove that regulatory violations
    are ``willful'' or, in the alternative, that would permit a good-faith
    belief in the legality of one's conduct to be pleaded and proved as a
    defense. The former rule is already in place for our complicated tax
    laws--but it should also shield unwary Americans from all of the laws
    and regulations as well.\14\
    ---------------------------------------------------------------------------
        \14\ See, generally, Ronald A. Cass, ``Ignorance of the Law: A
    Maxim Reexamined,'' William and Mary Law Review 17 (1976): 671.
    ---------------------------------------------------------------------------
    D. Vague Statutes are Unacceptable
        Even if there were but a few crimes on the books, the terms of our
    criminal laws ought to be drafted with precision. There is precious
    little difference between a secret law and a published regulation that
    cannot be understood. History is filled with examples of oppressive
    governments that persecuted unpopular groups and innocent individuals
    by keeping the law's requirements from the people. For example, the
    Roman emperor Caligula posted new laws high on the columns of buildings
    so that ordinary citizens could not study the laws. Such abominable
    policies were discarded during the Age of Enlightenment, and a new set
    of principles--known generally as the ``rule of law''--took hold. Those
    principles included the requirements of legality and specificity.
        ``Legality'' means a regularized process by which crimes are
    designated and prosecuted by the government. The Enlightenment
    philosophy was expressed by the maxim nullum crimen sine lege (there is
    no crime without a law). In other words, people can be punished only
    for conduct previously prohibited by law. That principle is clearly
    enunciated in the ex post facto clause of the Constitution (article I,
    section 9). But the purpose of the ex post facto clause can be
    subverted if the legislature can enact a criminal law that condemns
    conduct in general terms, such as ``dangerous and harmful'' behavior.
    Such a law would not give people fair warning of the prohibited
    conduct. To guard against the risk of arbitrary enforcement, the
    Supreme Court has said that the law must be clear:

            A criminal statute cannot rest upon an uncertain foundation.
            The crime, and the elements constituting it, should be so
            clearly expressed that an ordinary person can intelligently
            choose, in advance, what course it is lawful for him to pursue.
            Penal statutes prohibiting the doing of certain things, and
            providing a punishment for their violation, should not admit of
            such a double meaning that the citizen may act upon the one
            conception of its requirements and the courts upon another.\15\
    ---------------------------------------------------------------------------
        \15\ Connally v. General Construction Company, 269 U.S. 385, 393
    (1926) (internal quotation marks omitted).

        The principles of legality and specificity operate together to
    reduce the likelihood of arbitrary and discriminatory application of
    the law by keeping policy matters away from police officers,
    administrative bureaucrats, prosecutors, judges, and members of juries,
    who would have to resolve ambiguities on an ad hoc and subjective
    basis.
        Although the legality and specificity requirements are supposed to
    be among the first principles of American criminal law, a
    ``regulatory'' exception has crept into modern jurisprudence. The
    Supreme Court has unfortunately allowed ``greater leeway'' in
    regulatory matters because the practicalities of modern governance
    supposedly limit ``the specificity with which legislators can spell out
    prohibitions.'' \16\ During the past 50 years, fuzzy legal standards,
    such as ``unreasonable,'' ``unusual,'' and ``excessive,'' have
    withstood constitutional challenge.
    ---------------------------------------------------------------------------
        \16\ Papachristou v. City of Jacksonville, 405 U.S. 156, 162-163
    (1972).
    ---------------------------------------------------------------------------
        Justice Scalia recently acknowledged that this trend has gone too
    far and ought to be halted:

            We face a Congress that puts forth an ever-increasing volume of
            laws in general, and of criminal laws in particular. It should
            be no surprise that as the volume increases, so do the number
            of imprecise laws. And no surprise that our indulgence of
            imprecisions that violate the Constitution encourages
            imprecisions that violate the Constitution. Fuzzy, leave-the-
            details-to-be-sorted-out-by-the-courts legislation is
            attractive to the Congressman who wants credit for addressing a
            national problem but does not have the time (or perhaps the
            votes) to grapple with the nitty-gritty. In the field of
            criminal law, at least, it is time to call a halt.\17\
    ---------------------------------------------------------------------------
        \17\ Sykes v. United States, 131 S. Ct. 2267, 2284.

        The Framers of the American Constitution understood that democracy
    alone was no guarantor of justice. As James Madison noted, ``It will be
    of little avail to the people that the laws are made by men of their
    own choice if the laws be so voluminous that they cannot be read, or so
    incoherent that they cannot be understood; if they be repealed or
    revised before they are promulgated, or undergo such incessant changes
    that no man, who knows what the law is today, can guess what it will be
    tomorrow.'' \18\
    ---------------------------------------------------------------------------
        \18\ James Madison, ``Federalist Paper 62,'' in The Federalist
    Papers, ed. Clinton Rossiter (New York: New American Library, 1961), p.
    381.
    ---------------------------------------------------------------------------
        The first step toward addressing the problem of vague and ambiguous
    criminal laws would be for the Congress to direct the courts to follow
    the rule of lenity in all criminal cases.\19\ Legal uncertainties
    should be resolved in favor of private individuals and organizations,
    not the government.
    ---------------------------------------------------------------------------
        \19\ Pennsylvania has protected its citizens from overzealous
    prosecutors with such a law for many years. See 1 Pa.C.S.A. 1208.
    ---------------------------------------------------------------------------
    E. Abolish Strict Liability Offenses
        Two basic premises that undergird Anglo-American criminal law are
    the requirements of mens rea (guilty mind) and actus reus (guilty
    act).\20\ The first requirement says that for an act to constitute a
    crime there must be ``bad intent.'' Dean Roscoe Pound of Harvard Law
    School writes, ``Historically, our substantive criminal law is based
    upon a theory of punishing the vicious will. It postulates a free agent
    confronted with a choice between doing right and doing wrong and
    choosing freely to do wrong.'' \21\ According to that view, a man could
    not be prosecuted for leaving an airport with the luggage of another if
    he mistakenly believed that he owned the luggage. As the Utah Supreme
    Court noted in State v. Blue (1898), mens rea was considered an
    indispensable element of a criminal offense. ``To prevent the
    punishment of the innocent, there has been ingrafted into our system of
    jurisprudence, as presumably in every other, the principle that the
    wrongful or criminal intent is the essence of crime, without which it
    cannot exist.'' \22\
    ---------------------------------------------------------------------------
        \20\ Wayne R. LaFave and Austin W. Scott Jr., Criminal Law, 2nd.
    ed. (St. Paul, MN: West Publishing Co., 1986), pp. 193-94.
        \21\ Quoted in Morissette v. United States, 342 U.S. 246, 250 n. 4
    (1952).
        \22\ Utah v. Blue, 53 Pac. 978, 980 (1898).
    ---------------------------------------------------------------------------
        By the same token, bad thoughts alone do not constitute a crime if
    there is no ``bad act.'' If a police officer discovers a diary that
    someone mistakenly left behind in a coffee shop, and the contents
    include references to wanting to steal the possessions of another, the
    author cannot be prosecuted for a crime. Even if an off-duty police
    officer overhears two men in a tavern discussing their hatred of the
    police and their desire to kill a cop, no lawful arrest can be made if
    the men do not take action to further their cop-killing scheme. The
    basic idea, of course, is that the government should not be in the
    business of punishing ``bad thoughts.''
        When mens rea and actus reus were fundamental prerequisites for
    criminal activity, no person could be branded a ``criminal'' until a
    prosecutor could persuade a jury that the accused possessed ``an evil-
    meaning mind with an evil-doing hand.'' \23\ That understanding of
    crime--as a compound concept--was firmly entrenched in the English
    common law at the time of the American Revolution.
    ---------------------------------------------------------------------------
        \23\ Morissette v. United States, 342 U.S. 246, 251 (1952).
    ---------------------------------------------------------------------------
        Over the years, however, the moral underpinnings of the Anglo-
    American view of criminal law fell into disfavor. The mens rea and
    actus reus requirements came to be viewed as burdensome restraints on
    well-meaning lawmakers who wanted to solve social problems through
    administrative regulations. As Professor Richard G. Singer has written,
    ``Criminal law . . . has come to be seen as merely one more method used
    by society to achieve social control.'' \24\
    ---------------------------------------------------------------------------
        \24\ Richard G. Singer, ``The Resurgence of Mens Rea: III--The Rise
    and Fall of Strict Criminal Liability,'' Boston College Law Review 30
    (1989): 337. See also Special Report: Federal Erosion of Business Civil
    Liberties (Washington: Washington Legal Foundation, 2008).
    ---------------------------------------------------------------------------
        The change began innocently enough. To protect young girls,
    statutory rape laws were enacted that flatly prohibited sex with girls
    under the age of legal consent. Those groundbreaking laws applied even
    if the girl lied about her age and consented to sex and if the man
    reasonably believed the girl to be over the age of consent. Once the
    courts accepted that exception to the mens rea principle, legislators
    began to identify other activities that had to be stamped out--even at
    the cost of convicting innocent-minded people.
        The number of strict liability criminal offenses grew during the
    20th century as legislators created scores of public welfare offenses
    relating to health and safety. Each time a person sought to prove an
    innocent state-of-mind, the Supreme Court responded that there is
    ``wide latitude'' in the legislative power to create offenses and ``to
    exclude elements of knowledge and diligence from [their] definition.''
    \25\ Those strict liability rulings have been sharply criticized by
    legal commentators. Professor Herbert Packer argued that the creation
    of strict liability crimes was both inefficacious and unjust.
    ---------------------------------------------------------------------------
        \25\ Lambert v. California, 355 U.S. 225, 228 (1957).

            It is inefficacious because conduct unaccompanied by an
            awareness of the factors making it criminal does not mark the
            actor as one who needs to be subjected to punishment in order
            to deter him or others from behaving similarly in the future,
            nor does it single him out as a socially dangerous individual
            who needs to be incapacitated or reformed. It is unjust because
            the actor is subjected to the stigma of a criminal conviction
            without being morally blameworthy. Consequently, on either a
            preventative or retributive theory of criminal punishment, the
            criminal sanction is inappropriate in the absence of mens
            rea.\26\
    ---------------------------------------------------------------------------
        \26\ Herbert Packer, ``Mens Rea and the Supreme Court,'' Supreme
    Court Review (1962): 109. See also Jeffrey S. Parker, ``The Economics
    of Mens Rea,'' Virginia Law Review 79 (1993): 741; Craig S. Lerner and
    Moin A. Yahya, `` `Left Behind' After Sarbanes-Oxley,'' American
    Criminal Law Review 44 (2007): 1383.

        A dramatic illustration of the problem was presented in Thorpe v.
    Florida (1979).\27\ John Thorpe was confronted by a thief who
    brandished a gun. Thorpe got into a scuffle with the thief and wrested
    the gun away from him. When the police arrived on the scene, Thorpe was
    arrested and prosecuted under a law that made it illegal for any felon
    to possess a firearm. Thorpe tried to challenge the application of that
    law by pointing to the extenuating circumstances of his case. The
    appellate court acknowledged the ``harsh result,'' but noted that the
    law did not require a vicious will or criminal intent. Thus, self-
    defense was not ``available as a defense to the crime.'' \28\
    ---------------------------------------------------------------------------
        \27\ Thorpe v. Florida, 377 So.2d 221 (1979).
        \28\ Ibid., p. 223.
    ---------------------------------------------------------------------------
        True, Thorpe was a state case from 1979. The point here is simply
    to show the drift of our law. As Judge Benjamin Cardozo once quipped,
    once a principle or precedent gets established, it is usually taken to
    the ``limit of its logic.'' For a more recent federal case, consider
    what happened to Dane Allen Yirkovsky. Yirkovsky was convicted of
    possessing one round of .22 caliber ammunition and for that he received
    minimum mandatory 15-year sentence.\29\ Here are the reported
    circumstances surrounding his ``crime.''
    ---------------------------------------------------------------------------
        \29\ See United States v. Yirkovsky, 259 F.3d 704 (2001).

            In late fall or early winter of 1998, Yirkovsky was living with
            Edith Turkington at her home in Cedar Rapids, Iowa. Instead of
            paying rent, Yirkovsky agreed to remodel a bathroom at the home
            and to lay new carpeting in the living room and hallway. While
            in the process of removing the old carpet, Yirkovsky found a
            Winchester .22 caliber, super x, round. Yirkovsky put the round
            in a small box and kept it in the room in which he was living
    ---------------------------------------------------------------------------
            in Turkington's house.

            Subsequently, Yirkovsky's ex-girlfriend filed a complaint
            alleging that Yirkovsky had [some of] her property in his
            possession. A police detective spoke to Yirkovsky regarding the
            ex-girlfriend's property, and Yirkovsky granted him permission
            to search his room in Turkington's house. During this search,
            the detective located the .22 round. Yirkovsky admitted to
            police that he had placed the round where it was found by the
            detective.\30\
    ---------------------------------------------------------------------------
        \30\ Ibid., pp. 705-706.

        The appellate court found the penalty to be ``extreme,'' but
    affirmed Yirkovsky's sentence as consistent with existing law.\31\
    ---------------------------------------------------------------------------
        \31\ In my view, Congress should not stand by secure in the
    knowledge that such precedents exist. Justice Anthony Kennedy has made
    this point quite well: ``The legislative branch has the obligation to
    determine whether a policy is wise. It is a grave mistake to retain a
    policy just because a court finds it constitutional. . . . Few
    misconceptions about government are more mischievous than the idea that
    a policy is sound simply because a court finds it permissible. A court
    decision does not excuse the political branches or the public from the
    responsibility for unjust laws.'' Anthony M. Kennedy, ``An Address to
    the American Bar Association Annual Meeting,'' reprinted in In the Name
    of Justice (Washington, D.C.: Cato Institute, 2009), p. 193.
    ---------------------------------------------------------------------------
        Strict liability laws should be abolished because their very
    purpose is to divorce a person's intentions from his actions. But if
    the criminal sanction imports blame--and it does--it is a perversion to
    apply that sanction to self-defense and other acts that are not
    blameworthy. Our criminal law should reflect the old Latin maxim, actus
    not facit reum nisi mens sit rea (an act does not make one guilty
    unless his mind is guilty).\32\
    ---------------------------------------------------------------------------
        \32\ See Wayne R. LaFave and Austin W. Scott Jr., Criminal Law,
    2nd. ed. (St. Paul, MN: West Publishing Co., 1986), p. 212.
    ---------------------------------------------------------------------------
    F. Abolish Vicarious Liability Offenses
        Everyone agrees with the proposition that if a person commands,
    pays, or induces another to commit a crime on that person's behalf, the
    person should be treated as having committed the act.\33\ Thus, if a
    husband hires a man to kill his wife, the husband is also guilty of
    murder. But it is another matter entirely to hold one person criminally
    responsible for the unauthorized acts of another. ``Vicarious
    liability,'' the legal doctrine under which a person may be held
    responsible for the criminal acts of another, was once ``repugnant to
    every instinct of the criminal jurist.'' \34\ Alas, the modern trend in
    American criminal law is to embrace vicarious criminal liability.
    ---------------------------------------------------------------------------
        \33\ Francis Bowes Sayre, ``Criminal Responsibility for the Acts of
    Another,'' Harvard Law Review 43 (1930): 689, 690.
        \34\ Ibid., p. 702.
    ---------------------------------------------------------------------------
        Vicarious liability initially crept into regulations that were
    deemed necessary to control business enterprises. One of the key cases
    was United States v. Park (1975).\35\ John Park was the president of
    Acme Markets Inc., a large national food chain. When the Food and Drug
    Administration found unsanitary conditions at a warehouse in April
    1970, it sent Park a letter demanding corrective action. Park referred
    the matter to Acme's vice president for legal affairs. When Park was
    informed that the regional vice president was investigating the
    situation and would take corrective action, Park thought that was the
    end of the matter. But when unsanitary warehouse conditions were found
    on a subsequent inspection, prosecutors indicted both Acme and Park for
    violations of the Federal Food, Drug and Cosmetic Act.
    ---------------------------------------------------------------------------
        \35\ United States v. Park, 421 U.S. 658 (1975). Although many
    state courts have followed the reasoning of the Park decision with
    respect to their own state constitutions, some courts have recoiled
    from the far-reaching implications of vicarious criminal liability. For
    example, the Pennsylvania Supreme Court has held that ``a man's liberty
    cannot rest on so frail a reed as whether his employee will commit a
    mistake in judgment.'' Commonwealth v. Koczwara, 155 A.2d 825, 830
    (1959). That Pennsylvania ruling, it must be emphasized, is an
    aberration. It is a remnant of the common law tradition that virtually
    every other jurisdiction views as passe'.
    ---------------------------------------------------------------------------
        An appellate court overturned Park's conviction because it found
    that the trial court's legal instructions could have ``left the jury
    with the erroneous impression that [Park] could be found guilty in the
    absence of `wrongful action' on his part'' and that proof of that
    element was constitutionally mandated by due process.\36\ The Supreme
    Court, however, reversed the appellate ruling. Chief Justice Warren
    Burger opined that the legislature could impose criminal liability on
    ``those who voluntarily assume positions of authority in business
    enterprises'' because such people have a duty ``to devise whatever
    measures [are] necessary to ensure compliance'' with regulations.\37\
    Thus, under the rationale of Park, an honest executive can be branded a
    criminal if a low-level employee in a different city disobeys a
    supervisor's instructions and violates a regulation--even if the
    violation causes no harm whatsoever.\38\
    ---------------------------------------------------------------------------
        \36\ United States v. Park, 421 U.S. 658, 666 (1975).
        \37\ Ibid., p. 672.
        \38\ ``[T]he willfulness or negligence of the actor [will] be
    imputed to him by virtue of his position of responsibility.'' United
    States v. Brittain, 931 F.2d 1413, 1419 (1991); United States v.
    Johnson & Towers, Inc., 741 F.2d 662, 665 n. 3 (1984). See generally
    Joseph G. Block and Nancy A. Voisin, ``The Responsible Corporate
    Officer Doctrine--Can You Go to Jail for What You Don't Know?''
    Environmental Law (Fall 1992).
    ---------------------------------------------------------------------------
        In 1994, Edward Hanousek was employed as a roadmaster for a
    railroad company. In that capacity, Hanousek supervised a rock
    quarrying project near an Alaska river. During rock removal operations,
    a backhoe operator accidentally ruptured a pipeline--and that mistake
    led to an oil spill into the nearby river. Hanousek was prosecuted
    under the Clean Water Act even though he was off duty and at home when
    the accident occurred. The case prompted Justice Clarence Thomas to
    express alarm at the direction of the law: ``I think we should be
    hesitant to expose countless numbers of construction workers and
    contractors to heightened criminal liability for using ordinary devices
    to engage in normal industrial operations.'' \39\
    ---------------------------------------------------------------------------
        \39\ Hanousek v. United States, 528 U.S. 1102 (2000) (Thomas, J.,
    dissenting from the denial of certiorari).
    ---------------------------------------------------------------------------
        Note that vicarious liability has not been confined to the
    commercial regulation context.\40\ Pearlie Rucker was evicted from her
    apartment in a public housing complex because her daughter was involved
    with illicit drugs. To crack down on the drug trade, Congress enacted a
    law that was so strict that tenants could be evicted if one of their
    household members or guests used drugs. The eviction could proceed even
    if the drug activity took place outside the residence. Also under that
    federal law, it did not matter if the tenant was totally unaware of the
    drug activity.\41\
    ---------------------------------------------------------------------------
        \40\ See Susan S. Kuo, ``A Little Privacy, Please: Should We Punish
    Parents for Teenage Sex?'' Kentucky Law Journal 89 (2000): 135.
        \41\ Department of Housing and Urban Development v. Rucker, 535
    U.S. 125 (2002).
    ---------------------------------------------------------------------------
        Vicarious liability laws are unjust and ought to be removed from
    the federal criminal code.
                                 iii. h.r. 1823
        One of the most serious problems with the current code is that
    there is no readily accessible list of federal crimes. Title 18 is a
    collection of criminal statutes, but it is not comprehensive. Scores of
    other federal crimes can be found in the other forty-nine titles of the
    U.S. Code. H.R. 1823 helps to bring some order to the haphazardness by
    grouping offenses into a more rational arrangement and pruning federal
    offenses that are duplicative and unnecessary. However, I do have
    reservations about several aspects of the bill that I will outline
    below.

    A.
             H.R. 1823 does not improve procedural justice for persons
            facing federal criminal prosecution. The bill would retain
            those provisions in federal law that allow for the imposition
            of strict liability and vicarious liability. Further, H.R. 1823
            does not codify the rule of lenity which could ameliorate the
            problem of vagueness in the statutes and regulations.

    B.
             H.R. 1823 does not address the problem of agency rule-making,
            but retains the current arrangement where unelected officials
            can promulgate rules that would carry criminal penalties.

    C.
             H.R. 1823 creates new federal offenses that are problematic.
            Take, for example, the new obstruction provision:

                 Section 1135. Obstruction of Criminal Investigations

                 Whoever, being an officer of a financial institution, with
            the intent to obstruct a judicial proceeding, notifies any
            other person about the existence or contents of a subpoena for
            records of that financial institution, or information that has
            been furnished in response to that subpoena, shall be
            imprisoned not more than 5 years.

    This provision raises several questions, such as whether the financial
    institution may consult with legal counsel with regard to the content
    of the subpoena. The provision would nullify private contractual
    arrangements between customers and their financial institutions. And
    there is a basic issue of free speech here.\42\ Moreover, if this
    provision is considered desirable, will a future Congress extend its
    logic beyond subpoenas to search warrants as well? How will Congress be
    able to exercise oversight when the organizations and persons affected
    cannot come forward freely? For these reasons, this provision should be
    removed.
    ---------------------------------------------------------------------------
        \42\ See Doe v. Ashcroft, 334 F.Supp.2d 471 (2004).

    Another problematic offense concerns the interference with federal
    ---------------------------------------------------------------------------
    employees:

                 Sec. 113. Interference with Federal officers and employees

                 Whoever interferes with any officer or employee of the
            United States or of any agency in any branch of the United
            States Government (including any member of the uniformed
            services) while such officer or employee is engaged in or on
            account of the performance of official duties, or any
            individual assisting such an officer or employee in the
            performance of such duties or on account of that assistance
            while that person is engaged in, or on account of, the
            performance, official duties shall be imprisoned not more than
            one year.

    Again, the sweeping language employed here--undefined
    ``interference''--raises several questions. First, what problem is this
    provision seeking to address? Is it necessary to cover every employee
    of the federal government? If an employee at the Department of Labor is
    suspected of child abuse, for example, can the local child protective
    services people run afoul of this provision because they want to
    interview a reluctant and evasive suspect during work hours? What if
    the ex-spouse of a postal carrier confronts the employee about missing
    another pre-arranged drop-off of a child in a joint-custody situation?
    If the postal employee would rather not be bothered, is the brief
    confrontation a criminal offense? It is far from clear how far federal
    agents will interpret the ``interference'' term. For this reason, this
    provision should be dropped from the bill.

    D.
             Some of the offenses that H.R. 1823 would eliminate ought to
            be retained. Here are three statutes concerning the execution
            of federal warrants.

                 Sec. 2234. Authority exceeded in executing warrant

                 Whoever, in executing a search warrant, willfully exceeds
            his authority or exercises it with unnecessary severity, shall
            be fined under this title or imprisoned not more than one year,
            or both.

                 Sec. 2235. Search warrant procured maliciously

                 Whoever maliciously and without probable cause procures a
            search warrant to be issued and executed, shall be fined under
            this title or imprisoned not more than one year, or both.

                 Sec. 2236. Searches without warrant

                 Whoever, being an officer, agent, or employee of the
            United States or any department or agency thereof, engaged in
            the enforcement of any law of the United States, searches any
            private dwelling used and occupied as such dwelling without a
            warrant directing such search, or maliciously and without
            reasonable cause searches any other building or property
            without a search warrant, shall be fined under this title for a
            first offense; and, for a subsequent offense, shall be fined
            under this title or imprisoned not more than one year, or both.

    Since all three provisions limit the authority of federal agents, there
    is no problem with respect to a constitutional basis for congressional
    authority. And since all three provisions are statutes, there is no
    problem with respect to agency rule-making. These statutes do not
    duplicate state crimes and they advance an important interest--that
    abuses concerning the procurement and execution of warrants are not
    only unprofessional, but criminal.

    E.
             In addition to substantive offense changes and reorganization,
            H.R. 1823 also seeks to make changes to federal sentencing. For
            example, the bill seeks to expand mandatory minimum sentencing
            in some areas while removing fines as a punishment option in
            other areas. These sentencing changes, whatever their
            respective merits may be, make an ambitious endeavor
            unnecessarily complex. Sentencing changes should be considered
            and scrutinized in a separate legislative proposal.

    F.
             As previously noted, the U.S. Code is much too complex for the
            average person to understand. As a result, it is too often a
            trap for innocent persons. H.R. 1823 falls short with respect
            to addressing this serious problem. In fact, wherever the term
            ``willfully'' is replaced by the term ``knowingly,'' the code
            is actually made worse.\43\ Every federal regulation that
            entails conduct that is not intrinsically wrongful should
            include a willfulness element--and, crucially, ``willfulness''
            must be explicitly defined so that it covers both the law and
            the facts. To reinforce that safeguard, federal law should also
            make two defenses available to all defendants in all cases: (1)
            a good faith belief in the legality of one's conduct; and (2)
            an inability to comply with any legal requirement. These
            safeguards exist with respect to our complicated tax code but
            they ought to be expanded to the rest of the U.S. Code as well.
    ---------------------------------------------------------------------------
        \43\ See Brian W. Walsh and Tiffany M. Joslyn, Without Intent
    (April 2010), p. 43, note 77.

                                 iv. conclusion
        The federal criminal code has become so voluminous that it not only
    bewilders the average citizen, but also the most able attorney. Our
    courthouses have become so clogged that there is no longer adequate
    time for trials. And our penitentiaries are now operating beyond their
    design capacity--many are simply overflowing with inmates. These
    developments evince a criminal law that is adrift. To get our federal
    system back ``on track,'' Congress should take the following actions:

              Discard the old maxim that ``ignorance of the law is
            no excuse.'' Given the enormous body of law presently on the
            books, this doctrine no longer makes any sense.

              Minimize the injustice of vaguely written rules by
            restoring traditional legal defenses such as diligence, good-
            faith, and actual knowledge.

              Restore the rule of lenity for criminal cases by
            enacting a statute that will explicitly provide for the
            ``strict construction'' of federal criminal laws.

              Abolish the doctrine of strict criminal liability as
            well as the doctrine of vicarious liability. Those theories of
            criminal liability are inconsistent with the Anglo-American
            tradition and have no place in a free society.

        These reform measures should be only the beginning of a fundamental
    reexamination of the role of the federal government, as well as the
    role of the criminal sanction, in American law.
                                   __________

        Mr. Sensenbrenner. Without objection. Professor Saltzburg.

     TESTIMONY OF STEPHEN SALTZBURG, WALLACE AND BEVERLEY WOODBURY
     UNIVERSITY PROFESSOR, GEORGE WASHINGTON UNIVERSITY SCHOOL OF
                                  LAW

        Mr. Saltzburg. Mr. Chairman, Vice Chairman Gohmert, Ranking
    Member Scott.
        Mr. Sensenbrenner. Could you please push the mike button?
        Mr. Saltzburg. I am pushing it, but----
        Mr. Sensenbrenner. Could we get some of our technical gurus
    to--or Mr. Lynch, why don't you pass your mike over to
    Professor Saltzburg, and that will solve the problem.
        Mr. Saltzburg. Mr. Chairman, Vice Chairman Gohmert, Ranking
    Member Scott and Members of the Committee, I too am very happy
    to be here today. It is a special thrill for me to be here with
    two former Attorneys General whom I served. And I would like to
    say that I think it is a tribute to both of them that they pay
    close attention to issues of justice and come before you and
    speak so wisely based on their experience. And I agree with
    every word they said. And I agree with what Mr. Lynch said. In
    fact, I have testified before Congress many times. And this is
    the only time I can remember where I agree with everybody. And
    therefore, I don't want to repeat what they said, Mr. Chairman.
    What I would like to do is hit some points that I think are
    worth discussing.
        You raised the issue of attempt and conspiracy, inchoate
    crimes. As you are well aware, the Model Penal Code takes one
    view. The States are basically divided in whether you should
    punish those crimes the same as completed offenses. I think
    some careful consideration needs to be given to that issue. It
    is not a simple one. After 200 years, we still have division
    about how best to treat it.
        When it comes to mens rea, I think everyone on this panel
    is thrilled that for one of the rare times Congress is actually
    concerned about whether or not we are convicting people who are
    innocent, people who don't have fair warning about the law. In
    the past, so often in hearings the attempt seems to have been
    made to scare people about crime. And instead of worrying about
    Americans who are prosecuted and whether they are prosecuted
    fairly, the effort was let's just be tough on crime. Now I
    think the Congress is being smart. It is looking at how to have
    a Criminal Code that will be streamlined, accessible, and will
    work. And I think that is one of the reasons we all applaud
    that. When it comes to the choice of mens rea, I think the
    truth is that ``willfully'' or ``knowingly'' are terms that
    can't work across the board. That knowingly is almost as
    construed in as many different ways as willfully is by the
    courts. And I think one of the things that the Committee should
    consider is whatever term you choose, and I recommended for
    serious crimes, the most serious crimes using the Model Penal
    Code purposely or purposefully. And I think that whatever term
    you choose or terms, and you may very well have more than one,
    it is important for you to define that term, and not to leave
    it for the courts to say this is our definition. It is clear,
    and it could be captured then by every Federal court in a
    simple jury instruction, and it would go a long way to
    simplifying Federal criminal law.
        As the Committee goes about taking a look at the Federal
    Code, to me it makes a lot of sense, and I think this was
    mentioned by other speakers, not just to reorganize, but to
    take a hard look at the structure, a hard look at whether or
    not the ranking of offenses is right, whether or not the
    penalty structure remains the same. Because I think we could
    all honestly agree that over decades many Congresses have added
    statutes to the Criminal Code without going back and saying how
    do they compare to others? And in large measure, I think it has
    been left to the Sentencing Commission to try to figure out how
    to organize things in a way that makes sense. But that is a job
    for Congress in the first instance. It is not a job for just a
    Sentencing Commission. I think this is an opportunity to do
    that. And I am not urging any particular ranking at this moment
    or any particular penalty structure. I am just saying that this
    is something that would work well at a time when you are
    looking to reorganize the Code.
        The other thing about this hearing I can't help but remark
    on is, Mr. Chairman, it is one of the rare times where the
    Chair of the Committee has actually said let's have a
    discussion. And I can't tell you how welcome that is to say
    let's talk about this. Let's get good minds together,
    experienced lawyers, and see if we can do something right for
    the American people, see if we can enact a statute or reform a
    code in a way that would make us proud. We have got a lot of
    models out there, not just the Model Penal Code, we have got a
    lot of work done by States. And if we took a careful look, if
    you took a careful look, I think the improvement in the Federal
    Criminal Code could be remarkable. And it is not, as I think we
    can tell, it is not a Democratic issue or Republican issue, it
    is not a liberal or conservative issue, it is an issue about
    fairness, about the structure of American law, about fair
    notice, about fair definitions of crime.
        That is why I think I agree very much with Mr. Conyers.
    This is one of the most exciting hearings that I have had an
    opportunity to participate in. And Mr. Chairman, I think it is
    because you started us down this road of this discussion, and I
    couldn't be happier to be a part of it. Thank you very much for
    having me.
        [The prepared statement of Mr. Saltzburg follows:]

                                   __________
        Mr. Sensenbrenner. Thank you very much, Professor
    Saltzburg. This is the first time I have been praised by a
    witness that has been called by my friends on the minority. So
    we really are off to a good start. I will yield myself 5
    minutes.
        Both General Meese and General Thornburgh have talked about
    the problem of having administrative regulations ending up
    having criminal penalties, and maybe not the criminal penalties
    that would have been thought about had this Committee gone
    through it. In yesterday's Wall Street Journal, they had a
    rather lengthy story, which I won't read, that the headline
    was, ``A Sewage Blunder Earns Engineer a Criminal Record.'' And
    a man named Leonard Lewis was an engineer at a senior citizens
    home, where frequently the residents there flushed adult
    diapers down the toilet. And it was Mr. Lewis' job, basically,
    to unplug the sewage system. And when he did so, he put the
    backed up wastewater into something that he thought would end
    up in the sewage treatment plant, but actually ended up in Rock
    Creek. And the EPA came in and threw the book at him. And he
    ended up getting a $2,500 fine, and he ended up escaping prison
    because he didn't have a criminal record, and told that to the
    judge.
        Now, this is an example of the civil-criminal penalty mix.
    Because he was subject to the same criminal law as somebody who
    knowingly and willingly dumped toxic materials into a navigable
    water of the United States. So I think we have got two problems
    with the penalties for violating administrative regulations,
    one of which is what the criminal penalties are. Because
    obviously there is no proportionality, because Mr. Lewis didn't
    have the mens rea that he was committing a crime. It ended up
    being a strict liability crime. And the other is definitional.
    Now, both of them are difficult to solve. But relatively
    speaking, I think it would be easier to classify crimes for
    administrative regulation violations by this Committee, and
    thus get jurisdiction over them. And maybe that can bootstrap
    us into the definitional ones, where we can look at crimes that
    require mens rea. Which I think unplugging the adult diapers
    from the toilets at the senior citizens residence is one that
    certainly should have a mens rea and those that shouldn't.
        What is your reaction to that and how can we get to it?
    Either General Meese or General Thornburgh.
        Mr. Meese. Mr. Chairman, I think that one of the things
    that I used to teach when I was teaching criminal law, which
    admittedly was over 30 years ago, but at that time I used to
    start off the lecture on mens rea by saying there is no such
    thing--virtually no such thing in the criminal law as strict
    liability. And at that time it was true. This idea of strict
    liability as a part of the criminal law is a relatively recent
    feature, and has been mostly in the kinds of cases that you
    just cited, the environmental field, some of the business
    areas, that sort of thing. And I think it is a very dangerous
    idea to have strict liability where you remove entirely the
    intent of the individual to even commit a crime or to even do
    an act that would be criminal.
        So I read that same Wall Street Journal article, and I
    think it was a graphic example of this problem. And I think
    that the various ideas that have been presented here, including
    the Judiciary Committee review of anything that carries a
    criminal penalty, the review of whether something should be a
    crime or not, there are two other ways at least that can handle
    the situations which are not really criminal in nature, the
    kind of thing you are talking about here.
        One, of course, is civil actions, which are readily
    available to in a sense recompense the community for the damage
    that was done. A second is, of course, some sort of
    administrative sanctions, calling them infractions or whatever
    the situation might be, but where there are several penalties
    of various sorts such as fines or that sort of thing rather
    than the potential for prison. So I think that would be one
    way, but particularly to remove this idea of strict liability
    from the criminal law.
        Mr. Sensenbrenner. Mr. Thornburgh, I have 9 seconds left.
    So anything you want to add to that?
        Mr. Thornburgh. Start the clock, Mr. Chairman. I agree with
    everything that my predecessor and friend and colleague Ed
    Meese said, and incorporate that in my testimony.
        Mr. Sensenbrenner. Okay. Thank you. Without objection, the
    Wall Street Journal article referred to by both General Meese
    and me will be included in the record. The gentleman from
    Virginia, Mr. Scott.
        [The information referred to follows:]

                                   __________
        Mr. Scott. Thank you, Mr. Chairman. Let me follow up on
    that. General Meese, you indicated the need to go through the
    Judiciary Committee because we have expertise on criminal law.
    But we do not have expertise on airline safety, mining safety,
    and food safety. From a procedural point of view, how would we
    coordinate with the other Committees in what should be a crime?
    And if someone knowingly, willfully, or purposefully violates a
    significant health standard, how would that become a crime?
        Mr. Meese. Mr. Scott, I believe the way to do it would be
    through sequential referral. Obviously, the subject matter
    would probably be initiated in the subject matter Committee
    which has jurisdiction over the particular area of human
    conduct. And I would think that then if it was deemed that it
    would be appropriate, or would be suggested by that Committee
    that there be a criminal penalty attached, that then it would
    be referred to the Judiciary Committee. This is often done now
    in various areas where the Congress acts. And I think that
    would be a way of having the benefit of both subject matter
    knowledge of the initial Committee and the overall criminal
    offense knowledge of the Judiciary Committee.
        Mr. Scott. Now, would we have to--every time they change a
    regulation would you have to go through the same process?
        Mr. Meese. Well, one thing I would hope is that if this
    were done there would be a lot fewer individual regulations
    carrying criminal penalties, particularly if the subject matter
    that was discussed with the Chairman were carried through, and
    that a lot of things would not be subject to criminal penalty.
        Mr. Scott. If there was something that was threatening food
    safety, you wouldn't want to have to wait to go through a
    sequential referral on both sides of the Capitol before the
    President could get a bill to protect public safety. A
    regulatory change could go into effect. If you violate the
    regulatory change, you committed a crime.
        Mr. Meese. Well, Mr. Scott, I believe that most of those
    areas are already covered.
        Mr. Scott. That is what we are dealing with.
        Mr. Meese. But if there was an emergency, I would think
    that if there was something that required prompt action, there
    would be general agreement it could go through rather quickly.
    I don't see this as a barrier to quick action in the unusual
    case such as you cite. On the other hand, I think we are
    talking about something pretty serious in sending someone to
    prison, as the article referred to by the Chairman indicates.
    So I think the importance of a criminal penalty really requires
    action by and an informed action by the most expert Committee
    of the Congress that has this total matter of criminal offenses
    within its jurisdiction.
        Mr. Scott. General Thornburgh, do you want to comment on
    that?
        Mr. Thornburgh. I think you really have to look, Mr. Scott,
    at two separate kinds of situations. One is the laws that are
    currently on the books. And I have suggested in my testimony
    that those could be dealt with by removing all criminal
    penalties except in cases where there is a repeat offender, or
    where there is a demonstrated harm, such as you suggest on food
    safety or the like. Prospectively, it seems to me that if you
    have a bill moving through the substantive Committee that
    relates to incorporating a new criminal offense, not a
    regulatory or civil remedy, but a criminal offense, that a
    sequential referral would not only be in order, but would make
    for a much more orderly way to operate. Because that
    relationship between the Committees in question would develop
    and become more or less routine. I don't see it as a delaying
    or burdensome process.
        Mr. Scott. Thank you. On the question of conspiracies and
    attempts being charged with and sentenced the same as a
    completed offense, it seems to me conspiracy, where the
    conspiracy--where people change their minds and do not commit
    an offense, and an attempt which is interrupted by a police
    action where they tried to commit a crime and police stopped
    them are two entirely different situations. How do we deal--is
    there a difference? And should this be statutory, or should the
    sentencing guidelines deal with it through the Sentencing
    Commission?
        Mr. Thornburgh. I would defer to Professor Saltzburg on
    that, because this is a field that he has looked at in great
    detail. My observations would be derivative from what I have
    learned from him.
        Mr. Scott. Thank you. Professor?
        Mr. Saltzburg. I don't think there is an easy answer to
    that. I think that reasonable people could differ. And I think
    one could differ on whether conspiracy and attempt should be
    treated differently as a starting point, as they are in some
    States. But either approach could work. But I think it is
    important for this Committee to take a position on it being one
    or the other.
        Mr. Sensenbrenner. Thank you. The gentleman's time has
    expired. The gentleman from Texas, the Vice-Chairman of the
    Committee, Mr. Gohmert.
        Mr. Gohmert. Thank you, Mr. Chairman. And thank all of you
    for being here, for the work you have done on this issue. And I
    don't know, Professor Saltzburg, I have been here, this is
    finishing 7 years, and I am not sure it is good to say as long
    as this Committee takes a position on it, because I have seen
    some of our positions. But the last 4 years have seen some
    hearings that I will never forget, having people come in here,
    or in one case a man had had strokes in prison where there was
    no mens rea requirements in the offenses so-called. And just to
    see the damage to human life that this Congress has done by
    rushing forward and creating crimes just so that Congress could
    look tough without giving it thought, really reprehensible what
    has been to life.
        So I really appreciate the work you have done. Any time the
    Heritage Foundation and ACLU get together and think something
    is a good idea it does deserve merit. And General Meese,
    General Thornburgh, it is great having you here with your
    expertise. General Meese, your friendship over the last 3 or 4
    years has just really meant so much to me in getting your
    expertise.
        With regard to strict liability, we know that that was
    something that was put in place as a cost shifting mechanism to
    handle damages from accidents. As a policy matter, some in
    power thought it would be good to have the deeper pockets
    responsible, so we just said strict liability. But can anybody
    think of anything that should be a crime, anything at all that
    would be okay to be absent a mens rea, a guilty conscience?
    Anybody think of anything?
        Mr. Meese. I would think the closest we would come to it
    would be something involving the use of a weapon of mass
    destruction, where there is pretty general knowledge that this
    is not a pleasant thing to do. And that is about as close as I
    can come to it. But other than that, I can't see offhand
    anything that would require strict liability in the criminal
    law sense.
        Mr. Gohmert. That is a good point. Mr. Lynch, you had
    mentioned we should follow the Tax Code example. Is
    willfulness, is that used in the Tax Code?
        Mr. Lynch. Yes, sir, it is used in the Tax Code. But what
    is important is that the courts have treated the term
    differently depending on the case and the area of law. With the
    Tax Code we have got precedents in place where the law is now
    clear where willfully is interpreted that it is not only that
    the person knew the legal provision he was violating and he
    knew the facts that were involved. So it applies to both the
    facts and the law. So it is a very tough standard. And that is
    in place for the Federal Tax Code for tax evasion cases. And
    but the willfulness term is interpreted differently in other
    areas of the law. That is why it is important I think for the
    Committee, in bills like this, to define it and to define it
    the same way we have it in the Tax Code.
        Mr. Gohmert. Do you think we need wilful in all cases
    instead of knowing? I mean, having been a judge and chief
    justice, I was always marveling at judges who had trouble
    figuring out what ``knowing'' meant or what ``must'' or
    ``shall'' meant or ``what is'' is.
        But I am not sure if we are talking about murder or rape or
    something of that nature. Do you really need somebody to tell
    you in court that that is a crime, and do you really need the
    possibility of somebody going, oh, you mean I wasn't supposed
    to kill him? Oh, I am sorry, my bad. I didn't know there was a
    law against killing somebody.
        Mr. Lynch. Right, I think what--I will speak for myself,
    but I think what we are driving at from what I have gathered
    from the written testimony of the other witnesses is that we
    are talking about the malum prohibitum area of the law. That is
    where the standards need to be tightened, elevated from knowing
    to willfulness, when it comes to malum--offenses such as
    murder, rape, theft; the common law offenses, willfulness, that
    wouldn't apply in those situations.
        Mr. Gohmert. Thank you. My time runs out. I would ask you
    if you think of anything after the hearing that you think
    really would be okay to allow somebody who was not in Congress,
    some agency, to just come up with some crime, I would like to
    know what it is, because otherwise I think we ought to be
    voting on those.
        Thank you, Mr. Chairman.
        Mr. Sensenbrenner. The gentleman's time has expired. The
    gentleman from Michigan, Mr. Conyers.
        Mr. Conyers. Thank you. Professor Saltzburg and Attorney
    Lynch, where do we go from here? What are your recommendations
    in terms of how we take this proposal and move ahead?
        Mr. Saltzburg. Mr. Conyers, one of the things that I think
    came through from all the witnesses' testimony is none of us, I
    think, is claiming to be familiar intimately with every single
    line of this draft. It is a huge undertaking. And one of the
    possibilities would be for the Committee to decide to take
    pieces of it, to have a hearing on pieces to see whether or not
    the mens rea provision, as applied to, for example, you could
    take the most common crimes that are prosecuted, you could take
    drug crimes, immigration crimes, and you could examine both the
    structure of what is being proposed, the penalty structure, to
    see whether or not the grading of the offenses seems right and
    whether the mens rea provisions seem like they are the right
    ones for those particular statutes.
        And I suspect if you started out with the crimes that were
    prosecuted the most and were comfortable with what you were
    doing, the rest would tend to fall into place pretty nicely.
        Mr. Lynch. I would say that the bill, as it is presently
    drafted, it identifies scores of offenses that are duplicative
    and unnecessary. But, as I said, I think there are some--a few
    simple things that can be done that would greatly strengthen
    the bill.
        Number one, apply this willfulness standard across the
    board for regulatory offenses. Secondly, you can codify the
    rule of lenity so that it applies across the Federal Criminal
    Code, which means where any of these regulations or laws that
    are ambiguous the ambiguity will be resolved in favor of the
    person on trial whose liberty is at stake. That is the way it
    ought to work.
        To reinforce that standard, I think we should also, very
    simply, you can put in a provision that would allow all the
    defendants to be able to have an affirmative defense to say
    that a good-faith belief in the legality of their conduct can
    be pleaded and proved as a defense. That would reinforce, I
    think, the mens rea element.
        It is so disconcerting to read some of this case law where
    a court will look and examine the law and say, well, good faith
    is not relevant here. And that should not be a part of our
    criminal justice system, in my view.
        Mr. Conyers. Let me ask you former Attorneys General about
    corporations being people. I have had trouble with that Supreme
    Court decision, but at the same time I support the notion that
    has been raised in this discussion about corporate criminal
    liability. Can we rationalize these, or maybe Supreme Court
    decisions get changed over the years too, but how do you see
    that this morning?
        Mr. Thornburgh. The doctrine of respondeat superior, of
    course, originally arose on the civil side to impose civil
    liability on corporations for acts of employees within the
    scope of their responsibility. In 1909, it was somehow
    transmitted in the criminal side that creates criminal
    liability for employees for actions taken on behalf of their
    employer.
        I don't think we are wise to recommend that that be
    reversed, but I think that it is important to recognize that
    liability imposed upon the corporation affects not the
    wrongdoers, but the shareholders. And the viability of a
    company, look at the Arthur Andersen case, which, using the now
    discredited theft of honest services theory, destroyed a major
    institution in the American business world. And when the
    Supreme Court reversed it, there was no way to resurrect that
    organization or to reemploy the people who had been thrown out
    of work.
        Mr. Conyers. The harm had been done.
        Mr. Thornburgh. I beg pardon?
        Mr. Conyers. The harm had been done.
        Mr. Thornburgh. Yes, it had. So I think that what we really
    ought to do is take a look at how corporate liability is
    imposed. I would suggest that the observations made and that I
    cited in the Attorneys General guidelines, that corporations
    that have an effective, internal mechanism for dealing with
    wrongdoing, and apply and execute that, should be recognized as
    such. And, similarly, if an employee is a rogue employee,
    proceeding in an illegal, criminal act without any
    authorization or without even a nod to the rules of the
    company, should not impose criminal liability.
        The particulars of that, Congressman Conyers, I would leave
    to the draftsmen, but I think the notion is that it is only in
    the most severe case where liability should be imposed upon the
    corporation.
        Now, that is not going to be a popular cause because people
    think it is a good thing to sock the corporations these days,
    but in this case it has a negative effect that really requires
    a much tighter set of rules.
        Mr. Conyers. Chairman, can I get enough time for General
    Meese to respond?
        Mr. Sensenbrenner. Without objection.
        Mr. Meese. Thank you, Mr. Chairman, Mr. Conyers. I would
    agree entirely with Mr. Thornburgh on what he has said, but I
    also note that one other reason why this should be clarified is
    it can also go the other way, and that is the officers of the
    corporation will give up the corporation and allow it to plead
    guilty so that they can escape punishment themselves. And so
    that, I think, the whole issue should be clarified, remembering
    that a corporation can always be sued civilly in order to
    punish them in the only way that the criminal law could either,
    which is mainly by a large fine, but without the stigma of the
    indictment and the criminal accusation which, as Mr. Thornburgh
    properly points out, can kill a business organization, throwing
    out of work people who have absolutely no culpability
    whatsoever.
        Mr. Conyers. So maybe we should just forget about the
    criminal liability part as applies to corporations?
        Mr. Meese. I would suggest except in the case where the
    whole organization and methods of the corporation is a part of
    the whole corporate operation.
        Mr. Conyers. Thank you.
        Mr. Sensenbrenner. The gentleman from Puerto Rico, Mr.
    Pierluisi.
        Mr. Pierluisi. Thank you, Mr. Chairman, and thank you all
    for appearing.
        In preparing for this hearing, I reviewed what Chief
    Justice Rehnquist had to say back in the 1990's regarding the
    criminal jurisdiction in general, and I noticed that when
    dealing with criminal activity his view was that Federal courts
    should concentrate their efforts in cases involving substantial
    multi-state or international aspects. And another thing he
    mentioned is that also he recognized that Federal courts had a
    role when dealing with complex commercial or institutional
    enterprises.
        Then the thing that comes to my mind immediately when I
    hear this is all these drug cases that we have in Federal
    courts, particularly cases dealing with drug possession, as
    opposed to drug trafficking.
        And I would like to hear from the former AGs their views on
    this, you know, limiting the role of Federal courts to fighting
    drug trafficking as opposed to simple drug possession or drug
    possession. Shouldn't that be left in the hands of the States?
        Mr. Meese. I would think that in general the answer is yes,
    but that we have to also be very careful in looking at the
    statistics, because in most, or I would say many, if not most
    of the drug cases, the possession charge is something that the
    defendant pleads to as a lesser-included offense as a way of
    settling a case, often in plea bargaining. But in cases where
    the only offense is possession, I think that in most cases this
    is properly left to the States.
        Mr. Thornburgh. When I served as a prosecutor and when I
    served as Attorney General, we made a point to go out of our
    way to avoid simple possession cases, only as a means of
    including an exit for someone who wanted to plead guilty rather
    than face the real charges that have been brought against them,
    and that was a way for us, regretfully, to have to handle the
    business because it was substantial.
        But I think under every Attorney General that I have known
    or served with or under, the real concentration is on the
    international aspects and on the trafficking and those who make
    millions, if not billions of dollars out of dealing in these
    illegal substances.
        Mr. Pierluisi. Yes. I do wonder, though, why we have those
    statutes the way they are if we are not really enforcing them.
    But that is another matter.
        Let me then address a question to Professor Saltzburg and
    Mr. Lynch. I, myself, am all for clarity and consistency in
    having the mens rea requirements imposed and so on. And then
    when I see the definition I get, or at least what is being done
    mostly when imposing the willfulness requirement, I see that it
    requires that the act be knowingly, that it be done knowingly.
    And as I view that is that it is voluntary, it is intentional.
        And then it also requires a batting tent or purpose, and a
    side view that it requires that the person at least knows that
    what he or she is doing is wrong, not necessarily that it
    violates section such and such of Title 18.
        Am I reading it well because, you know, and if that is what
    we are about to do I am all for it because we should be
    requiring both things, knowing this, knowingly, a knowing act,
    and also conscious, consciousness of the wrongness involved. Do
    you--would you like to comment?
        Mr. Saltzburg. Yes. In my written testimony I talk about
    that. I think most people would agree that willfully combines
    both.
        Mr. Pierluisi. Okay.
        Mr. Saltzburg. A knowing and a sense that what you are
    doing is violating the law. The knowingly standing alone does
    not always do that and sometimes courts interpret knowingly as
    having a bad purpose, but sometimes they don't.
        Mr. Pierluisi. Okay.
        Mr. Saltzburg. And so it is one of the reasons I said that
    it would be important to have a definition that was clear that
    worked across the board.
        Mr. Lynch. Yes, and the only thing I would add is it
    doesn't mean like--take the tax example, which I keep coming
    back to--is a willful standard, doesn't mean that a tax, that a
    prosecutor would have to prove that the person knew he was
    violating in a specific subsection 4 of the Tax Code. The
    prosecutor would only have to prove that the person knew what
    he was doing was against the law and went ahead anyway. And I
    think that is what you put your finger on, is what the standard
    ought to be.
        Mr. Pierluisi. Mr. Chairman, can I have 15 more seconds,
    unanimous consent for 15 more seconds?
        Mr. Sensenbrenner. Without objection.
        Mr. Pierluisi. Thank you. Just one--I heard you say, Mr.
    Lynch, that you support having the defense of good faith belief
    that the conduct is legal, and I agree with that. But I wonder
    whether Professor Saltzburg also supports that.
        Mr. Saltzburg. Not in all cases. I think it has to be
    carefully--in many cases, I do agree, but I think in some cases
    it would reach unfortunate results.
        Mr. Sensenbrenner. The gentleman's time has expired. The
    gentleman from Florida, Mr. Deutch.
        Mr. Deutch. Thank you. Thank you, Mr. Chairman.
        I have some concerns about the section of H.R. 1823 as they
    apply to immigrants and in particular section 319.
        It is my understanding that under current law a person who
    improperly enters or attempts to enter the U.S. can be fined or
    imprisoned for up to 6 months or both. This bill seems to end
    judicial discretion in this area of the law. Judges would no
    longer have discretion to impose a fine and, as I read the
    section, this would require judges to impose, as I understand
    it, this would require judges to actually impose a prison
    sentence.
        I would like to understand, first, a sense from the panel,
    and I think, in particular, General Meese and Governor
    Thornburgh, your thoughts on this provision in particular, by
    removing the judicial discretion to impose fines I am concerned
    they were not only potentially exposing permanent resident
    immigrants who forget to travel with their papers when crossing
    the border to possible prison time, but hundreds of thousands
    of people who entered illegally in the past, which, if I
    understand this correctly, would be subject to 6 months
    immediately.
        Am I reading that correctly? Is that your interpretation of
    this?
        Mr. Thornburgh. First of all, I have to compliment the
    Member on doing what I haven't done, and that is to read every
    section of this in search of these issues.
        And I think what you have to incorporate into your query is
    the previous discussion that we've had with regard to the
    nature of a criminal offense. You refer to someone who forgot
    to take their papers with them when they are traveling. I don't
    think that would qualify as a criminal offense under the types
    of standards that we are talking about. The mens rea
    requirement would not be present.
        On the other, the matter of discretion, I would have to
    defer to others who may have given the kind of scrutiny you
    have given to this section that I haven't frankly.
        Mr. Deutch. General Meese, I am not sure if you have.
        Mr. Meese. Yes. I would suggest that for any offense or at
    least virtually any offense, certainly offenses of this nature,
    that fines and probation would be available to a judge. I think
    that a judge, certainly, on all first offenses, with perhaps a
    few exceptions of very serious crimes, the judges need as much
    discretion as possible and so I would say taking away the fine
    aspect of it would probably not be in the best interests.
        Mr. Deutch. Professor Saltzburg, do you have the same
    concern I do?
        Mr. Saltzburg. I do, and it is a concern in a number of
    provisions of the statute where under current law the judge has
    a choice, it is a fine, imprisonment or both. And it is not
    clear to me whether in the bill there is going to be a specific
    separate section on fines that authorizes them to be imposed.
    But right now the concern that you raise is a valid one. If you
    eliminate or find, you appear to be changing the law, changing
    sentencing and removing discretion that is now there, that
    seems to have worked pretty well.
        Mr. Deutch. And, in fact, again, as I understand as I read
    this, anyone who is in this country having come here illegally,
    as defined by the statute, would be subject to an immediate
    prison sentence of 6 months, that would include--that would
    draw no distinction between someone who snuck in across the
    border last week----
        Mr. Sensenbrenner. Will the gentleman yield?
        Mr. Deutch. I will, Mr. Chairman.
        Mr. Sensenbrenner. You know, I can say that in terms of how
    we intended to draft this legislation it would be to allow the
    judge to impose a fine and probation in lieu of a prison term.
    And if we need to correct that before we move forward in the
    bill, we will do that.
        Mr. Deutch. I appreciate that, Mr. Chairman. And in
    reclaiming my time, my concern clearly is that as we have this
    broader immigration debate in our country, what this provision
    in the bill seems to say is that for the 11 million or so
    people who are here, having come under a variety of
    circumstances, that every one of them would be subject to an
    immediate 6-months prison term that, in fact, that would
    include----
        Mr. Sensenbrenner. If the gentleman will yield further,
    that is not the intent of the drafting of the bill.
        Mr. Deutch. Then I, in which case, I thank the Chairman and
    look forward to making that clarification so that there is a
    recognition in this proposed statute in this bill that there
    are differences and that, for example, the valedictorian I
    recently met with from a local college, who would be subject to
    6 months imprisonment immediately under this bill, that we
    would make amends so that there is some difference in the way
    that we treat individuals and that, in fact, we treat them as
    individuals, and I thank the Chairman and I will look forward
    to working with you.
        Mr. Sensenbrenner. The gentleman's time has expired. All
    Members who are present have had a chance to ask questions, and
    I would like to thank our witnesses, thank the Members who have
    attended.
        General Thornburgh.
        Mr. Thornburgh. If I might offer a suggestion, Mr.
    Chairman, I received in the mail yesterday from the American
    Law Institute, of which I am a member, a letter from its
    directors setting forth what their new projects are that are
    being undertaken and encouraging members to come forward with
    other new projects. Absent from that list was any discussion of
    the kind of effort that you have embarked upon, and I would
    suggest that you or staff be in touch with the ALI, which as
    you know, drafted the original model penal codes and enlist
    their services in reviewing this from a technical point of view
    and I think it would be a useful thing to do and help to raise
    the profile of your efforts.
        Mr. Sensenbrenner. A very good suggestion. Thank you for
    giving it to us.
        I would like to thank our witnesses for their testimony
    today.
        Without objection, all Members will have 5 legislative days
    to submit to the Chair additional written questions for the
    witnesses, which we will forward, and ask them to respond as
    promptly as they can so that their answers may be made a part
    of the record.
        Also, without objection, all Members will have 5
    legislative days to submit any additional materials for
    inclusion in the record.
        With that, again, I thank the witnesses, and, without
    objection, this hearing is adjourned.
        [Whereupon, at 11:21 a.m., the Subcommittee was adjourned.]

                                A P P E N D I X

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                   Material Submitted for the Hearing Record