[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
CRIMINAL CODE MODERNIZATION AND SIMPLIFICATION ACT OF 2011
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
ON
H.R. 1823
__________
DECEMBER 13, 2011
__________
Serial No. 112-81
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
_____
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COMMITTEE ON THE JUDICIARY
LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TIM GRIFFIN, Arkansas LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania JARED POLIS, Colorado
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada
Sean McLaughlin, Majority Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
LOUIE GOHMERT, Texas, Vice-Chairman
BOB GOODLATTE, Virginia ROBERT C. ``BOBBY'' SCOTT,
DANIEL E. LUNGREN, California Virginia
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
TED POE, Texas HENRY C. ``HANK'' JOHNSON, Jr.,
JASON CHAFFETZ, Utah Georgia
TIM GRIFFIN, Arkansas PEDRO R. PIERLUISI, Puerto Rico
TOM MARINO, Pennsylvania JUDY CHU, California
TREY GOWDY, South Carolina TED DEUTCH, Florida
SANDY ADAMS, Florida SHEILA JACKSON LEE, Texas
MARK AMODEI, Nevada MIKE QUIGLEY, Illinois
JARED POLIS, Colorado
Caroline Lynch, Chief Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
----------
DECEMBER 13, 2011
Page
OPENING STATEMENTS
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Chairman,
Subcommittee on Crime, Terrorism, and Homeland Security........ 1
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, and Homeland Security........ 3
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 4
WITNESSES
The Honorable Edwin Meese, III, Ronald Reagan Distinguished
Fellow in Public Policy, Chairman of the Center for Legal and
Judicial Studies, The Heritage Foundation
Oral Testimony................................................. 8
Prepared Statement............................................. 10
The Honorable Dick Thornburgh, Counsel, K&L Gates LLP
Oral Testimony................................................. 28
Prepared Statement............................................. 29
Tim Lynch, Director, Project on Criminal Justice, CATO Institute
Oral Testimony................................................. 33
Prepared Statement............................................. 35
Stephen Saltzburg, Wallace and Beverley Woodbury University
Professor, George Washington University School of Law
Oral Testimony................................................. 43
Prepared Statement............................................. 45
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 5
Wall Street Journal article, ``A Sewage Blunder Earns Engineer a
Criminal Record,'' by Gary Fields and John R. Emshwiller....... 60
APPENDIX
Material Submitted for the Hearing Record
Letter from the American Civil Liberties Union (ACLU) to the
Subcommittee on Crime, Terrorism, and Homeland Security........ 79
Section-by-Section of H.R. 1823, the ``Criminal Code
Modernization and Simplification Act of 2011''................. 83
CRIMINAL CODE MODERNIZATION AND SIMPLIFICATION ACT OF 2011
----------
TUESDAY, DECEMBER 13, 2011
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 10 a.m., in room
2141, Rayburn House Office Building, the Honorable F. James
Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding.
Present: Representatives Sensenbrenner, Gohmert, Goodlatte,
Chaffetz, Scott, Conyers, Pierluisi, Chu, and Deutch.
Also Present: Representative Quigley.
Staff Present: (Majority) Caroline Lynch, Subcommittee
Chief Counsel; Sam Ramer, Counsel; Lindsay Hamilton, Clerk;
(Minority) Perry Apelbaum, Minority Staff Director and Chief
Counsel; Bobby Vassar, Subcommittee Chief Counsel; Ron LeGrand,
Counsel; and Veronica Eligan, Professional Staff Member.
Mr. Sensenbrenner. The Committee will come to order. Today
we will have a hearing on H.R. 1823, the ``Criminal Code
Modernization and Simplification Act of 2011.'' I would like to
welcome our witnesses today and thank them for coming, and also
thank the Ranking Member, the gentleman from Virginia, Mr.
Scott.
Today's hearing continues the Subcommittee's bipartisan
review of overcriminalization and overfederalization that began
last Congress. Hearings convened in the last Congress by my
colleague, Mr. Scott, resurrected important policy discussions
that had been dormant for over 2 decades about the breadth and
scope of Federal criminal law. Today, the Subcommittee will
examine legislation I have sponsored in this Congress and the
preceding three Congresses to reform the Federal Criminal Code.
There are an estimated 4,500 Federal crimes in the U.S.
Code today. According to a study by the Heritage Foundation,
over the last 3 decades Congress has been averaging 500 new
crimes per decade. It has been over 50 years since the Criminal
Code was last revised. The existing Criminal Code is riddled
with provisions that are either outdated or simply inconsistent
with more recent modifications to reflect today's modern
approach to criminal law.
H.R. 1823, the ``Criminal Code Modernization and
Simplification Act of 2011,'' reforms and codifies Title 18 of
the U.S. Code. This is not a frivolous exercise. As my
colleagues and our witnesses know, this effort to reform the
Federal Criminal Code has resulted in a bill that exceeds 1,200
pages in length. And this bill encompasses only part 1 of Title
18. If nothing else, the sheer volume of this bill brings into
specific focus the breadth of the Criminal Code and the need to
reform it.
Federal prosecutions constitute less than 10 percent of all
criminal prosecutions nationwide. Congress must ensure that the
Federal role in criminal prosecutions is properly limited to
offenses within Federal jurisdiction and within the scope of
constitutionally delegated Federal powers.
Through the years, the Criminal Code has grown more and
more, with more and more criminal provisions, some of which are
antiquated or redundant, some of which are poorly drafted, and
some of which have not been used in the last 30 years, and some
of which are unnecessary since the crime is already covered by
other existing criminal provisions. The bill cuts more than a
third of the existing Criminal Code, reorganizes it to make it
more user friendly, and consolidates criminal offenses from
other titles, in particular drug crimes from Title 21, and
immigration crimes from Title 8, so that Title 18 includes all
major criminal provisions.
The bill applies several drafting principles. First, it
reorganizes the chapters to streamline the code and make it
more user friendly for attorneys, judges, and Congress. In
doing so, the bill joins similar offenses together within one
chapter.
Additionally, in reviewing the code, there were instances
where the same terms were defined differently. In most cases,
there was no evident policy basis for the different
definitions. To eliminate this problem, a common set of
definitions is established in the first section of the revised
Code.
The bill makes two broad changes to bring greater
uniformity to the Code. First, it creates a general attempt
statute and a general conspiracy statute that punish these
offenses in the same manner as a completed offense unless
otherwise provided for in the Code. Legal scholars may dispute
whether inchoate crimes should be punished to the same degree
as completed offenses, but the Model Penal Code instructs that,
quote, ``The objective of the criminal law would not be
sufficiently served if the only action which could be taken
against an attempt were an on the spot prevention of the crime
on that particular occasion, for an attempt yields an
indication that the actor is disposed toward such activity, not
alone on this occasion, but on others,'' unquote.
Although other legislative bodies may choose to assign a
lower punishment for attempts or conspiracies, Congress now
routinely includes these offenses in new or amended criminal
provisions. H.R. 1823 merely codifies what is now commonplace
in modern day criminal Federal drafting, and uniformly applies
it to all offenses in the revised Code.
The bill also seeks to bring uniformity to the Code by
adopting a straightforward approach to the mens rea
requirement. Where possible, the term ``knowingly'' is used to
define the requisite intent for every crime except those
criminal offenses that require some additional and more
specific intent.
I believe that all proponents of overcriminalization reform
support the proper use of mens rea and the need to expressly
articulate it within the Code. Some may disagree, however, on
which mens rea is appropriate, urging the use of a willful
standard in place of knowingly. The bill preserves the willful
standard for a number of offenses in Title 18 that can be
characterized as regulatory. But to quote Judge Learned Hand,
who criticized the use of the term ``willful,'' ``It is an
awful word. It is one of the most troublesome words in the
statute that I know. If I were to have the index purged,
'willful' would lead all the rest in spite of its being at the
end of the alphabet.'' Although a willful standard may have its
place in certain offenses, particularly regulatory ones, where
specific knowledge of the law should be proven, such a
requirement should not extend to all offenses, especially malum
in se offenses.
Again, as with the general attempt and conspiracy statutes,
the bill's use of knowingly mens rea reflects modern day
drafting practices, and brings a greater uniformity to a code
riddled with a wide range of mens rea, or in some instances no
articulated mens rea at all.
I wish to welcome our witnesses today, and thank you for
participating in the hearing. I appreciate your comments and
suggestions on the bill, and look forward to continuing the
dialogue on Criminal Code modernization. It is now my pleasure
to recognize for his opening statement the Ranking Member of
the Subcommittee, the gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman. I am pleased to join
you for this hearing, and appreciate your interest in
modernizing and simplifying the Federal Criminal Code. By
introducing this bill, you have inspired continuing dialogue
about the Criminal Code and the process for improving and
revising it. Moving all Federal crimes into one title, Title 18
of the U.S. Code, makes tremendous sense. It organizes groups
of crimes by category, and it enables judges, practitioners,
and everybody else to more easily locate criminal statutes. The
process of identifying and grouping crime statutes would also
enable us to identify and eliminate redundancies, and also
address conflicting or inconsistent statutes.
Mr. Chairman, I appreciate the steps you have taken in H.R.
1823 to clarify and remove inconsistencies in the mens rea
requirement needed to hold someone criminally liable. I hope a
significant focus is placed on this issue, particularly the
idea of strict criminal liability and the effect that the
nuanced difference between knowingly and willingly has.
As we reorganize the Federal Code, I also hope we will take
the opportunity to address overfederalization by reducing the
role and breadth of the Federal Government in crime,
particularly in the prosecution of ordinary street crime, which
should be prosecuted in State courts, and other crimes which do
not seem to need a Federal response even though they may
technically fall within Federal jurisdiction.
The task presented by H.R. 1823 is an enormous undertaking,
and I look forward to working with you. The Code has grown
dramatically since it was last recodified about 50 years ago.
Some significant house cleaning and purging is obviously in
order. There are statutes that are redundant, and some that
never should have been enacted in the first place. It is also
time to eliminate those provisions which have not been enforced
or utilized by prosecutors for years. Doing it right and
effectively will require a major commitment of time and must
involve participation and input not only from members of both
parties in the House and the Senate, but also a diverse
gathering of other interested parties, including, but not
limited to judges, criminal law professors, prosecutors and
defense counsel, the Federal law enforcement community, and
representatives of the judiciary and U.S. Sentencing Commission
and other interested officials.
Major recodification will be difficult, but it will
obviously become impossible if we have to concurrently debate
substantive changes in the law. I therefore thank you for your
policy decision that there be no policy--that the changes will
be policy neutral unless there is a clear consensus on changes.
With the issue of, as you have indicated, attempts and
conspiracies, I think this, we will have to look to see if this
complies with that policy decision, because I think there may
be some difference between two people who, on the way to
robbing a bank decide it is not a good idea, turn around and go
home; whether they should be punished the same as two people
who go and actually rob the bank. But there are a number of
other concerns with the bill, many of which I expect our
witnesses to address.
But again, I appreciate your efforts to bring this issue
before the Committee for discussion, Mr. Chairman. I am also
pleased that you have a distinguished list of witnesses, all of
whom have testified before on the issue of overcriminalization
of conduct and overfederalization of criminal law. So I look
forward to their testimony and look forward to working with you
as we deal with this issue.
Mr. Sensenbrenner. Thank you. The Chairman emeritus of the
full Committee, the gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Chairman Sensenbrenner. This is an
important hearing. I want to compare it with what I consider to
be some of the most important issues the Judiciary has tackled
in recent years, copyright reform, patent reform, and voter
rights revision, which at least one, maybe two of these
occurred during your chairmanship, Chairman Sensenbrenner. And
that is why I was enthusiastically supporting your picture to
be added to the walls of the House Judiciary Committee. Now I
hope you will return the favor next year.
But the importance of those three items now almost seem
small compared to the enormity of the task we are called upon
to discuss today. And I am glad the Attorney General is here.
We welcome him, and all the witnesses. And I think that the
whole notion of putting the crimes under Title 18 is something
that we ought to deal with today. We ought to get rid of the
old myth that you are presumed to know the law. We have--how
many agencies did you say--464 agencies who are writing the
criminal law. I mean the whole idea that this is all going on
without ever coming through either legislative body, especially
not the Judiciary Committee of each House, which has the
jurisdiction over the Criminal Code. And so this presumption,
with exactly 4,450 Federal crimes that now exist, makes the
mens rea requirement--well, sometimes they don't even require a
mens rea requirement, they don't even need that.
And so I would like to add to the Chairman and the Ranking
Member's excellent discussion introducing this subject. Why
don't we consider ``purposefully'' as a compromise between
willfully and knowingly, both of which have been stretched out
of recognition and real usefulness?
And so I think that this idea of modernizing and reforming
the Federal Criminal Code is one that is going to go well into
next year. Maybe it can't even be done in the 112th Congress.
It is very important. And I support this fact, and I am very
pleased with the witnesses that have been invited today. To
have Meese and Thornburgh here with us I think reflects very
significantly upon their activities and their continued concern
about what and how we can make the law, the actual operation of
the law fit with the constitutional descriptions of what a
democratic society is all about.
I will put the rest of my statement in the record.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
For the past several decades, Congress has decided that the answer
to most every problem is to create a new federal crime with stiff
penalties.
I believe all agree that the Criminal Code is long-overdue to be
modernized. Recodifying the Criminal Code and bringing all federal
criminal laws into Title 18 makes sense. As we go about this task,
however, we must make sure our actions clarify and address the Code's
current shortcomings, without creating new problems and expanding
prosecutorial discretion.
To begin with, the sheer volume of federal crimes is out of
control. We now have more than 4,450 federal crimes--many of which lack
any mens rea requirement. Not surprisingly, our Nation has the highest
incarceration rate in the world.
While we're at it, let's also remember that there are an estimated
300,000 federal regulations that impose criminal penalties. This is the
perfect opportunity to address and end the shift from Congressional
responsibility to delegated Agency power.
Worse yet, the number and severity of these criminal punishments
has grown over the years.
I believe any discussion of reform must also address sentencing and
mandatary minimums which I am not sure has happened in this current
bill.
But to get back to the point, no longer are regulations merely
civil offenses with monetary penalties, but many regulatory infractions
constitute felony crimes with significant prison exposure.
It should be noted that these regulations were neither subjected to
scrutiny by this Committee nor any other Congressional committee.
Rather, they were promulgated by unelected officials at various federal
agencies.
Because of the fundamental rights implicated, criminal penalties
should not be within the ambit of the Executive Branch.
And, given the incredibly vast number of regulatory crimes, it is
absolutely unfair and unreasonable to adhere to the maxim that
``ignorance of the law is no defense.''
Who could possibly know about every single one of these provisions?
Second, these problematic trends in criminal law have been well-
documented by our Committee. In prior Congresses, the Crime
Subcommittee has conducted several hearings on the over-criminalization
of conduct and the over-federalization of criminal law.
At these hearings, we received testimony documenting the rapid
growth of actions penalized under the Federal Criminal Code and federal
regulations.
Witnesses testified at these hearings that many of the 4,450
federal criminal offenses are poorly defined and lack the common law
requirement of mens rea, or ``guilty mind'' that has long served an
important role in ensuring that those who lacked intent would not be
subject to criminal prosecution.
This is also true of the 300,000 federal regulations that impose
criminal penalties.
We must stop passing laws that do not require a mens rea, but we
also must be careful in not weakening a standard to open wide
prosecutorial discretion.
I have concerns about this bill. I am concerned that eliminating
the ``willful'' mens rea requirement, and applying a standard
``knowing'' intent may further increase incarceration rates. I am
concerned about the proposal to expand both attempt and conspiracy, and
apply them to every federal crime, rather than having them specifically
mandated by Congress on the current statute-by-statute basis. To make
matters worse, conviction under either of these proposed provisions
would result in the same punishment as the completed offense. I also
have concerns about any provisions that eliminate fines as a sentencing
alternative.
Which brings me to my final point. Today's hearing on H.R. 1823,
the ``Criminal Code Modernization and Simplification Act of 2011,''
provides an opportunity for us to examine how we should best fashion a
solution to this serious problem.
Indeed, the very length of this bill reflects the enormity of the
challenge.
Our analysis, however, requires a prudent process hopefully
conducted in a policy-neutral manner.
To that end, we will need to form a working group involving input
from my colleagues from both parties in the House and the Senate, as
well as a broad spectrum of experts, including representatives from the
prosecutorial and defense bars, law professors, members of the
judiciary, the ACLU, the ABA, the Heritage Foundation, the National
Association of Criminal Defense Lawyers, CATO, the Sentencing
Commission, and the Federalist Society, among others.
All of these groups already agree that the Federal Criminal Code is
seriously in need of updating. All have agreed that over-
criminalization and over-federalization are serious problems that need
to be addressed. Their participation and input in the revising,
reorganization, and recodification of the Criminal Code is essential if
we are to be successful.
So let's all roll up our sleeves, bring in the experts, and get
this job done.
As a first step, and as I mentioned previously, we need to consider
the intent standard under H.R. 1823 that appears to replace
``willfully'' with ``knowingly.''
I have grave concerns that changing this standard is not as simple
as replacing the word. We need experts to determine the following
issues:
Does this have the effect of weakening the mens rea
elements for many crimes?
If so, does it increase the possibility that some
defendant will be convicted who would not be convicted under
current law?
Does the term ``knowingly'' provide greater clarity,
or is it also subject to varied interpretations?
Accordingly, I appreciate my colleague's desire to address a long
overdue opportunity to reform. I very much look forward to discussing
these issues with our witnesses today, and I recommend that more
hearings be held in order to have a more in-depth examination of the
points I have mentioned as well as other issues.
__________
Mr. Sensenbrenner. Without objection. And without
objection, other Members' opening statements will be made a
part of the record. Also, and without objection, the Chair will
be authorized to declare recesses during votes on the House
floor.
It is now my pleasure to introduce today's witnesses. Edwin
Meese, III, holds the Ronald Reagan Chair in Public Policy at
the Heritage Foundation. He is also the Chairman of the
Heritage Center for Legal and Judicial Studies, and a
Distinguished Visiting Fellow at the Hoover Institution at
Stanford. Mr. Meese served as the 75th Attorney General of the
United States from February 1985 to August 1988. January 1981
to February 1985, Mr. Meese held the position of counselor to
the President, where he functioned as the President's Chief
Policy Adviser. He also served as Chairman of the Domestic
Policy Council and of the National Drug Policy Board. From 1977
to 1981, Mr. Meese was a Professor of Law at the University of
San Diego, where he was also Director of the Center for
Criminal Justice Policy and Management. He served as Governor
Reagan's Executive Assistant and Chief of Staff in California
from 1969 through 1974, and as Legal Affairs Secretary from
1967 through 1968. Before joining Governor Reagan's staff in
1967, he served as a Deputy District Attorney in Alameda
County, California. He graduated from Yale University in 1953,
and holds a law degree from the University of California at
Berkeley, and is a retired colonel in the Army Reserve.
The Honorable Dick Thornburgh is Counsel to the
international law firm of K&L Gates, LLP, in Washington.
Previously, he served as Under Secretary General at the United
Nations from 1992 to 1993. He served as the 76th Attorney
General of the United States from 1988 to 1991 in the Cabinets
of Presidents Reagan and George H.W. Bush. Mr. Thornburgh
served as Director of the Institute of Politics at the John F.
Kennedy School of Government from 1987 to 1988. And previously,
he was elected twice as Governor of Pennsylvania, and was Chair
of the Republican Governors Association. He served as U.S.
Attorney in Pittsburgh from 1969 through 1975, and as Assistant
Attorney General in charge of the Criminal Division from 1975
through 1977. He received a bachelor's degree in engineering
from Yale in 1954, and an LLB from the University of Pittsburgh
Law School in 1957.
Mr. Tim Lynch is currently the Director of the Project on
Criminal Justice at the Cato Institute. He has been with Cato
since 1991. In 2000, he served on the National Committee to
Prevent Wrongful Executions. He has filed several amicus briefs
in the U.S. Supreme Court in cases involving constitutional
rights. He is the Editor of In the Name of Justice: Leading
Experts Reexamine the Classic Article ``The Aims of Criminal
Law,'' and After Prohibition: An Adult Approach to Drug
Policies in the 21st Century. He earned his bachelor of arts
and doctor from Marquette University.
Steven Saltzburg is currently a Wallace and Beverly
Woodbury University Professor of Law, and co-director at the
Litigation and Dispute Resolution Program at George Washington
University School of Law. He joined GW Law in 1990. Before
that, he taught at the University of Virginia Law School. In
1996, he founded and directed the masters program in litigation
and dispute resolution at GW. The Chief Justice of the United
States appointed him as reporter for, and then a member of, the
Advisory Committee on the Federal Rules of Criminal Procedure,
and as a member of the Advisory Committee on the Federal Rules
of Evidence. Professor Saltzburg has had a variety of
governmental positions, including Associate Independent Counsel
in the Iran-Contra investigation, Deputy Assistant Attorney
General in the Criminal Division of the U.S. Department of
Justice, the Attorney General's ex officio representative on
the U.S. Sentencing Commission, and Director of the U.S.
Treasury Department's Tax Refund Fraud Task Force. He received
his bachelor degree from Dickinson College, and his juris
doctor from the University of Pennsylvania.
All of the witnesses' statements will be entered into the
record in their entirety. I ask that each witness summarize his
or her testimony in 5 minutes or less. And we do have the
lights in front of you to advise you how fast the clock is
ticking. I will first recognize Mr. Meese for 5 minutes, and
welcome.
TESTIMONY OF THE HONORABLE EDWIN MEESE, III, RONALD REAGAN
DISTINGUISHED FELLOW IN PUBLIC POLICY, CHAIRMAN OF THE CENTER
FOR LEGAL AND JUDICIAL STUDIES, THE HERITAGE FOUNDATION
Mr. Meese. Thank you, Mr. Chairman, Ranking Member Scott,
Vice Chairman Gohmert, Members of the Committee. Thank you for
the opportunity to appear before you and to comment on what has
already been described accurately as a very important task
which this Subcommittee has undertaken. I certainly commend you
for this effort, which I think will benefit all those that are
involved in the criminal justice system and the Federal system,
as well as in the States, in view of some of the
recommendations that have already been discussed by the
Chairman, and I am sure many of us will concur, and that is to
separate the Federal responsibilities and criminal prosecutions
and investigations from those which are carried on very
successfully by State and local governments.
It may be of interest to the Committee to note that this is
a task that has been ongoing over many years. In cleaning out
my basement a week ago, I happened to come across the Committee
report from the late 1970's, when a commission under then-
former Governor Pat Brown of California, chaired a commission
in which they put together a volume of equal size to what is
before the Committee today. Unfortunately, those efforts
lapsed, and I think that this Subcommittee picking them up will
make a very real contribution.
Let me first of all say that I think we have to look at the
objectives of any revision of criminal laws. One of them, of
course, is, as has just been suggested by the Chairman, to
streamline the Code itself. Second, we would I think agree,
should be increased visibility, fair warning to people of what
it is that they could be in jeopardy of by certain types of
behavior. And thirdly, as Mr. Scott has already in his
chairmanship worked very hard on, and that is decreasing
overcriminalization, reducing the Criminal Code to those types
of behavior which actually are offenses against the public
safety.
Four major areas are included in my written testimony, and
I will comment briefly on each of them. Many of them have
already been discussed by the Chairman in his opening remarks.
But the first is to consolidate criminal laws, all the
Federal criminal laws into Title 18. It is important that these
laws be readily available so that people know, as I mentioned
earlier, what it is that is prohibited. And it would certainly
be a great service.
It also would have one other added feature that I think is
important, and that is that because of the jurisdiction of this
Committee and the Judiciary Committee generally, it would mean
that all laws carrying a criminal penalty would be subject to
review by the Judiciary Committees of the two Houses. And this
would mean that the expertise that is represented by both the
Committee Members and its staff would be brought to bear on
whether a particular subject matter should be subject to
criminal penalties, and secondly, which would have a force, I
believe, in making the penalties more proportionate and
coordinated in their severity. So I think that would be an
added benefit beside having all the laws in one place.
A second aspect is that there are, as has been pointed out,
too many redundant, superfluous, and unnecessary criminal laws.
Mr. Conyers mentioned 4,500 statutes, I believe, criminal
statutes. This is in addition to over 300,000 other regulations
that don't appear in the Federal codes but which nevertheless
carry essentially criminal penalties, including imprisonment.
So the vast array of traps for the unwary, you might say, that
lurk out there in the Federal criminal law is more extensive
than I think most people realize.
The third point is that it is important therefore that
administrative agencies not be allowed to issue regulations
that subject individuals to criminal penalties. If something is
important to send a person to prison, the Congress itself
should actually enact that as a statute.
And finally, as the Chairman mentioned, mens rea is a
necessary revision to make sure that all laws carrying criminal
penalties properly include the mental element that has been
traditionally required of crime, and that is the so-called
guilty mind, or mens rea. And that should be set forth in a way
that clearly identifies willfully or purposefully, whatever the
phrase is, but it ought to be defined as meaning that the
person definitely intended to commit the crime and to violate
the law.
Mr. Chairman, those are a brief summary of my suggestions.
I think one thing the Committee will notice, each of us
prepared our testimony separately. But when we exchanged them
last night, there was a remarkable similarity which I think you
will find as the other people testify this morning.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Meese follows:]
__________
Mr. Sensenbrenner. Thank you, General Meese. Well, I guess
we must be starting out on the right track.
Mr. Thornburgh.
TESTIMONY OF THE HONORABLE DICK THORNBURGH, COUNSEL, K&L GATES
LLP
Mr. Thornburgh. Thank you, Mr. Chairman, Ranking Member
Scott, other Members of the Subcommittee here present. I want
to disclaim any conspiracy on the part of the four witnesses
here. I remember in the antitrust law there was a theory known
as conscious parallelism. It was ultimately held not to be
violative of the antitrust laws, and I think that is what you
are looking at here.
I appreciate the chance to appear before this Subcommittee
this morning. I have not reviewed all 1,200 pages of H.R. 1823
line by line, but I would like to highlight today the
phenomenon of overcriminalization, and to suggest that any
reform legislation address solutions to the problems that this
phenomenon has engendered. It may seem odd to some for me, as a
former prosecutor, to focus on the perils of
overcriminalization. We live in a time where concern remains
high in our society about the problem of crime in general, and
corporate crime in particular. But considerable misgiving about
overcriminalization and the threat it poses to established
institutions and ways of life have brought together a number of
disparate public advocacy groups to deal with this problem and
ensure that we have criminal statutes that punish actual
criminal acts and do not seek to criminalize conduct that is
better dealt with by the seeking of civil or regulatory
remedies.
I have served on both sides of the aisle in criminal cases
during my career, as a Federal prosecutor for many years, and
most recently as a defense attorney involved in proceedings
adverse to the U.S. Department of Justice. This I think
balances my view of the issues that we are talking about today.
I want to move from my prepared statement into the suggestions
that I offer to you as steps to curb abuses in the area of
overcriminalization. I have both long and short term
suggestions.
First, I have advocated for many years that we adopt a true
Federal Criminal Code. And I commend you, Mr. Chairman and your
colleagues, for taking this issue up. While this may not be the
first thing that comes to mind when people analyze issues of
concern in the criminal justice system, it is an important one
that should be undertaken without delay. The some 4,450 or more
separate criminal offenses are a hodgepodge scattered
throughout 50 different titles of the United States Code,
without any coherent sense of organization. One commentator
noted our failure to have in place even a modestly coherent
code makes a mockery of the United States' much vaunted
commitment to justice, the rule of law, and human rights.
This is not a new idea, of course. Congress did try nobly
in the past to reform the Federal Criminal Code, most notably
through the efforts of the Brown Commission, as noted, in the
1970's. I was Assistant Attorney General in charge of the
Department of Justice Criminal Division at the time, and I well
remember the disappointment felt among department leadership
over the inability to focus the attention of legislative
leaders on this important issue. And thus, it has been ever
since until you have taken up this cause.
Second, Congress needs to rein in the continuing
proliferation of criminal regulatory offenses. Regulatory
agencies routinely if not automatically promulgate rules
imposing criminal penalties that have not been enacted by the
Congress. Indeed, criminalization of new regulatory provisions
has become seemingly mechanical. One estimate is there may be a
staggering 300,000 criminal regulatory offenses created by U.S.
Government agencies. This tendency, as pointed out, together
with the lack of any congressional requirement that legislation
pass through the Judiciary Committees, has led to an evolution
of a whole new and troublesome catalogue of so-called criminal
offenses. Congress should not delegate such an important
function to the agencies.
In this area, one solution that a renowned expert and
former colleague of Ed's and mine from the Department of
Justice, Ronald Gainer, has advocated, is to enact a general
statute providing administrative procedures and sanctions for
all regulatory breaches. It would be accompanied by a general
provision removing all present criminal penalties from
regulatory violations, notwithstanding the language of the
regulatory statutes themselves except in two instances. The
first exception would encompass conduct involving significant
harm to persons, property interests, and institutions designed
to protect persons and property interests, the traditional
reach of the criminal law. The second exception would permit
criminal prosecution not for breach of the remaining regulatory
provisions, but only for a pattern of intentional, repeated
breaches.
My third suggestion is that the Congress should consider
whether it is time to address the standards whereby companies
are held criminally responsible for the acts of their
employees. The Department of Justice has issued four separate
memoranda from deputy attorneys general during the last dozen
years or so to set forth ground rules when a corporation should
be charged criminally for the act of its employees. It should
be noted that in its most recent memorandum, the government
stated it may not be appropriate to impose liability upon a
corporation, particularly one with a robust compliance program
in place, under a strict respondeat superior theory for the
single isolated act of a rogue employee. A law is needed to
ensure uniformity in this critical area.
I have set forth in my prepared statement some steps that I
feel should be taken by the Department of Justice itself, and I
would refer to those specifically, because the Department has a
role, most important, to actively support as a matter of policy
the effort to enact a true Criminal Code.
Thank you for your attention and the opportunity to speak.
[The prepared statement of Mr. Thornburgh follows:]
Prepared Statement of the Honorable Dick Thornburgh, Counsel,
K&L Gates LLP
Chairman Sensenbrenner, Ranking Member Scott, and other
Subcommittee members here present: Thank you for the opportunity to
appear and testify before this Subcommittee. While I have not reviewed
the 1,200 pages of H.R. 1823, line-by-line, I propose to address
specifically today a subject that has commanded increasing attention
here and in other countries around the world. My testimony today is
intended to highlight the phenomenon of over-criminalization and to
suggest that any reform legislation address solutions to the problems
it has engendered.
I.
It may seem odd to some for me as a former prosecutor to focus on
the perils of over-criminalization. We live in a time when concern
remains high in our society about the problem of crime in general and
corporate crime in particular. But considerable misgiving has developed
about this subject and the threat it poses to established institutions
and ways of life. This misgiving has brought together such disparate
public advocacy groups as the American Bar Association, the National
Association of Criminal Defense Lawyers, and the ACLU on the liberal
side with the Heritage Foundation, the Washington Legal Foundation, and
the Cato Institute on the more conservative end of the spectrum.
However divergent the interests of these groups may be otherwise, they
all share a common goal in this area: to have criminal statutes that
punish actual criminal acts and do not seek to criminalize conduct that
is better dealt with by the seeking of civil or regulatory remedies.
This goal, as simple as it sounds conceptually, has turned out to be
difficult to attain and needs to be addressed by this body.
I have served on both sides of the aisle in criminal cases during
my career--as a federal prosecutor for many years and more recently as
a defense attorney involved in proceedings adverse to the United States
Department of Justice. This provides me, I believe, with a balanced
view of the issues in today's criminal justice system. This testimony
will suggest some thoughts as to how to deal with what I see as the
growing challenge of over-criminalization.
First, let me refine that challenge.
By way of background, let me remind all of us of some basic
fundamentals of the criminal law. Traditional criminal law encompasses
various acts, which may or may not cause results, and mental states,
which indicate volition or awareness on the part of the actor. These
factors are commonly known as the requirements of mens rea and actus
reus, Latin terms for an ``evil-meaning mind [and] an evil-doing
hand.'' Most efforts to codify the law of common-law jurisdictions
employ a variety of requisite mental states--usually describing
purpose, knowledge, reckless indifference to a consequence, and, in a
few instances, negligent failure to appreciate a risk.
The criminal sanction is a unique one in American law, and the
stigma, public condemnation and potential deprivation of liberty that
go along with that sanction have traditionally demanded that it should
be utilized only when identified mental states and behaviors are
proven.
With respect to what has now become known as ``over-
criminalization,'' objections are focused on those offenses that go
well beyond these traditional, fundamental principles and are grounded
more on what were historically civil or regulatory offenses without the
mental states required for criminal convictions. Without a clear mens
rea requirement, citizens may not be able to govern themselves in a way
that assures them of following the law and many actors may be held
criminally responsible for actions that do not require a wrongful
intent.
Such ``strict'' liability in a criminal action, incidentally, does
have a long history--almost three thousand years ago, an Emperor of
China is said to have decreed that it would be a criminal offense,
punishable by death, for a governor of a province to permit the
occurrence, within the province, of an earthquake. And man's inability
to control earthquakes, we have been reminded recently, can have tragic
consequences.
This is obviously an extreme, but our criminal justice system has
not been entirely modest. Many scholars and the Department of Justice
have tried to count the total number of federal crimes, but only rough
estimates have emerged. The current ``estimate'' is a staggering 4,450
crimes on the books with a projected additional 500 per year in years
to come. If legal scholars and researchers and the Department of
Justice itself cannot accurately count the number of federal crimes,
how do we expect ordinary American citizens to be able to be aware of
them? Additionally, a recent report states that federal statutes
provide for over 100 separate terms to denote the required mental state
with which an offense may be committed, and another review observes
that a number of the federal criminal offenses enacted in the last ten
years had no mens rea requirement at all. Such trends cannot continue
and suggested legislative reform in the nature of a default mens rea
requirement when a statute does not require it is worthy of priority
consideration. Moreover, a recent assessment of the new Dodd-Frank Wall
Street Reform and Consumer Protection Act finds that it creates dozens
of new federal criminal offenses, many lacking adequate criminal-intent
requirements, which are ambiguous and duplicative of existing federal
and state regulations.
II.
Make no mistake, when individuals commit crimes they should be held
responsible and punished accordingly. The line has become blurred,
however, on what conduct constitutes a crime, particularly in corporate
criminal cases, and needs to be redrawn and re-clarified.
Since 1909, business entities have, with few limitations, routinely
been held criminally liable for the acts of their employees. In recent
history, one of the more significant cases involved the accounting firm
of Arthur Andersen, a case of which you are no doubt aware, in which
the company effectively received a ``death sentence'' based on the acts
of isolated employees over a limited period of time. I gave a speech
some time ago at the Georgetown Law Center in Washington regarding
over-criminalization. I mentioned the Arthur Andersen case and
referenced a political cartoon, published after the Supreme Court
reversed the company's conviction, in which a man in a judicial robe
was standing by the tombstone for Arthur Andersen and said: ``Oops.
Sorry.'' That apology didn't put the tens of thousands of partners and
employees of that entity back to work. This unjust result simply cannot
be replicated, and reform is needed to make sure there are no such
future miscarriages of justice.
Over-breadth in corporate criminal law, for example, can lead to a
near-paranoid corporate culture that is constantly looking over its
shoulder for the ``long arm of the law'' and wondering whether a good
faith business decision will be interpreted by an ambitious prosecutor
as a crime. Perhaps even more significant is the impact on corporate
innovation--if an idea or concept is novel or beyond prior models, a
corporation may stifle it out of concern about potential criminal
penalties. This stifling may render some businesses unable to compete
in a global marketplace just to ensure compliance with domestic laws.
And that may mean fewer jobs and reduced economic growth in this
country.
The unfortunate reality is that Congress has effectively delegated
some of its important authority to regulate crime in this country to
federal prosecutors, who are given an immense amount of latitude and
discretion to construe federal crimes, and not always with the clearest
motives or intentions.
A striking recent example of over-criminalization is the now-
discredited ``theft of honest services'' provision of the mail and wire
fraud statute, 18 U.S.C. Sec. 1346, which was recently narrowed by the
Supreme Court in the high-profile United States v. Skilling and United
States v. Black decisions. The Court held that a criminal statute must
clearly define the conduct it proscribes so as to give fair notice of
the nature of the offense to those who might be charged. It was this
statute, by the way, that formed the basis for the notorious
prosecution of my client, Dr. Cyril Wecht, in my home state of
Pennsylvania for felony counts relating, among other things, to his
alleged use of the medical examiner's office fax machine and official
vehicles for legitimate outside personal business activities. This
statute was subject to scrutiny in the Skilling case because of its
expansion from traditional public corruption cases to private acts in
business or industry that are deemed to be criminal almost exclusively
at the whim of the individual prosecutor who is investigating the case,
becoming essentially a ``moral compass'' statute. The Supreme Court
rejected the government's expansive view of the statute and returned
the statute to its core purpose--prosecuting kickback and bribery
schemes. Interestingly, the Court went a step further and specifically
cautioned Congress regarding creating further honest services statutes,
stating that ``it would have to employ standards of sufficient
definiteness and specificity to overcome due process concerns.''
Another commendable decision came recently by a United States District
Judge when he dismissed an indictment and reminded the government of
the Court's purpose--``[t]he Court is not an arbiter of morality,
economics, or corporate conduct. Rather, it is an arbiter of the law.''
That signals to me a welcome judicial return to the rule of law.
III.
What can be done to curb these abuses? I have both long and short
term suggestions. First, I have advocated for many years that we adopt
a true Federal Criminal Code. While this may not be the first thing
that comes to mind when analyzing the issues of concern in the criminal
justice system, it is an important one that should be undertaken
without delay. As I mentioned, there are now some 4,450 or more
separate criminal statutes--a hodgepodge scattered throughout 50
different titles of the United States Code without any coherent sense
of organization. As one commentator noted: ``Our failure to have in
place even a modestly coherent code makes a mockery of the United
States' much-vaunted commitments to justice, the rule of law, and human
rights.''
There is a template in existence, the Model Penal Code, which can
act as a sensible start to an organized criminal code, and has formed
the basis for many efforts to establish state criminal codes in this
country. What is needed is a clear, integrated compendium of the
totality of the federal criminal law, combining general provisions, all
serious forms of penal offenses, and closely related administrative
provisions into an orderly structure, which would be, in short, a true
Federal Criminal Code.
This not a new idea--Congress has tried in the past to reform the
federal criminal code, most notably through the efforts of the so-
called ``Brown Commission'' in 1971. The legislative initiatives based
on that Commission's work failed despite widespread recognition of
their worth. As Assistant Attorney General in charge of the Department
of Justice's Criminal Division at the time, I well remember the
disappointment felt among Department leadership over the inability to
focus the attention of legislative leaders on this important issue. And
thus it has been ever since. It is therefore doubly incumbent on this
Congress to seek to make sense out of our laws and make sure that
average ordinary citizens can be familiar with what conduct actually
constitutes a crime in this country.
Second, Congress needs to rein in the continuing proliferation of
criminal regulatory offenses. Regulatory agencies routinely promulgate
rules imposing criminal penalties that have not been enacted by
Congress. Indeed, criminalization of new regulatory provisions has
become seemingly mechanical. One estimate is that there may be a
staggering 300,000 criminal regulatory offenses created by U.S.
government agencies!
This tendency, together with the lack of any congressional
requirement that the legislation pass through Judiciary Committees, has
led to an evolution of a new and troublesome catalogue of criminal
offenses. Congress should not delegate such an important function to
agencies.
In this area, one solution that a renown expert and former
colleague from the Department of Justice, Ronald Gainer, has advocated
is to enact a general statute providing administrative procedures and
sanctions for all regulatory breaches. It would be accompanied by a
general provision removing all present criminal penalties from
regulatory violations, notwithstanding the language of the regulatory
statues, except in two instances. The first exception would encompass
conduct involving significant harm to persons, property interests, and
institutions designed to protect persons and property interests--the
traditional reach of criminal law. The second exception would permit
criminal prosecution, not for breach of the remaining regulatory
provisions, but only for a pattern of intentional, repeated breaches.
This relatively simple reform could provide a much sounder foundation
for the American approach to regulatory crime than currently exists.
My third suggestion is that Congress should consider whether it is
time to address the standards whereby companies are held criminally
responsible for acts of their employees. The Department of Justice has
issued four separate Memoranda from Deputy Attorneys General during the
past ten years or so setting forth ground rules for when a corporation
should be charged criminally for the acts of its employees. It should
be noted that in the most recent memorandum, the government stated:
``[i]t may not be appropriate to impose liability upon a corporation,
particularly one with a robust compliance program in place, under a
strict respondeat superior theory for the single isolated act of a
rogue employee.'' A law is needed to ensure uniformity in this critical
area so that the guidelines and standards do not continue to change at
the rate of four times in a decade. Indeed, if an employee is truly a
``rogue'' or acting in violation of corporate policies and procedures,
Congress can protect a well-intentioned and otherwise law-abiding
corporation by enacting a law that specifically holds the individual
rather than the corporation responsible for the criminal conduct
without subjecting the corporation to the whims of any particular
federal prosecutor.
One other aspect of over-criminalization should not escape our
notice. A former colleague of mine at the Justice Department noted that
there is something self-defeating about a society that seeks to induce
its members to abhor criminality, but simultaneously brands as
``criminal'' not only those engaged in murder, rape and arson, but also
those who dress up as Woodsy Owl, sell mixtures of two kinds of
turpentine, file forms in duplicate rather than triplicate or post
company employment notices on the wrong bulletin boards. The stigma of
criminal conviction is dissipated by such enactments and the law loses
its capacity to reinforce moral precepts and to deter future
misconduct. Our criminal sanctions should be reserved for only the most
serious transgressions and to do otherwise, in fact, can cause
disrespect for the law.
While nearly all of the remedies I have suggested today would
require legislative action, there are some steps that could be taken by
the Department of Justice itself to aid in the process of reducing
over-criminalization. Let me mention just three.
First, the Department should require pre-clearance by senior
officials of novel or imaginative prosecutions of high profile
defendants. One of Justice Scalia's major objections to the ``honest
services'' fraud theory, for example, was its propensity to enable
``abuse by headline-grabbing prosecutors in pursuit of [those] who
engage in any manner of unappealing or ethically questionable
conduct.'' A second look before bringing any such proposed prosecutions
would, I suggest, be very much in order.
Second, a revitalized Office of Professional Responsibility within
the Department of Justice should help ensure that ``rogue'' prosecutors
are sanctioned for overreaching in bringing charges that go well beyond
the clear intent of the statute involved.
Finally, of course, the Department should actively support, as a
matter of policy, the effort to enact a true criminal code.
These are changes that truly merit our attention if we are to
remain a government of laws and not of men. And they merit attention by
all three branches of government--the legislative, the executive and
the judicial--if productive change is to be forthcoming.
Interestingly enough, this concern is not confined to the United
States or our legal system alone. Because of recent abuses in the
Russian Federation, a group of reformers is seeking to overhaul
criminal laws and procedures in that country to combat over-
criminalization as well. I have visited with these reformers, both here
and in Moscow, and presented testimony before a round-table discussion
in the Russian Duma, their legislature, sharing our experiences and
suggestions for changes in our system. The primary focus of their
examination is the abuse of criminal laws by business competitors to
secure market advantages and efforts to deal with vaguely-worded
statutes that purport to create criminal offenses to deal with
``fraud'' and ``illegal entrepreneurship.''
I also had occasion myself to appear recently as an expert witness
in the Moscow Arbitrazh Court, Russia's commercial tribunal, in a case
brought against a major U.S. bank to recover $22.5 billion in damages
for alleged violations of the U.S. RICO statute. The case settled for a
fraction of the amount sought without reaching the question of whether
a U.S. statute predicated on violations of the U.S. criminal law can
proceed in a Russian commercial court, but the mere filing of such a
claim evidences the type of potential hazard U.S. companies face
abroad.
With respect then to the problem of over-criminalization, let me
summarize. Reform is needed. True crimes should be met with true
punishment. While we must be ``tough on crime,'' we must also be
intellectually honest. Those acts that are not criminal should be
countered with civil or administrative penalties to ensure that true
criminality retains its importance and value in our legal system. And
the Department of Justice must ``police'' those empowered to prosecute
with greater vigor.
I hope and trust that you will include remedies to the challenge of
over-criminalization in whatever modernization and simplification
initiatives result from your present considerations.
Thank you for the opportunity to share these thoughts with you
today.
__________
Mr. Sensenbrenner. Thank you, General Thornburgh. Mr.
Lynch.
TESTIMONY OF TIM LYNCH, DIRECTOR,
PROJECT ON CRIMINAL JUSTICE, CATO INSTITUTE
Mr. Lynch. Thank you, Mr. Chairman. I also appreciate the
invitation to testify here today. Many excellent points have
already been made. I think I will start off by highlighting why
I think the subject of Federal Code reform has generated such
interest from across the political spectrum.
We are talking about the rules by which people from our
communities can be arrested, indicted, and sent to prison.
Conscientious people in the criminal law field should not lose
sight of the fact that even when somebody has not been
convicted of a crime, their lives can be forever altered by the
application of the criminal law. All it takes is a single raid,
highly publicized, and a business can go under. An arrest can
end somebody's career. Even in situations where a person can
actually win an acquittal at trial, the financial burden
involved in mounting a legal defense these days can break most
families.
Now, what is most disconcerting of all is that nowadays the
scope of our Federal criminal law has been so expansive, as the
other witnesses have said, that ordinary hardworking people can
easily find themselves on the wrong side of the law without
even knowing it. It is really time to take a fresh approach to
the Federal Code.
And I also commend the Committee for taking this subject
up. But not just reorganizing it, it needs to be scaled back.
And we need to provide procedural safeguards for persons
accused of wrongdoing. The bill under consideration here, H.R.
1823, identifies scores of provisions that are duplicative and
unnecessary. But there are a few points that I wish to
highlight because I wish the bill had gone further.
First, the bill does not do enough to shield ordinary
people from the legal and regulatory minefield that presently
exists. The criminal standard that presently exists in the tax
area I think is the model to follow. We all know how
complicated the Federal Tax Code is. So right now, to protect
people who honestly try to get their tax returns right without
accusations of tax evasion, prosecutors have to prove that the
person willfully violated the tax law. In other words, the
prosecutors have to show that the person knew what the law
required, but went ahead and violated the law anyway. I think
we need that willfulness standard in place for all regulations
that cover conduct that is not intrinsically wrongful.
The second point I wish to highlight is that to protect
citizens from situations where statutes have ambiguous terms,
Congress should codify the rule of lenity across the board.
Right now the rule of lenity is applied kind of sporadically by
the courts. They do it no some areas of the law, but not in
others. Congress should codify this rule of lenity across the
board so that doubts will be resolved in the defendant's favor.
Mr. Chairman, there is a principle in contracts law that says
that when there are terms of a contract that are ambiguous, it
will be resolved against the person or party or organization
that drafted the contract. And the rationale there is that the
person who drafted the contract was in a better position to
resolve the ambiguity because they were drafting the language.
It is a sensible rule. And if we have that rule in place in
contracts, I think in the criminal law, where the stakes are
even higher, that rule of lenity should be applied so that the
law should be clearly written and ambiguities should be
resolved in favor of people who are accused of crime, not in
favor of the prosecution.
The third point that I wish to highlight, and has been made
by the other witnesses, is that Congress needs to pull the plug
on agency rulemaking. I know that Members of Congress are busy,
I know that you are pulled in different directions all the time
to go ahead and address different subjects. But aside from the
decision to go to war, it is hard for me to think of a more
important responsibility than attending to the legal rules by
which people can be indicted and sent off to prison. I know
certain agencies have developed certain expertise. I think we
should let them make their recommendations to the Congress. But
when it comes to rules that affect people's liberty where they
can be sent to prison, I think the agencies should send these
recommendations over to the Congress where they can be voted
upon by our elected Representatives.
I do have other comments and recommendations in my written
testimony, and I would respectfully request they be made part
of the record.
[The prepared statement of Mr. Lynch follows:]
Prepared Statement of Tim Lynch, Director, Project on Criminal Justice,
Cato Institute
i. introduction and background
My name is Tim Lynch. I am the director of the Cato Institute's
Project on Criminal Justice. I appreciate the invitation to testify
this morning on H.R. 1823, which aims to modernize and simplify the
federal criminal code. I am supportive of this undertaking because the
federal code is a mess. As one writer has observed, the federal code is
a
loose assemblage of criminal law components that were built
hastily to respond to perceptions of need and to perceptions of
the popular will, and that were patterned more upon hindsight
than foresight. Of the 3,000 provisions carrying criminal
penalties, each was produced at a different time by different
draftsmen with different conceptions of law, the English
language, and common sense. Any relationship of one to another
is more often than not accidental. The criminal statutes have
never been subjected to a substantive reform, only a minor
paring and partial rearrangement into a peculiar form of
alphabetical order.\1\
---------------------------------------------------------------------------
\1\ Ronald L. Gainer, ``Report to the Attorney General on Federal
Criminal Code Reform,'' Criminal Law Forum (1989).
Justice Antonin Scalia recently noted that Congress has unwisely
expanded the federal criminal system in a manner that allows drug
prosecutions to burden the judiciary.\2\ In an attempt to address that
burden, Congress expanded the number of federal judgeships, but that
has resulted in a reduction in the quality of judicial appointments
according to Justice Scalia.
---------------------------------------------------------------------------
\2\ Mark Sherman, ``Scalia: Judges `Aint What They Used to Be,' ''
Associated Press, October 5, 2011.
---------------------------------------------------------------------------
I should note at the outset that since H.R. 1823 runs more than one
thousand pages, I have not yet had sufficient time to study all of its
provisions and thus all of the consequences (both intended and
unintended). To assist the committee in its deliberations, however, I
will first outline some general principles which I think ought to guide
federal code reform. I will then offer a preliminary analysis of H.R.
1823. Last, if there are any questions that I am unable to answer
today, I will endeavor to develop an answer following the hearing and
respond with a letter to the committee.
ii. principles to guide federal code reform
A. Constitutional Basis for Federal Statutes
The American Constitution created a federal government with limited
powers. As James Madison noted in the Federalist no. 45, ``The powers
delegated by the proposed Constitution to the federal government are
few and defined. Those which are to remain in the State governments are
numerous and indefinite.'' Most of the federal government's ``delegated
powers'' are specifically set forth in article I, section 8. The Tenth
Amendment was appended to the Constitution to make it clear that the
powers not delegated to the federal government ``are reserved to the
States respectively, or to the people.''
Crime is a serious problem, but under the Constitution, it is a
matter to be primarily handled by state and local government.
Unfortunately, as the years passed, Congress eventually assumed the
power to enact a vast number of criminal laws pursuant to its power
``to regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes.'' \3\
---------------------------------------------------------------------------
\3\ See Robert Suro, ``Rehnquist: Too Many Offenses Are Becoming
Federal Crimes,'' Washington Post, January 1, 1999. See also Timothy
Lynch, ``Dereliction of Duty: The Constitutional Record of President
Clinton,'' Capital University Law Review 27 (1999): 783, 832-38.
---------------------------------------------------------------------------
In recent years, Congress has federalized the crimes of gun
possession within a school zone, carjacking, wife beating, and church
arsons. All of those crimes and more have been rationalized under the
Commerce Clause.\4\ In United States v. Lopez, the Supreme Court
finally struck down a federal criminal law, the Gun-Free School Zone
Act of 1990, because the connection between handgun possession and
interstate commerce was simply too tenuous.\5\ In a concurring opinion,
Justice Clarence Thomas noted that if Congress had been given authority
over matters that simply ``affect'' interstate commerce, much, if not
all, of the enumerated powers set forth in article I, section 8 would
be unnecessary. Indeed, it is difficult to dispute Justice Thomas'
conclusion that an interpretation of the commerce power that ``makes
the rest of Sec. 8 surplusage simply cannot be correct.'' \6\
---------------------------------------------------------------------------
\4\ See American Bar Association, The Federalization of Criminal
Law (Chicago: American Bar Association, 1998); John S. Baker, Measuring
the Explosive Growth of Federal Crime Legislation (Washington: The
Federalist Society for Law and Public Policy Studies, 2005).
\5\ United States v. Lopez, 514 U.S. 549 (1995).
\6\ Ibid., pp. 657-58 (1995) (Thomas, J., concurring). See also
John Baker, ``National izing Criminal Law: Does Organized Crime Make It
Necessary or Proper?'' Rutgers Law Journal 16 (1985): 495.
---------------------------------------------------------------------------
Whether or not the Supreme Court adopts a more narrow
interpretation of the Commerce Clause, Congress can and should
acknowledge constitutional limits on federal jurisdiction and repeal
federal statutes that merely duplicate local crimes.
B. No Delegation of Lawmaking Power to Administrative Agencies
Beyond the thousands of federal criminal statutes enacted by the
Congress, there are also thousands of federal regulations that carry
criminal penalties. (And what is worse is that some of those
regulations contain vague terms; others carry inadequate mens rea
terminology.) Members of Congress are busy, but it is their
responsibility to carefully consider what infractions can result in a
criminal conviction and prison time.
The case law that has thus far allowed delegation has drawn
criticism. Federal Judge Roger Vinson, for example, has observed:
A jurisprudence which allows Congress to impliedly delegate its
criminal lawmaking authority to a regulatory agency such as the
Army Corps--so long as Congress provides an ``intelligible
principle'' to guide that agency--is enough to make any judge
pause and question what has happened. Deferent and minimal
judicial review of Congress' transfer of its criminal lawmaking
function to other bodies, in other branches, calls into
question the vitality of the tripartite system established by
our Constitution. It also calls into question the nexus that
must exist between the law so applied and simple logic and
common sense. Yet that seems to be the state of the law. Since
this court must apply the law as it exists, and cannot change
it, there is nothing further that can be done at this level.\7\
---------------------------------------------------------------------------
\7\ United States v. Mills, 817 F. Supp. 1546, 1555 (1993).
As noted above, whether or not the Supreme Court chooses to revisit
and restrict the ability of Congress, on constitutional grounds, to
delegate the lawmaking power, Congress can and should recognize that
federal law--especially federal criminal law--ought to be made by the
people's elected representatives.\8\
---------------------------------------------------------------------------
\8\ Robert A. Anthony, ``Unlegislated Compulsion: How Federal
Agency Guidelines Threaten your Liberty,'' Cato Institute Policy
Analysis, no. 312 (August 11, 1998).
---------------------------------------------------------------------------
C. Ignorance of the Law is Now a Valid Excuse
The sheer volume of modern law makes it impossible for an ordinary
American household to stay informed. And yet, prosecutors vigorously
defend the old legal maxim that ``ignorance of the law is no excuse.''
\9\ That maxim may have been appropriate for a society that simply
criminalized inherently evil conduct, such as murder, rape, and theft,
but it is wholly inappropriate in a labyrinthine regulatory regime that
criminalizes activities that are morally neutral. As Professor Henry M.
Hart opined, ``In no respect is contemporary law subject to greater
reproach than for its obtuseness to this fact.'' \10\
---------------------------------------------------------------------------
\9\ See Timothy Lynch, ``Ignorance of the Law: Sometimes a Valid
Defense,'' Legal Times, April 4, 1994.
\10\ Henry Hart, ``The Aims of the Criminal Law,'' reprinted in In
the Name of Justice (Washington, D.C.: Cato Institute, 2009), p. 19.
---------------------------------------------------------------------------
To illustrate the rank injustice that can and does occur, take the
case of Carlton Wilson, who was prosecuted because he possessed a
firearm. Wilson's purchase of the firearm was perfectly legal, but,
years later, he didn't know that he had to give it up after a judge
issued a restraining order during his divorce proceedings. When Wilson
protested that the judge never informed him of that obligation and that
the restraining order itself said nothing about firearms, prosecutors
shrugged, ``ignorance of the law is no excuse.'' \11\ Although the
courts upheld Wilson's conviction, Judge Richard Posner filed a
dissent: ``We want people to familiarize themselves with the laws
bearing on their activities. But a reasonable opportunity doesn't mean
being able to go to the local law library and read Title 18. It would
be preposterous to suppose that someone from Wilson's milieu is able to
take advantage of such an opportunity.'' \12\ Judge Posner noted that
Wilson would serve more than three years in a federal penitentiary for
an omission that he ``could not have suspected was a crime or even a
civil wrong.'' \13\
---------------------------------------------------------------------------
\11\ United States v. Wilson, 159 F.3d 280 (1998).
\12\ Ibid., p. 296 (Posner, J., dissenting).
\13\ Ibid. The Wilson prosecution was not a case of one prosecutor
using poor judgment and abusing his power. See, for example, United
States v. Emerson, 46 F.Supp. 2d 598 (1999).
---------------------------------------------------------------------------
It is absurd and unjust for the government to impose a legal duty
on every citizen to ``know'' all of the mind-boggling rules and
regulations that have been promulgated over the years. Policymakers can
and should discard the ``ignorance-is-no-excuse'' maxim by enacting a
law that would require prosecutors to prove that regulatory violations
are ``willful'' or, in the alternative, that would permit a good-faith
belief in the legality of one's conduct to be pleaded and proved as a
defense. The former rule is already in place for our complicated tax
laws--but it should also shield unwary Americans from all of the laws
and regulations as well.\14\
---------------------------------------------------------------------------
\14\ See, generally, Ronald A. Cass, ``Ignorance of the Law: A
Maxim Reexamined,'' William and Mary Law Review 17 (1976): 671.
---------------------------------------------------------------------------
D. Vague Statutes are Unacceptable
Even if there were but a few crimes on the books, the terms of our
criminal laws ought to be drafted with precision. There is precious
little difference between a secret law and a published regulation that
cannot be understood. History is filled with examples of oppressive
governments that persecuted unpopular groups and innocent individuals
by keeping the law's requirements from the people. For example, the
Roman emperor Caligula posted new laws high on the columns of buildings
so that ordinary citizens could not study the laws. Such abominable
policies were discarded during the Age of Enlightenment, and a new set
of principles--known generally as the ``rule of law''--took hold. Those
principles included the requirements of legality and specificity.
``Legality'' means a regularized process by which crimes are
designated and prosecuted by the government. The Enlightenment
philosophy was expressed by the maxim nullum crimen sine lege (there is
no crime without a law). In other words, people can be punished only
for conduct previously prohibited by law. That principle is clearly
enunciated in the ex post facto clause of the Constitution (article I,
section 9). But the purpose of the ex post facto clause can be
subverted if the legislature can enact a criminal law that condemns
conduct in general terms, such as ``dangerous and harmful'' behavior.
Such a law would not give people fair warning of the prohibited
conduct. To guard against the risk of arbitrary enforcement, the
Supreme Court has said that the law must be clear:
A criminal statute cannot rest upon an uncertain foundation.
The crime, and the elements constituting it, should be so
clearly expressed that an ordinary person can intelligently
choose, in advance, what course it is lawful for him to pursue.
Penal statutes prohibiting the doing of certain things, and
providing a punishment for their violation, should not admit of
such a double meaning that the citizen may act upon the one
conception of its requirements and the courts upon another.\15\
---------------------------------------------------------------------------
\15\ Connally v. General Construction Company, 269 U.S. 385, 393
(1926) (internal quotation marks omitted).
The principles of legality and specificity operate together to
reduce the likelihood of arbitrary and discriminatory application of
the law by keeping policy matters away from police officers,
administrative bureaucrats, prosecutors, judges, and members of juries,
who would have to resolve ambiguities on an ad hoc and subjective
basis.
Although the legality and specificity requirements are supposed to
be among the first principles of American criminal law, a
``regulatory'' exception has crept into modern jurisprudence. The
Supreme Court has unfortunately allowed ``greater leeway'' in
regulatory matters because the practicalities of modern governance
supposedly limit ``the specificity with which legislators can spell out
prohibitions.'' \16\ During the past 50 years, fuzzy legal standards,
such as ``unreasonable,'' ``unusual,'' and ``excessive,'' have
withstood constitutional challenge.
---------------------------------------------------------------------------
\16\ Papachristou v. City of Jacksonville, 405 U.S. 156, 162-163
(1972).
---------------------------------------------------------------------------
Justice Scalia recently acknowledged that this trend has gone too
far and ought to be halted:
We face a Congress that puts forth an ever-increasing volume of
laws in general, and of criminal laws in particular. It should
be no surprise that as the volume increases, so do the number
of imprecise laws. And no surprise that our indulgence of
imprecisions that violate the Constitution encourages
imprecisions that violate the Constitution. Fuzzy, leave-the-
details-to-be-sorted-out-by-the-courts legislation is
attractive to the Congressman who wants credit for addressing a
national problem but does not have the time (or perhaps the
votes) to grapple with the nitty-gritty. In the field of
criminal law, at least, it is time to call a halt.\17\
---------------------------------------------------------------------------
\17\ Sykes v. United States, 131 S. Ct. 2267, 2284.
The Framers of the American Constitution understood that democracy
alone was no guarantor of justice. As James Madison noted, ``It will be
of little avail to the people that the laws are made by men of their
own choice if the laws be so voluminous that they cannot be read, or so
incoherent that they cannot be understood; if they be repealed or
revised before they are promulgated, or undergo such incessant changes
that no man, who knows what the law is today, can guess what it will be
tomorrow.'' \18\
---------------------------------------------------------------------------
\18\ James Madison, ``Federalist Paper 62,'' in The Federalist
Papers, ed. Clinton Rossiter (New York: New American Library, 1961), p.
381.
---------------------------------------------------------------------------
The first step toward addressing the problem of vague and ambiguous
criminal laws would be for the Congress to direct the courts to follow
the rule of lenity in all criminal cases.\19\ Legal uncertainties
should be resolved in favor of private individuals and organizations,
not the government.
---------------------------------------------------------------------------
\19\ Pennsylvania has protected its citizens from overzealous
prosecutors with such a law for many years. See 1 Pa.C.S.A. 1208.
---------------------------------------------------------------------------
E. Abolish Strict Liability Offenses
Two basic premises that undergird Anglo-American criminal law are
the requirements of mens rea (guilty mind) and actus reus (guilty
act).\20\ The first requirement says that for an act to constitute a
crime there must be ``bad intent.'' Dean Roscoe Pound of Harvard Law
School writes, ``Historically, our substantive criminal law is based
upon a theory of punishing the vicious will. It postulates a free agent
confronted with a choice between doing right and doing wrong and
choosing freely to do wrong.'' \21\ According to that view, a man could
not be prosecuted for leaving an airport with the luggage of another if
he mistakenly believed that he owned the luggage. As the Utah Supreme
Court noted in State v. Blue (1898), mens rea was considered an
indispensable element of a criminal offense. ``To prevent the
punishment of the innocent, there has been ingrafted into our system of
jurisprudence, as presumably in every other, the principle that the
wrongful or criminal intent is the essence of crime, without which it
cannot exist.'' \22\
---------------------------------------------------------------------------
\20\ Wayne R. LaFave and Austin W. Scott Jr., Criminal Law, 2nd.
ed. (St. Paul, MN: West Publishing Co., 1986), pp. 193-94.
\21\ Quoted in Morissette v. United States, 342 U.S. 246, 250 n. 4
(1952).
\22\ Utah v. Blue, 53 Pac. 978, 980 (1898).
---------------------------------------------------------------------------
By the same token, bad thoughts alone do not constitute a crime if
there is no ``bad act.'' If a police officer discovers a diary that
someone mistakenly left behind in a coffee shop, and the contents
include references to wanting to steal the possessions of another, the
author cannot be prosecuted for a crime. Even if an off-duty police
officer overhears two men in a tavern discussing their hatred of the
police and their desire to kill a cop, no lawful arrest can be made if
the men do not take action to further their cop-killing scheme. The
basic idea, of course, is that the government should not be in the
business of punishing ``bad thoughts.''
When mens rea and actus reus were fundamental prerequisites for
criminal activity, no person could be branded a ``criminal'' until a
prosecutor could persuade a jury that the accused possessed ``an evil-
meaning mind with an evil-doing hand.'' \23\ That understanding of
crime--as a compound concept--was firmly entrenched in the English
common law at the time of the American Revolution.
---------------------------------------------------------------------------
\23\ Morissette v. United States, 342 U.S. 246, 251 (1952).
---------------------------------------------------------------------------
Over the years, however, the moral underpinnings of the Anglo-
American view of criminal law fell into disfavor. The mens rea and
actus reus requirements came to be viewed as burdensome restraints on
well-meaning lawmakers who wanted to solve social problems through
administrative regulations. As Professor Richard G. Singer has written,
``Criminal law . . . has come to be seen as merely one more method used
by society to achieve social control.'' \24\
---------------------------------------------------------------------------
\24\ Richard G. Singer, ``The Resurgence of Mens Rea: III--The Rise
and Fall of Strict Criminal Liability,'' Boston College Law Review 30
(1989): 337. See also Special Report: Federal Erosion of Business Civil
Liberties (Washington: Washington Legal Foundation, 2008).
---------------------------------------------------------------------------
The change began innocently enough. To protect young girls,
statutory rape laws were enacted that flatly prohibited sex with girls
under the age of legal consent. Those groundbreaking laws applied even
if the girl lied about her age and consented to sex and if the man
reasonably believed the girl to be over the age of consent. Once the
courts accepted that exception to the mens rea principle, legislators
began to identify other activities that had to be stamped out--even at
the cost of convicting innocent-minded people.
The number of strict liability criminal offenses grew during the
20th century as legislators created scores of public welfare offenses
relating to health and safety. Each time a person sought to prove an
innocent state-of-mind, the Supreme Court responded that there is
``wide latitude'' in the legislative power to create offenses and ``to
exclude elements of knowledge and diligence from [their] definition.''
\25\ Those strict liability rulings have been sharply criticized by
legal commentators. Professor Herbert Packer argued that the creation
of strict liability crimes was both inefficacious and unjust.
---------------------------------------------------------------------------
\25\ Lambert v. California, 355 U.S. 225, 228 (1957).
It is inefficacious because conduct unaccompanied by an
awareness of the factors making it criminal does not mark the
actor as one who needs to be subjected to punishment in order
to deter him or others from behaving similarly in the future,
nor does it single him out as a socially dangerous individual
who needs to be incapacitated or reformed. It is unjust because
the actor is subjected to the stigma of a criminal conviction
without being morally blameworthy. Consequently, on either a
preventative or retributive theory of criminal punishment, the
criminal sanction is inappropriate in the absence of mens
rea.\26\
---------------------------------------------------------------------------
\26\ Herbert Packer, ``Mens Rea and the Supreme Court,'' Supreme
Court Review (1962): 109. See also Jeffrey S. Parker, ``The Economics
of Mens Rea,'' Virginia Law Review 79 (1993): 741; Craig S. Lerner and
Moin A. Yahya, `` `Left Behind' After Sarbanes-Oxley,'' American
Criminal Law Review 44 (2007): 1383.
A dramatic illustration of the problem was presented in Thorpe v.
Florida (1979).\27\ John Thorpe was confronted by a thief who
brandished a gun. Thorpe got into a scuffle with the thief and wrested
the gun away from him. When the police arrived on the scene, Thorpe was
arrested and prosecuted under a law that made it illegal for any felon
to possess a firearm. Thorpe tried to challenge the application of that
law by pointing to the extenuating circumstances of his case. The
appellate court acknowledged the ``harsh result,'' but noted that the
law did not require a vicious will or criminal intent. Thus, self-
defense was not ``available as a defense to the crime.'' \28\
---------------------------------------------------------------------------
\27\ Thorpe v. Florida, 377 So.2d 221 (1979).
\28\ Ibid., p. 223.
---------------------------------------------------------------------------
True, Thorpe was a state case from 1979. The point here is simply
to show the drift of our law. As Judge Benjamin Cardozo once quipped,
once a principle or precedent gets established, it is usually taken to
the ``limit of its logic.'' For a more recent federal case, consider
what happened to Dane Allen Yirkovsky. Yirkovsky was convicted of
possessing one round of .22 caliber ammunition and for that he received
minimum mandatory 15-year sentence.\29\ Here are the reported
circumstances surrounding his ``crime.''
---------------------------------------------------------------------------
\29\ See United States v. Yirkovsky, 259 F.3d 704 (2001).
In late fall or early winter of 1998, Yirkovsky was living with
Edith Turkington at her home in Cedar Rapids, Iowa. Instead of
paying rent, Yirkovsky agreed to remodel a bathroom at the home
and to lay new carpeting in the living room and hallway. While
in the process of removing the old carpet, Yirkovsky found a
Winchester .22 caliber, super x, round. Yirkovsky put the round
in a small box and kept it in the room in which he was living
---------------------------------------------------------------------------
in Turkington's house.
Subsequently, Yirkovsky's ex-girlfriend filed a complaint
alleging that Yirkovsky had [some of] her property in his
possession. A police detective spoke to Yirkovsky regarding the
ex-girlfriend's property, and Yirkovsky granted him permission
to search his room in Turkington's house. During this search,
the detective located the .22 round. Yirkovsky admitted to
police that he had placed the round where it was found by the
detective.\30\
---------------------------------------------------------------------------
\30\ Ibid., pp. 705-706.
The appellate court found the penalty to be ``extreme,'' but
affirmed Yirkovsky's sentence as consistent with existing law.\31\
---------------------------------------------------------------------------
\31\ In my view, Congress should not stand by secure in the
knowledge that such precedents exist. Justice Anthony Kennedy has made
this point quite well: ``The legislative branch has the obligation to
determine whether a policy is wise. It is a grave mistake to retain a
policy just because a court finds it constitutional. . . . Few
misconceptions about government are more mischievous than the idea that
a policy is sound simply because a court finds it permissible. A court
decision does not excuse the political branches or the public from the
responsibility for unjust laws.'' Anthony M. Kennedy, ``An Address to
the American Bar Association Annual Meeting,'' reprinted in In the Name
of Justice (Washington, D.C.: Cato Institute, 2009), p. 193.
---------------------------------------------------------------------------
Strict liability laws should be abolished because their very
purpose is to divorce a person's intentions from his actions. But if
the criminal sanction imports blame--and it does--it is a perversion to
apply that sanction to self-defense and other acts that are not
blameworthy. Our criminal law should reflect the old Latin maxim, actus
not facit reum nisi mens sit rea (an act does not make one guilty
unless his mind is guilty).\32\
---------------------------------------------------------------------------
\32\ See Wayne R. LaFave and Austin W. Scott Jr., Criminal Law,
2nd. ed. (St. Paul, MN: West Publishing Co., 1986), p. 212.
---------------------------------------------------------------------------
F. Abolish Vicarious Liability Offenses
Everyone agrees with the proposition that if a person commands,
pays, or induces another to commit a crime on that person's behalf, the
person should be treated as having committed the act.\33\ Thus, if a
husband hires a man to kill his wife, the husband is also guilty of
murder. But it is another matter entirely to hold one person criminally
responsible for the unauthorized acts of another. ``Vicarious
liability,'' the legal doctrine under which a person may be held
responsible for the criminal acts of another, was once ``repugnant to
every instinct of the criminal jurist.'' \34\ Alas, the modern trend in
American criminal law is to embrace vicarious criminal liability.
---------------------------------------------------------------------------
\33\ Francis Bowes Sayre, ``Criminal Responsibility for the Acts of
Another,'' Harvard Law Review 43 (1930): 689, 690.
\34\ Ibid., p. 702.
---------------------------------------------------------------------------
Vicarious liability initially crept into regulations that were
deemed necessary to control business enterprises. One of the key cases
was United States v. Park (1975).\35\ John Park was the president of
Acme Markets Inc., a large national food chain. When the Food and Drug
Administration found unsanitary conditions at a warehouse in April
1970, it sent Park a letter demanding corrective action. Park referred
the matter to Acme's vice president for legal affairs. When Park was
informed that the regional vice president was investigating the
situation and would take corrective action, Park thought that was the
end of the matter. But when unsanitary warehouse conditions were found
on a subsequent inspection, prosecutors indicted both Acme and Park for
violations of the Federal Food, Drug and Cosmetic Act.
---------------------------------------------------------------------------
\35\ United States v. Park, 421 U.S. 658 (1975). Although many
state courts have followed the reasoning of the Park decision with
respect to their own state constitutions, some courts have recoiled
from the far-reaching implications of vicarious criminal liability. For
example, the Pennsylvania Supreme Court has held that ``a man's liberty
cannot rest on so frail a reed as whether his employee will commit a
mistake in judgment.'' Commonwealth v. Koczwara, 155 A.2d 825, 830
(1959). That Pennsylvania ruling, it must be emphasized, is an
aberration. It is a remnant of the common law tradition that virtually
every other jurisdiction views as passe'.
---------------------------------------------------------------------------
An appellate court overturned Park's conviction because it found
that the trial court's legal instructions could have ``left the jury
with the erroneous impression that [Park] could be found guilty in the
absence of `wrongful action' on his part'' and that proof of that
element was constitutionally mandated by due process.\36\ The Supreme
Court, however, reversed the appellate ruling. Chief Justice Warren
Burger opined that the legislature could impose criminal liability on
``those who voluntarily assume positions of authority in business
enterprises'' because such people have a duty ``to devise whatever
measures [are] necessary to ensure compliance'' with regulations.\37\
Thus, under the rationale of Park, an honest executive can be branded a
criminal if a low-level employee in a different city disobeys a
supervisor's instructions and violates a regulation--even if the
violation causes no harm whatsoever.\38\
---------------------------------------------------------------------------
\36\ United States v. Park, 421 U.S. 658, 666 (1975).
\37\ Ibid., p. 672.
\38\ ``[T]he willfulness or negligence of the actor [will] be
imputed to him by virtue of his position of responsibility.'' United
States v. Brittain, 931 F.2d 1413, 1419 (1991); United States v.
Johnson & Towers, Inc., 741 F.2d 662, 665 n. 3 (1984). See generally
Joseph G. Block and Nancy A. Voisin, ``The Responsible Corporate
Officer Doctrine--Can You Go to Jail for What You Don't Know?''
Environmental Law (Fall 1992).
---------------------------------------------------------------------------
In 1994, Edward Hanousek was employed as a roadmaster for a
railroad company. In that capacity, Hanousek supervised a rock
quarrying project near an Alaska river. During rock removal operations,
a backhoe operator accidentally ruptured a pipeline--and that mistake
led to an oil spill into the nearby river. Hanousek was prosecuted
under the Clean Water Act even though he was off duty and at home when
the accident occurred. The case prompted Justice Clarence Thomas to
express alarm at the direction of the law: ``I think we should be
hesitant to expose countless numbers of construction workers and
contractors to heightened criminal liability for using ordinary devices
to engage in normal industrial operations.'' \39\
---------------------------------------------------------------------------
\39\ Hanousek v. United States, 528 U.S. 1102 (2000) (Thomas, J.,
dissenting from the denial of certiorari).
---------------------------------------------------------------------------
Note that vicarious liability has not been confined to the
commercial regulation context.\40\ Pearlie Rucker was evicted from her
apartment in a public housing complex because her daughter was involved
with illicit drugs. To crack down on the drug trade, Congress enacted a
law that was so strict that tenants could be evicted if one of their
household members or guests used drugs. The eviction could proceed even
if the drug activity took place outside the residence. Also under that
federal law, it did not matter if the tenant was totally unaware of the
drug activity.\41\
---------------------------------------------------------------------------
\40\ See Susan S. Kuo, ``A Little Privacy, Please: Should We Punish
Parents for Teenage Sex?'' Kentucky Law Journal 89 (2000): 135.
\41\ Department of Housing and Urban Development v. Rucker, 535
U.S. 125 (2002).
---------------------------------------------------------------------------
Vicarious liability laws are unjust and ought to be removed from
the federal criminal code.
iii. h.r. 1823
One of the most serious problems with the current code is that
there is no readily accessible list of federal crimes. Title 18 is a
collection of criminal statutes, but it is not comprehensive. Scores of
other federal crimes can be found in the other forty-nine titles of the
U.S. Code. H.R. 1823 helps to bring some order to the haphazardness by
grouping offenses into a more rational arrangement and pruning federal
offenses that are duplicative and unnecessary. However, I do have
reservations about several aspects of the bill that I will outline
below.
A.
H.R. 1823 does not improve procedural justice for persons
facing federal criminal prosecution. The bill would retain
those provisions in federal law that allow for the imposition
of strict liability and vicarious liability. Further, H.R. 1823
does not codify the rule of lenity which could ameliorate the
problem of vagueness in the statutes and regulations.
B.
H.R. 1823 does not address the problem of agency rule-making,
but retains the current arrangement where unelected officials
can promulgate rules that would carry criminal penalties.
C.
H.R. 1823 creates new federal offenses that are problematic.
Take, for example, the new obstruction provision:
Section 1135. Obstruction of Criminal Investigations
Whoever, being an officer of a financial institution, with
the intent to obstruct a judicial proceeding, notifies any
other person about the existence or contents of a subpoena for
records of that financial institution, or information that has
been furnished in response to that subpoena, shall be
imprisoned not more than 5 years.
This provision raises several questions, such as whether the financial
institution may consult with legal counsel with regard to the content
of the subpoena. The provision would nullify private contractual
arrangements between customers and their financial institutions. And
there is a basic issue of free speech here.\42\ Moreover, if this
provision is considered desirable, will a future Congress extend its
logic beyond subpoenas to search warrants as well? How will Congress be
able to exercise oversight when the organizations and persons affected
cannot come forward freely? For these reasons, this provision should be
removed.
---------------------------------------------------------------------------
\42\ See Doe v. Ashcroft, 334 F.Supp.2d 471 (2004).
Another problematic offense concerns the interference with federal
---------------------------------------------------------------------------
employees:
Sec. 113. Interference with Federal officers and employees
Whoever interferes with any officer or employee of the
United States or of any agency in any branch of the United
States Government (including any member of the uniformed
services) while such officer or employee is engaged in or on
account of the performance of official duties, or any
individual assisting such an officer or employee in the
performance of such duties or on account of that assistance
while that person is engaged in, or on account of, the
performance, official duties shall be imprisoned not more than
one year.
Again, the sweeping language employed here--undefined
``interference''--raises several questions. First, what problem is this
provision seeking to address? Is it necessary to cover every employee
of the federal government? If an employee at the Department of Labor is
suspected of child abuse, for example, can the local child protective
services people run afoul of this provision because they want to
interview a reluctant and evasive suspect during work hours? What if
the ex-spouse of a postal carrier confronts the employee about missing
another pre-arranged drop-off of a child in a joint-custody situation?
If the postal employee would rather not be bothered, is the brief
confrontation a criminal offense? It is far from clear how far federal
agents will interpret the ``interference'' term. For this reason, this
provision should be dropped from the bill.
D.
Some of the offenses that H.R. 1823 would eliminate ought to
be retained. Here are three statutes concerning the execution
of federal warrants.
Sec. 2234. Authority exceeded in executing warrant
Whoever, in executing a search warrant, willfully exceeds
his authority or exercises it with unnecessary severity, shall
be fined under this title or imprisoned not more than one year,
or both.
Sec. 2235. Search warrant procured maliciously
Whoever maliciously and without probable cause procures a
search warrant to be issued and executed, shall be fined under
this title or imprisoned not more than one year, or both.
Sec. 2236. Searches without warrant
Whoever, being an officer, agent, or employee of the
United States or any department or agency thereof, engaged in
the enforcement of any law of the United States, searches any
private dwelling used and occupied as such dwelling without a
warrant directing such search, or maliciously and without
reasonable cause searches any other building or property
without a search warrant, shall be fined under this title for a
first offense; and, for a subsequent offense, shall be fined
under this title or imprisoned not more than one year, or both.
Since all three provisions limit the authority of federal agents, there
is no problem with respect to a constitutional basis for congressional
authority. And since all three provisions are statutes, there is no
problem with respect to agency rule-making. These statutes do not
duplicate state crimes and they advance an important interest--that
abuses concerning the procurement and execution of warrants are not
only unprofessional, but criminal.
E.
In addition to substantive offense changes and reorganization,
H.R. 1823 also seeks to make changes to federal sentencing. For
example, the bill seeks to expand mandatory minimum sentencing
in some areas while removing fines as a punishment option in
other areas. These sentencing changes, whatever their
respective merits may be, make an ambitious endeavor
unnecessarily complex. Sentencing changes should be considered
and scrutinized in a separate legislative proposal.
F.
As previously noted, the U.S. Code is much too complex for the
average person to understand. As a result, it is too often a
trap for innocent persons. H.R. 1823 falls short with respect
to addressing this serious problem. In fact, wherever the term
``willfully'' is replaced by the term ``knowingly,'' the code
is actually made worse.\43\ Every federal regulation that
entails conduct that is not intrinsically wrongful should
include a willfulness element--and, crucially, ``willfulness''
must be explicitly defined so that it covers both the law and
the facts. To reinforce that safeguard, federal law should also
make two defenses available to all defendants in all cases: (1)
a good faith belief in the legality of one's conduct; and (2)
an inability to comply with any legal requirement. These
safeguards exist with respect to our complicated tax code but
they ought to be expanded to the rest of the U.S. Code as well.
---------------------------------------------------------------------------
\43\ See Brian W. Walsh and Tiffany M. Joslyn, Without Intent
(April 2010), p. 43, note 77.
iv. conclusion
The federal criminal code has become so voluminous that it not only
bewilders the average citizen, but also the most able attorney. Our
courthouses have become so clogged that there is no longer adequate
time for trials. And our penitentiaries are now operating beyond their
design capacity--many are simply overflowing with inmates. These
developments evince a criminal law that is adrift. To get our federal
system back ``on track,'' Congress should take the following actions:
Discard the old maxim that ``ignorance of the law is
no excuse.'' Given the enormous body of law presently on the
books, this doctrine no longer makes any sense.
Minimize the injustice of vaguely written rules by
restoring traditional legal defenses such as diligence, good-
faith, and actual knowledge.
Restore the rule of lenity for criminal cases by
enacting a statute that will explicitly provide for the
``strict construction'' of federal criminal laws.
Abolish the doctrine of strict criminal liability as
well as the doctrine of vicarious liability. Those theories of
criminal liability are inconsistent with the Anglo-American
tradition and have no place in a free society.
These reform measures should be only the beginning of a fundamental
reexamination of the role of the federal government, as well as the
role of the criminal sanction, in American law.
__________
Mr. Sensenbrenner. Without objection. Professor Saltzburg.
TESTIMONY OF STEPHEN SALTZBURG, WALLACE AND BEVERLEY WOODBURY
UNIVERSITY PROFESSOR, GEORGE WASHINGTON UNIVERSITY SCHOOL OF
LAW
Mr. Saltzburg. Mr. Chairman, Vice Chairman Gohmert, Ranking
Member Scott.
Mr. Sensenbrenner. Could you please push the mike button?
Mr. Saltzburg. I am pushing it, but----
Mr. Sensenbrenner. Could we get some of our technical gurus
to--or Mr. Lynch, why don't you pass your mike over to
Professor Saltzburg, and that will solve the problem.
Mr. Saltzburg. Mr. Chairman, Vice Chairman Gohmert, Ranking
Member Scott and Members of the Committee, I too am very happy
to be here today. It is a special thrill for me to be here with
two former Attorneys General whom I served. And I would like to
say that I think it is a tribute to both of them that they pay
close attention to issues of justice and come before you and
speak so wisely based on their experience. And I agree with
every word they said. And I agree with what Mr. Lynch said. In
fact, I have testified before Congress many times. And this is
the only time I can remember where I agree with everybody. And
therefore, I don't want to repeat what they said, Mr. Chairman.
What I would like to do is hit some points that I think are
worth discussing.
You raised the issue of attempt and conspiracy, inchoate
crimes. As you are well aware, the Model Penal Code takes one
view. The States are basically divided in whether you should
punish those crimes the same as completed offenses. I think
some careful consideration needs to be given to that issue. It
is not a simple one. After 200 years, we still have division
about how best to treat it.
When it comes to mens rea, I think everyone on this panel
is thrilled that for one of the rare times Congress is actually
concerned about whether or not we are convicting people who are
innocent, people who don't have fair warning about the law. In
the past, so often in hearings the attempt seems to have been
made to scare people about crime. And instead of worrying about
Americans who are prosecuted and whether they are prosecuted
fairly, the effort was let's just be tough on crime. Now I
think the Congress is being smart. It is looking at how to have
a Criminal Code that will be streamlined, accessible, and will
work. And I think that is one of the reasons we all applaud
that. When it comes to the choice of mens rea, I think the
truth is that ``willfully'' or ``knowingly'' are terms that
can't work across the board. That knowingly is almost as
construed in as many different ways as willfully is by the
courts. And I think one of the things that the Committee should
consider is whatever term you choose, and I recommended for
serious crimes, the most serious crimes using the Model Penal
Code purposely or purposefully. And I think that whatever term
you choose or terms, and you may very well have more than one,
it is important for you to define that term, and not to leave
it for the courts to say this is our definition. It is clear,
and it could be captured then by every Federal court in a
simple jury instruction, and it would go a long way to
simplifying Federal criminal law.
As the Committee goes about taking a look at the Federal
Code, to me it makes a lot of sense, and I think this was
mentioned by other speakers, not just to reorganize, but to
take a hard look at the structure, a hard look at whether or
not the ranking of offenses is right, whether or not the
penalty structure remains the same. Because I think we could
all honestly agree that over decades many Congresses have added
statutes to the Criminal Code without going back and saying how
do they compare to others? And in large measure, I think it has
been left to the Sentencing Commission to try to figure out how
to organize things in a way that makes sense. But that is a job
for Congress in the first instance. It is not a job for just a
Sentencing Commission. I think this is an opportunity to do
that. And I am not urging any particular ranking at this moment
or any particular penalty structure. I am just saying that this
is something that would work well at a time when you are
looking to reorganize the Code.
The other thing about this hearing I can't help but remark
on is, Mr. Chairman, it is one of the rare times where the
Chair of the Committee has actually said let's have a
discussion. And I can't tell you how welcome that is to say
let's talk about this. Let's get good minds together,
experienced lawyers, and see if we can do something right for
the American people, see if we can enact a statute or reform a
code in a way that would make us proud. We have got a lot of
models out there, not just the Model Penal Code, we have got a
lot of work done by States. And if we took a careful look, if
you took a careful look, I think the improvement in the Federal
Criminal Code could be remarkable. And it is not, as I think we
can tell, it is not a Democratic issue or Republican issue, it
is not a liberal or conservative issue, it is an issue about
fairness, about the structure of American law, about fair
notice, about fair definitions of crime.
That is why I think I agree very much with Mr. Conyers.
This is one of the most exciting hearings that I have had an
opportunity to participate in. And Mr. Chairman, I think it is
because you started us down this road of this discussion, and I
couldn't be happier to be a part of it. Thank you very much for
having me.
[The prepared statement of Mr. Saltzburg follows:]
__________
Mr. Sensenbrenner. Thank you very much, Professor
Saltzburg. This is the first time I have been praised by a
witness that has been called by my friends on the minority. So
we really are off to a good start. I will yield myself 5
minutes.
Both General Meese and General Thornburgh have talked about
the problem of having administrative regulations ending up
having criminal penalties, and maybe not the criminal penalties
that would have been thought about had this Committee gone
through it. In yesterday's Wall Street Journal, they had a
rather lengthy story, which I won't read, that the headline
was, ``A Sewage Blunder Earns Engineer a Criminal Record.'' And
a man named Leonard Lewis was an engineer at a senior citizens
home, where frequently the residents there flushed adult
diapers down the toilet. And it was Mr. Lewis' job, basically,
to unplug the sewage system. And when he did so, he put the
backed up wastewater into something that he thought would end
up in the sewage treatment plant, but actually ended up in Rock
Creek. And the EPA came in and threw the book at him. And he
ended up getting a $2,500 fine, and he ended up escaping prison
because he didn't have a criminal record, and told that to the
judge.
Now, this is an example of the civil-criminal penalty mix.
Because he was subject to the same criminal law as somebody who
knowingly and willingly dumped toxic materials into a navigable
water of the United States. So I think we have got two problems
with the penalties for violating administrative regulations,
one of which is what the criminal penalties are. Because
obviously there is no proportionality, because Mr. Lewis didn't
have the mens rea that he was committing a crime. It ended up
being a strict liability crime. And the other is definitional.
Now, both of them are difficult to solve. But relatively
speaking, I think it would be easier to classify crimes for
administrative regulation violations by this Committee, and
thus get jurisdiction over them. And maybe that can bootstrap
us into the definitional ones, where we can look at crimes that
require mens rea. Which I think unplugging the adult diapers
from the toilets at the senior citizens residence is one that
certainly should have a mens rea and those that shouldn't.
What is your reaction to that and how can we get to it?
Either General Meese or General Thornburgh.
Mr. Meese. Mr. Chairman, I think that one of the things
that I used to teach when I was teaching criminal law, which
admittedly was over 30 years ago, but at that time I used to
start off the lecture on mens rea by saying there is no such
thing--virtually no such thing in the criminal law as strict
liability. And at that time it was true. This idea of strict
liability as a part of the criminal law is a relatively recent
feature, and has been mostly in the kinds of cases that you
just cited, the environmental field, some of the business
areas, that sort of thing. And I think it is a very dangerous
idea to have strict liability where you remove entirely the
intent of the individual to even commit a crime or to even do
an act that would be criminal.
So I read that same Wall Street Journal article, and I
think it was a graphic example of this problem. And I think
that the various ideas that have been presented here, including
the Judiciary Committee review of anything that carries a
criminal penalty, the review of whether something should be a
crime or not, there are two other ways at least that can handle
the situations which are not really criminal in nature, the
kind of thing you are talking about here.
One, of course, is civil actions, which are readily
available to in a sense recompense the community for the damage
that was done. A second is, of course, some sort of
administrative sanctions, calling them infractions or whatever
the situation might be, but where there are several penalties
of various sorts such as fines or that sort of thing rather
than the potential for prison. So I think that would be one
way, but particularly to remove this idea of strict liability
from the criminal law.
Mr. Sensenbrenner. Mr. Thornburgh, I have 9 seconds left.
So anything you want to add to that?
Mr. Thornburgh. Start the clock, Mr. Chairman. I agree with
everything that my predecessor and friend and colleague Ed
Meese said, and incorporate that in my testimony.
Mr. Sensenbrenner. Okay. Thank you. Without objection, the
Wall Street Journal article referred to by both General Meese
and me will be included in the record. The gentleman from
Virginia, Mr. Scott.
[The information referred to follows:]
__________
Mr. Scott. Thank you, Mr. Chairman. Let me follow up on
that. General Meese, you indicated the need to go through the
Judiciary Committee because we have expertise on criminal law.
But we do not have expertise on airline safety, mining safety,
and food safety. From a procedural point of view, how would we
coordinate with the other Committees in what should be a crime?
And if someone knowingly, willfully, or purposefully violates a
significant health standard, how would that become a crime?
Mr. Meese. Mr. Scott, I believe the way to do it would be
through sequential referral. Obviously, the subject matter
would probably be initiated in the subject matter Committee
which has jurisdiction over the particular area of human
conduct. And I would think that then if it was deemed that it
would be appropriate, or would be suggested by that Committee
that there be a criminal penalty attached, that then it would
be referred to the Judiciary Committee. This is often done now
in various areas where the Congress acts. And I think that
would be a way of having the benefit of both subject matter
knowledge of the initial Committee and the overall criminal
offense knowledge of the Judiciary Committee.
Mr. Scott. Now, would we have to--every time they change a
regulation would you have to go through the same process?
Mr. Meese. Well, one thing I would hope is that if this
were done there would be a lot fewer individual regulations
carrying criminal penalties, particularly if the subject matter
that was discussed with the Chairman were carried through, and
that a lot of things would not be subject to criminal penalty.
Mr. Scott. If there was something that was threatening food
safety, you wouldn't want to have to wait to go through a
sequential referral on both sides of the Capitol before the
President could get a bill to protect public safety. A
regulatory change could go into effect. If you violate the
regulatory change, you committed a crime.
Mr. Meese. Well, Mr. Scott, I believe that most of those
areas are already covered.
Mr. Scott. That is what we are dealing with.
Mr. Meese. But if there was an emergency, I would think
that if there was something that required prompt action, there
would be general agreement it could go through rather quickly.
I don't see this as a barrier to quick action in the unusual
case such as you cite. On the other hand, I think we are
talking about something pretty serious in sending someone to
prison, as the article referred to by the Chairman indicates.
So I think the importance of a criminal penalty really requires
action by and an informed action by the most expert Committee
of the Congress that has this total matter of criminal offenses
within its jurisdiction.
Mr. Scott. General Thornburgh, do you want to comment on
that?
Mr. Thornburgh. I think you really have to look, Mr. Scott,
at two separate kinds of situations. One is the laws that are
currently on the books. And I have suggested in my testimony
that those could be dealt with by removing all criminal
penalties except in cases where there is a repeat offender, or
where there is a demonstrated harm, such as you suggest on food
safety or the like. Prospectively, it seems to me that if you
have a bill moving through the substantive Committee that
relates to incorporating a new criminal offense, not a
regulatory or civil remedy, but a criminal offense, that a
sequential referral would not only be in order, but would make
for a much more orderly way to operate. Because that
relationship between the Committees in question would develop
and become more or less routine. I don't see it as a delaying
or burdensome process.
Mr. Scott. Thank you. On the question of conspiracies and
attempts being charged with and sentenced the same as a
completed offense, it seems to me conspiracy, where the
conspiracy--where people change their minds and do not commit
an offense, and an attempt which is interrupted by a police
action where they tried to commit a crime and police stopped
them are two entirely different situations. How do we deal--is
there a difference? And should this be statutory, or should the
sentencing guidelines deal with it through the Sentencing
Commission?
Mr. Thornburgh. I would defer to Professor Saltzburg on
that, because this is a field that he has looked at in great
detail. My observations would be derivative from what I have
learned from him.
Mr. Scott. Thank you. Professor?
Mr. Saltzburg. I don't think there is an easy answer to
that. I think that reasonable people could differ. And I think
one could differ on whether conspiracy and attempt should be
treated differently as a starting point, as they are in some
States. But either approach could work. But I think it is
important for this Committee to take a position on it being one
or the other.
Mr. Sensenbrenner. Thank you. The gentleman's time has
expired. The gentleman from Texas, the Vice-Chairman of the
Committee, Mr. Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman. And thank all of you
for being here, for the work you have done on this issue. And I
don't know, Professor Saltzburg, I have been here, this is
finishing 7 years, and I am not sure it is good to say as long
as this Committee takes a position on it, because I have seen
some of our positions. But the last 4 years have seen some
hearings that I will never forget, having people come in here,
or in one case a man had had strokes in prison where there was
no mens rea requirements in the offenses so-called. And just to
see the damage to human life that this Congress has done by
rushing forward and creating crimes just so that Congress could
look tough without giving it thought, really reprehensible what
has been to life.
So I really appreciate the work you have done. Any time the
Heritage Foundation and ACLU get together and think something
is a good idea it does deserve merit. And General Meese,
General Thornburgh, it is great having you here with your
expertise. General Meese, your friendship over the last 3 or 4
years has just really meant so much to me in getting your
expertise.
With regard to strict liability, we know that that was
something that was put in place as a cost shifting mechanism to
handle damages from accidents. As a policy matter, some in
power thought it would be good to have the deeper pockets
responsible, so we just said strict liability. But can anybody
think of anything that should be a crime, anything at all that
would be okay to be absent a mens rea, a guilty conscience?
Anybody think of anything?
Mr. Meese. I would think the closest we would come to it
would be something involving the use of a weapon of mass
destruction, where there is pretty general knowledge that this
is not a pleasant thing to do. And that is about as close as I
can come to it. But other than that, I can't see offhand
anything that would require strict liability in the criminal
law sense.
Mr. Gohmert. That is a good point. Mr. Lynch, you had
mentioned we should follow the Tax Code example. Is
willfulness, is that used in the Tax Code?
Mr. Lynch. Yes, sir, it is used in the Tax Code. But what
is important is that the courts have treated the term
differently depending on the case and the area of law. With the
Tax Code we have got precedents in place where the law is now
clear where willfully is interpreted that it is not only that
the person knew the legal provision he was violating and he
knew the facts that were involved. So it applies to both the
facts and the law. So it is a very tough standard. And that is
in place for the Federal Tax Code for tax evasion cases. And
but the willfulness term is interpreted differently in other
areas of the law. That is why it is important I think for the
Committee, in bills like this, to define it and to define it
the same way we have it in the Tax Code.
Mr. Gohmert. Do you think we need wilful in all cases
instead of knowing? I mean, having been a judge and chief
justice, I was always marveling at judges who had trouble
figuring out what ``knowing'' meant or what ``must'' or
``shall'' meant or ``what is'' is.
But I am not sure if we are talking about murder or rape or
something of that nature. Do you really need somebody to tell
you in court that that is a crime, and do you really need the
possibility of somebody going, oh, you mean I wasn't supposed
to kill him? Oh, I am sorry, my bad. I didn't know there was a
law against killing somebody.
Mr. Lynch. Right, I think what--I will speak for myself,
but I think what we are driving at from what I have gathered
from the written testimony of the other witnesses is that we
are talking about the malum prohibitum area of the law. That is
where the standards need to be tightened, elevated from knowing
to willfulness, when it comes to malum--offenses such as
murder, rape, theft; the common law offenses, willfulness, that
wouldn't apply in those situations.
Mr. Gohmert. Thank you. My time runs out. I would ask you
if you think of anything after the hearing that you think
really would be okay to allow somebody who was not in Congress,
some agency, to just come up with some crime, I would like to
know what it is, because otherwise I think we ought to be
voting on those.
Thank you, Mr. Chairman.
Mr. Sensenbrenner. The gentleman's time has expired. The
gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you. Professor Saltzburg and Attorney
Lynch, where do we go from here? What are your recommendations
in terms of how we take this proposal and move ahead?
Mr. Saltzburg. Mr. Conyers, one of the things that I think
came through from all the witnesses' testimony is none of us, I
think, is claiming to be familiar intimately with every single
line of this draft. It is a huge undertaking. And one of the
possibilities would be for the Committee to decide to take
pieces of it, to have a hearing on pieces to see whether or not
the mens rea provision, as applied to, for example, you could
take the most common crimes that are prosecuted, you could take
drug crimes, immigration crimes, and you could examine both the
structure of what is being proposed, the penalty structure, to
see whether or not the grading of the offenses seems right and
whether the mens rea provisions seem like they are the right
ones for those particular statutes.
And I suspect if you started out with the crimes that were
prosecuted the most and were comfortable with what you were
doing, the rest would tend to fall into place pretty nicely.
Mr. Lynch. I would say that the bill, as it is presently
drafted, it identifies scores of offenses that are duplicative
and unnecessary. But, as I said, I think there are some--a few
simple things that can be done that would greatly strengthen
the bill.
Number one, apply this willfulness standard across the
board for regulatory offenses. Secondly, you can codify the
rule of lenity so that it applies across the Federal Criminal
Code, which means where any of these regulations or laws that
are ambiguous the ambiguity will be resolved in favor of the
person on trial whose liberty is at stake. That is the way it
ought to work.
To reinforce that standard, I think we should also, very
simply, you can put in a provision that would allow all the
defendants to be able to have an affirmative defense to say
that a good-faith belief in the legality of their conduct can
be pleaded and proved as a defense. That would reinforce, I
think, the mens rea element.
It is so disconcerting to read some of this case law where
a court will look and examine the law and say, well, good faith
is not relevant here. And that should not be a part of our
criminal justice system, in my view.
Mr. Conyers. Let me ask you former Attorneys General about
corporations being people. I have had trouble with that Supreme
Court decision, but at the same time I support the notion that
has been raised in this discussion about corporate criminal
liability. Can we rationalize these, or maybe Supreme Court
decisions get changed over the years too, but how do you see
that this morning?
Mr. Thornburgh. The doctrine of respondeat superior, of
course, originally arose on the civil side to impose civil
liability on corporations for acts of employees within the
scope of their responsibility. In 1909, it was somehow
transmitted in the criminal side that creates criminal
liability for employees for actions taken on behalf of their
employer.
I don't think we are wise to recommend that that be
reversed, but I think that it is important to recognize that
liability imposed upon the corporation affects not the
wrongdoers, but the shareholders. And the viability of a
company, look at the Arthur Andersen case, which, using the now
discredited theft of honest services theory, destroyed a major
institution in the American business world. And when the
Supreme Court reversed it, there was no way to resurrect that
organization or to reemploy the people who had been thrown out
of work.
Mr. Conyers. The harm had been done.
Mr. Thornburgh. I beg pardon?
Mr. Conyers. The harm had been done.
Mr. Thornburgh. Yes, it had. So I think that what we really
ought to do is take a look at how corporate liability is
imposed. I would suggest that the observations made and that I
cited in the Attorneys General guidelines, that corporations
that have an effective, internal mechanism for dealing with
wrongdoing, and apply and execute that, should be recognized as
such. And, similarly, if an employee is a rogue employee,
proceeding in an illegal, criminal act without any
authorization or without even a nod to the rules of the
company, should not impose criminal liability.
The particulars of that, Congressman Conyers, I would leave
to the draftsmen, but I think the notion is that it is only in
the most severe case where liability should be imposed upon the
corporation.
Now, that is not going to be a popular cause because people
think it is a good thing to sock the corporations these days,
but in this case it has a negative effect that really requires
a much tighter set of rules.
Mr. Conyers. Chairman, can I get enough time for General
Meese to respond?
Mr. Sensenbrenner. Without objection.
Mr. Meese. Thank you, Mr. Chairman, Mr. Conyers. I would
agree entirely with Mr. Thornburgh on what he has said, but I
also note that one other reason why this should be clarified is
it can also go the other way, and that is the officers of the
corporation will give up the corporation and allow it to plead
guilty so that they can escape punishment themselves. And so
that, I think, the whole issue should be clarified, remembering
that a corporation can always be sued civilly in order to
punish them in the only way that the criminal law could either,
which is mainly by a large fine, but without the stigma of the
indictment and the criminal accusation which, as Mr. Thornburgh
properly points out, can kill a business organization, throwing
out of work people who have absolutely no culpability
whatsoever.
Mr. Conyers. So maybe we should just forget about the
criminal liability part as applies to corporations?
Mr. Meese. I would suggest except in the case where the
whole organization and methods of the corporation is a part of
the whole corporate operation.
Mr. Conyers. Thank you.
Mr. Sensenbrenner. The gentleman from Puerto Rico, Mr.
Pierluisi.
Mr. Pierluisi. Thank you, Mr. Chairman, and thank you all
for appearing.
In preparing for this hearing, I reviewed what Chief
Justice Rehnquist had to say back in the 1990's regarding the
criminal jurisdiction in general, and I noticed that when
dealing with criminal activity his view was that Federal courts
should concentrate their efforts in cases involving substantial
multi-state or international aspects. And another thing he
mentioned is that also he recognized that Federal courts had a
role when dealing with complex commercial or institutional
enterprises.
Then the thing that comes to my mind immediately when I
hear this is all these drug cases that we have in Federal
courts, particularly cases dealing with drug possession, as
opposed to drug trafficking.
And I would like to hear from the former AGs their views on
this, you know, limiting the role of Federal courts to fighting
drug trafficking as opposed to simple drug possession or drug
possession. Shouldn't that be left in the hands of the States?
Mr. Meese. I would think that in general the answer is yes,
but that we have to also be very careful in looking at the
statistics, because in most, or I would say many, if not most
of the drug cases, the possession charge is something that the
defendant pleads to as a lesser-included offense as a way of
settling a case, often in plea bargaining. But in cases where
the only offense is possession, I think that in most cases this
is properly left to the States.
Mr. Thornburgh. When I served as a prosecutor and when I
served as Attorney General, we made a point to go out of our
way to avoid simple possession cases, only as a means of
including an exit for someone who wanted to plead guilty rather
than face the real charges that have been brought against them,
and that was a way for us, regretfully, to have to handle the
business because it was substantial.
But I think under every Attorney General that I have known
or served with or under, the real concentration is on the
international aspects and on the trafficking and those who make
millions, if not billions of dollars out of dealing in these
illegal substances.
Mr. Pierluisi. Yes. I do wonder, though, why we have those
statutes the way they are if we are not really enforcing them.
But that is another matter.
Let me then address a question to Professor Saltzburg and
Mr. Lynch. I, myself, am all for clarity and consistency in
having the mens rea requirements imposed and so on. And then
when I see the definition I get, or at least what is being done
mostly when imposing the willfulness requirement, I see that it
requires that the act be knowingly, that it be done knowingly.
And as I view that is that it is voluntary, it is intentional.
And then it also requires a batting tent or purpose, and a
side view that it requires that the person at least knows that
what he or she is doing is wrong, not necessarily that it
violates section such and such of Title 18.
Am I reading it well because, you know, and if that is what
we are about to do I am all for it because we should be
requiring both things, knowing this, knowingly, a knowing act,
and also conscious, consciousness of the wrongness involved. Do
you--would you like to comment?
Mr. Saltzburg. Yes. In my written testimony I talk about
that. I think most people would agree that willfully combines
both.
Mr. Pierluisi. Okay.
Mr. Saltzburg. A knowing and a sense that what you are
doing is violating the law. The knowingly standing alone does
not always do that and sometimes courts interpret knowingly as
having a bad purpose, but sometimes they don't.
Mr. Pierluisi. Okay.
Mr. Saltzburg. And so it is one of the reasons I said that
it would be important to have a definition that was clear that
worked across the board.
Mr. Lynch. Yes, and the only thing I would add is it
doesn't mean like--take the tax example, which I keep coming
back to--is a willful standard, doesn't mean that a tax, that a
prosecutor would have to prove that the person knew he was
violating in a specific subsection 4 of the Tax Code. The
prosecutor would only have to prove that the person knew what
he was doing was against the law and went ahead anyway. And I
think that is what you put your finger on, is what the standard
ought to be.
Mr. Pierluisi. Mr. Chairman, can I have 15 more seconds,
unanimous consent for 15 more seconds?
Mr. Sensenbrenner. Without objection.
Mr. Pierluisi. Thank you. Just one--I heard you say, Mr.
Lynch, that you support having the defense of good faith belief
that the conduct is legal, and I agree with that. But I wonder
whether Professor Saltzburg also supports that.
Mr. Saltzburg. Not in all cases. I think it has to be
carefully--in many cases, I do agree, but I think in some cases
it would reach unfortunate results.
Mr. Sensenbrenner. The gentleman's time has expired. The
gentleman from Florida, Mr. Deutch.
Mr. Deutch. Thank you. Thank you, Mr. Chairman.
I have some concerns about the section of H.R. 1823 as they
apply to immigrants and in particular section 319.
It is my understanding that under current law a person who
improperly enters or attempts to enter the U.S. can be fined or
imprisoned for up to 6 months or both. This bill seems to end
judicial discretion in this area of the law. Judges would no
longer have discretion to impose a fine and, as I read the
section, this would require judges to impose, as I understand
it, this would require judges to actually impose a prison
sentence.
I would like to understand, first, a sense from the panel,
and I think, in particular, General Meese and Governor
Thornburgh, your thoughts on this provision in particular, by
removing the judicial discretion to impose fines I am concerned
they were not only potentially exposing permanent resident
immigrants who forget to travel with their papers when crossing
the border to possible prison time, but hundreds of thousands
of people who entered illegally in the past, which, if I
understand this correctly, would be subject to 6 months
immediately.
Am I reading that correctly? Is that your interpretation of
this?
Mr. Thornburgh. First of all, I have to compliment the
Member on doing what I haven't done, and that is to read every
section of this in search of these issues.
And I think what you have to incorporate into your query is
the previous discussion that we've had with regard to the
nature of a criminal offense. You refer to someone who forgot
to take their papers with them when they are traveling. I don't
think that would qualify as a criminal offense under the types
of standards that we are talking about. The mens rea
requirement would not be present.
On the other, the matter of discretion, I would have to
defer to others who may have given the kind of scrutiny you
have given to this section that I haven't frankly.
Mr. Deutch. General Meese, I am not sure if you have.
Mr. Meese. Yes. I would suggest that for any offense or at
least virtually any offense, certainly offenses of this nature,
that fines and probation would be available to a judge. I think
that a judge, certainly, on all first offenses, with perhaps a
few exceptions of very serious crimes, the judges need as much
discretion as possible and so I would say taking away the fine
aspect of it would probably not be in the best interests.
Mr. Deutch. Professor Saltzburg, do you have the same
concern I do?
Mr. Saltzburg. I do, and it is a concern in a number of
provisions of the statute where under current law the judge has
a choice, it is a fine, imprisonment or both. And it is not
clear to me whether in the bill there is going to be a specific
separate section on fines that authorizes them to be imposed.
But right now the concern that you raise is a valid one. If you
eliminate or find, you appear to be changing the law, changing
sentencing and removing discretion that is now there, that
seems to have worked pretty well.
Mr. Deutch. And, in fact, again, as I understand as I read
this, anyone who is in this country having come here illegally,
as defined by the statute, would be subject to an immediate
prison sentence of 6 months, that would include--that would
draw no distinction between someone who snuck in across the
border last week----
Mr. Sensenbrenner. Will the gentleman yield?
Mr. Deutch. I will, Mr. Chairman.
Mr. Sensenbrenner. You know, I can say that in terms of how
we intended to draft this legislation it would be to allow the
judge to impose a fine and probation in lieu of a prison term.
And if we need to correct that before we move forward in the
bill, we will do that.
Mr. Deutch. I appreciate that, Mr. Chairman. And in
reclaiming my time, my concern clearly is that as we have this
broader immigration debate in our country, what this provision
in the bill seems to say is that for the 11 million or so
people who are here, having come under a variety of
circumstances, that every one of them would be subject to an
immediate 6-months prison term that, in fact, that would
include----
Mr. Sensenbrenner. If the gentleman will yield further,
that is not the intent of the drafting of the bill.
Mr. Deutch. Then I, in which case, I thank the Chairman and
look forward to making that clarification so that there is a
recognition in this proposed statute in this bill that there
are differences and that, for example, the valedictorian I
recently met with from a local college, who would be subject to
6 months imprisonment immediately under this bill, that we
would make amends so that there is some difference in the way
that we treat individuals and that, in fact, we treat them as
individuals, and I thank the Chairman and I will look forward
to working with you.
Mr. Sensenbrenner. The gentleman's time has expired. All
Members who are present have had a chance to ask questions, and
I would like to thank our witnesses, thank the Members who have
attended.
General Thornburgh.
Mr. Thornburgh. If I might offer a suggestion, Mr.
Chairman, I received in the mail yesterday from the American
Law Institute, of which I am a member, a letter from its
directors setting forth what their new projects are that are
being undertaken and encouraging members to come forward with
other new projects. Absent from that list was any discussion of
the kind of effort that you have embarked upon, and I would
suggest that you or staff be in touch with the ALI, which as
you know, drafted the original model penal codes and enlist
their services in reviewing this from a technical point of view
and I think it would be a useful thing to do and help to raise
the profile of your efforts.
Mr. Sensenbrenner. A very good suggestion. Thank you for
giving it to us.
I would like to thank our witnesses for their testimony
today.
Without objection, all Members will have 5 legislative days
to submit to the Chair additional written questions for the
witnesses, which we will forward, and ask them to respond as
promptly as they can so that their answers may be made a part
of the record.
Also, without objection, all Members will have 5
legislative days to submit any additional materials for
inclusion in the record.
With that, again, I thank the witnesses, and, without
objection, this hearing is adjourned.
[Whereupon, at 11:21 a.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record