[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]



 
                   DEFINING THE PROBLEM AND SCOPE OF
                        OVER-CRIMINALIZATION AND
                          OVER-FEDERALIZATION
=======================================================================


                                HEARING

                               BEFORE THE

                OVER-CRIMINALIZATION TASK FORCE OF 2013

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 14, 2013

                               __________

                           Serial No. 113-44

                               __________

         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

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama              ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
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                     JUDY CHU, California
TED POE, Texas                       TED DEUTCH, Florida
JASON CHAFFETZ, Utah                 LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania             KAREN BASS, California
TREY GOWDY, South Carolina           CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada                  SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                                 ------                                

                Over-Criminalization Task Force of 2013

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman

                  LOUIE GOHMERT, Texas, Vice-Chairman

SPENCER BACHUS, Alabama              ROBERT C. ``BOBBY'' SCOTT, 
RAUL LABRADOR, Idaho                 Virginia
GEORGE HOLDING, North Carolina       JERROLD NADLER, New York
                                     STEVE COHEN, Tennessee
                                     KAREN BASS, California
                                     HAKEEM JEFFRIES, New York

                     Caroline Lynch, Chief Counsel

                     Bobby Vassar, Minority Counsel



                            C O N T E N T S

                              ----------                              

                             JUNE 14, 2013

                                                                   Page

                           OPENING STATEMENTS

The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Chairman, Over-
  Criminalization Task Force of 2013.............................     1
The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Ranking Member, Over-
  Criminalization Task Force of 2013.............................     2
The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, and Chairman, Committee on the Judiciary     4

                               WITNESSES

The Honorable George J. Terwilliger, III, Morgan, Lewis & Bockius 
  LLP
  Oral Testimony.................................................     7
  Prepared Statement.............................................    10
William N. Shepherd, American Bar Association (ABA)
  Oral Testimony.................................................    21
  Prepared Statement.............................................    23
John G. Malcolm, The Heritage Foundation
  Oral Testimony.................................................    29
  Prepared Statement.............................................    31
Steven D. Benjamin, National Association of Criminal Defense 
  Lawyers
  Oral Testimony.................................................    47
  Prepared Statement.............................................    49

          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
Prepared Statement of the Honorable Steve Cohen, a Representative 
  in Congress from the State of Tennessee, and Member, Over-
  Criminalization Task Force of 2013........................76
                       deg.OFFICIAL HEARING RECORD
      Material Submitted for the Hearing Record but not Reprinted

Booklet entitled USA vs YOU, the Flood of Criminal Laws Threatening 
    Your Liberty, by The Heritage Foundation, submitted by John G. 
    Malcolm, The Heritage Foundation.


                   DEFINING THE PROBLEM AND SCOPE OF

                        OVER-CRIMINALIZATION AND

                          OVER-FEDERALIZATION

                              ----------                              


                         FRIDAY, JUNE 14, 2013

                        House of Representatives

                Over-Criminalization Task Force of 2013

                       Committee on the Judiciary

                            Washington, DC.

    The Subcommittee met, pursuant to call, at 9 a.m., in room 
2237, Rayburn House Office Building, the Honorable F. James 
Sensenbrenner, Jr. (Chairman of the Task Force) presiding.
    Present: Representatives Sensenbrenner, Goodlatte, Bachus, 
Labrador, Holding, Scott, Conyers, Cohen, Bass, Jeffries, and 
Jackson Lee.
    Staff Present: (Majority) Robert Parmiter, Counsel; Alicia 
Church, Clerk; and (Minority) Ron LeGrand, Counsel.
    Mr. Sensenbrenner. I would like to welcome everyone to the 
first hearing of the Judiciary Committee's Over-Criminalization 
Task Force. This is the first in a series of hearings the Task 
Force will hold on the growing problem of over-criminalization 
and over-federalization. The Crime Subcommittee had hearings in 
both the 111th and 112th Congresses to resurrect important 
policy discussions that have been dormant for over 2 decades 
about the breadth and scope of the Federal criminal law. Our 
work continues today.
    The objective of today's hearing is to define the scope of 
the over-criminalization problem. That in and of itself is a 
complex and challenging task. At present, the United States 
Code contains approximately 4,500 Federal crimes, as well as 
innumerable regulations and rules, many of which carry severe 
fines and jail time for violations, and there is no indication 
that Congress is slowing down.
    Indeed, over the past three decades, Congress has created 
an average of 500 new crimes per decade, and the Administrative 
Office of the U.S. Courts estimate that over 80,000 defendants 
are sentenced in Federal courts annually. Many of the crimes on 
the books are antiquated or redundant, some are poorly drafted, 
and some have not been used in the last 30 years. Moreover, 
many of the regulatory crimes in the code lack any mens rea, 
the attempt to commit a crime. That means that an American 
citizen may not only be unaware that he is committing a crime, 
but he may be held strictly liable for his conduct.
    In the 109th Congress, 203 bills were proposed containing 
some 446 nonviolent crimes. It is hard to imagine that there 
still remain nearly 500 types of legitimate criminal conduct 
that Congress has failed to properly prohibit. Accordingly, the 
Task Force will examine the types of conduct Congress has 
criminalized to assess several important issues. Should the 
conduct be criminal? If so, to what extent should it be 
punished? Is the offense properly written to distinguish 
criminal from lawful conduct?
    The need for reform becomes particularly apparent when you 
read the stories of well-meaning Americans whose lives have 
been turned upside down when they run afoul of an obscure 
Federal statute, rule or regulation. In Virginia, a little girl 
saved a woodpecker from the family cat and was fined $535 
because under the Federal Migratory Bird Act it is a crime to 
take or transport a woodpecker. In Texas, a 66-year-old retiree 
had his home raided by a SWAT team and spent almost 2 years in 
prison because he didn't have the proper paperwork for some of 
his prized orchids, all of which were legally imported. The 
judge who sentenced him to prison said sometimes life hands us 
lemons. But the source of the sourness was the government. This 
Task Force is an overdue effort to address this problem.
    We will focus on reforms to streamline our criminal code, 
reviewing Federal laws in Title 18 to modernize our criminal 
code and addressing codification of crimes outside of Title 18 
that have not gone through the Judiciary Committee. We will 
examine the extent of the problem and make recommendations to 
the full Committee on how to effectively address these issues.
    I look forward to working with my Task Force colleagues on 
this bipartisan effort. And it is now my pleasure to recognize 
for his opening statement the Ranking Member of the Task Force, 
the gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Today's hearing about over-criminalization of conduct and 
over-federalization of criminal law comes after a series of 
conversations and hearings that have taken place over the last 
two Congresses. Members of the Crime Subcommittee have met with 
a coalition of organizations, some of whose leaders are with us 
today.
    These and other organizations have come to Congress to seek 
consideration and review of the practice and process of 
enacting Federal criminal law, and they have come out of a 
concern for what they and many others view as an explosive rate 
of growth of the Federal criminal code. They also have 
questions about the wisdom of continued expansion of the 
criminal code without first taking time to consider and review 
the process by which crime legislation is enacted.
    Their concern is valid. The U.S. Criminal Code has 
dramatically increased in size and scope since it was last 
recodified about 50 years ago. There are an estimated 4,500 
Federal crimes in the code today, and according to a study by 
the Federalist Society, the number of Federal offenses 
increased by about 30 percent between 1980 and 2004. We are 
averaging almost one new crime a week over the past few 
decades.
    In the top 4,500 provisions of the Federal criminal code, 
there are an estimated 300,000 or more Federal regulations that 
can be enforced with criminal penalties. Far too many of these 
criminal offenses and regulations lack the adequate criminal 
intent or mens rea requirement to protect the innocent. Some 
offenses have no intent requirement at all.
    A historic and groundbreaking joint study and report 
released by the National Association of Criminal Defense 
Lawyers and the 2010 Heritage Foundation report ``Without 
Intent'' took a look at the Federal legislative process for non 
violent criminal offenses introduced in the 109th Congress. 
That is 2005, 2006.
    The study revealed that offenses with inadequate criminal 
intent requirements were present throughout all stages of the 
legislative process. Over 57 percent of the offenses introduced 
and 64 percent of those actually enacted into law contained 
inadequate criminal intent requirements, putting the innocent 
at risk of criminal prosecution. The study also commented on 
poor legislative craftsmanship, citing legislation as being 
vague, far-reaching, and having inadequate mens rea 
requirements.
    The consequence of this will lead to unjust prosecutions, 
convictions, and punishments, so I look forward to hearing 
today's witnesses' suggestions regarding methods of improving 
legislative draftsmanship.
    In requirements primarily a matter of State and local law 
over the past 40 years, Congress has increasingly federalized 
crimes already covered by State law. Not surprising, this dual 
Federal/State prosecution authority not only creates tensions 
between the government entities, but also places an individual 
in an extremely negative and precarious position of being 
forced with prosecution either at the Federal or State level. 
The bottom line is that an individual's fate has often hinged 
on not the actual offense, but the authority to prosecute them. 
It will be the challenge of this Task Force to explore and 
resolve the impact of over-federalization in the area of other 
crimes, including but not limited to such crimes as carjacking 
and drug offenses.
    An unforeseen consequence of over-criminalization and over-
federalization has been over-incarceration, with the explosion 
in growth in the U.S. prison population. The number of Federal 
prisoners in 1980 was 25,000, but it is over 200,000 today, and 
it is this number, when added to those incarcerated in state 
and local jails and prisons, has resulted in the United States 
now being the largest incarcerator in terms of both the total 
number incarcerated and the rate of incarceration.
    In the last 30 years, we have gone from an average daily 
jail and prison incarceration level of about 500,000 to over 2 
million, with an average incarceration rate of over 750 per 
100,000 residents, a rate about seven times the international 
average. China, by contrast, with three times as many people, 
has a total incarceration level of 1.5 million with a rate of 
about 117 per 100,000. And we look to minorities, it is even 
worse. The average lockup rate for African Americans is around 
2,200; 10 States the rate is almost 4,000.
    That is particularly egregious because of a report from the 
Pew Center on the States. They did research and found that any 
incarceration rate over 350 per 100,000 gives diminishing 
returns, and at 500 per 100,000 actually becomes 
counterproductive, meaning that it actually generates more 
crime than it stops by messing up so many families, wasting so 
much money on prisons, having so many people in the area with 
criminal records.
    The work of this Task Force begins today, and it will 
involve identifying improvements in the Federal criminal code 
that we can all agree on. This work is extremely important and 
must be done correctly and effectively. It will require a major 
commitment of time and attention and must involve participants 
and input not only from Members of both parties of the House 
and Senate, but also from a diverse gathering of interested 
parties, including organizations in the over-criminalization 
working groups and others.
    We will need the help of criminal law researchers, Federal 
law enforcement community, representatives of the judiciary, 
including the U.S. Sentencing Commission, and the 
Administrative Offices of the Courts, and other interested 
organizations and professionals. So I look forward to working 
with my colleagues on the Task Force and look forward to our 
witnesses today, particularly attorney Benjamin, who is one of 
my constituents.
    Thank you very much.
    Mr. Sensenbrenner. Thank you.
    The gentleman's time has expired.
    The Chair recognizes the Chair of the full Committee, 
gentleman from Virginia, Mr. Goodlatte.
    Mr. Goodlatte. Thank you, Chairman Sensenbrenner. I am very 
happy to be here today at the introductory hearing for this 
bipartisan Over-Criminalization Task Force. Today's hearing 
will afford members of the Task Force the opportunity to hear 
from a distinguished panel of outside experts who have been 
studying this issue very closely for a number of years.
    The number of Federal crimes has exploded in recent 
decades, bringing the number to approximately 4,500. According 
to a study by the Federalist Society, the number of Federal 
criminal offenses grew by 30 percent between 1980 and 2004. 
Congress added 452 new Federal criminal offenses between just 
2000 and 2007 alone, which averages 56.5 new crimes per year. 
This pace is simply unsustainable.
    Perhaps more concerning than the sheer number of offenses 
is how Congress has written many of these new crimes. The 
recent growth of the Federal code in all areas of life has 
brought with it an ever-increasing labyrinth of Federal 
regulations, many of which also impose criminal penalties 
without a showing of mens rea or criminal intent.
    A troubling example of this is what happened to three-time 
Indy 500 winner Bobby Unser. When snowmobiling near his home, 
an unexpected snowstorm forced Unser and a friend to seek 
refuge in a barn. While trying to escape the storm, they 
unwittingly went into a national forest wilderness area. They 
spent 2 days and nights in sub-zero weather eating snow to 
slake their thirst before being rescued.
    Following his safe return home, Unser then contacted the 
Forest Service to help retrieve his snowmobile. For his 
trouble, he was later convicted of unlawful operation of a 
snowmobile within a national forest wilderness area, which 
carried a maximum penalty of 6 months in prison and a $5,000 
fine. I am confident Congress never intended to subject someone 
in Unser's situation to criminal liability. However, stories 
like this have become all too typical.
    I look forward to hearing from our witnesses today and in 
the coming months about the scope of over-criminalization and 
over-federalization and what steps this Task Force and the 
Judiciary Committee can take to address the issue. Concern for 
this issue is bipartisan and requires bipartisan perspectives. 
I commend all of my colleagues here today for your work on the 
Task Force, and I yield back the balance of my time.
    Mr. Sensenbrenner. The gentleman from Michigan, Mr. 
Conyers, the Ranking Member of the full Committee, is 
recognized for his opening statement.
    Mr. Conyers. Mr. Chairman, everybody has said already what 
I was going to say again, so I will submit my statement for the 
record and salute the Task Force, congratulate the witnesses 
for joining us, and yield back the balance of my time.
    Mr. Sensenbrenner. Without objection, the gentleman from 
Michigan's statement will be included in the report. And 
without objections, all Members' opening statements will be 
included in the record at this point.
    [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
    Unfortunately, Congress has increasingly resorted to criminalizing 
actions as the solution to various problems over the past several 
decades.
    There are now about 4,500 federal criminal laws. And, there are 
about 300,000 federal regulations that impose federal criminal 
penalties, many of which lack any mens rea requirement.
    The breadth and scope of these laws is astounding and definitely in 
need of repair.
    So as the Task Force undertakes its analysis of this problem of 
over-criminalization, there are several issues it should consider.
    To begin with, the Task Force should understand the real 
consequences of exponentially increasing the number of criminal laws 
and regulations.
    By inadvertently creating a patchwork of confusing, outdated, and 
duplicative laws, Congress has also created the related problems of 
overcriminalization and overincarceration.
    For example:

          An estimated 65 million Americans have been tarnished 
        with a criminal record, according to one of our witnesses 
        today.

          The number of individuals currently incarcerated in 
        our Nation exceeds 2.3 million, which is roughly 1 out of every 
        99 adults.

          And, the United States now leads the world in the 
        rate of incarceration. Our incarceration rate is 7 times the 
        international average. Indeed, some inner-city neighborhoods 
        have an incarceration rate that is 40 times the international 
        average.

    Another focus of the Task Force should be on identifying creative 
and effective solutions, such as comprehensive, evidence-based 
prevention and intervention programs for children and families at risk 
of coming into the criminal justice system.
    Such programs have been proven to not only to brake the cradle-to-
prison cycle, but also greatly reduces criminal justice and social 
welfare costs to taxpayers.
    For instance, the Youth PROMISE Act, authored by my colleague Rep. 
Robert C. ``Bobby'' Scott, is an excellent step in that direction.
    This legislation would mobilize community leaders ranging from law 
enforcement officials to educators to health and mental health agencies 
to social service providers.
    Another solution would be to revise our criminal laws to limit the 
severity of punishment for low-level offenses such as possession or use 
of drugs and to consider alternatives to mandatory minimums.
    Research has shown that strong community supervision programs for 
lower-risk, non-violent offenders can cut recidivism by as much as 30 
percent.
    Mandatory sentences, long sentences for non-violent first offenses, 
and laws mandating increased penalties for repeat offenders lead to 
overincarceration.
    One of the most pernicious aspects of mandatory minimums is that it 
deprives judges, the entities who have the greatest knowledge of the 
facts and law, of discretion and the ability to assess a particular 
person's culpability.
    Finally, the Task Force should ensure that all of our criminal laws 
and penalties, be it statutory or regulatory, comply with the U.S. 
Constitution's due process mandate.
    When good people are accused of violating laws that are vague or 
lack adequate mens rea, however, fundamental constitutional principles 
of fairness and due process are undermined.
    I am particularly concerned that some criminal laws impose strict 
liability standards and that some regulations lack any mens rea 
requirements.
    Accordingly, I look very much forward to hearing the views of our 
witnesses today.
                               __________

    Mr. Sensenbrenner. The Chair will now introduce the four 
witnesses.
    The first witness is the Honorable George Terwilliger, III. 
He is a partner in Morgan, Lewis' litigation practice and co-
chair of the White Collar Litigation and Government 
Investigations Practice. In this capacity, Mr. Terwilliger 
provides counsel in litigation, internal investigations, and 
enforcement proceedings. He has served as a U.S. presidential 
appointee in two Administrations. He was appointed U.S. 
attorney by President Ronald Reagan and served as deputy 
attorney general and acting attorney general in the George H.W. 
Bush administration. Most recently, Mr. Terwilliger was a 
partner in the white-collar practice of another international 
law firm. He received his bachelor's degree from Seton Hall 
University and his law degree from the Antioch School of Law.
    John Malcolm is the Rule of Law Programs policy director 
and the Ed Gilbertson and Sherry Lindberg senior legal fellow 
in the Edwin Meese III Center for Judicial Studies of the 
Heritage Foundation. In this capacity, he writes and speaks on 
a variety of law-related topics. Previously, he served as an 
assistant U.S. attorney in Atlanta, then as an associate 
independent counsel in Washington, D.C.
    Mr. Malcolm then went on to serve as a deputy assistant 
attorney general in the Criminal Division of the Department of 
Justice. He was an executive vice president and director of the 
worldwide anti-piracy operations for the Motion Picture 
Association of America and went on to serve on the faculty of 
Pepperdine School of Law as a distinguished practitioner in 
residence. Mr. Malcolm was most recently the general counsel at 
the U.S. Commission on International Religious Freedom. He is a 
graduate of Columbia and Harvard Law School.
    William N. Shepherd is testifying in his capacity as a 
member of the American Bar Association. He is a partner at 
Holland & Knight. In this capacity, he represents individuals 
and corporations in the State and Federal Government 
investigations and grand jury investigations. Previously, he 
served as a prosecutor in Miami and then as the statewide 
prosecutor of Florida. He is chair of the American Bar 
Association's Criminal Justice Section, a member of its Global 
Anti-Corruption Task Force and a former division director of 
its White Collar Crime Division. He received both his 
undergraduate and law degrees from Georgetown.
    Steven Benjamin is president of the National Association of 
Criminal Defense Lawyers, which is a professional bar 
association founded in 1958. Its members include private 
criminal defense lawyers, public defenders, Active Duty U.S. 
military defense counsel, law professors and judges committed 
to preserving fairness within America's criminal justice 
system. He is in private practice at the Virginia firm of 
Benjamin--and is it DesPortes or DesPort?
    Mr. Benjamin. DesPortes.
    Mr. Sensenbrenner. DesPortes. Okay. He served as special 
counsel to the Virginia Senate Courts of Justice, or Judiciary 
Committee, and is a member of the Virginia Board of Forensic 
Science and the Virginia Indigent Defense Commission. He 
previously served as president of the Virginia Association of 
Criminal Defense Lawyers.
    So we will now proceed under the 5-minute rule. We are 
facing a very long series of votes this morning and we don't 
know when it will start, so I will ask each of you to try and 
wrap it up in 5minutes. And you all know about the green, 
yellow and red lights. Without objection, all of your full 
statements will be included in the record at the point with 
your verbal testimony.
    And, Mr. Terwilliger, you are first.

TESTIMONY OF THE HONORABLE GEORGE J. TERWILLIGER, III, MORGAN, 
                      LEWIS & BOCKIUS LLP

    Mr. Terwilliger. Thank you, Mr. Chairman and Ranking Member 
Scott, Chairman Goodlatte and Ranking Member Mr. Conyers, and 
members of the Task Force, for having me here today and 
inviting me to join with you in discussing the subject of over-
criminalization and over-federalization.
    Mr. Sensenbrenner. Is your mike on, Mr. Terwilliger?
    Mr. Terwilliger. Yes, sir.
    Mr. Sensenbrenner. Okay.
    Mr. Terwilliger. I believe that the work of this Task Force 
has taken on even greater importance than it had when the Task 
Force was originally initiated. Recent events have vividly 
brought home to many Americans an understanding that their most 
fundamental liberties are at risk due to the overpowering and 
overburdening reach of the Federal Government establishment.
    I am not referring to the recently reported NSA 
counterterrorism programs where I recognize the unfortunate 
need for these programs due to the significant terrorist threat 
our people face at home and abroad. Rather, it is something far 
more insidious and uncontrollable than NSA programs that 
impinge on Americans' liberties today. The recent events 
concerning the reprehensible and possibly thuggish conduct of 
the IRS is but one stark example of a Federal Government that 
reaches far too deeply and intrusively into the daily lives and 
choices of ordinary Americans.
    We have lost sight of the fact, in my view, that the 
purpose of our Constitution is not so much to establish a 
government as to ensure that the government that we must have 
is never permitted to take any more of our personal liberties 
from us than is absolutely necessary. We are on a path that is 
taking us from a system of ordered liberty through the rule of 
law to one of liberty that is only as extensive as government 
fiats allow.
    And what freedoms are in peril? They range from the most 
fundamental of personal choices to others that standing alone 
may mean less, but considered collectively illustrate that the 
certain surrendering of personal liberty continues.
    Consider: The freedom of each individual to retain the 
fruits of his or her labor and decide how, when, and for what 
to use those funds. Instead, we have a system of taxation that 
takes more and more from a few to distribute to many. That 
should not be, at least on the present scale, a choice that is 
made by government.
    Liberty is further threatened because one of the results of 
massive and often wasted runaway Federal spending is that the 
government is starved for the funds to do the things that are 
its core functions and responsibilities, most especially those 
related to national defense and public safety, but also 
including those needed to foster expansions of economic freedom 
that produces prosperity.
    The Federal leviathan even reaches into our daily life so 
far as to dictate to us when we awake in the morning, what kind 
of light bulbs may illuminate our bathroom, and how much water 
can flow through our showerhead. This would be humorous if not 
such a sad commentary on what we have allowed to evolve.
    Over-criminalization is part of this larger picture. Thus, 
efforts by Congress to get its arms around these issues, such 
as through this Task Force, are a most significant step 
forward. My prepared statement traces the origins and 
developments of the use of Federal criminal law and addresses 
how we have strayed from its fundamental purpose. But I believe 
the fundamental takeaway is this: We have lost sight of the 
proper use of Federal criminal law as a carefully applied tool 
to protect the means and instrumentalities of commerce, a goal 
in harmony with the principles of federalism and the Framer's 
intent.
    I would like to leave you today with one simple idea that I 
think could be a significant step forward: We could assure 
ourselves that no person or business is ever convicted of a 
criminal offense unless a jury has determined that he, she, or 
it acted with criminal intent, and I believe this could be 
accomplished by writing an overriding provision of law that 
requires as an element of any offense where a showing of intent 
is not expressly required that it be proven beyond a reasonable 
doubt that the defendant acted with a bad purpose; that is, 
with the intent to disobey or disregard a requirement of law. 
This could eliminate any question as to strict criminal 
liability offenses being actionable and would reintroduce to 
Federal criminal law the fundamental and venerated principle 
that a criminal offense must include proof of intent to do a 
bad act.
    Again, I thank the Chair and the Ranking Member of the Task 
Force for taking on this important work and will be pleased to 
answer any questions or to discuss these issues with Members or 
staff anytime.
    [The prepared statement of Mr. Terwilliger follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Sensenbrenner. Thank you, Mr. Terwilliger.
    Mr. Shepherd.

               TESTIMONY OF WILLIAM N. SHEPHERD, 
                 AMERICAN BAR ASSOCIATION (ABA)

    Mr. Shepherd. Thank you very much, sir. Mr. Chairman, 
Ranking Member, it is a pleasure to be here on behalf of the 
American Bar Association. I serve as chair of the American Bar 
Association's 20,000-member Criminal Justice Section, a group 
that is made up of both prosecutors and defense lawyers, judges 
and academics, who, like you in this bipartisan setting, often 
find themselves----
    Mr. Sensenbrenner. Is the light on?
    Mr. Shepherd. I believe it is on. Oh, there we go. Thank 
you very much, sir.
    Who find ourselves, as you do, addressing these issues in a 
bipartisan fashion. We, from our diverse professional 
backgrounds, come to the same conclusions that you do: There 
are too many criminal laws, the enforcement of many of these 
laws becomes confused, and because of the overburdening number 
of laws and the strain that puts on our system, priorities, 
which we might all agree on, oftentime get sidetracked because 
of fiscal realities.
    My own practice background is that I spent 12 years as a 
State court prosecutor trying cases in courthouses in Miami and 
throughout the State of Florida. For the last 4 years of that 
service I had the opportunity to serve as Florida's statewide 
prosecutor and at which point I spent a fair amount of time in 
our legislative processes in our State legislatures. One of the 
issues that became apparent to us as a security threat was the 
growing problem of gangs in the State of Florida. We worked 
with legislative leaders to address some of the issues and 
craft new laws that would help give law enforcement tools they 
might better use to protect the citizens of our State.
    As that debate went on, one of the main issues became, 
well, Mr. Shepherd, if we pass some of these, it will have a 
significant prison bed impact. Well, yes, that was the goal, to 
have a prison bed impact as it related to serious gang violence 
and gang offenders. But, Mr. Shepherd, you don't understand, we 
have a large influx of new inmates who are traffic offenders, 
not trafficking, traffic, driving offenses. And I am not trying 
to minimize the importance of those, but I think it illustrated 
the point that as new penalties get added on to new statutes, 
perhaps without thinking about the long-term impact, some of 
those decisions have an impact on what we would prioritize.
    If we are going to build prisons, certainly we would build 
them to protect our communities from violent gang offenders, 
and if our own fiscal realities have been dictated by something 
else, I think that is a prime example, on a broader spectrum, 
of some of the same issues that States are facing as you are 
trying to discuss these issues today.
    The American Bar Association has long been in favor of 
policies that would bring sensible reforms to some of the 
legislative issues, one that I will talk about as it relates to 
an individual case that I was involved in recently. In drafting 
an amicus brief on behalf of my colleague here at the National 
Association of Criminal Defense Lawyers, involved a commercial 
fisherman in Tampa who was prosecuted under a crime drafted by 
this Congress, but my guess would be that Congress had no idea 
that a post-Enron anti-document-shredding statute would be used 
to convict a man of destroying three red grouper.
    A 4-day Federal court trial resulted in his conviction for 
the destruction of this evidence that he had been sent by the 
Fish and Game Commission to take to the port. When they came 
back to the port 3 days later to reinspect the fish, the 
original count of 72 reflected there were now only 69 fish on 
the port. That case is now before the Court of Appeals in the 
11th Circuit.
    And I am not here to argue the case, but what I am here to 
say is that the laws that you draft get applied by real people 
and impact real lives in ways that you may have no idea would 
be the ultimate goal and the ultimate use as it impacts those 
individual people. If laws are important enough such that 
individual men should spend time in Federal prison, those laws 
should be drafted by you, the people in this Congress, instead 
of delegated to career people who work in agencies, who are not 
elected officials like yourself, people who have a narrow focus 
and perhaps don't have a broader perspective that you carry 
with you when you come from your constituents.
    So, in concluding, I would just say that if it is important 
enough to send a man to Federal prison, it is important enough 
for this Congress to vote on it, and I think that that is an 
overarching issue that you can all address in this, and I 
compliment you for your work in this area. Thank you.
    [The prepared statement of Mr. Shepherd follows:]
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Sensenbrenner. Thank you very much.
    Mr. Malcolm.

                 TESTIMONY OF JOHN G. MALCOLM, 
                    THE HERITAGE FOUNDATION

    Mr. Malcolm. Mr. Chairman, Members of Congress, thank you 
for providing me the opportunity to speak to you about over-
criminalization, a term used to describe the overuse and misuse 
of criminal law in today's society. In my capacity as the Rule 
of Law Programs policy director at the Heritage Foundation, I 
host regular meetings of an Overcriminalization Working Group 
consisting of several organizations from across the political 
spectrum. These organizations don't agree on very many issues 
but they do agree on this: Over-criminalization is a serious 
and growing problem and needs to be remedied.
    I have also spent much of my career as a prosecutor and a 
criminal defense attorney, so I speak to you as someone as 
experience on both sides of the courtroom. For most of our 
Nation's history, all of the crimes, and there weren't very 
many of them, were malum in se offenses; that is, they 
prohibited conduct that was widely recognized as morally 
blameworthy. Today, however, buried within the 51 titles of the 
United States Code and the far more voluminous Code of Federal 
Regulations, there are approximately 4,500 criminal statutes 
and another 300,000 or more criminal regulations, and scores 
more are created every year.
    Many of these laws, unfortunately, contribute to the over-
criminalization problem. Many Federal criminal laws duplicate 
other existing Federal and State criminal laws. Some Federal 
laws increase the penalties for certain crimes without any 
demonstrated need, adding to the taxpayer's burden. Most of 
these new laws, usually in the form of regulations, are malum 
prohibitum offenses, which are crimes only because Congress or 
some regulator has said that they are, not because they are 
inherently blameworthy. Unlike malum in se offenses which 
prohibit morally indefensible conduct, regulations actually 
allow conduct, but they circumscribe when, where, how, how 
often, and by whom certain conduct can be done, often in ways 
that are very hard for the nonexperts to understand.
    When criminal penalties are attached to violations of 
obscure regulations, over-criminalization problems often ensue. 
But there is an even bigger problem. Today, many criminal laws 
lack an adequate or any mens rea requirement, meaning that a 
prosecutor doesn't even have to prove that the accused knew 
that he was violating the law in order to convict him. Many of 
these so-called offenses are so arcane or incomprehensible that 
a reasonable person wouldn't have any idea that what he was 
doing was a crime.
    And there are other problems, too. If somebody wanted to 
find out whether his proposed conduct was illegal, there is no 
convenient, easily accessible place that he could go to in 
order to find a complete list of Federal crimes. Moreover, the 
criminal code today is so vast and complex that the judges and 
lawyers have a lot of trouble discerning what is legal and what 
is illegal. What hope do ordinary citizens have?
    It is inevitable that many morally blameless individuals 
will end up committing acts that turn out to be crimes and some 
of them will end up in prison. The Heritage Foundation just 
came out with a booklet entitled ``USA vs You'' that provides 
the stories of just a few unfortunate people who got cauht up 
in the web of over-criminalization, and there are more such 
stories on our Web site. When we divorce legal guilt from moral 
blame-worthiness and place excessive reliance on criminal law 
to address social problems rather than the administrative or 
civil justice systems, problems occur. When morally blameless 
people unwittingly commit acts that turn out to be crimes and 
are prosecuted for those offenses, the public's respect for the 
fairness and integrity of our criminal justice system is 
diminished, which is something that should concern everyone.
    There are a number of proposals that I would encourage you 
to consider, such as passing a default mens rea provision for 
crimes in which no mens rea has been provided and passing a law 
requiring the government to identify every Federal crime and to 
post it in a manner that is easily accessible to the public at 
no charge. I look forward to future hearings in which these and 
other proposals are discussed in greater detail. And with that, 
I would be happy to answer any questions you might have.
    [The prepared statement of Mr. Malcolm follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Sensenbrenner. Thank you very much.
    Mr. Benjamin.

               TESTIMONY OF STEVEN D. BENJAMIN, 
        NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

    Mr. Benjamin. Thank you, Mr. Chairman and Ranking Member 
Scott. My name is Steve Benjamin, and I am the president of the 
National Association of Criminal Defense Lawyers, and on behalf 
of NACDL, I commend the House Judiciary Committee for 
establishing this Over-Criminalization Task Force.
    As a practitioner from the Commonwealth of Virginia, I am 
personally grateful for the leadership and support of two 
Members from my own congressional delegation, Judiciary 
Committee Chair Goodlatte and Task Force Ranking Member Scott, 
whose work on this critical issue demonstrates that the danger 
of over-criminalization transcends the traditional ideological 
divide.
    The problem you confront is not abstract or theoretical. 
Over-criminalization directly impacts commerce, free 
enterprise, and innovation. But it is not just a problem with 
white-collar implications. It encompasses policies and 
practices that affect every person in society, and in my 
written testimony I have provided numerous examples. The fact 
is we have become addicted to the use of criminal law as a 
blunt instrument to control social and economic behavior. As a 
result of over-criminalization, the United States has more 
prisoners than any Nation on Earth, and an estimated 65 million 
Americans are now stigmatized by a criminal conviction and the 
collateral consequences that increasingly result.
    This is not because we are a country of lawbreakers or 
criminals. It is because we use the Federal criminal law for 
regulatory purposes far beyond the traditional purpose, 
exercised historically at the State level, of deterring and 
punishing criminal conduct.
    A fundamental question before this Task Force is whether 
the body of Federal crimes should continue to expand, and to 
answer this question requires acknowledgement that where 
Congress has created new crimes, it has done so poorly and 
without regard for whether those new crimes reach conduct that 
represents genuinely bad behavior. Congress often fails to 
speak clearly and with the necessary specificity when 
legislating criminal offenses, instead enacting overly 
expansive and poorly defined criminal laws, which lack clear 
requirements of criminal intent. With rare exception, the 
government should not be allowed to punish a person without 
having to prove he acted with wrongful intent. When the average 
citizen cannot determine what constitutes unlawful activity in 
order to conform her conduct to the law, that is unfairness in 
its most basic form.
    Further, Congress often delegates its criminal lawmaking 
authority to executive branch agencies and officials. 
Regulatory agencies are empowered to unilaterally enact massive 
criminal provisions with little oversight. As a result, the 
legislative branch has ceded the ability to limit the weighty 
economic, social, and individual costs of the entire criminal 
justice system. Poorly written laws and weak intent standards 
have jeopardized the fundamental protection of a trial. 
Unlimited discretion over charging decisions combined with 
mandatory minimum sentences and high sentencing guidelines 
afford prosecutors the power to deter the accused from 
asserting their innocence or attesting new laws before a jury 
of their peers. Rarely will the right to trial justify the risk 
of a harsh sentence if a more favorable plea agreement can be 
struck.
    Lastly, overly broad laws combined with weak intent 
requirements allow the criminal law to be improperly used to 
pursue what otherwise would be resolved by civil claims or 
penalty. Both government and corporate entities resort to the 
threat of criminal sanction to extract civil judgments and 
forfeitures, eliminate competitors, and improperly control 
behavior.
    Of special concern to NACDL is the fact that the 
government's expenditure on Federal law enforcement 
significantly outpaces its spending on the defense function. It 
is inexcusable that during this 50th anniversary of Gideon v. 
Wainwright and the right to counsel our indigent defense system 
is in crisis. That crisis has long afflicted the States, but 
now budget cuts imperil the Federal indigent defense system 
even as resources for the prosecutorial function flow unabated. 
This imbalance imperils the integrity of the criminal justice 
system.
    To conclude, we encourage this Task Force to consider the 
passage of a law that would apply a criminal intent requirement 
by default to laws that lack one. And while the enactment of 
criminal penalties does have a certain allure, the true and 
tremendous cost of doing so means that an assessment of impact 
should be a condition of enactment.
    The position of NACDL and its purpose in testifying here 
today is clear: The criminal defense lawyers of this Nation 
value and seek a criminal justice policy for America that 
ensures fairness, due process, and the equal protection of the 
law while providing compassion for the victims and witnesses of 
crime, the protection of the innocent, and the just punishment 
of the guilty. We are inspired by your bipartisan efforts and 
will support and assist you however we can.
    [The prepared statement of Mr. Benjamin follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Sensenbrenner. I would like to thank each of the 
witnesses for very excellent testimony. I think that all of the 
members of the Task Force agree with all of you and amongst 
ourselves. This is a vast undertaking, and we are operating 
under somewhat of a time limit because the life of task forces 
are supposed to be 6 months, but I would guess that when we get 
toward the end of the Congress, we are going to ask for a 
reupping on this, because this is not going to get done in 6 
months.
    The staff has asked the Congressional Research Service to 
update the calculation of criminal offenses in the Federal 
code, which was last undertaken in 2008. CRS' initial response 
to our request was that they lack the manpower and resources to 
accomplish this task. And I think this confirms the point that 
all of us have been making on this issue and demonstrates the 
breadth of over-criminalization.
    The Task Force staff is going to meet with CRS to figure 
out how to resolve this problem so that at least we can see 
what we are doing and where the problems are so that we can get 
a dragnet--pun intended--of the criminal laws, both in the 
code, as well as in Federal regulations.
    Now, that being said, I would like to ask each of the 
witnesses to give us your priorities, just a phrase, since I 
have got a limited amount of time, on where we ought to start 
on this, whether it should be over-criminalization versus over-
federalization, mens rea, section 1811, administrative criminal 
penalties, and the like.
    And, Mr. Terwilliger, I guess you are first and we will go 
down the panel.
    Mr. Terwilliger. Thank you, Mr. Chairman. And recognizing 
the brevity of time, I would be happy to expand on this later, 
but I think there should be two priorities. One, because it is 
of great importance in terms of both the reality and the 
perception of the fundamental fairness of the Federal criminal 
justice system, is to address the intent issue, which each 
witness here has raised in one form or another. Nobody should 
be convicted of a crime that doesn't have the intent to do 
something that the law forbids and ought to have an opportunity 
to test whether that intent is there in an adversarial 
proceeding.
    Mr. Sensenbrenner. Okay. I have got a limited amount of 
time, so----
    Mr. Terwilliger. The second priority, just one phrase, is 
on the overregulation, because it is stifling economic 
expansion and development to American corporations.
    Mr. Sensenbrenner. Okay. Mens rea and overregulation.
    Mr. Shepherd.
    Mr. Shepherd. And I would agree that mens rea is number 
one, and number two, overregulation, but the way I would phrase 
it is we have taken Chevron deference where the courts 
encourage us to look at the expert regulators and expanded that 
to Chevron prosecution, and I think that is really the 
fundamental problem here. But mens rea is number one and 
Chevron prosecution is number two.
    Mr. Sensenbrenner. Mr. Malcolm.
    Mr. Malcolm. Yeah, I would certainly default. Mens rea 
would be my top priority. I would echo what Mr. Terwilliger and 
Mr. Shepherd have said. You know, I think that is a good list. 
You know, my general belief is that if it is something that is 
important enough that somebody could go to jail, it is 
something you ought to vote on and not have a regulator 
implement.
    Mr. Sensenbrenner. I would agree with that.
    Mr. Benjamin.
    Mr. Benjamin. Well, what they said. Mens rea and 
overbreadth, I would add.
    Mr. Sensenbrenner. Okay. Thank you very much. I yield back 
the balance of my time.
    Gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Let me follow through on that because everybody has talked 
about enforcing regulations with the criminal code. What about 
regulations that involve serious safety and health regulations, 
violation of those, shouldn't they be criminal, if you have 
people who are putting workers, for example, in life or death 
situations?
    Mr. Terwilliger.
    Mr. Terwilliger. I suppose there could be a reservation for 
the most egregious kind of conduct of that nature, but in 
general, Mr. Scott, that slippery slope is how we got here, 
respectfully. And I think there are more than adequate civil 
remedies to actually affect the way businesses, for example, 
behave.
    Something on the notion of intentional conduct that, for 
example, recklessly disregards a known standard of safety that 
puts a worker in danger, that might be a reservation for a 
criminal offense, but we have gone way beyond that standard at 
this point, in my view.
    Mr. Scott. Well, we are talking about getting rid of all of 
them and some of them we might want to reserve for the reasons 
you have articulated.
    Mr. Terwilliger. Yes, sir.
    Mr. Scott. If you didn't know about the regulation, would 
you put your workers in danger of life and safety without a 
mens rea?
    Mr. Terwilliger. Well, that comes back to the intent issue, 
and that is why my formulation would be proof of intent would 
require a showing of a purposeful disobeying or disregarding a 
law. We have the notion of turning a blind eye to the 
requirements of the law, consciously avoiding, knowing what the 
law requires. If it is within someone's responsibility to know 
what the law requires and they don't undertake to at least 
minimally understand what that requirement is, that may be 
enough to support a conviction, assuming those other elements 
are present.
    Mr. Scott. Mr. Malcolm, you want to comment on that?
    Mr. Malcolm. Yeah, I do, Mr. Scott. If Congress blesses a 
regulation prohibiting this sort of conduct and notice is 
provided to affected parties, then it is fine to make it a 
crime. If the conduct is clearly blameworthy and intent is 
proven, there is nothing wrong with making this a crime. 
However, if that is not the case, there is no reason why, even 
if a harmful result occurs, that such conduct cannot be 
addressed effectively, indeed harshly, by both the civil 
justice system and the administrative system. That way the harm 
can be remedied, general deterrence message can be sent out, 
and you are not branding somebody as criminal.
    Mr. Scott. Well, was reckless disregard of life and safety 
enough?
    Mr. Malcolm. Well, reckless disregard is an intent 
standard, and under the realm of intent standard----
    Mr. Scott. And what about disregard if it is within your 
responsibility to know and you just didn't bother to find out 
what the regulations were?
    Mr. Malcolm. Well, generally, if it is a highly regulated 
industry, the government ought to do a better job about letting 
those industries know what is prohibited, but if it is reckless 
disregard of a known danger, then generally there is nothing 
wrong with criminalizing that, and Congress has done so and 
blessed that on a number of occasions.
    Mr. Scott. Somebody want to comment on when it should be a 
Federal criminal law rather than a State? Most of the Federal 
criminal code just overlaps State laws. I mentioned carjacking. 
Why should that be a Federal law and why should we leave most 
of this stuff to the States?
    Mr. Shepherd. I would be glad to address that, sir. My own 
background, as I told you, is as a State prosecutor. Most of 
the cases that we prosecuted, whether they were individual 
defendants or racketeering cases against large groups of 
violent gangs or large white-collar crime cases, could have 
easily been filed in Federal court. I agree, there is a large 
duplication of that.
    Oftentimes there is a balancing between prosecutors and law 
enforcement to figure out where do we have more leverage 
against the defendant. Do we have a better sentencing structure 
for this particular crime in State court or Federal court? Are 
there evidentiary rules in State decisions that support the 
prosecution in this versus the other? So that is how the 
leverage developed.
    Mr. Scott. So, Mr. Benjamin, what does that do to a 
defendant, having to both look at both Federal and State, and 
why should we have the overlap?
    Mr. Benjamin. Well, the practical effect is that it makes 
his legal fee unattainable, just nobody can afford private 
counsel because the consequences are so severe and far 
reaching. That is a very real practical effect. But one of the 
benefits to deferring to the States is that that is one of the 
benefits of federalism, permitting each of the 50 States to 
decide for its own what conduct within that State should be 
criminal and what penalties should attach. That is one of 
reasons for our federalist structure.
    Mr. Scott. Thank you.
    Mr. Sensenbrenner. Gentleman's time has expired.
    The gentleman from North Carolina, Mr. Holding.
    Mr. Holding. Thank you.
    I am sure we all appreciate the distinction and abilities 
of our panelists today, especially my friend Mr. Terwilliger. 
It is always a pleasure.
    Mr. Terwilliger. Nice to see you, sir.
    Mr. Holding. Yesterday, Director Mueller testified before 
the Committee and talked about the priorities of the FBI, and 
he noted with sequestration and declining budget and budget 
cuts that you have to really sharpen up what your priorities 
are, and as a criteria you have to prioritize things where 
Federal law enforcement brings something extra to the table, 
something unique about Federal law enforcement, that is why we 
should devote FBI resources to enforcement.
    So, Mr. Terwilliger, what areas of current Federal law now, 
criminal law, do you think that Federal resources ought to be 
devoted to, if you had to prioritize?
    Mr. Terwilliger. I think clearly the threat of terrorism, 
both now more homegrown perhaps as we saw in Boston and what 
happened in London, has to remain a top priority for Federal 
law enforcement. And it is a good example of where what might 
be, Mr. Scott, a street crime, setting off an improvised 
explosive device, deserves and needs the Federal resources to 
treat it.
    Beyond that, I think the leveraging of Federal resources, 
which certain Federal laws are important to permitting through 
the Task Force approach to things like street crime and gangs 
and other organized criminal activity, including drugs, which 
we don't talk much about anymore, which are--span regions, 
States, or multistate in nature or transnational in nature, I 
think those things are important.
    And then third, only the Federal Government, perhaps with 
the exception of a couple of States, has shown the wherewithal 
to address what I think is one of the most fundamental duties 
of the Federal Government, and that is to keep our marketplaces 
free and honest, because a dishonest market is not a free one. 
So keeping the means and instrumentalities of commerce free 
from fraud should also be a priority.
    Mr. Holding. Mr. Shepherd, you want to chime in on this?
    Mr. Shepherd. Well, the only thing I would add to that, 
sir, is that as the FBI has rightly shifted their work into the 
terrorism area and other areas of national importance, State 
law enforcement and local law enforcement has had to step in 
and up their involvement in cases where they might have been 
able to get help from the local FBI field office and they don't 
now because those agents are doing other things. So there is a 
trickle-down effect, but I think it is an appropriate use of 
resources and the way it should be structured. We don't need to 
see an FBI agent at every liquor store robbery scene. Sheriff 
should handle that.
    Mr. Holding. Mr. Malcolm.
    Mr. Malcolm. Yeah, if it is something transnational in 
nature or if the Federal Government has some unique knowledge 
or expertise, it would an appropriate use of Federal resources. 
The problem is, is that these days it is so easy to use the 
instrumentality of the phones, the mail that take you 
interstate that essentially all State crimes, except for the 
most local of crimes, become Federal crimes, and then you have 
problems of the spreading of resources and also a problem of 
accountability. The public doesn't know whether, if something 
isn't getting done, whether it is the Federal Government's 
fault or the State government's fault, and there is no need for 
that.
    Mr. Holding. Mr. Benjamin.
    Mr. Benjamin. To terrorism and international criminal 
activity, I would add political corruption and the denial of 
civil rights.
    Mr. Holding. Often there is, you know, something that will 
raise a Federal priority in a particular State is the disparity 
between sentences that you can get in State court versus 
Federal court, and perhaps that is something that we can 
address in a further question. But I yield back.
    Mr. Sensenbrenner. Thank you.
    The gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you.
    Attorney Benjamin, your testimony noted that almost 68 
million Americans have a criminal record, and we talked about 
the direct costs of law enforcement presence in courts as well 
as to businesses and the economy. But can you discuss what the 
criminal record means for the average American? How does that 
impact their quality of life and their ability to contribute to 
society and the overall economy, and how does it affect the 
system itself with that many people walking around with 
records?
    Mr. Benjamin. Thank you, Congressman. The effect of the 
problem we discussed today is that we have deepened the divide 
between us. In a country that values equality, we have deepened 
the divide between our people and we have created a caste 
system populated by third-class citizens who are marked by the 
stigma of conviction and bear a lifetime of the consequences 
that flow from their conviction, even after they have served 
their time.
    This is a country that once valued the right of redemption. 
It used to be said that once you had erred, which of course is 
human, and paid your debt to society, you were then free, you 
were redeemed to pursue life as a free citizen. But that is no 
longer the case. Now, after you have paid your debt, you are 
marked for the rest of your life with consequences such as 
where you can live, where you can work, whether you can pick 
your children up from school. That is not what this country was 
ever meant to be about.
    Mr. Conyers. Let me ask Bill Shepherd, one aspect of over-
criminalization is over-federalization and how the Federal 
Government frequently intrudes on matters that should be left 
to the States. Is there anything that we can think about doing 
to minimize this? Do you have any examples that we might turn 
around here this morning?
    Mr. Shepherd. Well, I think, sir, that the American Bar 
Association has been working with Congress for decades on this 
issue. In 1998 we came out with a report that involved Attorney 
General Meese on the over-federalization of crimes. We talked 
about some of those statistics earlier this morning. I think 
there is a natural reaction when something bad happens that we 
want to say we are taking action, exactly, and we are here to 
protect you.
    But part of the way the Federal Government can say we are 
here to protect you is to encourage the local State officials, 
who already have carjacking, as you said, sir, on the books, to 
further enforce their carjacking statute, to give them 
resources they might need. If the FBI lab needs to be helpful 
in tracing the gun, then we use the FBI lab or the ATF, but 
perhaps we don't need a new Federal statute.
    And I realize it is difficult, in a position where your 
constituents demand action, to say, for example, well, I don't 
think we should have a Federal carjacking statute. That ends up 
on a mailer in my mailbox come election cycle. I understand 
that is a difficult position, and that is part of the reality, 
whether it is at the State level or the Federal level or the 
county level.
    But I think the point that you raise and where law 
enforcement can help is to say, no, smart justice here doesn't 
mean more statutes. Your Member of Congress is right, we don't 
need a new statute, and on behalf of the sheriffs and the local 
prosecutors, we think the laws are on the books, we maybe need 
funding to enforce them, but we don't need more laws.
    And I think coalitions like the one you see here offer some 
of that help and support for lawmakers when they need those 
issues addressed and to have people who are experts in that 
substantive field help explain to the constituents why it is 
important that we have the laws on the books we have and not 
increased to add new ones.
    Mr. Conyers. So we ought to use this phrase a little less 
often: There ought to be a law.
    Mr. Shepherd. Agreed.
    Mr. Conyers. I yield back.
    Mr. Sensenbrenner. Thank you.
    The gentleman from Alabama, Mr. Bachus.
    Mr. Bachus. Thank you.
    I have talked to Federal judges, I have talked to State 
judges, I have talked to criminal defense attorneys, and I have 
actually talked to people who have been caught in this dragnet 
that you describe. And no one defends the status quo. I mean, 
it is amazing how we said we all agree. I can tell you horror 
stories of things that have happened to some of my constituents 
that you just think this can't be true.
    One of the things is, if you buy a piece of property and 
there is hazardous materials on it. I actually know of a man 
who bought a business, found hazardous materials, and went to 
the EPA and said, this is what I found, but because he didn't 
dispose of it in as short a time as they wanted, he was charged 
with maintaining hazardous materials, and he served a prison 
term because he said, I am not going to plead to something I 
didn't do.
    And the cost. The cost of disposing. He kept saying, I 
can't get anybody to tell me who will take this, and they want 
this much. I don't have the financial ability to dispose of it. 
He even offered the government, I will turn over title to the 
land to you.
    He is a convicted felon. And I can tell you that that 
causes disrespect for the law. I mean, the next person is going 
to say, I am not going to look, see what is on the back of this 
property. It is even hard to sell property now if there is any 
suspicion that there might be something. So this stuff is not 
being disposed of because no one will buy it.
    So, intent, I mean, Al Unser. I mean, I know of a public 
official who accepted a pair of shoes from a business that did 
work with the county, a national company, and then she thought, 
well, I am not sure I should have done that.
    So she asked an attorney in her home town and he said, 
well, why don't you just give them to charity or send them 
back? So she donated them to a charity. She just gave them to 
them within 3 weeks, a pair of shoes. Four or 5 years later she 
was being questioned by grand jury about did she accept any 
benefits or something for a certain contract and she said no. 
Now, she didn't, but she had accepted these shoes.
    So later on she said, you know, we need to tell them about 
these shoes. So she told them. Well, the U.S. Attorney wanted 
to get a plea, so said, I will give you 6 months suspended 
sentence or we will try this case, and offered 3 years. Her 
attorney said, you know, so she pled. Now she has a record.
    Let me move on to another thing and get your comments. I 
have been told by friends of mine, judges and attorneys, that 
some offenses for drug cases, if you go to the Jefferson County 
courthouse or Shelby County courthouse, in Shelby County it is 
diverted, you go into a diversion program for one offense. 
Jefferson County you will serve maybe--I mean, you will get a 
year-and-a-day sentence max. Probably serve 30 days, 60 days. 
If it is the same thing and you go to Federal court, it can be 
10 years. So it just depends on where you are arrested.
    And the third thing--and I will let you comment on any of 
these--we aren't rehabbing people with this foolishness. I 
mean, the end result is things are much worse. You know, 
somebody serves a sentence, they get out, they can't get a job. 
We don't train them. They end up back in the system.
    So any comments you all have to say, I mean. But this thing 
about the difference, I mean, and getting 10 years in the 
Federal system and serving 8 or 9, and getting a year in a 
State court and maybe serving 6 months, or getting a diversion 
program in another county.
    Mr. Sensenbrenner. The gentleman's time has expired.
    Mr. Bachus. Could they respond briefly?
    Mr. Sensenbrenner. Well, I said at the beginning of the 
hearing that because we are voting, I want to get to the other 
members of the Task Force before the bell rings.
    The gentleman from New York, Mr. Jeffries.
    Mr. Jeffries. Thank you, Mr. Chair. And thank you 
Representative Scott for your tremendous leadership on this 
issue, and to the distinguished panelists that we have here 
before us.
    Seems to me that there are three issues that we should look 
to tackle as it relates to dealing with the problem of over-
criminalization, and I would like to get your thoughts on those 
three different segments.
    The first is just the general problem of too many crimes 
within the Federal code and perhaps those crimes being too 
punitive in nature in terms of the sentencing. That is sort of 
broad over-criminalization.
    The second problem that you seem to have touched upon is 
the overly broad exercise of prosecutorial discretion.
    And then the third problem seems to be the lack of adequate 
counsel on the back end to make sure that when a citizen finds 
themselves in criminal jeopardy as a result of the first two 
problems, over-criminalization and overly broad exercise of 
prosecutorial discretion, there is an opportunity to actually 
provide an adequate defense consistent with the Sixth Amendment 
of the United States Constitution and the Founders' intent.
    So if we can start with the first issue, and I will direct 
this to Mr. Shepherd. On the intent issue, there is sort of a 
sliding scale of severity. There is intentional willful intent 
of course. There is reckless disregard, commonly referred to 
also as depraved indifference in some instances. Then there is 
criminal negligence. And I am interested in getting your 
comments on when, if ever, is it appropriate to have a criminal 
negligence intent standard built into the law.
    Mr. Shepherd. I think that is going to be a rare case where 
a criminal negligence standard is appropriate. I think that is 
what the tort laws are for. That is what the civil court system 
is for. And that it is the rare case where a standard like that 
is appropriate.
    That is not to say that there aren't some where it is 
appropriate. And I think that the Ranking Member was trying to 
flesh that out in his question. But I think that is the rare 
case. I would be glad to talk about some of your other issues 
or come back to that.
    Mr. Jeffries. Okay. Let me ask Mr. Benjamin with respect to 
sort overly broad exercise of prosecutorial discretion, what 
are some of the things that we on the Task Force can look at 
attempt to rein that in?
    Mr. Benjamin. I don't know that you can rein in the 
exercise of overly broad prosecutorial discretion. Instead you 
should recognize the powerful force that the prosecutorial 
function has become in our criminal justice system. That will 
always be the case, I am afraid. We have very many excellent 
prosecutors who will prosecute appropriately, but we will 
always have some who in their zeal might be excessive.
    The answer rests with your third point. See, there will 
always being problems within the criminal justice system. There 
will always be penalties that are too harsh, conduct that 
shouldn't be criminalized. The safety net is the defense 
function. We are the safety net, the final protector of our 
citizens who were either unjustly accused or overly accused. 
And that is why it is so important and so vital that we have 
sufficient resources to do our job.
    Mr. Terwilliger. Mr. Jeffries, if I may, maybe we finally 
found something we can have a little bit of disagreement about 
here today. Not Mr. Benjamin's last point, but his former 
point.
    I think that the Task Force is very fortunate to have, for 
example, a former prosecutor with distinguished service such as 
Mr. Holding as a member, because if we look at these series of 
cases that the examples that have been given here, in every one 
of those I think, at least on a prima facie basis, some 
prosecutor made a very bad decision to pursue a case. And I 
think looking at how and why that occurs is a legitimate area 
of inquiry here.
    And I think the answer, having been both an assistant U.S. 
attorney and a U.S. attorney myself, is a lack of adequate 
supervision, of not having supervisors, including United States 
attorneys, as Mr. Holding did I can tell you from personal 
experience, who is willing to question the judgment of 
assistants.
    Mr. Jeffries. I appreciate that observation. If I could 
just say in my remaining time, Mr. Malcolm, I am encouraged by 
the diverse ideological group that you at the Heritage 
Foundation have assembled. And one of the things that I would 
be interested in taking a look at is the notion of the cost to 
our economy as it relates to lost human capital and lost 
economic productivity.
    Mr. Malcolm. We could certainly look into that, 
Congressman.
    Very quickly, if I could just add a quick point on 
prosecutorial discretion, one problem is we are a government of 
laws and not men, and what we should have are clear laws so the 
prosecutors are not left to themselves through regressive 
interpretations to determine what is legal and illegal. 
Prosecutors are people of very high integrity, but they are not 
disinterested people in this process. They get a lot of kudos 
for bringing charges and rarely get kudos for declining to 
prosecute.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Idaho, Mr. Labrador.
    Mr. Labrador. Thank you, Mr. Chairman. Thank you for 
convening this hearing. I think this is a very important 
hearing. I was actually a criminal defense attorney, so I am a 
conservative Republican criminal defense attorney and former 
immigration lawyer as well, which makes me an anomaly in many 
ways.
    But I just wonder, Mr. Bachus didn't have an opportunity to 
have you answer the questions. I saw a couple of people raising 
their hands that they wanted to comment on his comments. I 
don't know if anybody wants to do that.
    Mr. Terwilliger. I really did try to address what I wanted 
to say, but thank you for the opportunity in terms of the 
importance of the exercise of prosecutorial discretion in the 
scheme of things.
    Mr. Labrador. And he also raised another issue that I 
wanted to raise as well. We haven't discussed it here, but as 
we think about over-criminalization, what about the sentencing 
guidelines? Do you think that is something that we should be 
discussing here in this Committee? Do you think this is 
something that is leading to the problems that we are having of 
so many people being in prison? What are your comments on that?
    Mr. Terwilliger. If I may, I lived through the era of 
indeterminate sentencing where actual sentences were determined 
by a parole commission behind closed doors, versus the system 
that we graduated to with the guidelines where sentences were 
determined by judges in open court and those were actually the 
sentences to be imposed. Unfortunately, what has happened, I 
think, with the evolution of the jurisprudence on the 
sentencing guidelines in a nutshell is that we are sort of 
somewhere between those two now. We still don't have a parole 
commission, but since the guidelines are largely just for 
guidance, the disparity in sentencing has grown again.
    In some ways--and I don't mean this certainly as to any 
Members here--but Congress has in essence delegated its 
authority to set sentences to the Sentencing Commission. And 
therefore at least as part of legitimate oversight of that 
operation of government it seems to me to be a very legitimate 
subject matter for this Task Force to examine.
    Mr. Labrador. Does anybody else have any comments on that?
    Mr. Shepherd. Well, I would echo that and add to part of 
what Mr. Bachus was saying, which is that you get different 
charges and different sentences in different parts of your home 
State. Those are driven by the local community's outrage by 
particular crimes and also, frankly, by their workflow. Larger 
metropolitan areas often have lower sentencing for sort of 
quote/unquote ``regular,'' crimes because they need to move 
them through so they can focus on the murders and the rapes and 
the more serious victim crimes.
    But the sentencing guidelines bring some level playing 
field to that and help defendants know and help lawyers advise 
their clients, here is what is going to happen to you, here is 
what could happen to you in that range. So there is an 
important role for it. But the guidelines, as Mr. Benjamin 
said, also drive a lot of guilty pleas because people know that 
if I am convicted, I am facing X number of years, and the 
prosecutor has offered me probation or offered me something 
that is going to give me that. So I am not going to fight it. 
And that is where you get administrative codes and laws that 
never really get hashed out in the courts because people don't 
go to trial.
    Mr. Labrador. And that is one of my concerns. I think it 
was actually Justice Scalia who said that we should have more 
trials, not less trials, that you have too many people 
pleading. And I think that is a consequence of having these 
amazing sentences where you go to your client and you tell 
them, well, your option is to go to trial and if we lose you 
are going to go to prison for 20 years. They are always going 
to choose the option of pleading to something.
    Mr. Benjamin, to you have any comments on that?
    Mr. Benjamin. I do. You know, once we prized the fact that 
we lived in a country where we were free of the fear of unjust 
criminal accusation, you know, but we have arrived at the point 
where we have got to, any one of us, fear that the pursuit of 
happiness might be a crime even though we do nothing wrong and 
have no criminal intent. And so that is a problem for us.
    Mr. Labrador. To reclaim my time, I am about to run out of 
time. My main concern when it comes to criminal law is many 
times when I was in the State legislature I had a bunch of 
prosecutors come in and say, well, we need to change the law 
because it is too difficult to prosecute this case. And I 
always said, good. You are taking people's liberty away. If you 
are going to take people's liberty away it should be difficult 
for the State or the Feds to take their liberty away.
    Mr. Benjamin. It is called the trial penalty.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentlewoman from California, Ms. Bass.
    Ms. Bass. Thank you very much, Mr. Chairman, Ranking 
Member, one, for convening this Task Force, and I am very happy 
to be on it. And I am really encouraged by the diversity of the 
groups that have come together around looking at over-
criminalization.
    I wanted to know if the panelists--I have three areas I 
wanted to cover rather quickly, and one is I wanted to know if 
you could comment about mandatory minimums and the, frankly, 
the need from my perspective to change them. We had a town hall 
meeting in my district last weekend and I was honored that 
Representative Scott came out, and we had over 200 people there 
talking about their concerns, many families talking about their 
family members that were incarcerated. So that is one issue I 
wanted you to comment on it.
    And then I wanted your comments around the changing 
marijuana laws and what your thoughts are. I mean, California 
changed the law. A number of States are. And then we have all 
of these folks that are incarcerated for very petty marijuana 
crimes. And I wanted to know your thoughts on that.
    And I really appreciated Mr. Benjamin talking about how we 
did once have a society that, if you did the time, you paid 
your debt to society, you were then able to be incorporated 
back. So one of the things that has happened in my State, and I 
imagine it has in many other States, is that we have passed all 
of these laws now banning people from working. So we had one 
case in California where in the State prison we had a program 
to train you to be a barber, but then we banned you from having 
a barbering license. So we were able to change that. But I 
imagine if we had 52 examples of that in California, there 
probably are examples all around the country, and I am hoping 
that is something this Task Force can examine.
    Mr. Terwilliger. Ma'am, I will just address your question 
about mandatory minimums. Historically the Congress prescribed 
the penalty in the early days of Federal criminal law and said, 
if you do X, you get Y. And that is its prerogative to so 
prescribe that penalty. So it is within the prerogatives of 
Congress to prescribe mandatory minimum penalties as part of 
its lawmaking authority.
    I do think mandatory minimums can be effective. They can be 
effective as deterrents. They can also be effective at removing 
the most dangerous of dangerous people from the street. They 
can also be highly ineffective if applied in circumstances 
where, frankly, the reason for them is far more political than 
it is substantive in terms of actually reducing crime.
    Ms. Bass. Okay.
    Mr. Shepherd. The American Bar Association has, as far as I 
am aware, never been in favor of mandatory minimums and has 
spoken against them as an organization. So that is my answer as 
it relates to that. But I would like to answer your question as 
it relates to collateral consequences and reentry issues.
    Many States have the same problem you did in California 
with the barber license and the department of corrections 
training people for that. The collateral consequences that 
individual defendants face, frankly, I think your researchers 
who are trying to research the number of crimes might also have 
difficulty researching the number of collateral consequences.
    I know that because the American Bar Association, with 
support from the Justice Department and from Congress and other 
groups that have been helping us, has started a project with a 
Web site called the National Inventory of Collateral 
Consequences, which will be a tool that judges, lawyers 
advising their clients, individual defendants, can look up and 
say, if I plead guilty to this, what are all the various 
business regulatory, housing impacts, student loan impacts, all 
those sorts of things so that they can really make a decision 
that is going to be based on knowing the universe of issues. 
And we have already accomplished quite a bit in that regard and 
have over half the States, I believe, up on that Web site and 
progress continues.
    Ms. Bass. Thank you.
    Mr. Malcolm. I would say with respect to mandatory 
minimums, I would echo what Mr. Terwilliger said. The Congress 
can certainly do them and in appropriate cases they have their 
place. I do think perhaps the pendulum has swung too far and 
that there are too many of them and some of them are too 
draconian. I would say this: In these very, very tough 
budgetary times, the budgetary pie for the Bureau of Prisons is 
not growing, and all of those dollars being put into prisons is 
less money for enforcement and other social services. So given 
that fiscal reality, I think it is incredibly important that 
Congress focus on, one, making sure that only the right people 
go to prison, and two, that they are there for the appropriate 
amount of time and no longer.
    Mr. Benjamin. As time expires, I will note that NACDL 
during this past year has held hearings using a Task Force on 
the Restoration of Rights across the country and we will soon 
be publishing the results of this very extensive and thorough 
study.
    Mr. Sensenbrenner. The gentlewoman's time has expired.
    The gentleman from Tennessee, Mr. Cohen.
    Mr. Cohen. Thank you, Mr. Chair. I have got a statement to 
enter into the record.
    Mr. Sensenbrenner. Without objection.
    [The prepared statement of Mr. Cohen follows:]
 Prepared Statement of the Honorable Steve Cohen, a Representative in 
Congress from the State of Tennessee, and Member, Over-Criminalization 
                           Task Force of 2013
    Mr. Chairman, I want to thank you for establishing this task force 
on over-criminalization. It's a critical issue and one I hope we can 
find some common ground on.
    Short of capital punishment, there is no more serious act this 
government can take than to deprive someone of their liberty. It's 
something we should do in only the most serious and limited of 
circumstances, and after the greatest care and due process. 
Unfortunately, the criminal code has grown into a behemoth and our 
prisons are swelled with people who pose no danger to society.
    There are some obvious questions we should look at--whether we have 
too many crimes, whether the mens rea required for them is appropriate, 
and whether the sentences are proportionate. In particular, I hope 
we'll look at mandatory minimums and the damage they have caused. Mr. 
Scott has important legislation to provide judges with safety valves to 
reduce these sentences where appropriate and I hope we'll look at that.
    I would note that the proposed agenda for our Task Force includes a 
special emphasis on regulatory crimes. While it's a topic worthy of 
exploring, I hope that we won't turn this into a larger discussion on 
the value of regulation and the regulatory state--I get more than my 
share of that in the Regulatory Reform, Commercial and Antitrust Law 
Subcommittee and our attention would be better served on other the 
topics I described.
    But in the months ahead, I hope we'll also take a more expansive 
look at the problem of over-criminalization. I especially hope we'll 
take a look at our federal drug policy, particularly with respect to 
marijuana, which is really a microcosm of the whole problem. We've 
taken an activity with no victim and minimal risks--certainly far fewer 
risks than with alcohol--and made it into a crime. In the process, 
we've made criminals out of millions of people with no increase in 
public safety.
    Fortunately, the American public is changing their attitudes 
towards marijuana and a recent Pew Research poll found that 52% of 
people support legalization. They're waking up to the fact that 40 
years of the War on Drugs has proven to be a failure. Not only are we 
throwing away the lives of millions of people, but we're also wasting 
precious resources through our vast prison industrial complex.
    With sequestration in effect and a difficult budget environment, 
it's a good time for us to look at the fiscal and economic impact of 
our criminal policies. We also have to consider how criminal laws have 
been enforced, and the staggering racial disparities that have 
resulted. Just last week, the ACLU issued an alarming report on the 
racial disparities in marijuana arrests and found that Blacks were 
nearly four times more likely to be arrested than Whites. In Shelby 
County, Tennessee, which I represent, 83.2% of people arrested for 
marijuana possession were Black, far higher than their percentage of 
the population at large. These statistics argue for a deep examination 
of how our criminal laws are enforced.
    In addition, no discussion of the criminal code is complete without 
considering the consequences of conviction for those crimes. In our 
society, even a conviction for a minor, non-violent offense can 
effectively be a life sentence because the stigma of your conviction 
will follow you around for the rest of your life. In the case of 
marijuana, you practically have a scarlet M pasted across your chest. 
Employment, education, and housing opportunities--the very things 
necessary to start fresh--can all be denied on the basis of a 
conviction. Not only is this cruel, but it's self-defeating. We should 
consider expungement laws and other measures to mitigate these 
consequences and give people a second chance.
    Finally, I hope we can consider the President's pardon power and 
the issue of executive clemency. While this is an executive function, 
we should be working with the Department of Justice to facilitate the 
review of candidates worthy of compassionate release.
    I recognize that many of the issues I've discussed this morning, 
like drug policy, primarily occur at the state and local level but 
there is much we can do at the federal level. For one thing, we can and 
should serve as a model for the states.
    We also need to determine whether our funding policies are 
inadvertently encouraging over-criminalization. For example, I have 
heard many concerns that the Byrne/JAG program encourages states and 
localities to arrest people for low-level offenses so that their 
statistics will increase and they will, in turn, earn more federal 
funding so that the cycle can continue. I hope we can look at this 
issue as well.
    As you can see, this Task Force can remain very busy if we address 
all the issues before us. But if we do our job right, we have the 
opportunity to create a more just society and I look forward to the 
work we will produce.
                               __________

    Mr. Cohen. Thank you.
    I want to follow up on Ms. Bass' questions concerning 
marijuana. I think that is one of the biggest problems this 
country has. And the problem is not marijuana; it is the 
enforcement of the marijuana laws and the number of people who 
have been incarcerated. That is the biggest problem.
    Has the Bar Association, Mr. Shepherd taken a position? I 
thought they might have on medical marijuana, but has it taken 
any position on incarceration for possession of marijuana?
    Mr. Shepherd. Sir, I don't know the specific answer to your 
question about possession charges and prison time for----
    Mr. Cohen. How about medical marijuana?
    Mr. Shepherd. I know that there is a matter before the 
House of Delegates that will be addressed in August that deals 
with some of those issues.
    Mr. Cohen. Do you of any position they have taken in the 
past where they have said that medical marijuana laws should be 
approved?
    Mr. Shepherd. I personally don't.
    Mr. Cohen. Over at some cocktail party where people were 
juggling some alcohol, they didn't talk about that sometime?
    Mr. Shepherd. Perhaps I wasn't invited to that event.
    Mr. Cohen. Mr. Benjamin, what are your thoughts on that 
issue?
    Mr. Benjamin. I have just been advised that we in fact 
oppose the criminalization of personal use of marijuana and 
certainly the medical treatment that uses marijuana. We oppose 
the criminalization of the use of marijuana. That is correct.
    Mr. Cohen. But wouldn't that take business away from you? 
Wouldn't you lose clients? What a noble thing. That is unique.
    Mr. Benjamin. We are just that noble in fact. It is true, 
it is true. What we want is a just and fair criminal justice 
system over everything else. There will always be work for us. 
Never fear.
    Mr. Cohen. I value being on this commission because I think 
it is so important. I think other than the death penalty, there 
is nothing more serious the Federal Government could do than 
take somebody's liberty. And it should be, in my opinion--and I 
am far from a member of the tea party--but it seems like the 
tea party should grasp this issue, because it is taking liberty 
and individual rights and it is using Federal resources 
financially in the hundreds of millions of dollars to 
incarcerate, to prosecute, and then later to lose the 
productivity of those people because they can't get jobs, they 
can't public housing, they can't get scholarships, et cetera. 
This is a tea party issue; they just haven't picked up on it 
yet. They need to smell the tea.
    Mr. Sensenbrenner. Will the gentleman yield?
    Mr. Cohen. If I doesn't reduce my time, yes, sir.
    Mr. Sensenbrenner. I will ask unanimous consent that his 
previous comments about the tea party be expunged from the 
record so he will have more credibility when he goes and 
approaches them on the subject.
    Mr. Cohen. Whatever.
    The concern I have got--I am happy to be on the Committee, 
but I read that the Brown Commission got nowhere and they did 
so much work in the 1960's. My belief--and without taking on my 
President too much--is that the main way that we can deal with 
this is through pardons, by the pardon power of the President, 
which he has not used. There is still an 18-1 disparity in 
crack and cocaine punishments. It used to be a 100-1.
    Mr. Benjamin, do you think the President would be correct 
in using his power to, not necessarily pardon, but commute the 
sentences of those people who were sentenced to jail in Federal 
prison and are still in Federal prison for serving at somewhere 
between 18 and 100 ratios, where if they had had the laws that 
Congress has passed and therefore they become what we believe 
is correct and right public policy, that he will be using his 
power correctly to get those folks out of the Federal system?
    Mr. Benjamin. Well, that certainly makes sense to me. But I 
have got to note that the exercise of the pardon power is also 
an exercise of a political function and hence it is not 
something that we can should rely upon to correct injustices 
and imbalances within our criminal justice system.
    Mr. Cohen. I agree with you, but if I was one of those 
people in jail I wouldn't worry about that and I wouldn't wait 
for us to pass the laws to change it. The President can do it 
now. And there are so many other laws, unjust sentences that he 
could take care of by commuting sentences, and he needs to do 
it. There are people rotting away in jail and causing us a lot 
of expense that don't need to be there, and that is it just 
needless.
    As far as mandatory minimums, I think Mr. Terwilliger said 
he liked them. Sometimes it is a deterrent. Do you think if 
there is a mandatory minimum for drug sales, that you take one 
person and put them in jail, that there is not another person, 
like a shark's tooth right there to take over? After 40, 50 
years of the drug war, we haven't seen any reduction in people 
dealing because the other dealer was put in prison.
    Mr. Terwilliger. I wasn't--at least in terms of what I 
think, what I personally think, Mr. Cohen, would be the 
appropriate use of mandatory minimums--thinking of drug 
offenses. I was thinking of violent offenders, people who have 
shown a propensity to commit violence over and over again.
    Mr. Cohen. Thank you, sir.
    And thank you, Mr. Chairman.
    Mr. Sensenbrenner. The gentleman's time has expired.
    Before closing the hearing, during my opening statement I 
did make a comment about the Congressional Research Service 
being overworked and not having enough staff to tell us what 
criminal laws are on the books. And we are not going to take 
that kind of ``no'' for an answer.
    The Task Force staff will be meeting with CRS next week and 
also outside experts to see if there is a path forward in this 
important endeavor so at least we know the extent of the 
criminal law, whether it is in the 51 titles of the U.S. Code 
or whether it is somewhere buried in the Code of Federal 
Regulations. We are not going to be able to do a complete job 
in this task without having this information, and we are going 
to get the information, no matter how long it takes.
    So with that happy note, without objection, the Committee 
stands adjourned.
    [Whereupon, at 10:25 a.m., the Task Force was adjourned.]

                                 
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