[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
DEFINING THE PROBLEM AND SCOPE OF
OVER-CRIMINALIZATION TASK FORCE OF 2013
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
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
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
The Honorable George J. Terwilliger, III, Morgan, Lewis & Bockius
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
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
FRIDAY, JUNE 14, 2013
House of Representatives
Over-Criminalization Task Force of 2013
Committee on the Judiciary
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
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
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
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
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
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
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
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
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
By inadvertently creating a patchwork of confusing, outdated, and
duplicative laws, Congress has also created the related problems of
overcriminalization and overincarceration.
An estimated 65 million Americans have been tarnished
with a criminal record, according to one of our witnesses
The number of individuals currently incarcerated in
our Nation exceeds 2.3 million, which is roughly 1 out of every
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
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
Mandatory sentences, long sentences for non-violent first offenses,
and laws mandating increased penalties for repeat offenders lead to
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
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
Accordingly, I look very much forward to hearing the views of our
Mr. Sensenbrenner. The Chair will now introduce the four
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
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
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
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
[The prepared statement of Mr. Terwilliger follows:]
Mr. Sensenbrenner. Thank you, Mr. Terwilliger.
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
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
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.
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.
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
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
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
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
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
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
Mr. Sensenbrenner. Okay. I have got a limited amount of
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. 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
Mr. Sensenbrenner. I would agree with that.
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
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,
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
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
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
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
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
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
Mr. Holding. Mr. Benjamin.
Mr. Benjamin. To terrorism and international criminal
activity, I would add political corruption and the denial of
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
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
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
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
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
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
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
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
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
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
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
Mr. Malcolm. We could certainly look into that,
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
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
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-
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
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
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
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
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
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.
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
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
[Whereupon, at 10:25 a.m., the Task Force was adjourned.]