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



 
                         MENS REA: THE NEED FOR
                   A MEANINGFUL INTENT REQUIREMENT IN
                          FEDERAL CRIMINAL LAW

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



                                HEARING

                               BEFORE THE

                OVER-CRIMINALIZATION TASK FORCE OF 2013

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 19, 2013

                               __________

                           Serial No. 113-46

                               __________

         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

                              ----------                              

                             JULY 19, 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.............................     3
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     3

                               WITNESSES

John S. Baker, Jr., Ph.D., Visiting Professor, Georgetown Law 
  School, Visiting Fellow, Oriel College, University of Oxford, 
  Professor Emeritus, LSU Law School
  Oral Testimony.................................................     8
  Prepared Statement.............................................    11
Norman L. Reimer, Executive Director, National Association of 
  Criminal Defense Lawyers
  Oral Testimony.................................................    24
  Prepared Statement.............................................    26

          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.....................     4
Prepared Statement of the Honorable Bob Goodlatte, a 
  Representative in Congress from the State of Virginia, and 
  Chairman, Committee on the Judiciary...........................     6
Prepared Statement of the Honorable Robert C. ``Bobby'' Scott, a 
  Representative in Congress from the State of Virginia, and 
  Ranking Member, Over-Criminalization Task Force of 2013........     6
Material submittted by the Honorable Robert C. ``Bobby'' Scott, a 
  Representative in Congress from the State of Virginia, and 
  Ranking Member, Over-Criminalization Task Force of 2013........    55


   MENS REA: THE NEED FOR A MEANINGFUL INTENT REQUIREMENT IN FEDERAL 
                              CRIMINAL LAW

                              ----------                              


                         FRIDAY, JULY 19, 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, 
Gohmert, Labrador, Holding, Scott, Conyers, Nadler, and 
Jeffries.
    Staff Present: (Majority) Robert Parmiter, Counsel; Alicia 
Church, Clerk; and (Minority) Ron LeGrand, Counsel.
    Mr. Sensenbrenner. The Task Force will come to order.
    Today I would like to thank our witnesses for agreeing to 
appear at this hearing, which is the second in a series of 
hearings on the growing problem of over-criminalization and 
over-federalization. This Task Force held its introductory 
hearing on the scope of the over-criminalization problem a 
month ago, at which time we heard from a panel of excellent 
witnesses. Today our work continues.
    As the title indicates, today's hearing will focus on the 
need for a meaningful intent requirement in Federal criminal 
law. A common criticism of the expansion of Federal criminal 
law is that it has included an erosion of the mens rea 
requirement. Mens rea, Latin for guilty mind, is the state of 
mind the government, to secure a conviction, must prove that a 
defendant had when committing a crime.
    As Justice Jackson explained some 60 years ago, ``The 
contention that an injury can amount to a crime only when 
inflicted by intention is no provincial or transient notion. It 
is as universal and persistent in mature systems of law as 
belief in freedom of the human will and a consequent ability 
and duty of the normal individual to choose between good and 
evil.''
    Historically, most common law criminal offenses were malum 
in se offenses, meaning inherently immoral, antisocial acts 
such as murder, arson, or rape. However, the expansion of the 
Federal Criminal Code has been accompanied by an ever-
increasing labyrinth of Federal regulations, many of which are 
malum prohibitum offenses; that is offenses that are crimes 
merely because Congress has decided to pass a law saying so.
    Many of these offenses have no guilty mind requirement, 
which means that American citizens can be convicted of crimes, 
and sometimes serve jail time, for unwittingly committing 
crimes such as failing to file paperwork or fishing without a 
license, vague definition in these mala prohibita laws ensure 
that those who did not intend to break the law and who believe 
in good faith that their conduct was lawful. This is an 
unacceptable state of affairs, and surely not what Congress nor 
America's common law system intended.
    To complicate matters, many of the terms commonly used in 
the Federal Code to denote intent lack clear definitions. For 
example, the Supreme Court has opined that, ``willfully,'' is 
an ambiguous term which can have different meanings in 
different contexts. Judge Learned Hand excoriated the term 
willful. ``It is an awful word. It is one of the most 
troublesome words in a statute that I know. If I were to have 
to have an index purge, willful would lead all the rest in 
spite of its being at the end of the alphabet.'' I do not think 
we are going to do that in this Task Force, but with Google 
searches and things like that it is easier than it was when 
Judge Hand wrote that opinion.
    In this session of Congress, I have reintroduced 
legislation to modernize and streamline the Federal Criminal 
Code. That legislation would bring uniformity to the code by 
using the term ``knowingly'' to define the requisite intent for 
every crime except for those criminal offenses that require 
some additional and more specific intent.
    In 2010, the Heritage Foundation and the National 
Association of Criminal Defense Lawyers, definitely an odd 
couple, published a report entitled ``Without Intent: How 
Congress is Eroding the Criminal Intent Requirement in Federal 
Law.'' This report was the result of a study of legislation 
containing criminal offenses introduced in the 109th Congress, 
which found that over 50 percent of the offenses considered by 
that Congress contained inadequate mens rea requirements. This 
is a shockingly high number.
    The study found that despite the House and Senate Judiciary 
Committees' expertise and subject matter jurisdiction over 
Federal criminal law, over half of the offenses noted in the 
study were not referred to either Committee. However, the study 
also found that when the bills were considered and marked up by 
the two Judiciary Committees, the quality of mens rea 
requirements was significantly improved. We thank them for 
that.
    It is clear going forward that congressional leadership 
could ensure that the Judiciary Committees receive referrals on 
any legislation containing criminal penalties. Inadequate 
drafting by other Congressional Committees should not lead to 
prison time for American citizens. The lack of an adequate 
intent requirement in the Federal Code is one of the most 
pressing problems facing this Task Force, and I look forward to 
engaging in a substantive discussion with our distinguished 
panel of witnesses today.
    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.
    For centuries the American legal system has defined a crime 
to require both a guilty act and a guilty mind. The latter is 
commonly referred to as criminal intent. To win a conviction, 
the government must prove beyond a reasonable doubt that the 
accused committed the prohibited act with criminal intent.
    For the past several years, a number of groups from diverse 
political philosophies have come together to express their 
concern over the lack of specificity in criminal law standard 
of proof for holding a person accountable for criminal conduct. 
They have complained of vagueness in the standard, with many 
defendants not knowing whether or not they are even guilty of a 
crime because of the absence of the common law requirement of 
the guilty mind of mens rea.
    The mens rea requirement has long served as an important 
role in protecting those who did not intend to commit a 
wrongful act from prosecution or conviction. Mens rea elements, 
such as specific intent, willful intent, or knowledge of the 
specific facts constituting the offense, were part of nearly 
all common law crimes. They have served as a means of 
protecting individuals from state action to deprive them of 
liberty and rights. Without these protective elements in our 
criminal laws, honest citizens are at risk of being victimized 
and criminalized by poorly crafted legislation and overzealous 
prosecutors.
    For centuries, citizens in this country have only faced a 
few dozen Federal criminal offenses, but in recent years the 
number of crimes has exploded. Thousands of Federal crimes are 
now covered not only in Federal jurisdictions, but also are 
covered by duplicative areas where state and local crimes also 
cover Federal crimes. It is estimated that there are also, in 
addition to that, hundreds of thousands of additional crimes 
imposed by regulatory action.
    As we have seen from testimony from the Crime Subcommittee 
previously, and this Task Force specifically, many provisions 
lack criminal intent requirements to protect accused persons 
from unjust criminal punishment, such as those imposed on 
persons who may violate a regulation that they did not even 
know was a crime. To inspire the widest possible trust and 
confidence, we should ensure that all criminal provisions 
provided for traditional protections against unjust punishment 
by ensuring each person convicted has the specific mens rea 
requirement.
    One of the areas that we need to specifically look at are 
some of the regulations and whether or not some of those 
regulations ought to carry criminal penalties at all. There are 
some that I think need to cover criminal penalties, but we will 
discuss those as the Committee goes forward. I look forward to 
listening to the witnesses and hear their views on this issue. 
And thank you, and yield back the balance of my time.
    Mr. Sensenbrenner. The Chair recognizes the Ranking Member 
of the full Committee, the gentleman from Michigan, Mr. 
Conyers.
    Mr. Conyers. Thank you, Mr. Chairman.
    I think this is an important Task Force. And I would merely 
add that a fundamental principle of our criminal justice system 
is that an individual should not be subjected to prosecution 
and conviction unless he or she intentionally engages in 
wrongful conduct or conduct that they knew was unlawful. And so 
for the hearing on mens rea, the need for a meaningful intent 
requirement in Federal criminal law is an important issue 
before the Over-Criminalization Task Force. Only under these 
circumstances should an individual be deserving of punishment.
    Unfortunately, here in the Congress we have increasingly 
strayed from the basic principle, as evidenced by the fact that 
Federal criminal law is no longer limited to crimes that are 
readily recognizable. So as the Task Force undertakes its 
analysis of this issue, there are several matters we should 
address.
    To begin with, the lack of mens rea standard presents a 
real risk that truly innocent individuals may be wrongly 
convicted and punished. The omission of mens rea essentially 
sets citizens up to be, in effect, ambushed. No one should be 
at risk of prosecution, conviction, and possible imprisonment 
for engaging in actions that are not inherently blameworthy 
unless he or she knew that the act involved was illegal. An 
individual can be found criminally liable for violating certain 
commercial, regulatory, and environmental laws without any 
proof that they intended to violate these laws or that their 
conduct was clearly blameworthy. In fact, without an 
articulated mens rea standard, it may not even be clear that 
the crime has even been committed.
    Now, the Heritage Foundation study conducted by our witness 
who is testifying today estimated that 17 of the 91 Federal 
criminal offenses enacted between 2000 and 2007 lacked any mens 
rea requirement at all. A joint report by the National 
Association of Criminal Defense Lawyers and the Heritage 
Foundation examined the Federal criminal law process during the 
109th Congress. The study revealed that over 57 percent of the 
offenses introduced, and 64 percent of those enacted into law, 
contained inadequate criminal intent requirements, putting the 
innocent at risk of criminal prosecution. As a result, everyone 
in the criminal justice system, including the defendant, 
prosecutor, and judge, is left wondering what mental state, if 
any, applies.
    For those inclined to place their trust in prosecutorial 
responsibility and discretion, I say that the responsibility 
lies with us, the Congress, to pass legislation that is fair, 
unambiguous, and protects the rights of all. That is why this 
Task Force is so important.
    I will put the rest of my statement in the record.
    Mr. Sensenbrenner. Without objection.
    Mr. Conyers. Yield back the balance of my time.
    [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
    A fundamental principle of our criminal justice system is that an 
individual should not be subjected to prosecution and conviction unless 
he or she intentionally engages in wrongful conduct or conduct that 
they knew was unlawful.
    Only under these circumstances should an individual be deserving of 
punishment.
    Unfortunately, Congress has increasingly strayed from this basic 
principle as evidenced by the fact that federal criminal law is no 
longer limited to crimes that are readily recognizable.
    So as the Task Force undertakes its analysis of this issue, there 
are several issues that we should address.
    To begin with, the lack of a mens rea standard presents a real risk 
that truly innocent individuals may be wrongfully accused, convicted 
and punished.
    The omission of mens rea essentially sets citizens up to be 
ambushed.
    No one should be at risk of prosecution, conviction and 
imprisonment for engaging in actions that are not inherently 
blameworthy unless he or she knew that the act involved was illegal.
    An individual can be found criminally liable for violating certain 
commercial, regulatory, and environmental laws without any proof that 
he or she intended to violate these laws or that his or her conduct was 
clearly blameworthy.
    In fact, without an articulated mens rea standard, it may not even 
be clear that a crime has even been committed.
    According to a Heritage Foundation study conducted by John Baker 
who is testifying here today, it is estimated that 17 of the 91 federal 
criminal offenses enacted between 2000 and 2007 lacked any mens rea 
requirement at all.
    A joint report by the National Association of Criminal Defense 
Lawyers and the Heritage Foundation, entitled ``Without Intent: How 
Congress is Eroding the Criminal Intent Requirement in Federal Law'', 
and released in May 2010, examined the federal criminal law process 
during the 109th Congress (2005-2006).
    That study revealed that over 57 percent of the offenses introduced 
and 64 percent of those enacted into law contained inadequate criminal 
intent requirements, putting the innocent at risk of criminal 
prosecution.
    As a result of this failing, everyone in the criminal justice 
system--including the defendant, prosecutor, and judge--is left 
wondering what mental state, if any applies.
    For those inclined to place their trust in prosecutorial 
responsibility and discretion, I say that the responsibility lies with 
us--the Congress--to pass legislation that is fair, unambiguous and 
protects the rights of all citizens.
    That is our duty. Congress must require that a conviction be based 
on proof that a person purposefully intended to break the law.
    To leave it to the prosecutors and courts to determine Congress' 
intent is a dereliction of our sworn duty.
    Another concern that I have pertains to how we define what 
constitutes ``mens rea.''
    While we all can agree that the knowledge or mens rea element of a 
criminal law statute is critical, there continues to be debate about 
the difference between the terms ``willfully'', and ``intentionally'' 
or ``knowingly.''
    ``Willful'' is often used to describe a state of mind where the 
person consciously and purposefully breaks the law or violates widely 
known legal duty.
    Is it negligence, knowledge, criminal intent, or strict liability?
    And, this standard is to be distinguished from the situation where 
a person violates a criminal law without any purpose of doing so, or he 
makes a good faith mistake when interpreting a complex area of law.
    So, as we become more scrupulous about requiring mens rea in 
criminal offenses, we must also ensure that the specific mens rea or 
``guilty mind'' elements of federal offenses capture only blameworthy 
conduct.
    Finally, I want the witnesses to address the issue of whether proof 
of willfulness should be required for regulatory crimes.
    Specifically, if the standard for these offenses is not 
willfulness, what should the standard be?
    Would it be more appropriate to impose civil penalties and 
administrative sanctions for those who violate a regulation but do not 
meet the requirements from criminal conviction?
    Are there certain types of regulatory crimes that should be exempt 
from a mens rea standard?
    What justification exists for imposing criminal liability for 
regulatory crimes?
    I look forward to hearing the responses to these questions from the 
witnesses and I commend the Task Force for examining the critical issue 
of mens rea.
                               __________

    Mr. Sensenbrenner. The Chairman of the full Committee, Mr. 
Goodlatte, is unable to make it today. I ask unanimous consent 
that his opening statement be placed in the record.
    [The prepared statement of Mr. Goodlatte follows:]
Prepared Statement of the Honorable Bob Goodlatte, a Representative in 
  Congress from the State of Virginia, and Chairman, Committee on the 
                               Judiciary
    Thank you Chairman Sensenbrenner. I am very happy to be here today 
at the second hearing of the Over-Criminalization Task Force. Today's 
hearing will afford Task Force members the opportunity to hear from a 
distinguished panel of outside experts who have studied the issue of 
criminal intent very closely for a number of years.
    At our first hearing last month, the witnesses unanimously agreed 
that the erosion of the mens rea requirement in Federal law is the most 
pressing issue facing this Task Force.
    Anyone who has been to law school knows that, at common law, 
finding an individual guilty of a crime required the government to show 
a convergence of harmful conduct (the actus reus) with the intent to do 
something that the law forbids (the mens rea, or ``guilty mind'' 
requirement). It required, as the Supreme Court has stated, 
``concurrence of an evil-meaning mind with an evil-doing hand.''
    However, as my colleagues and many commentators have noted, the 
expansion of the federal code--to some 4,500 criminal statutes today, 
as well as tens of thousands of regulations carrying criminal 
penalties--has resulted in a code that no average American citizen 
could be expected to read and understand, let alone conform his conduct 
to. As a result, the news is replete with stories of Americans who have 
been convicted of crimes--and sometimes, sentenced to lengthy prison 
terms--when they had no intent to break the law.
    A primary cause of this predicament is Congress itself. That is, 
recent Congresses have crafted scores of new federal criminal laws that 
lack adequate criminal intent requirements and define the criminalized 
conduct in unacceptably vague and overbroad terms. As noted in the 
Without Intent study done by the Heritage Foundation and the National 
Association of Criminal Defense Lawyers, over 57 percent of the 
offenses introduced in the 109th Congress--and 64 percent of those 
enacted into law--contained inadequate intent requirements.
    The good news coming out of this study is that regular order by the 
House Judiciary Committee--that is, the marking up and reporting out of 
a bill--does improve the quality of mens rea requirements. As Chairman 
of the Judiciary Committee, it should come as no surprise to anyone 
that I strongly agree with that conclusion.
    I can assure my colleagues that this Committee will continue 
working to ensure that federal criminal laws are responsibly drafted 
and considered.
    I look forward to hearing from our witnesses today about the need 
for a definitive mens rea requirement in the Federal code, and what 
steps this Task Force and the Judiciary Committee can take to address 
the issue.
    As I stated at the beginning of our first hearing, concern for this 
issue is bipartisan, and requires bipartisan perspectives. I commend 
all of my colleagues here today for your excellent work on the Task 
Force, and I yield back the balance of my time.
                               __________

    Mr. Sensenbrenner. And I also ask unanimous consent that 
other Members' opening statements may be placed in the record. 
Without objection, so ordered.
    [The prepared statement of Mr. Scott follows:]
   Prepared Statement of the Honorable Robert C. ``Bobby'' Scott, a 
  Representative in Congress from the State of Virginia, and Ranking 
            Member, Over-Criminalization Task Force of 2013
    Good morning,
    For centuries, the Anglo-American legal system has defined a crime 
to require both a guilty act (actus reus) and a guilty mind (mens rea). 
The latter is commonly referred to as a criminal intent requirement. To 
win a conviction, the government must prove beyond a reasonable doubt 
that the accused committed a prohibited act with criminal intent.
    Over the past several years, a number of groups, from diverse 
political philosophies have come together to express their concern over 
the lack of specificity in criminal law standard of proof for holding a 
person accountable for criminal conduct. They have complained of 
vagueness in the standard with many defendants not know whether or why 
they were guilty of a crime, all because of the absence of the common-
law requirement of mens rea, or ``guilty mind'' as a required standard 
of proof to be held accountable for a crime.
    The mens rea requirement has long served an important role in 
protecting those who did not intend to commit wrongful or criminal acts 
from prosecution and conviction. Mens rea elements such as specific 
intent, willful intent and the knowledge of specific facts constituting 
the offense were part of nearly all common-law crimes. They have served 
as a means of protecting individuals from state action to deprive them 
of liberty and rights. Without these protective elements in our 
criminal laws, honest citizens are at risk of being victimized and 
criminalized by poorly crafted legislation and overzealous prosecutors.
    For centuries, citizens in this country faced only a few dozen 
federal criminal offenses. In recent decades, however, the number of 
federal criminal offenses has grown explosively. Thousands of federal 
crimes now cover not only uniquely federal jurisdictional subject 
areas, but also subject areas duplicative of crimes under state and 
local jurisdiction. And estimates indicate that there are hundreds of 
thousands of additional criminal provisions imposed through regulatory 
actions by federal agencies implementing federal criminal statutes.
    As we have seen from testimony before the Crime Subcommittee 
previously, and recently before this Task Force, many of these 
provisions lack clear criminal-intent requirements to protect accused 
persons from unjust criminal punishment, such as those imposed upon 
persons who may violate a law or regulation only accidentally or 
inadvertently, without any criminal intent. To inspire the widest 
possible trust and confidence in the federal criminal justice system, 
we should ensure that all criminal provisions provided for traditional 
protections against unjust punishment by ensuring that each has a 
specific mens rea requirement.
    I welcome today's witnesses, and look forward to suggestions as to 
what provisions, if any, should be added to federal law to protect 
accused persons from an improper risk of criminal punishment.
    It is my hope that this Task Force, with the assistance of 
witnesses such as those appearing before us today, will identify 
bipartisan efforts to make the federal criminal code smaller and more 
understandable. It is also my hope that through this process we will 
give Americans a reasonable opportunity to understand what the criminal 
law requires of them before they act.
                               __________

    Mr. Sensenbrenner. Also, without objection the Chair will 
be authorized to declare recesses during the hearing of the 
Task Force today.
    Let me say in the beginning that we are scheduled to have 
about an hour-and-a-half's worth of votes between 10:20 and a 
little bit before noon. I think it would be incumbent on all of 
us, particularly the witnesses, if we could wrap this up before 
we have to go across the street to vote, because I do not think 
it would be very fair for the witnesses to have to sit around 
and wait to come back.
    Having said that, let me introduce the witnesses.
    Dr. John S. Baker, Jr., is the visiting professor at 
Georgetown University Law School, a visiting fellow at Oriel 
College at the University of Oxford, emeritus professor of law 
at the LSU Law School. He teaches short courses on separation 
of powers for the Federalist Society with Supreme Court Justice 
Antonin Scalia.
    Dr. Baker previously worked as a Federal court clerk and 
assistant district attorney in New Orleans, and has served as 
consultant to the U.S. Department of Justice, U.S. Senate 
Judiciary Subcommittee on Separation of Powers, the White House 
Office of Planning, USIA and USAID. He was a Fulbright scholar 
in the Philippines and a Fulbright specialist in Chile.
    Dr. Baker served as a law clerk in the Federal District 
Court and as an assistant district attorney in LA before 
joining LSU in 1975. He served on an ABA task force which 
issued the report ``The Federalization of Crime'' in 1998. He 
received his bachelor of arts degree from the University of 
Dallas, his J.D. Degree from the University of Michigan Law 
School, and his Ph.D. degree in political thought from the 
University of London.
    Mr. Norman L. Reimer is the executive director of the 
National Association of Criminal Defense Lawyers. As executive 
director, Norman Reimer heads a professional staff based in 
Washington, D.C., serving the NACDL's district, local, and 
state and international affiliate organization members. Since 
joining NACDL, he has overseen a significant expansion of the 
association's educational programming and policy initiatives. 
Previously, he practiced law for 28 years, most recently at 
Gould, Reimer, Walsh, Goffin, Cohn, LLP. Mr. Reimer assumed the 
presidency of the New York County Lawyers Association in 2004.
    In addition to that role, he has served as a delegate to 
both the American Bar Association's House of Delegates and the 
New York State Bar House of Delegates. He formerly served as 
chair of the Central Screening Committee of the Assigned 
Counsel Plan, Appellate Division, First Department, overseeing 
the qualification of several hundred attorneys. He served on 
the Federal Criminal Justice Panels for the Southern District 
of New York, where he was certified to represent criminal 
defendants in felony prosecutions, capital prosecutions, and 
habeas corpus proceedings. He was also certified by the New 
York State Capital Defender to handle death penalty 
prosecutions in the New York State courts.
    So we ask you to limit your oral testimony to 5 minutes. 
You are all familiar with the red, yellow, and green lights 
before you. Without objection, your full statements will appear 
in the record.
    And, Dr. Baker, why don't you go first?

  TESTIMONY OF JOHN S. BAKER, JR., Ph.D., VISITING PROFESSOR, 
    GEORGETOWN LAW SCHOOL, VISITING FELLOW, ORIEL COLLEGE, 
    UNIVERSITY OF OXFORD, PROFESSOR EMERITUS, LSU LAW SCHOOL

    Mr. Baker. Mr. Chairman, Mr. Ranking Member, and Members of 
Congress, thank you for holding this hearing. And I especially 
thank you----
    Mr. Sensenbrenner. Is your mike on?
    Mr. Baker. It appears to be.
    Mr. Chairman, Mr. Ranking Member, and Members of Congress, 
thank you for holding this hearing, and thank you in particular 
for the Task Force. The issue of over-federalization is the 
main issue I have worked on for decades, and so it is very 
gratifying to be here and have this opportunity to testify.
    In your first meeting you heard from Mr. John Malcolm. And 
I had planned to say that I was going to pick up where he left 
off with the Morissette case and the quote from Justice 
Jackson. The problem is that Mr. Sensenbrenner covered most of 
what I was going to say, and then Mr. Scott and Mr. Conyers 
doubled down on it.
    So it is wonderful to start knowing that we all agree 
apparently on what the problem is. The difficulty is to figure 
out a solution. And it is not an easy thing to do. And that 
means understanding how we got in the mess in the first place 
is critical to crafting the solution.
    I think it is important not so much for Members of this 
Committee, but for other Members of Congress to understand the 
difference between state criminal law and Federal criminal law. 
But first of all, we have identified the strict liability 
problem of no mens rea. But the inadequate mens rea problem, 
where you have a knowingly requirement that does not really 
amount to a mens rea issue is also critical.
    The important thing, it seems to me, is to understand that 
mens rea is a principle, and that under it come particular 
rules. And the rules vary with the nature and the type of the 
crime. And when we look at state criminal law, it is relatively 
easy, even though states have added many non-common law crimes, 
it is easy because the meat and potatoes of a local prosecutor, 
which I was, in murder, rape, robbery, theft, burglary, that is 
what we dealt with. And most juries do not have difficulty 
figuring out what those crimes are. Indeed, in most state 
prosecutions the issue is not whether there was a crime, the 
issue is whether the defendant is the person who did it.
    In Federal law it is just the opposite. The issue is not 
whether the defendant did something; it is whether what he did 
was a crime. And we know with 4,500 statutes out there, there 
are plenty to pick from. And it is easy to pick up one that 
has, if not a lack of mens rea entirely, a confused mens rea. 
And the classic example is the mail fraud statute, which the 
Justice Department constantly is litigating and pushing the 
envelope on.
    So how is it then that you go about dealing with it? Well, 
first of all, in understanding the difference between state and 
Federal criminal law you have to understand, as you do, but 
other Members of the Congress may not, that we have simple 
crimes at the state level and we have crimes at the Federal 
level that look more like the Tax Code. And as a result, people 
cannot understand what they are.
    And how did we get into this situation? Well, it has to do 
with something called the Constitution. There is no general 
police power, as you know, in the Federal Government. The 
Supreme Court keeps trying to remind the Congress of this. And 
sometimes it gets through and sometimes it does not. But when 
you have to put a jurisdictional element in the statute, that 
immediately complicates the statute. The statute becomes more 
and more complex.
    And indeed, when you are dealing, as you are in most cases, 
with the power under the Commerce Clause, that means you put in 
an affecting commerce provision, your powers are limited, 
supposedly limited, and it does not end up looking, in most 
cases, like a crime. It is in most cases really a regulation 
that happens to carry a criminal penalty.
    So what is the solution? Well, in one sense the solution 
would appear to be easy: a default rule. The Model Penal Code 
has a default rule. The difficulty is default rules in the 
Model Penal Code--which by the way were not adopted necessarily 
by most of the states that adopted the Model Penal Code--the 
difficulty is the default rule works and is crafted relatively 
easily when you have a coherent code.
    What we call the Federal Criminal Code is not a coherent 
code. It is simply a list of statutes. Because these statutes 
have been drafted over time by different sessions of Congress, 
there is no coherence to these crimes. Therefore, when you 
attempt to come up with a default rule, as the Heritage 
Foundation has drafted, it is a difficult, intricate thing to 
put together.
    The most important thing I would say in dealing with the 
default rule especially is to give guidance to a Federal court, 
which, no matter what you say, is going to have to interpret 
it. And if Congress comes down, as the three Members who spoke 
this morning did, very firmly in favor of enforcing a mens rea, 
that message will get across to the Federal courts. With that 
message, when you adopt the particular underlying rules that 
follow from it, the court will understand to err on the side of 
mens rea rather than erring on the side of strict liability.
    And if you look at default rules as they have been 
interpreted in the states under the Model Penal Code, the 
differences turn on whether the particular state supreme court 
leaned toward mens rea or whether it leaned toward strict 
liability, and that makes all the difference in the world.
    You know, at the state level we know that we found many 
people who are innocent in jail because they were factually not 
guilty. The problem in Federal criminal law is that we have 
innocent people being convicted not because we have the wrong 
person, but because they really did not commit a crime.
    Thank you very much.
    [The prepared statement of Mr. Baker follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


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    Mr. Sensenbrenner. Thank you, Dr. Baker.
    Mr. Reimer.

  TESTIMONY OF NORMAN L. REIMER, EXECUTIVE DIRECTOR, NATIONAL 
            ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

    Mr. Reimer. Thank you, Chairman Sensenbrenner and Ranking 
Member Scott and Ranking Member Conyers and Members of the Task 
Force. Thank you for inviting me to address the critically 
important issue of intent requirements, or the lack thereof, in 
Federal criminal statutes.
    The problem is a core aspect of the larger over-
criminalization problem. But this is one which is uniquely 
within the power of Congress to fix.
    At the outset, I note that this is one issue on which the 
most important ingredient for reform is already present; that 
is, impressive bipartisan consensus. The House Judiciary 
Committee has now been looking at over-criminalization for more 
than 3 years. NACDL has been privileged to work with you, 
specifically on intent problems in three different Congresses, 
and even with a shift in the majority.
    So why is there a growing consensus around this issue? It 
is because we are looking at a problem that cannot be traced to 
any political party or philosophy, but rather is a byproduct of 
a growing reliance upon the criminal provisions as a panacea 
for every perceived problem in society. This problem transcends 
ideology. It is not about right or left, it is about right and 
wrong.
    In speaking for the criminal defense bar, I am not here 
solely looking at the problem through the eyes of a 
practitioner, but rather through the eyes of the individual who 
is accused of a Federal crime, the eyes of the people, the 
people who become our clients, the members of our community who 
have to answer to these laws. While a part of this Task Force's 
mission is to look at whether we have too many criminal laws 
imposing penalties for far too many things that either should 
not be regulated, or if they are should not carry criminal 
punishment and the life-altering stigma of criminal convictions 
that go with that, that is not what we are here about today. 
Today is not about what you decide to make criminal, it is 
about how something is made criminal.
    Reasonable people can disagree about what should be a 
crime, but not about how to make it a crime. To remain tethered 
to a moral anchor, when the government decides to criminalize, 
it has an obligation to do so with precision and clarity so 
that the individual, the average person can clearly understand 
what is illegal. That is why the question of how you define a 
crime is so critical.
    This is a practical concern. When you look at a criminal 
provision, can you clearly see what is the test for whether it 
has been violated? What notice does the public have of exactly 
what conduct was prohibited? What is the mental state that 
makes the criminal act? And what, if anything, is it that a 
prosecutor has to prove? If these questions cannot be readily 
answered, then there is a problem.
    Without a clear intent requirement, the individual will not 
realize when they are crossing the line. That is not fair, it 
is not effective. If people do not know that something is 
wrong, they will not be deterred from doing it. And that is the 
whole purpose of creating the criminal law in the first place.
    Now, you have heard from Professor Baker, and in both of 
our written testimonies you have had many examples of the 
problems. I am now going to offer a suggestion for how to fix 
it in four simple steps.
    First, it is time to enact a default mens rea statute. I 
agree with Professor Baker that that is essential, a law that 
will establish a baseline intent for all elements of all 
offenses in which the state of mind is not spelled out in the 
statute. This should apply to all existing statutes and 
regulations, and certainly to all future laws. If there are to 
be any exceptions, they should be rare, specific, and 
absolutely necessary.
    Two, and I know, Chairman Sensenbrenner, we will probably 
have some additional discussion about this, but we believe that 
the default mens rea should be willful conduct, which means, as 
it has been defined by the courts, a person must act with the 
knowledge that the conduct was unlawful. That is far from the 
highest standard of intent, but it is better than knowingly, 
which is vague and does not require proof of a bad purpose, and 
is subject to judicial tinkering.
    The public should not be left to the vicissitudes of 
different judges in different circuits to fashion instructions 
to save a statute. A person should not have to wait until the 
jury is instructed at the end of a prosecution to find out what 
state of mind made the act criminal.
    Third, recognizing that there are some who believe that 
strict liability has a place in the criminal law, it should be 
limited to situations in which Congress has explicitly 
considered the ramifications and expressly opted for strict 
liability. Now, NACDL does not favor strict liability in the 
criminal law. We are just against it. We think it is wrong. We 
recognize there is a place for civil strict liability. But if 
you are going to do it, you should do it with precision.
    Fourth and finally, and you have heard this before, and I 
will say it again, there should be sequential referral to the 
Judiciary Committee before any new criminal provision is 
enacted. Crimes should be reviewed by a Committee with the 
proper expertise to evaluate how those crimes are defined. We 
understand the challenges with this. But at a minimum, it seems 
to me this Committee could assign a Member to every bill that 
may be enacted to comb through it for criminal provisions and 
make sure that the intent requirements are clear and 
understandable.
    I submit that these four steps will markedly improve how 
you make the law, and justice and fairness will be served. You 
know, we have come a very long way over these last few years on 
this issue. We have maintained a magnificent bipartisan 
cohesion on this issue. And I submit now it is time to act. 
Thank you.
    [The prepared statement of Mr. Reimer follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


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    Mr. Sensenbrenner. Thank you, Mr. Reimer.
    The Chair is going to withhold his questions to see how we 
go meeting up with the votes that will be called on the floor. 
So I will wait until the end. And I am also going to put all 
the Members on notice that so that everybody can have a chance, 
the 5-minute rule will be strictly enforced. To begin, the 
Chair will recognize the Chairman of the full Committee, Mr. 
Goodlatte of Virginia.
    Mr. Goodlatte. Well, thank you, Mr. Chairman. I very much 
appreciate you holding this hearing. And I want to thank both 
the witnesses for an excellent presentation and a good 
prescription for how this Committee should consider proceeding.
    I noted in my opening statement, which is now enshrined in 
the record for all to memorialize, that the Supreme Court has 
stated that mens rea means the concurrence of an evil-meaning 
mind with an evil-doing hand. And that I think is something 
that we ought to strive to get to in as many circumstances as 
possible.
    So, Mr. Reimer, you have already answered this question, 
and, Dr. Baker, let me ask you, would passing legislation 
establishing a default mens rea rule for all statutes, past and 
present, that do not currently contain one stop the expansion 
of Federal criminal law?
    Mr. Baker. Would it stop it? It would stop a lot of 
prosecutions.
    Mr. Goodlatte. And it would probably stop people from 
putting it in statutes that go into legislation that go to 
other Committees.
    And, Mr. Reimer, you will be glad to know that we have a 
very concerted effort in this Committee to identify all bills 
that are moving through the Congress and insist that we assert 
our jurisdiction when it contains a criminal provision, and 
many other provisions that are the jurisdiction of this 
Committee, but particularly criminal provisions.
    Dr. Baker's testimony notes that even in cases where a 
Federal statute includes the mens rea provision it may be a 
very weak one, such as knowing. Dr. Baker, do you agree with 
Mr. Reimer's prescription that it should always be a willful 
conduct standard?
    Mr. Baker. Yes and no. It depends on how you draft a 
statute. I can draft a statute that will accomplish the same 
purpose using a specific intent. I am using state law terms, 
not Model Penal Code, but common law terms. I can do it with 
either specific intent or general intent, say, in a battery 
statute.
    It is not the mens rea by itself, it is in relationship to 
the actus reus, which includes not only the act, it includes 
the circumstances and the consequences. It is difficult to give 
a very simple answer to what you say. But given the complexity 
of Federal law and given that you are not going to redo and 
create a Federal Criminal Code, I would agree with Mr. Reimer 
that that as a practical matter is the best result.
    Mr. Goodlatte. Mr. Reimer, both of you discuss in your 
written testimony whether there is a workable one-size-fits-all 
mens rea requirement that can be applied to the entire Federal 
code. Would you care to expand on that further?
    Mr. Reimer. Yeah. I think that, first of all, any draft 
legislation should have a provision that gives the Congress the 
option to define the intent in a particular statute how they 
see fit for that statute. The default would apply only where 
the Congress has not done that, or it would kick in if it is 
not in the statute itself.
    So if you felt, for example, that you could define a 
distinction between knowingly and willfully, for a particular 
purpose you wanted to use knowingly, that would be fine. You 
could do that. We are just simply saying that if it is not 
there, or if the new law does not contain the provision, 
willfully adds the essential ingredient that the person knew 
that they were doing something that was unlawful.
    And we have a footnote 12 in our testimony which talks 
about some of the key cases. Bryan is an interesting case 
because that is where we get the willful formulation from. And 
actually the willful formulation, which is the holding in the 
case, is not as strong as what the dissenting justices would 
have preferred. They would have preferred that you knew you 
were violating the specific statute.
    I point that out only because those dissenting justices who 
did not get their way in that case were quite an interesting 
mix. It was the late Chief Justice Rehnquist, Justice Scalia, 
and Justice Ginsburg. But what the court gave us was at least 
that in a willful act you have to show that the person was 
violating a law.
    Mr. Goodlatte. Let me in my short remaining time ask Dr. 
Baker if he wants to add or dispute anything that Mr. Reimer 
just said.
    Mr. Baker. The difficulty with knowing, if you go back to 
the common law crimes like receipt of stolen goods, the reason 
why the intent on the act of receipt is insufficient is simply 
receiving goods that happened to be stolen should not be 
wrongful because you might not know it. Therefore, knowing was 
added as an additional element to the basic general intent.
    The difficulty in Federal criminal law and in the Model 
Penal Code is the ambiguity about the word ``knowing.'' And 
knowing can be, as it should be in state law, the equivalent of 
general intent. And general intent really refers to the intent 
to do the act. So if knowing means the intent to do the act, 
the difficulty is, if the act is not always itself wrong, the 
fact that you knew you were doing the act proves nothing. If 
you do not have----
    Mr. Goodlatte. So you agree with Mr. Reimer.
    Mr. Baker. I do.
    Mr. Goodlatte. My time has expired. Thank you, Mr. 
Chairman.
    Mr. Sensenbrenner. The gentleman's time really is expired.
    The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you. And just following up on that, just 
writing a ``knowing'' into each section does not resolve that 
ambiguity.
    Mr. Baker. Not at all.
    Mr. Scott. So how do we resolve----
    Mr. Baker. Because I know I came here this morning. So what 
does that tell me? All it means is that I was conscious of what 
I was doing.
    Mr. Scott. Well, so how do we write statutes to solve the 
ambiguity?
    Mr. Baker. Very carefully. Legislative drafting is a 
difficult process.
    Mr. Scott. Is intentional or reckless ignorance of the law 
an excuse? You did not know it was wrong because you did not 
try to find out it was wrong?
    Mr. Baker. There is a general principle that you have to 
know the law. But that principle derives from the common law 
where we had a few crimes that were basically called the Ten 
Commandment crimes, and people knew that murder, rape, robbery 
was wrong. They did not need a statute.
    Today, when you have statutes that are malum prohibitum, 
and nobody would know what they are, you have to have a 
stronger mens rea. And that is why Mr. Reimer is urging the 
willfulness, because if you have willful then it makes it 
easier to hold a person liable because they actually knew that 
the act was wrong.
    Mr. Scott. And so what happens when, with all the 
regulations and everything else, you did not know that it was 
illegal?
    Mr. Baker. Well, there is a duty on the part of the 
government to promulgate laws, and we do this in different 
ways. I mean at the state level if you rent a car and you drive 
it out of the airport there is usually a sign that says buckle 
your seatbelt, it is against the law. If you are in the 
securities industry, before you are going to work in that 
industry you are going to go through training that gives you a 
background in what is and is not required.
    Mr. Scott. But do you have to prove that the defendant 
actually knew the law?
    Mr. Baker. Not as a general principle you don't. The 
difficulty is where there is good faith ignorance and the mens 
rea is not adequate. If you have a strong mens rea, like 
willful, then it is much more likely that the defendant will 
not be guilty of willful misconduct if they did not know what 
the law was.
    Mr. Scott. Many of these problems occur because we allow a 
criminal prosecution for what is a regulatory violation, and 
essentially the regulators write the conduct, and that becomes 
the crime. Some of those really need to be criminal, some not. 
How do we decide which should be criminal and which should not?
    Mr. Baker. Well, the difficulty is that when Congress 
passes what is deemed to be a regulatory offense, somebody 
seems to throw in a criminal penalty. I use the TREAD Act a 
lot, which after----
    Mr. Scott. The which?
    Mr. Baker. The TREAD Act. After the Ford Firestone fiasco, 
Congress--it was sponsored by Senator McCain and Representative 
Billy Tauzin. And it was to deal with product liability. But at 
the end they put on a criminal penalty, which was not used for 
several years. And what happens is things that start out as 
regulatory and the Justice Department does not criminalize them 
at first, after a while somebody says, well, why don't we 
criminalize things? And that is what happened basically with 
environmental enforcement under the Clinton administration in 
the 1990's.
    Mr. Scott. There are some that need to be--you know, health 
and safety violations, where people are violating the 
regulations and endangering people, shouldn't they be criminal?
    Mr. Baker. You could distinguish between what is a 
violation and what is a true crime. The difficulty of a true 
crime is that when a person is convicted there is a stigma that 
goes along with it. You could have a process, whether you want 
to call it criminal or noncriminal, where it is understood that 
the result is an offense that is not truly a criminal 
conviction.
    Mr. Scott. Well, some you want to be criminal. I mean, if 
there are serious health and safety violations and you have 
some people violating those statutes, maybe you want it to be 
criminal.
    Mr. Baker. You may, but that is where you also have the 
mens rea. And one of the mentus rea that you could have would 
be recklessness. If people do something where they do not 
intend to do the wrong, but they are so careless that it rises 
to the level of recklessness, recklessness is a mens rea.
    Mr. Scott. Mr. Reimer, when would you need strict 
liability? What kinds of cases would you want strict liability?
    Mr. Reimer. Well, as I said, we do not think the criminal 
law should have strict liability offenses in it. First of all, 
the so-called public welfare exception, which was recognized in 
the Morissette case, in what, 1951, 1952, was a very different 
world. Very minor crimes did not carry the unbelievable, life-
altering collateral consequences that people are scarred with 
nowadays. So, we do not think that they should be there. 
Certainly Congress could say in a certain situation, yes, we 
need it. And all we are saying then is be explicit that that is 
what you want.
    I would like to, if I may, just to pick up on the question 
that you asked Professor Baker about these regulatory offenses 
and how strict liability actually operates. I know that 
everybody on this Committee, I am pretty sure everybody on this 
Task Force, is familiar with the Bobby Unser case. Bobby Unser 
testified at one of the hearings. So I just went back, because 
we have talked about that as a sort of a good example of an 
abuse, and if you look at the statute and the reg that made 
that a Federal crime, you really see what the problem is.
    The statute, which is 16 U.S.C. 551, basically is a general 
provision that gives the Secretary of Agriculture the authority 
to make provisions for the protection of the national forest 
and to issue rules and regulations that carry a criminal 
penalty. That is the statute. That is it. And then the 
regulation does not say anything about it being a crime. It 
just says the following are prohibited at the national forest 
wilderness. And one of those is operating a motor vehicle 
without Federal authority.
    Mr. Sensenbrenner. The time of the gentleman has expired.
    The gentleman from North Carolina, Mr. Holding.
    Mr. Holding. Thank you.
    I want to follow up on the line of questioning that my 
friend Mr. Scott has started regarding strict liability, and 
turn to you, Dr. Baker. In the orbit of Federal crimes there 
must be some that should be strict liability. And what would 
you say that they are?
    Mr. Baker. I, too, am against strict liability. I think, 
first of all, we need to define what crime is. You could have 
offenses that are not true crimes that are strict liability. 
Part of the problem is confusing things and calling things 
crimes that are not crimes. So if I run a stop sign, that is 
strict liability even if I did not see the stop sign. But that 
is not a crime. It is an offense.
    And we could solve a lot of the problem by making that 
distinction. And you could punish it in various ways. But you 
do not call it a crime, it does not carry the stigma, and 
people do not go to jail for it.
    Mr. Holding. So that is the distinction between an offense 
and a crime, is whether you go to jail for it or not?
    Mr. Baker. Well, that is a long discussion. There are 
various historical definitions of what a crime is. The one that 
we are focusing on here is the element of actus reus and mens 
rea as being the common law definition of crime. As Justice 
Jackson says, it marks a mature legal system. Many countries in 
the world, especially in Asia, do not have mens rea. They just 
punish based on a bad act, even if it was a mistake. We are a 
mature legal system.
    Mr. Holding. What about areas of the law, you know, we have 
talked a lot about migratory birds and so forth.
    Mr. Baker. That is a good one. No, I want to talk about 
that one.
    Mr. Holding. All right. All right. I will give you a minute 
do that.
    Mr. Baker. How about that U.S. aircraft that Captain 
Sullenberger landed on the Hudson? He violated the Migratory 
Bird Act. He killed those birds. Now, nobody is going to 
prosecute him. But why isn't it that the Department of 
Interior's, what, the Wildlife Division, why have they not 
issued clear regulations to distinguish the guilty from the 
nonguilty? They have not. And they do not want to because they 
want the discretion to prosecute when they want to prosecute. 
And so are they going to prosecute bad oil companies but not 
prosecute good wind farms?
    Mr. Holding. That is good. In some of the areas of strict 
liability I think you run into a situation where you were 
talking about the stockbroker who has had to go through all of 
the training to get the various series of licenses and so 
forth. So any violation of that becomes a strict liability 
because it is just assumed, presumed that they know the law.
    Mr. Baker. They have been given notice, they have been 
given notice.
    Mr. Holding. Right. So is that a strict liability that you 
would----
    Mr. Baker. Well, they have got the notice, but still the 
question in that context, it might well amount de facto to 
recklessness. They have had the knowledge, they have taken an 
action. You still have the problem of mens rea. And it is still 
possible that you might end up convicting someone where there 
was no mens rea. But there is a high presumption that they have 
been trained, they ought to understand what is going on, and it 
is in all likelihood that they were reckless.
    But still we are dealing with a regulation. The question is 
whether for a violation of a regulation you want to put it at 
the same high level of a felony. Do you want to make that level 
of stigma?
    Mr. Holding. In the whole realm of Federal criminal law, 
you know, are there particular areas which are uniquely suited 
to Federal investigation and prosecution?
    Mr. Baker. Yes. In fact, you know, I speak a lot on over-
federalization. And when I am debating a former assistant U.S. 
Attorney they always say, well, we only focus on four areas 
mainly--drugs, corruption, immigration, and gun laws. Well, 
certainly on immigration and drugs there is no question the 
Federal Government has the authority. When it comes to public 
corruption, that is a different matter because there is a real 
question about the authority. When it comes to the gun laws, 
likewise.
    But there are other areas that the Federal Government is 
not really devoting its resources. You know, after 9/11 Mueller 
said the FBI has got to get back to what it does best. The 
Federal Government has a lot it needs to do that the states 
cannot do.
    I had my identity stolen recently. Okay. So I called and 
tried to get through to the FBI. One, I couldn't get through. 
But when they sent me to--I think it was the SEC or the Federal 
Trade Commission--they said call your local police. I said, 
wait a minute, my local police have no ability to deal with 
this issue. It seems like everybody's dealing with somebody 
else's issue. We need Federal law enforcement in the Internet 
issues, anything that is crossing state lines. No state is able 
to deal with these things. There is plenty for the Federal 
Government to do. The problem is much of what they are doing 
belongs to the state.
    Mr. Holding. Thank you.
    Mr. Sensenbrenner. The gentleman from Michigan, Mr. 
Conyers, the Ranking Member of the full Committee.
    Mr. Conyers. Thank you.
    I am trying to keep this down at a realistic as possible 
level. And I wanted to ask you, as the leader of many of the 
defense lawyers, Mr. Reimer, how does the mens rea problem 
relate to prosecutorial discretion when you have minority 
defendants in the criminal justice system that might be subject 
to discretion by the prosecutor that may or may not be fair to 
the defendant himself or herself?
    Mr. Reimer. Well, it is a very timely question since we 
just 2 days ago released a report on disparity, which was done 
jointly with a number of groups, including the American 
Prosecutors Association. And so that is a problem in our 
criminal justice system in general.
    But this issue of prosecutorial discretion, you mentioned 
the migratory bird case, and of course that is the classic 
example of trusting prosecutors to not push the envelope out of 
what the law was intended for. And of course there they pushed 
it ridiculously, and people were humiliated and spent a 
fortune, had their reputations damaged, ultimately were 
exonerated.
    The problem with all of this is that nobody can afford to 
go to trial in this country anymore. Trials are essentially 
gone. So once you are charged you are in a terrible, terrible 
spot. The cost, the potential extreme trial penalty if you take 
the case to trial, it has tipped the balance to such an extent 
that the only way you have any protection is if you build into 
the law some clear aspect of intent.
    And I want to talk about that just in terms of these 
questions about strict liability because we all know what we 
are thinking about. We want to make sure that the public is 
safe. The question I have is this. If there genuinely is no 
knowledge, no recklessness, no negligence, nothing, the person 
just received, for example, in the case of food, if you receive 
food that has adulterated products in it and you put it on the 
shelf, you really have no knowledge of that. It happened 
somewhere else. But you could be prosecuted under the laws.
    And that is not really right. You have to save the criminal 
law for people who are knowingly doing something that is wrong. 
And if you do not do that, then it loses its value. It 
certainly does not, as I said in my statement, it does not 
deter anything. It does, if it is a corporate situation, the 
prospect of severe penalties, economic penalties will deter.
    Mr. Conyers. Well, you make me remember that in many 
criminal courts the defense lawyer may say to his client, look, 
you can take a plea, or look, if we go to trial they have 
already indicated they are going to throw the book at you. And 
that is why your statement about once you get into the trial 
you are in big trouble, whether you know it or not. And I would 
like to ask Dr. Baker to add to this discussion.
    Mr. Baker. I am happy to. I would like to distinguish that 
it is easier to endure a state trial, because unlike a few 
highly publicized ones that have gone a long time, you can 
afford to defend most state trials. And there is going to be a 
public defender there.
    What you really cannot afford is to defend a Federal trial. 
I mean, you are talking hundreds of thousands and into the 
millions of dollars. Skilling, who took his case to the Supreme 
Court, got there because he had a $42 million bankroll to get 
there. It was an insurance policy. Ollie North, to get his case 
reversed, he spent $40 million. The numbers are just mind-
boggling.
    Mr. Conyers. Well, mens rea is an issue that surrounds this 
discussion of really the fairness of trials. And, Mr. Chairman, 
I think that that kind of leads us into another very important 
area.
    Mr. Sensenbrenner. I thank you.
    The gentleman's time has expired. The gentleman from 
Alabama, Mr. Bachus.
    Mr. Bachus. Thank you. I think one of the problems here is 
that I think most Members of Congress do not know the 
difference in civil and criminal. I mean they have no 
understanding there is a difference. I mean, we have thrown 
around the term strict liability and negligence. Well, those 
are civil. I mean, unless you are maybe a manslaughter case.
    But, you know, so many of these statutes, and Dr. Reimer, 
you mentioned Dodd-Frank, where you disclose that there is a 
systemic risk determination, you know, not only does there not 
have to be any intent, but you do not even have to know about 
that there has been one. You do not even have to have notice 
that you are disclosing something. You do not even have to know 
that it even exists.
    But that also, that statute also would appear to violate 
freedom of speech because you could say that a company was 
collapsing.
    Mr. Reimer. Well, the provision, that is a very interesting 
one, because that one, it is called reckless disclosure of 
systematic risk, and it does have a reckless provision to it. 
The problem with that statute is it does not define exactly 
what it is--what disclosure was prohibited. It does not require 
that the disclosure was done knowingly. And you do not even 
have to know precisely what it is you are disclosing. So if you 
are properly communicating to somebody about this risk and 
someone else overhears it, have you recklessly disclosed the 
systematic risk?
    But the thing about that statute which is so--you know, I 
talked about the situation with Unser, when you look at what 
the statute was you see what the problem is. Here is another 
example. This was a financial reform bill. And, you know, this 
was buried in there. And I do not think that if anyone had 
really thought about that--I understand what they are trying to 
get at. We do not want people disclosing information that can 
affect the markets. But you have got to be a little bit fairer 
to the people who are going to be subject to these 
prosecutions.
    Mr. Bachus. Yeah. But, you know, you would actually had--if 
you said specific intent, that it had been determined a 
specific intent, but you do not even have to know there is a 
statute.
    Mr. Reimer. If it were willful, it would be a much 
different story, because then the person would be doing it with 
the intention to violate the law.
    Mr. Bachus. You know, prosecutorial discretion, you know, a 
lot of this prosecutors, in my opinion, should not even bring 
the case and then judges ought to throw the cases out.
    Mr. Reimer. Well----
    Mr. Bachus. Why aren't they doing that?
    Mr. Reimer. Well, I am not going to speak to why judges do 
not throw cases out. We probably have some judges here who 
could--former judges who could speak to that, but I will say 
this, okay, as I said, look, prosecutors do not have a 
difficult time getting convictions in Federal court. That is 
just a fact of life. But the other thing to remember is this: 
it should not be easy to convict somebody of a crime. It should 
be a difficult chore. It should be required to prove that they 
deserve to be punished. It is not asking for too much.
    Mr. Bachus. And punished criminally.
    Mr. Reimer. And punished--if it is going to be criminal, 
yes.
    Mr. Bachus. Because, I mean, I think, you know, you are 
talking about fines and talking about traffic offenses.
    Mr. Reimer. There are a lot of things we can do to deter 
conduct and to make people pay a penalty to be more vigilant, 
but if you want to brand somebody with what in this country has 
really become a permanent disability, and that is an issue that 
I hope maybe the Committee will take up as well, the whole 
problem of collateral consequences is just out of control, but 
if we are going to do that, it is not unreasonable to do it 
with precision and make prosecutors come into a court and prove 
it beyond a reasonable doubt.
    Mr. Bachus. Well----
    Mr. Sensenbrenner. The gentleman's time has expired.
    Mr. Bachus. Let me just ask about lenity, just----
    Mr. Reimer. I am sorry?
    Mr. Bachus. Could len---I think it is----
    Mr. Reimer. The rule of lenity.
    Mr. Bachus. Lenity. These ambiguous statutes, you are 
supposed to construe them in the defendant's favor.
    Mr. Baker. Well, first of all, I do not favor the use of 
the term ``lenity.'' The original term is strict construction. 
And as Chief Justice Marshall explained in the Wiltberger case, 
the reason why courts should strictly construe statutes is 
because it is the obligation of the Congress to write them 
clearly. What has happened is we have gone to the rule of 
lenity, and the Court has in many cases actually flipped it, 
and it is not lenity at all.
    Mr. Sensenbrenner. Okay. The gentleman's time now has 
expired. We are having blinking red lights here. The gentleman 
from New York, Mr. Nadler.
    Mr. Bachus. That is a traffic offense.
    Mr. Nadler. Thank you. I thought I was going to have--I was 
not able to think up enough questions, but listening to you, I 
now have too many. I will try to get them in.
    Mr. Baker. I must not have been clear.
    Mr. Nadler. When you said the Federal criminal court--the 
Federal criminal law is not coherent, and I understand what you 
meant by that, and I am thinking about it, it is obviously 
true. Do you think we should have a commission maybe or 
something and to try to rewrite the entire--the Federal 
criminal law, have a recodification of it to make it coherent 
and up-to-date?
    Mr. Baker. Well, actually I was on the Senate Judiciary 
Committee staff at the time that was attempted in the early 
1980's, and a lot of people threw up their hands. The 
difficulty with a criminal code the way it was drafted, it 
assumed that there was a general police power in the Federal 
Government.
    Mr. Nadler. Well, without that assumption, could we draft a 
somewhat different criminal code?
    Mr. Baker. I would hope, but it would not be an easy task, 
but I know Mr. Sensenbrenner has taken a stab at it.
    Mr. Nadler. Thank you. And the second thing, Mr. Reimer, 
you said that, which is also obviously true, you cannot get a 
trial today because it costs you $40 million, or it is 
prohibitive. No one goes to trial, and therefore the prosecutor 
has the total, total leverage in any plea bargain arrangement 
because you have to take a plea, because unless you are a 
millionaire you cannot go to trial. That is essentially what 
you said?
    Mr. Reimer. Well, that was Professor Baker who said that. 
And----
    Mr. Nadler. Okay.
    Mr. Reimer. And I would just--I would make this point. I 
think--well, why don't you complete your question and----
    Mr. Nadler. My question is shouldn't we then try to do 
something about that? In other words, have the Federal 
Government pay for----
    Mr. Reimer. Well----
    Mr. Nadler [continuing]. Defense, not just if you are a 
pauper, but a middle class person who cannot afford it, or 
award total costs to some--total costs from the government if 
you are acquitted or whatever?
    Mr. Reimer. Well, I represent what I like to call as the 
poor person's bar association. Most criminal lawyers in this 
country are small and solo practitioners. And while I 
appreciate the examples of Skilling and Colonel North and 
others like that, the fact is that most people cannot afford 
that kind of a defense and most people do not get that kind of 
a defense. We do have, hopefully if we can solve some of the 
problems that are lurking with respect to funding the Federal 
indigent defense, to put a plug in for that, we have had up 
till now a very good Federal indigent defense system.
    Mr. Nadler. Do you think it is possible for a middle class 
person who thinks he is innocent to actually go to trial?
    Mr. Reimer. No. And it is not just--it is partly money, but 
it is much more than that, Representative Nadler. It is, in 
fact, the trial penalty. We have created a situation in this 
country where prosecutors are holding all of the cards, all of 
the discretion, and they routinely make people pay an 
extraordinary price for the simple act of going to trial.
    Mr. Nadler. Is that because of mandatory minimums or 
something else?
    Mr. Reimer. It is a combination of mandatory minimums, 
complete control over the charging function. And it is also a 
function of the difficulty of defending oneself with these 
kinds of vague laws, and judges who, quite frankly, and this is 
one of the big problems with knowingly, is when there is a 
vagary, it is the judges who then decide to bring in doctrines 
like willful blindness or conscious avoidance, and so all of 
these things are stacked up against you. And, frankly, it is 
because people cannot go to trial, because the cost 
economically and the cost in terms of lost years of their life 
is so extraordinary, that prosecutors are emboldened to bring 
charges. And you see this all the time. You see it certainly on 
the corporate side, you see that. The threat of a criminal 
prosecution is so Draconian, that you get these plea 
arrangements----
    Mr. Nadler. Okay. Now, let me----
    Mr. Reimer [continuing]. Deferrals and things like that.
    Mr. Nadler. That gives us a wide range of problems to deal 
with. Let me sort of go to the other side.
    Professor, you said that we should not have crimes from 
regulations, I think. And you also said that corporate--you 
really should not prosecute corporations, you can deter them by 
huge--excuse me. Let me rephrase that. You said that you can 
deter misconduct, corporate, large scale misconduct by fines.
    Now, isn't it the case that large corporations can just 
regard even $50 million fines as a cost of doing business, and 
you really need criminal penalties is if you are going to deter 
if some of these cases?
    Mr. Baker. Well, I do not think I really said much about 
corporations here, although I have written on the issue. What 
has happened, and you could hold another hearing on this--the 
Sentencing Commission, which in 1992 decided to impose criminal 
penalties on organizations. What it thereby did was create the 
compliance industry, and the Justice Department went to 
corporations and said you might be able to get a lesser penalty 
if you are indicted and convicted if you go into compliance. 
And there has been a long debate and discussion about what the 
Department of Justice was doing on so-called white-collar 
crime, and people focused on the corporation, but the reality 
is that middle management in corporations do not really 
understand the situation. They think that the corporations are 
going to defend them, when, in fact, at least until recently, 
corporations were throwing their employees under the bus under 
the pressure of these compliance plans and other things, and 
that would take a long discussion. But, again, you cannot jail 
a corporation. And if a corporation is really an organized 
crime entity, then you ought to destroy it. That is one thing. 
But the corporations we have destroyed through prosecution----
    Mr. Nadler. You can prosecute the President.
    Mr. Baker. Well, the Anderson, Anderson----
    Mr. Sensenbrenner. The gentleman's time has expired. The 
gentleman from Idaho, Mr. Labrador.
    Mr. Labrador. Thank you, Mr. Chairman.
    Dr. Baker, in your written testimony, you stated that the 
fundamental principle that ignorance of the law should not 
excuse the crime rests on the assumption that the law is 
knowable. What steps should we take to make sure that the law 
is knowable. And I think it was Mr. Rime--is it Rimer?
    Mr. Reimer. I say Reimer, but I never correct anyone who 
says Rimer.
    Mr. Labrador. Reimer. Okay. That is fine. Mr. Reimer. I am 
Labrador, and people say it all sorts of different ways.
    So I think Mr. Reimer said that it does not really deter 
anything to have these laws that are unknowable. Can both of 
you kind of address those issues?
    Mr. Baker. Well, the framers of the Constitution and the 
Federalists wrote that if you have too many laws, you do not 
have the rule of law, because nobody can know what the law is. 
We have got at least 4,500 Federal crimes, not counting a lot 
of the regulatory crimes.
    The difficulty we are getting into is that literally 
everybody is a criminal. There is nobody that cannot--over 18 
who cannot be indicted for something. And when that happens, 
then the stigma, the legitimate stigma of the criminal law does 
not attach. You want people to believe that being convicted is 
such a terrible thing that they never have would happen to 
them, but when innocent people are convicted, then--and anybody 
can be convicted, it is like the lottery or getting struck by 
lightning: you just figure, well, I hope I do not get struck by 
lightning. And if that is the situation, you do not have the 
same respect for the law. Too much in the way of law can 
undermine the rule of law.
    Mr. Labrador. Okay. Mr. Reimer, can you comment on that a 
little bit?
    Mr. Reimer. It was a judge who famously said you can indict 
a ham sandwich. Well, you should not be able to convict a ham 
sandwich, and that is really what this is all about. You 
certainly should not be able to convict a baloney sandwich.
    And, you know, it really just comes down to fundamental 
fairness. If you do not know it is wrong and therefore you are 
not acting with any intent or even recklessness or even 
negligence, which you could put into a statute, then what do 
you get in return for having criminalized this person?
    Mr. Labrador. You know, as a conservative, I--and I do not 
want to introduce politics necessarily, but it always amazes me 
that conservatives talk about how we do not want a strong 
Federal state, you know, we do not want a state control, we do 
not want all these things, but yet as I have watched Congress 
over the years, they continue to give the Federal Government 
more and more authority to take away people's rights and 
liberties. And I think there is somehow we need to figure out 
here in Congress that--and I think there is something that 
maybe both parties can agree to, that we have given the Federal 
Government way too much control over people's lives, property 
and really the pursuit of happiness when you are making so many 
criminal laws.
    Mr. Reimer. You know, the problem here really, you know, it 
really is not coming from either political party or any 
philosophy. The problem is that when something bad happens, it 
is really easy to say, I will pass a law, I will make it a 
crime. It looks like it does not cost anything. Of course it 
does, it is just not an actual direct cost. It is an indirect 
cost that comes about over many, many years and it just grows 
and grows and grows. I was appearing actually before a 
conference in Texas where a group of legislators were looking 
at how many regulatory offenses they had in Texas. And 
basically what had happened was each interest group had come in 
and said, well, you know, I need a law to protect this, protect 
that, and before you know it, you had, like, 400 laws in just a 
few sessions. So, the problem is that our legislators all over 
the country have not really taken the time to think about the 
significance of passing a criminal provision.
    Mr. Labrador. Yeah. I have been thinking about the whole 
hearing, the maxim I have learned in law school that not every 
wrongful act has a legal remedy and not every wrongful act 
should definitely have a criminal penalty attached to it. There 
are some things that we should not do.
    Now, one last question. Have either of you done any studies 
on what crimes should be only at the state level? Is there a 
report out there, anything that maybe would educate us on how 
we could, not just reform the Criminal Code, but just get rid 
of a bunch of the crimes that are in the Criminal Code?
    Mr. Baker. Well, I think whenever any of us write on this 
issue, it is against that background. The Constitution leaves 
general police power in the states, because if the Congress has 
a general police power, then we do not have a government of 
limited powers.
    Mr. Sensenbrenner. The gentleman's time has expired. The 
votes have been moved up to 10:15. And, you know, the Chair 
will note that he has restrained himself from asking questions, 
but I will not recognize anybody new after the bell rings for 
votes.
    The gentleman from New York, Mr. Jeffries, is recognized.
    Mr. Jeffries. Thank you, Mr. Chairman.
    On the mens rea spectrum from, most severe to most lenient, 
seems that you have got, four possible categories: there is 
willfulness, then you have got recklessness, then you have got 
negligence, then you have got strict liability. And there 
appears to be at least a growing consensus amongst the 
witnesses, amongst the distinguished Members of the Task Force 
that we should be moving toward instances where willfulness or 
something more severe as it relates to mens rea is required in 
most instances, and that we should really limit, if not 
completely eliminate, strict liability as a mens rea 
requirement.
    I am interested in your observations as to what 
circumstances would it be appropriate, if any, where we have 
got sort of these in between standards enshrined into Federal 
statute, either a recklessness statute--recklessness or 
negligence mens rea requirement.
    Mr. Baker. Well, again, you have got to relate it to the 
other elements of the statute. Even in the context of 
negligence, negligence de facto can end up being a strict 
liability and really simply a civil tort statute. So obviously 
where you--let me just take a simple example of burglary. Okay? 
Where when you enter a house or a building without 
authorization, that is a trespass. How do we distinguish a 
trespass from a burglary? We add a specific intent, with the 
intent to commit a felony therein, or a theft. Okay. What we 
are doing is out of all the possible intents that a person 
could have when they enter, we want to make sure we only 
criminalize the one that deserves criminality. So suppose 
somebody trespasses and they come into the house because it is 
raining. They are still guilty of a trespass, but it is not 
really burglary, because they were coming in to get out of the 
rain. It is still wrong, but trespass is not burglary. So by 
requiring a specific intent, you make sure that you have 
limited, the purpose of a specific intent is to limit the 
category of people and the actions that are deemed to be 
seriously criminal.
    Mr. Jeffries. Okay. Mr. Reimer, in your testimony, you 
mentioned the recommendation of a default mens rea requirement 
as one of the ways in which to protect the liberties of people 
against the phenomenon of over-criminalization and aggressive 
prosecutorial discretion exercised in an inappropriate way.
    Do you think it is also appropriate for us to think about 
building affirmative defenses into statutory law in any way, 
shape or form that will hopefully minimize or limit the abuse 
of prosecutorial discretion or create circumstances where one's 
ability to defend themselves at a trial is enhanced?
    Mr. Reimer. That is a very difficult question to answer. It 
is a great question. It is difficult to answer. The problem 
with affirmative defenses are they are simply that. They are 
defenses and they shift the burden of proof to an accused 
person. They may be appropriate in certain circumstances. The 
law recognizes a number of them, but I would not recommend that 
as the solution to inadequate intent.
    And I want to be clear about our proposal for a default 
statute. We are not saying that you should rely on the default 
in the first instance. If you are creating a new statute, 
Congress should decide what is the level of intent that is 
required under--as Professor Baker says, what is the wrong that 
is involved? Make your judgment. The default would kick in only 
if Congress has failed to do that or it would conceivably apply 
retrospectively.
    Mr. Jeffries. Professor Baker, you mentioned good faith 
ignorance as sort of a situation that should countenance 
against possible prosecution of criminal liability. Could you 
elaborate?
    Mr. Baker. Well, as Mr. Reimer has said, if you have a 
willfulness or a strong mens rea, that protects against the 
problem of ignorance of the law. I know that Congress does not, 
and nobody wants to countenance the notion that ignorance of 
the law is a defense, but in order to maintain it, it is 
incumbent upon the Congress to ensure that there is a clear 
mens rea so that people cannot fall into the situation where in 
good faith they did not know.
    Mr. Jeffries. Now, lastly, you mentioned the prosecutorial 
abuse of the mail fraud statute, or the aggressive 
interpretation.
    Mr. Baker. I was----
    Mr. Jeffries. Could either of you comment----
    Mr. Baker. Sure. I was----
    Mr. Jeffries [continuing]. As to whether we should address 
that specific situation?
    Mr. Baker. I had the pleasure of meeting the Justice 
Department on one of their expansions in the Fifth Circuit a 
few years ago. The difficulty is, and I will comment what he 
would not, when there is an indictment, Federal district judges 
do not want to be reversed. I do not care what party appointed 
them. They do not want to be reversed. In a criminal case, the 
safest way, when the defense argues that the government has 
gone beyond its power, to avoid getting reversed is to simply 
rule against the defendant. Then the chances are 95 percent 
that the defendant is going to plead guilty.
    Mr. Jeffries. Thank you.
    Mr. Sensenbrenner. The gentleman's time has expired. The 
gentleman from Texas, Mr. Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman.
    And I know you have given us deference. Yes, it is tough to 
legislate, but I will submit to you what makes it really tough 
to legislate is the fact that there are, having been a former 
judge and chief justice, I can tell you that there are judges 
who are educated far beyond their biologically intellectual 
ability to assimilate information and come out with wisdom, and 
it creates real problems. So it should not be difficult for a 
legislature to say, you shall do something, and yet we have 
judges that say, well, now, that term ``shall'' is really 
ambiguous. Not if you have common sense, but places like the 
Ninth Circuit, that it is not common, it is just sense. But I 
know our Chairman had made a valiant effort at one point to try 
to reorganize the Federal circuit court system, and I still 
think we should have confined the Ninth Circuit to disputes 
that were arising within their building, but I want to just cut 
to the chase here. You know, a lot of great points have been 
made, and this is an area where there is true bipartisanship, 
because you do not want innocent people to be hurt by what we 
do here in Washington.
    I have been hearing and I have read the information last 
night that was being proffered. Is it possible that we could 
draft a law that would be sufficient as one law to require mens 
rea and intent without having to go in and redo 5,000 criminal 
statutes? Do you think we need to go in and actually clean up 
every law, or could we be precise enough that we could affect 
every law to get the state of mind requirement in there?
    Mr. Reimer. I think the proposal that we are suggesting 
will go a long way toward taking care of the existing statutes. 
I am not saying----
    Mr. Gohmert. But a long way is not----
    Mr. Reimer. May not be perfect, Representative Gohmert. I 
am not going to sit here and say, well, it is an absolute 
perfect fix, but I think it would really take care of most of 
the situations that we have been talking about, and then, of 
course, going forward to make sure it does not continue to 
happen.
    Mr. Gohmert. And do you a comment, Mr. Baker, on that?
    Mr. Baker. No. I agree with that.
    Mr. Gohmert. With regard to the issue of regulations that 
can result in incarceration, do you think if we drafted a 
sufficiently specific law that in effect said no regulation 
that has not been approved specifically by Congress could 
require incarceration as part of the penalty? That would be 
adequate to cover some laws where we actually leave that much 
discretion to regulators?
    Mr. Reimer. I have no capacity to say what this would mean 
for your workload, but, yes, I would love to see it if you 
would require that any reg that imposes a criminal penalty has 
to be approved by Congress. However, the Unser example I gave 
you is the classic problem. The statute gives the secretary of 
that department----
    Mr. Gohmert. Right.
    Mr. Reimer [continuing]. The right to make regulations, and 
they are criminal. The regulation itself does not say it is a 
crime. It just says, thou shalt not use a motor vehicle in the 
forest.
    Mr. Gohmert. But so you think we could have one law that we 
passed that would take away any ability for, whether it is a 
secretary or----
    Mr. Reimer. Yes.
    Mr. Gohmert [continuing]. A bureaucrat in a tiny cubical to 
be able to pass regulations that carry----
    Mr. Reimer. The default we are proposing, which would apply 
to all laws and regulations, would mean that in that situation, 
you would have to--because it is silent as to intent, you would 
have to apply what we are suggesting should be a willful 
standard, which means that they would have to--they would have 
had to have proved that Bobby Unser drove that vehicle knowing 
that he was breaking the law.
    Mr. Gohmert. Okay. Thank you very much.
    Thank you, Mr. Chairman.
    Mr. Sensenbrenner. Thank you very much. The only person who 
has not asked questions before the bell rang is the Chair, and 
the Chair is going to impose his rule that we are not going to 
recognize anybody after the bell rings on himself.
    Are the Members to my right listening to this?
    Mr. Gohmert. I hear you.
    Mr. Sensenbrenner. Okay. The gentleman from Virginia has 
some UC requests.
    Mr. Scott. Mr. Chairman, I ask unanimous consent that an 
outline from the Criminal Justice Policy Foundation be entered 
into the record.
    Mr. Sensenbrenner. Without objection, so ordered.
    [The material referred to follows:]
          Prepared Statement of Eric E. Sterling, President, 
                 The Criminal Justice Policy Foundation
              summary of recommendations to the task force
(1)  Assure that federal crimes are grounded in the text of the 
Constitution. If the enumerated powers are inadequate to the needs of 
the government to carry out its responsibilities, the Constitution 
should be amended, but the meaning of its words should not be twisted 
or ignored.

(2)  Review federal crimes to assure that they only punish misconduct 
that deserves the loss of liberty. The moral authority of the 
government to deprive a citizen of his or her liberty exists only when 
a citizen's misconduct is wrongful.

(3)  Commission a study of the actual cost to the American economy of 
over-criminalization and over-punishment. 20 million Americans have a 
felony conviction, and about 65 million have a criminal record. Most 
companies consider convictions an influential factor in not extending a 
job offer. Without a paycheck there is no car loan, credit card, or 
home mortgage. Overcriminalization means the economic participation of 
tens of millions of Americans is severely stunted which hurts almost 
every company. Thus, as I comment on my blog, www.profitsunchained.com, 
every American investor is hurt by overcriminalization. The American 
auto industry shrank as America's prison population mushroomed from 
250,000 to 2.3 million, and the number of Americans with criminal 
records rose. Fewer Americans could buy Fords, Chevrolets and Dodges, 
or other goods.

(4)  Review federal crimes to assure that they all have the proper mens 
rea.

(5)  Study the problem of excessive punishment. Wasted punishment is 
extremely expensive and fails to deter crime effectively, as well as 
being manifestly unjust. For many federal offenses, the sentences need 
to be shorter.

(6)  Enact a mechanism to end sentences upon rehabilitation, such as 
sealing conviction records 5 or 10 years after sentence completion. The 
collateral consequences of a conviction should not be a life sentence.

(7)  Scrutinize Justice Department case selection practices and the 
supervision of prosecutors to identify overcriminalization in practice. 
Congress should stop DoJ's excessive focus on low-level cases revealed 
by U.S. Sentencing Commission studies of federal drug cases.

(8)  Revise the quantitative criteria for identifying high-level drug 
traffickers in the Anti-Drug Abuse Act of 1986. The current triggers 
were a hastily drafted mistake.
                               __________
                           prepared statement
    Chairman Sensenbrenner, Representative Scott, and Members of the 
task force:
    I congratulate you for convening this task force to discuss the 
serious problems of overcriminalization of behavior and the over-
federalization of crime.
    As assistant counsel to the House Committee on the Judiciary from 
1979 to 1989, I began my career in Washington working on the Criminal 
Code Revision Act in the 96th Congress (H.R. 6915, 96th Cong. 2d 
Sess.). I have spent over thirty years of my legal career thinking 
about these problems and the appropriate scope of Congress's power to 
punish under Article I, Section 8 of the Constitution.
    In the 97th through the 100th Congresses, on the staff of the 
Subcommittee on Crime under Chairman William J. Hughes (D-NJ), I was 
the attorney principally responsible for federal drug laws, gun 
control, pornography, organized crime, money laundering and other 
matters. My career on the Hill is best known for my role assisting the 
Crime Subcommittee develop the mandatory minimum drug sentences in 
August 1986 as part of the Anti-Drug Abuse Act of 1986 (P.L. 99--570, 
Sections 1002 and 1302).
    In addition, over the past three decades I have taught courses in 
crime and criminal justice at American University and George Washington 
University, and lectured to academic, professional and civic audiences 
all over the country. I have served as President of the Criminal 
Justice Policy Foundation since 1989, working on projects to improve 
the nation's criminal justice system.
    As you begin the work of this task force, I have the following 
eight recommendations:
    First, the task force (or its successors) should undertake a review 
of all federal crimes to assure that they are grounded in the text of 
the Constitution and the scope of Congress's power to punish conduct. 
The Constitution gives limited powers to Congress in Article I, 
Section, 8, especially in the area of criminal law. If those enumerated 
powers do not provide the authority for the proposed crime, there is a 
strong argument that it should not be a federal crime at all. When 
misconduct threatens society or individuals in a new manner not 
prohibited by law, then perhaps a new crime is necessary, but it must 
be grounded on powers of Congress found in the text of the 
Constitution.
    When the current federal law is inadequate to address the crime and 
to protect public safety, but there is no authority in the Constitution 
for Congress to act, then instead of twisting the meaning of the terms 
in the Constitution, the Constitution should be amended. The 
Constitution is in writing in order to preserve its meaning at the time 
its provisions were written.
    Over the past 80 years, Congress has grounded many criminal laws, 
including, for example, the Controlled Substances Act, on the power in 
Article I, section 8,

        ``to regulate Commerce with foreign Nations, and among the 
        several States, and with the Indian Tribes.''

    When the Constitution was written and ratified, commerce simply 
meant trade. It was not a synonym for all economic activity or for the 
use of money. Unfortunately, for many decades Congress has relied on a 
meaning of the term ``Commerce'' that is far more broad than when the 
Constitution was written, and uses that broad reading of its commerce 
power to regulate a great deal of activity of the American people.
    A way to understand the absurdity of this broad reading is to 
consider the many varieties of conduct that take place primarily within 
a state that are now being regulated by Congress as affecting 
interstate or foreign ``Commerce,'' and imagine Congress claiming the 
power to regulate that conduct when it takes place in every ``foreign 
Nation'' because it affects ``Commerce.'' The doctrine that marijuana 
use which takes place wholly in California is subject to federal 
regulation because it affects ``Commerce'' (asserted by the U.S. 
Supreme Court in Gonzales v. Raich 545 U.S. 1 (2005)) logically means 
that, under that clause of the Constitution, Congress also has the 
power to prohibit the use of marijuana within European states because 
the market for drugs there also affects the price and supply of drugs 
in the United States. There is nothing in the broad interpretation of 
the ``Commerce'' power that has extended federal power to purely 
intrastate activity that limits that power when that kind of activity 
takes place within a foreign nation. (Surely the distinction can't rely 
on the difference between ``regulating Commerce with'' and ``regulating 
Commerce among.'') If the nation needs Congress to regulate the 
economy, then the nation should revise the Constitution to provide 
Congress with such power. If the nation needs the federal government to 
prosecute use and sale of drugs that takes place wholly within a state, 
the nation should amend the Constitution to do so. 
``Overcriminalization'' endangers liberty and undermines the federal 
system and the powers of the states when Congress declares conduct to 
be criminal when it has no power to do so in the Constitution.
    Second, the task force (or its successors) should review federal 
crimes to assure that the law only punishes misconduct that deserves 
the loss of liberty. The moral authority of the government to deprive a 
citizen of his or her liberty for violating a law exists only when a 
citizen's misconduct is wrongful. Conduct is only wrongful when it 
hurts someone else--e.g., it is an assault, a theft, or the abridgement 
of a right--or is the failure to carry out an important duty, such as 
paying taxes. The authority to punish is not triggered because the 
conduct is simply immoral or offensive (even if in the view of a 
majority of the population). Conduct such as adultery, breach of 
contract, lying, cheating at cards or other games, plagiarism, etc. are 
wrong or immoral, but they are not wrongful in the narrow sense that 
those who do so deserve punishment by the government and the 
deprivation of the liberty of the offender. (I suggest you consider the 
analyses on these points of Douglas Husak, Professor of Philosophy and 
Law, Rutgers University in his book, Overcriminalization: The Limits of 
the Criminal Law (Oxford University Press, 2008)).
    Third, the task force (or it successors) should commission a study 
of the economic cost to the society of over-criminalization and over-
punishment. One team of sociologists has estimated that 20 million 
Americans have a felony conviction.\1\ Another study estimates that 65 
million Americans have a criminal record.\2\ These criminal records 
result in unemployment and underemployment, and devastate the earning 
capacity of an enormous fraction of the population. Because our economy 
is strongly consumer driven, that 20 million Americans cannot fully 
participate in the legitimate economy diminishes the sales and profits 
of a majority of American businesses.\3\ No other nation punishes its 
people so extensively, and I suggest no other economy is paying such a 
high price for over-criminalization.
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    \1\ Sarah Shannon, Christopher Uggen, Melissa Thompson, Jason 
Schnittker, and Michael Massoglia, GROWTH INTHE U.S.EX-FELON AND EX-
PRISONER POPULATION, 1948 TO2010, Population Association of America, 
Washington DC, 2011.
    \2\ Michele Natividad Rodriguez and Maurice Emsellem, 65 Million 
``Need Not Apply'': The Case for Reforming Criminal Background Checks 
for Employment, National Employment Law Project, March 2011. http://
www.nelp.org/page/-/65_Million_Need_Not_Apply.pdf?nocdn=1.
    \3\ John Schmitt and Kris Warner, Ex-Offenders and the Labor 
Market, Center for Economic and Policy Research, November 2010. http://
www.cepr.net/documents/publications/ex-offenders-2010-11.pdf.
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    A January 2010 survey by the Society for Human Resource Management 
found that more than three-quarters of American companies consider a 
felony or misdemeanor conviction (even non-violent misdemeanors) an 
influential factor in not extending a job offer to an applicant.\4\ 
This practice is self-defeating. When most companies won't hire tens of 
millions of Americans who would otherwise be qualified for a job, tens 
of millions of Americans can't get a paycheck. With no paycheck, tens 
of millions of Americans can't get a car loan, credit card, or home 
mortgage.
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    \4\ Society for Human Resource Management, Background Checking--
Conducting Criminal Background Checks SHRM Poll, January 22, 2010. 
http://www.shrm.org/Research/SurveyFindings/Articles/Pages/
BackgroundCheckCriminalChecks.aspx.
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    As I comment on my blog, www.profitsunchained.com, every American 
investor is being hurt by over-criminalization. Simply think about the 
consequences for the American auto industry as the size of the prison 
population steadily has grown from 250,000 to 2.3 million over 40 
years. Now there are two million more Americans who are no longer in 
the market for a Ford, Chevrolet or Dodge than there were in the 1960s 
and 1970s.
    The problem for the American economy is much larger. With tens of 
millions of felons and misdemeanants unable to find employment that 
pays them what they could earn but for ``overcriminalization,'' their 
reduced income means there is reduced consumption of almost every good 
and service produced in America. A comprehensive Pew study found that 
ex-offender earnings are significantly reduced: Subsequent wages are 
approximately 11% lower, annual earnings are approximately 40% lower, 
and the total number of weeks worked is almost 20% fewer.\5\ An ex-
offender who cannot obtain a credit card can't buy from Amazon.com nor 
order tickets to a basketball game from Ticketmaster. Across the board, 
every American business suffers from reduced sales, and thus every 
American investor obtains a smaller return on investment. The entire 
American GDP is stunted.
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    \5\ Bruce Western and Becky Pettit, Collateral Costs: 
Incarceration's Effect on Economic Mobility, Pew Charitable Trusts, 
2010.
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    No doubt you have heard the attack upon the private prison 
industry. A business whose growth model depends upon a continued 
increase in a supply of prisoners is dubious investment on many 
grounds. But whatever profits it makes because of overcriminalization 
are infinitesimal when measured against the losses endured by the whole 
American economy society due to over-punishment. The task force should 
not let a critique of the profits of the private prison industry 
distract it from the big economic picture: all over the country, 
American workers and investors are being hurt because about 65 million 
persons have criminal records that last a lifetime. These economic 
costs are doubly unnecessary because these life-long records are often 
the result of youthful misconduct that ought to have been forgiven and 
forgotten within a few years.
    Fourth, the task force (or its successors) should review federal 
crimes to assure that all crimes have proper mens rea. Intrinsic in the 
problem of over-criminalization has been the failure of Congress (and 
state legislatures) to require the traditional element of criminal 
culpability be proven in all cases.
    One possibility might be to enact a general rule to set forth 
minimum mens rea requirements to be proven for all federal offenses for 
which mens rea has not been specified for every element of the offense. 
Of course, a different degree of mens rea might be necessary based the 
variety of conduct, the variety of circumstances, and the variety of 
consequences that are elements of various offenses.
    Fifth, the task force (or its successors) should recognize that an 
essential element of the problem of over-criminalization is that it 
``produces too much punishment.'' \6\ This task force should reduce 
sentences and sentencing guidelines that are longer than necessary to 
meet the purposes of sentencing, and enable ex-offenders--after a 
period that evidences their rehabilitation--to no longer have to 
identify as ex-offenders. The task force should assure that most ex-
offenders do not have a life-long record.
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    \6\ Douglas Husak, Overcriminalization: The Limits of the Criminal 
Law, Oxford University Press, 2008, p. 3.
---------------------------------------------------------------------------
    My experience as counsel to the House Judiciary Committee is that 
Congress sets punishments with the most serious criminals in mind to be 
appropriately punished. That makes sense, but the reality is that the 
overwhelming majority of criminals prosecuted by the Justice Department 
never approach that level. For example, when Congress created the 
mandatory minimum and maximum penalties for drug offenders in 1986, we 
expected the Justice Department would use these penalties for men like 
Pablo Escobar. Tragically for most federal drug offenders those minimum 
and maximum sentences are unjustly long. A classic example of this kind 
of wholesale miscarriage of justice is the case of former college 
student Clarence Aaron, who is still serving three terms of life 
imprisonment for a small role in a Mobile, Alabama crack conspiracy.\7\ 
Punishments should be proportionate to culpability. Efforts to reform 
disproportionate sentences, such as the mandatory minimum sentences, 
have too often been challenged by exaggerations that any reduction in 
sentences is an excusing of conduct, even when the maximum sentence 
would remain 40 years or life.
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    \7\ FoxNews.com, ``Locked Up for Life,'' Dec. 4, 2008, http://
www.foxnews.com/story/0,2933,461747,00.html.
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    Not only are these long sentences unjust, they are ineffective and 
wastefully expensive. For deterrence to be effective, quick punishment 
is required, not the threat of a potentially long sentence. This 
requires prison and jail cells be available for the large mass of 
offenders and puts a premium on apprehension, not long expensive 
incarceration. Prison overcrowding undermines the ability of the 
justice system to create effective deterrence.\8\ Prison overcrowding 
has made it more expensive to operate the federal prisons. The per 
capita cost has risen from $19,571 in FY 2000 to $26,074 in FY 2011.\9\
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    \8\ Mark A.R. Kleiman, When Brute Force Fails: How to have less 
crime and less punishment, Princeton University Press, 2010.
    \9\ Nathan James, The Federal Prison Population Buildup: Overview, 
Policy Changes, Issues and Options, Congressional Research Service, 
R42937, Jan. 22, 2013, p.2.
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    Sixth, the task force (or its successors) should take action to 
assure that sentences come to an end. In our grammar, every sentence 
ends with a period. But in our criminal justice records, no sentence 
has a period, it lasts forever. It is a tragic instance of 
``overcriminalization'' that every offense now carries what is 
effectively a life sentence. The Task Force should enact reforms to 
assure that rehabilitated ex-offenders are not subject to a ``life 
sentence,'' and that collateral consequences terminate at some point 
after a nominal sentence has been served. Because every misdemeanor or 
felony is now, in effect, a ``life sentence,'' we have seriously 
undermined the value and importance of rehabilitation. The task force 
should enact mechanisms that provide that five or ten years after 
service of a sentence is completed, the criminal record is sealed and 
no longer overshadows a record of recovery and rehabilitation.
    Seventh, the task force (or its successors) should engage in 
searching oversight of the case selection practices of the Department 
of Justice. When the federal government prosecutes cases that have no 
genuine federal nexus, this is overcriminalization in a very practical 
sense. For example, in 2005, over 75% of crack offenders and 25% of 
powder cocaine offenders operated only at the neighborhood and local 
level, according to the United States Sentencing Commission.\10\ Over 
50% of offenders in both categories did not even rank above street 
dealers.\11\ These are drug offenders who are properly punished by 
state authorities. These numbers also tell us that the Justice 
Department is misusing the statutes and disregarding Congressional 
intent that high level offenders be the focus of federal drug 
enforcement.\12\
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    \10\ U.S. Sentencing Commission, Report to Congress: Cocaine and 
Federal Sentencing Policy, May 2007, Figure 2-7, p. 22.
    \11\ U.S. Sentencing Commission, Report to Congress: Cocaine and 
Federal Sentencing Policy, May 2007, Figure 2-4, p. 19.
    \12\ H.Rept. 99-845, Part 1, to accompany H.R. 5394, Narcotics 
Penalties and Enforcement Act of 1986, enacted in P.L. 99-570, Title I, 
Subtitle A--Narcotics Penalties and Enforcement Act of 1986. (``The 
Committee strongly believes that the Federal government's most intense 
focus ought to be on major traffickers, the manufacturers or the heads 
of organizations, who are responsible for creating and delivering very 
large quantities of drugs.'' at pp. 11-12.)
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    The average weight of 41 federal crack cocaine cases was 3.1 grams 
in the District of New Hampshire in 2006.\13\ Unless these offenders 
were actually murderers or intimidating witnesses, their federal 
prosecution for these tiny quantities of drugs was a waste of the 
energies of federal agents, the talents of federal prosecutors, the 
judgment of federal judges and space on precious federal prison beds. 
In 2006, over one-third of federal crack cases involved less than 25 
grams, half the weight of a candy bar.\14\ This is the waste of 
investigational and prosecutorial energy properly directed at 
international drug lords or criminal gangs that keep cocaine flowing to 
the crack houses. In FY 2012, the largest category of federal drug 
cases involved marijuana (6,992), far exceeding the number of heroin 
cases (2,192) and crack cocaine cases (3,511).\15\
---------------------------------------------------------------------------
    \13\ U.S. Sentencing Commission, Report to Congress: Cocaine and 
Federal Sentencing Policy, May 2007, Table 5-2, p. 108.
    \14\ U.S. Sentencing Commission, Report to Congress: Cocaine and 
Federal Sentencing Policy, May 2007, Table 5-3, p. 112.
    \15\ U.S. Sentencing Commission, 2012 Sourcebook of Federal 
Sentencing Statistics, Table 33.
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    Eighth, the task force (or its successors) should revise the 
criteria regarding whom to incarcerate and for how long. Congress 
wanted the Justice Department to focus on high level offenders by 
enacting the Anti-Drug Abuse Act of 1986 \16\ but Congress selected 
relatively small quantities to trigger the mandatory sentences.\17\ For 
decades, everyone has understood that those quantities--selected in 
haste--were a mistake and are too low. These quantities enable 
prosecutors to force low-level offenders to testify against others in 
an attempt to obtain a departure from the mandatory sentence by 
providing ``substantial assistance.'' \18\ Even those sentences are 
terribly long. More importantly, only a tiny number of high-level 
traffickers are actually snared. The Justice Department almost never 
uses the king-pin statute, 21 U.S.C. 848, according to the U.S. 
Sentencing Commission.\19\
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    \16\ H.Rept. 99-845, Part 1, see Note 11, supra.
    \17\ E.g., 100 g. of heroin, 500 g. of cocaine, 5 g. of cocaine 
base (``crack''), 10 g. of PCP (or 100 g of a mixture containing a 
detectable amount of PCP, 1 g. of LSD, 40 g. of fentanyl, 100 kg. of 
marihuana. (P.L. 99-570, 100 STAT. 3207-3; 21 U.S.C. 841(b)(1)(B)).
    \18\ P.L. 99-570, section 1007(a); 18 U.S.C. 3553(e).
    \19\ U.S. Sentencing Commission, 2012 Sourcebook of Federal 
Sentencing Statistics, Table 33.
    http://www.ussc.gov/Research_and_Statistics/
Annual_Reports_and_Sourcebooks/2012/Table33.pdf.
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                               conclusion
    The limitations on federal government power in the Constitution 
mean that the federal criminal justice footprint should remain a 
relatively small part of the nation's criminal justice system. But the 
Acts of Congress are powerful examples for the legislatures of the 50 
states. When Congress enacted mandatory drug sentences, many states 
followed. Similarly, the actions of this task force could have profound 
positive effects across the nation and our criminal justice system.
    Overcriminalization has led to an enormous increase in the federal 
prison population. According to a 2013 Congressional Research Service 
Report, the federal prison population has risen almost 800% in 30 
years, from 25,000 in 1980 to 219,000 in 2012.\20\ Overall, the federal 
prison system is operating at 39% over capacity. We do not need to 
spend $236 million in FY2014 to build more federal prisons on top of 
$8.5 billion for operations, as the Administration requested; \21\ we 
could let thousands of low-level, low-risk offenders out of federal 
prison.
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    \20\ Nathan James, The Federal Prison Population Buildup: Overview, 
Policy Changes, Issues and Options, Congressional Research Service, 
R42937, Jan. 22, 2013.
    \21\ Department of Justice FY2014 Budget Request, Press Release, 
April 10, 2013. http://www.justice.gov/opa/pr/2013/April/13-ag-
413.html.
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    The American population under correctional control has grown 
enormously. If this task force helps shrink the population subject to 
federal punishment, the effect on the total punished population may be 
small, but it could have a large indirect effect as state legislatures 
follow Congress's example.
    The convening of this task force is one of the most positive 
developments in criminal justice policy in many years. I commend you 
for this undertaking. If there is any way that the Criminal Justice 
Policy Foundation can assist your work, do not hesitate to contact us.
                               __________

    Mr. Sensenbrenner. I would like to thank both of the 
witnesses for their very useful testimony. I will get back to 
one of you or both of you with the hot idea that I have, which 
might be off the record, because the bell has rung, and that 
might be just as good. So I thank everybody for their very 
useful participation. I think we got a lot of the issues out 
that we need to deal with. And without objection, the Task 
Force is adjourned.
    [Whereupon, at 10:20 a.m., the Task Force was adjourned.]

                                 
