[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.]




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