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



 
                           REGULATORY CRIME: 
                  IDENTIFYING THE SCOPE OF THE PROBLEM

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

                                HEARING

                               BEFORE THE

                OVER-CRIMINALIZATION TASK FORCE OF 2013

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 30, 2013

                               __________

                           Serial No. 113-60

                               __________

         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

                              ----------                              

                            OCTOBER 30, 2013

                                                                   Page

                           OPENING STATEMENTS

The Honorable Louie Gohmert, a Representative in Congress from 
  the State of Texas, and Vice-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..................................................     4

                               WITNESSES

Reed D. Rubinstein, Partner, Dinsmore & Shohl LLP
  Oral Testimony.................................................     7
  Prepared Statement.............................................    10
Rachel E. Barkow, Segal Family Professor of Regulatory Law and 
  Policy, New York School of Law
  Oral Testimony.................................................    21
  Prepared Statement.............................................    23
Lawrence Lewis, Bowie, Maryland
  Oral Testimony.................................................    34
  Prepared Statement.............................................    37
Mr. and Mrs. Steven Kinder, Grand Rivers, KY
  Oral Testimony.................................................    42
  Prepared Statement.............................................    44

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................     5
Prepared Statement of the Honorable Bob Goodlatte, a 
  Representative in Congress from the State of Virginia, and 
  Chairman, Committee on the Judiciary...........................     6
Material submitted by the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................    61

                                APPENDIX
               Material Submitted for the Hearing Record

Letter from Rachel E. Barkow, Segal Family Professor of 
  Regulatory Law and Policy, New York School of Law; and Reed D. 
  Rubinstein, Partner, Dinsmore & Shohl LLP......................    72
Response to Questions for the Record from Reed D. Rubinstein, 
  Partner, Dinsmore & Shohl LLP..................................    76
Letter from Benjy Kinman, Deputy Commissioner, Kentucky 
  Department of Fish and Wildlife................................    79
Prepared Statement of the Association of Fish and Wildlife 
  Agencies.......................................................    81


                           REGULATORY CRIME: 
                  IDENTIFYING THE SCOPE OF THE PROBLEM

                              ----------                              


                      WEDNESDAY, OCTOBER 30, 2013

                        House of Representatives

                Over-criminalization Task Force of 2013

                       Committee on the Judiciary

                            Washington, DC.

    The Task Force met, pursuant to call, at 10:02 a.m., in 
room 2237, Rayburn Office Building, the Honorable Louie 
Gohmert, presiding.
    Present: Representatives Bachus, Gohmert, Holding, Scott, 
Conyers, Nadler, Bass, and Jefferies.
    Staff present: (Majority) Robert Parmiter, Counsel; Daniel 
Huff, Counsel; Alicia Church, Clerk; (Minority) Ron LeGrand, 
Counsel.
    Mr. Gohmert. The meeting will come to order.
    Good morning. Welcome to the Over-criminalization Task 
Force's third hearing.
    Thus far, the Task Force has examined over-criminalization 
issues in Federal statutory law. Chief among them is the 
absence of a defined mens rea or intent requirement from the 
Federal criminal code. Congressional statutes, though, are 
merely the tip of the iceberg. Over the last 50 years, there 
has been enormous growth in Federal regulatory, state and, with 
it, a shift of power from elected officials to unaccountable 
bureaucrats at Federal regulatory agencies.
    Now the vast majority of laws governing individuals and 
businesses in the United States are passed not by Congress but 
are issued as regulations crafted by unelected, unaccountable 
bureaucrats. There are at least an estimated 4,500 criminal 
statutes on the books today, up from 165 in 1900, but as many 
as 300,000 criminally enforceable regulations. In other words, 
the ratio of regulatory crimes to statutory crimes is 67 to 1.
    This hearing is not about the substance of all these 
regulations. That is a discussion for a different day.
    The question before us is solely on the propriety of 
criminal rather than civil penalties. Criminal sanctions are 
serious. They carry terms of imprisonment, create stigma, and 
can have lasting economic consequences such as diminished 
employability and ineligibility for government benefits, in 
addition to other life-changing problems as the stroke that we 
have seen with one of the victims of this over-criminalization. 
Accordingly, they should only attach to violations that society 
generally recognizes as morally blame-worthy.
    This hearing is about when, if ever, such onerous criminal 
sanctions are appropriate punishment for violating agency 
regulations. If so, how should those crimes be defined, and 
most important, who should be making those decisions?
    It has become a routine practice for Congress to authorize 
an agency generally to promulgate regulations while providing 
that violating the yet-to-be-seen regulations will be a 
criminal offense. This poses a series of fundamental problems 
beyond the already familiar lack of adequate notice of intent 
requirements.
    First, the bureaucrats who create the regulatory crimes are 
unaccountable to an electorate. This makes them immune from 
public opinion which operates as a check when it is, instead, 
the legislative branch making criminal law.
    By contrast, legislators have the broader societal 
perspective necessary to determine what behavior society deems 
most blameworthy and therefore the proper subject of criminal 
sanction.
    Similarly, as a result of these broad congressional 
delegations, the substantive regulatory standards that define 
regulatory crimes are drafted by agency bureaucrats largely 
shielded from public debate. Their efforts do not have the 
benefit of the full open and public scrutiny that helps improve 
the legislative definition of crimes in Congress. The result is 
less transparency and deliberation precisely when such 
procedural protections are most needed because individual 
liberty is at stake.
    Regulations are also much more dynamic than traditional 
statutory crimes. Requirements that change with evolving 
science and standards sometimes rest upon assumptions about the 
efficacy of unproven technology. This complicates notice and 
compliance, which seems unfair if violations are to bear 
criminal penalties.
    Another factor is that regulatory crimes can be created 
indirectly when statutes forbidding certain general behaviors 
such as lying to officials are applied to regulatory 
infractions that are not otherwise criminal. The result is 
criminal sanctions for activity that may be far removed from 
what Congress contemplated when it delegated rulemaking 
authority to the agency.
    Finally, prosecutorial discretion and appeals to the courts 
may not be sufficiently effective failsafes for unfair results 
from regulatory crimes. A collection of liberal and 
conservative groups, including the ACLU and the Heritage 
Foundation, produced a pamphlet of examples of cases that I 
believe most Americans would agree should never have been 
brought.
    In the courts, precedents have eroded intent requirements 
in the context of regulatory offenses while demanding greater 
deference to agencies' interpretation of the scope of their 
rulemaking power. Accordingly, agencies are now able to expand 
their criminal lawmaking power even to areas that Congress did 
not specifically commit to the agency. In short, the enormous 
growth in the regulatory state has been accompanied by an 
explosion of regulatory crimes. If unaddressed, the growing 
problem of otherwise law-abiding citizens jailed for violation 
of ill-defined regulations is a morass of rules of which they 
cannot possibly be fully aware, and that threatens to undermine 
the legitimacy of the criminal law and dilute its moral force.
    We have an excellent panel of witnesses with us today, and 
I thank them for being here. I know you are not here because of 
the pay you get, and for people that may not know, they do not 
get paid. They are here because they care about what we are 
doing. And so we are very grateful for your presence. And 
knowing the story of some of our witnesses, I feel like an 
apology is due.
    But in any event, I look forward to hearing your testimony 
today, appreciate you all being here.
    And people sometimes ask why don't you guys in Congress get 
along. Well, it depends on what the issue is.
    But I now want to recognize a friend, the Ranking Member of 
the Task Force, the gentleman from Virginia, Mr. Bobby Scott. 
Together, we have been concerned about this issue and working 
together for years. And it is an honor to recognize Mr. Scott.
    Mr. Scott. Thank you. Thank you, Mr. Chairman.
    As you pointed out, during the 111th Congress, when you 
were Chair of the Crime Subcommittee, the Judiciary Committee's 
Subcommittee held two hearings addressing the problem of over-
criminalization of conduct, over-federalization of criminal 
law, and the resulting over-incarceration, a lot because of 
regulatory crimes.
    Earlier this year, this Task Force examined the problem of 
over-criminalization in the absence of a mens rea requirement 
in too many laws and regulations that carry criminal sanctions. 
Through all of these hearings, there has been no dispute that 
the problem exists and that something has to be done to address 
and resolve this situation.
    As we commence with today's hearing on the issue of 
regulatory crime, we are challenged to define the problem, and 
that is, is the conduct in question truly criminal? Are the 
criminal elements properly defined? Is the penalty appropriate? 
Does regulatory crime lead to a larger incarceration rate and 
prison overcrowding? Does regulatory crime stifle job creation 
and innovation? And who is wrongly affected by these 
regulations?
    Now, the very nature of regulatory crime means that much of 
it is categorized as malum prohibitum crimes, and that is what 
poses a significant challenge for us. Unlike malum in se 
crimes, in which the society clearly recognizes the behavior as 
inherently wrong, these regulated activities are not generally 
viewed as objectionable in principle. Rather, these regulations 
are intended to protect public health, the environment, public 
welfare, commerce, finance, and safety. And they serve a 
purpose, and to that end, they are appropriate.
    But having said that, we must ensure that regulations, 
especially those that impose criminal sanctions, provide fair 
notice to everyone and punish only the appropriate violators. 
It is incumbent upon Congress to ensure that Federal agencies 
have clear and sufficient guidance when Congress delegates to 
them the authority to issue regulations which carry criminal 
penalties.
    It is true that some individuals have, without notice or 
intent to violate a law, found themselves arrested, prosecuted, 
convicted, and even incarcerated for engaging in seemingly 
harmless behavior which turned out to be a violation of law or 
regulation. Such occurrences have caused us to criticize the 
lack of prosecutorial discretion, but prosecutorial discretion 
cannot replace clarity in criminal law.
    We obviously need some regulations. They are necessary to 
help us reduce the incidence of outbreaks of salmonella and e. 
coli contamination in our food supply or to avoid tragedies 
such as the explosion of BP's Deepwater Horizon oil rig in the 
Gulf of Mexico. The home foreclosure crisis, the 2008 financial 
crisis, and subsequent great recession all stem from the fact 
that regulators lacked the direction, resources, or authority 
to confront the highly reckless behavior in the financial 
services and mortgage industries. So some regulatory offenses 
should be criminal, but they should include offenses where 
there is an endangerment of health and safety and where a 
reasonable person should have known the risk. But to ensure 
that the criminal statutes are clear and concise and that the 
penalties are proportional, we need to make sure that any of 
those criminal statutes involve a process going through the 
Judiciary Committee so that we can make sure that the language 
is clear and the penalties are proportional.
    I look forward to the testimony of today's witnesses, and 
thank you for convening the hearing.
    Mr. Gohmert. Thank you, Mr. Scott.
    Under the agreement of the Task Force, there were two 
potential other opening statements, one by the Chairman of the 
full Judiciary Committee who is not here, but the other was the 
Ranking Member of the full Committee, the gentleman from 
Michigan, Mr. Conyers, if he wishes to make an opening 
statement. It looks by lowering the microphone, he does. So my 
friend, Mr. Conyers, you are recognized.
    Mr. Conyers. Thank you, Judge. I will be brief and put most 
of it in the record.
    But I wanted to commend everyone that has been sensitized 
to the fact that over-criminalization is one of the most 
challenging issues of our criminal justice system. The 
explosive growth of the Federal criminal code has played an 
important role in that. We incarcerate more people 
proportionally than any other country on the planet, and it is 
a matter of great importance to me in raising some 
considerations about some principles that should be examined as 
we go through the distinguished witnesses before us.
    What purpose do criminal penalties serve in the regulatory 
context? Do provisions that impose criminal penalties for 
regulatory violations provide fair notice of the criminality of 
the conduct in question? Can we reasonably expect citizens to 
comply with all such regulations on pain of criminal sanctions?
    So I think this is an opportunity to take a long, hard look 
at the scourge of mandatory minimums. And it is my posture to 
begin with that eliminating judicial discretion has failed to 
make our system more fair or just. We have the statistics that 
I will not go into at this point, but racial disparities are 
overwhelming. African Americans make up 38 percent of the 
prison population, 6 times the rate among White Americans. In 
fact, some inner city communities have an incarceration rate 40 
times the international average. The result of all these 
excessive and ill-conceived criminal statutes is over-
incarceration.
    And so the Task Force should also focus on the primary 
criminal laws that lead to convictions. We spend $51 billion on 
a so-called ``war on drugs,'' and we even have 700,000 arrests 
for marijuana law violations. And so I am here to join with you 
as we examine what the real contributors to over-
criminalization and over-incarceration are.
    And I thank the Chairman for allowing me to make these 
remarks. I will put the rest of my statement in the record.
    [The prepared statement of Mr. Conyers follows:]

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary

    Mr. Chairman and Members of the Task Force, when we created this 
Task Force we did so in order to address the explosive growth of the 
federal criminal code and the incredible number of federal regulations 
that carry criminal sanctions--an estimated 300,000! The work of the 
Task Force is very important, and it's work that is long overdue.
    It's vitally important that we rein in such explosive growth and 
ask ourselves whether all of these laws and regulations are truly 
important. What purpose do they serve? Are they redundant, obsolete or 
an unnecessary duplication of state laws? We should ask whether these 
laws and regulations provide fair notice of the criminality of the 
conduct in question? How can we reasonably expect citizens to comply 
with all of them? It's also time we asked whether all of these 
behaviors truly warrant treating an individual as a criminal or should 
the remedy be addressed with civil sanctions?
    As we proceed with this hearing, I ask our witnesses to consider 
these questions that I've raised, and I also want to raise three 
points:
    First, when good people find themselves confronted with accusations 
of violating regulations that are vague, address seemingly innocent 
behavior and lack adequate mens rea, fundamental Constitutional 
principles of fairness and due process are undermined. I should note 
that these regulations were promulgated by unelected officials 
executive branch agencies, and without the benefit of any consideration 
by this committee or any other Congressional committee.
    When crimes are defined by regulation, we run the risk of Americans 
encountering unpleasant surprises in the form of being confronted with 
accusations that we violated criminal laws of which we not only have no 
knowledge, but have no reasonable way of knowing about them. That 
places all of us at risk of being arrested, prosecuted and incarcerated 
for questionable reasons.
    I believe that it is fair and reasonable to ask whether there 
should be some mechanism or process for Congressional review of those 
offenses that would potentially deprive citizens of their freedom and 
impose a lifetime label of ``criminal'' on them.
    Second, mens rea, the concept of a ``guilty mind'', is the very 
foundation of our criminal justice system. We have established clear 
standards for what constitutes most criminal conduct. The prohibited 
conduct is malum in se, that is, the act is wrong by its very nature 
and everyone knows it. We're talking about offenses such as murder, 
rape and robbery. That's not what we're here to discuss today.
    Conduct covered by regulatory offenses is generally not wrong in 
itself and someone who knowingly engages in the prohibited conduct 
might not be culpable in the traditional sense. Further consideration 
is required before assigning criminal liability to the conduct. For 
example, one might know that he or she is engaging in a particular 
conduct but have neither the knowledge nor the intent to do wrong. Is 
that sufficient to arrest, prosecute and convict? In previous hearings 
on the subject of over-criminalization we've heard wrenching testimony 
from victims who were prosecuted for seemingly innocent conduct, and it 
is my understanding that we will hear testimony from more witnesses who 
feel they have been caught in the web of regulatory crime.
    I do not doubt that there is reason to review and, where 
appropriate, rein in the promulgation of regulations that are issued 
without the benefit of Congressional review.
    I want to caution, however, against downplaying the benefits of 
regulation and any exaggeration of its costs. The benefits of 
regulation can far exceed its costs, whether those benefits are defined 
in monetary terms or in terms or promoting values like protecting 
public health and safety and ensuring civil rights and human dignity.
    For example, value can be found in the regulations prohibiting lead 
in gasoline and house paint. It has been clearly documented how the 
increased I.Q. attainments of our children have benefitted from these 
regulations.
    Regulatory failure, on the other hand can lead to tragedies such as 
the Massey coal mine explosion in 2010 which took the lives of 29 
miners, or the re-emergence of black lung disease among coal miners, an 
issue that was supposed to have been addressed years ago but continues 
to plague miners because of lax regulation.
    So, I encourage my colleagues to be measured and careful when 
considering the benefit of regulation. Let's make sure that regulations 
are fair, provide appropriate notice of criminal sanctions, and let's 
continue to encourage prosecutorial discretion when deciding whom to 
pursue criminally versus civilly.
    Finally, while it makes sense to review the estimated 300,000 
criminal regulations, it's also important to understand that a major 
result of over-criminalization is over-incarceration. Regulatory crime 
offenses make up less than 1 percent of the prison population. To the 
extent that the Task Force is concerned with prison overcrowding and 
steadily rising incarceration rates, I urge it to look beyond 
regulatory crime. Let's put drug policy, firearms and immigration 
offenses on the table for the Task Force's consideration. These are the 
very real contributors of over-criminalization and over-incarceration 
in the federal system.
    I look forward to hearing the testimony of our witnesses.
    Thank you.
                               __________

    Mr. Gohmert. Thank you, Mr. Chairman.
    Without objection, any other Members' opening statements 
will be made a part of 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, for holding this hearing on 
regulatory crimes.
    What struck me most as I reviewed the materials was a sense of how 
easy it is to become a victim. There are so many federal crimes on the 
books that the government itself does not have an accurate count. And 
they do not just cover inherently dangerous activities like murder, 
sexual assault or robbery. The federal code is riddled with statutes 
that impose criminal penalties for regulatory conduct. Certain 
regulations serve the important purpose of public safety and we expect 
individuals and businesses who engage in potentially dangerous conduct 
to know the rules. But these rules can too often ensnare innocent 
citizens. I say innocent because perhaps the most pernicious aspect of 
these regulatory crimes is weak or even non-existent intent 
requirements.
    Often a criminal conviction requires only that a defendant 
knowingly take an action; it does not require that he knew the act was 
prohibited. This construct is appropriate for traditional malum in se 
crimes that society at large has deemed unacceptable.
    However, the question before the Task Force is whether this 
construct is appropriate for malum prohibitum crimes--or conduct that 
is not inherently immoral but is criminalized by statute or regulation.
    We are going to hear from two victims today and there are many 
more. Examples include a 23-year-old man who found a buried skull on a 
hunting trip in Alaska, and turned it over to the U.S. Forest Service 
only to be charged with removing an archeological resource from public 
lands; or the young girl who saved a woodpecker from the family cat, 
and whose parents were fined for violating the Migratory Bird Act 
because it is a crime to take or transport a woodpecker. These cases 
raise the issue of congressional intent. Are they representative of how 
Congress intended the laws it has passed to be used? If not, it is 
Congress's duty to do something. As I stated when this Task Force was 
formed, ``Overcriminalization is an issue of liberty.'' We owe our 
constituents nothing less than a thorough review of overcriminalization 
and solutions to reverse this growing trend.
    One possible solution the Task Force will evaluate is a default 
mens rea provision, in large part to ensure that criminal penalties are 
applied to only those who act with the requisite guilty mind. I hope 
that today's hearing--coupled with our November hearing on regulatory 
crimes--will lead to solutions to ensure that our federal laws 
distinguish between the truly guilty and the merely unlucky.
    I thank the witnesses and look forward to their testimony.
                               __________

    Mr. Gohmert. And without objection, the Chair is authorized 
to declare a recess during votes on the House floor. I think we 
should be done before that happens.
    At this time, I want to proceed with the introduction for 
our distinguished panel. First of all, Mr. Reed D. Rubinstein. 
Mr. Rubinstein is a partner in the Washington, D.C. office of 
Dinsmore & Shohl, LLP, and has experience in litigation, 
regulatory, legislative, and appellate advocacy representing 
publicly traded corporations, small business, individuals, and 
nongovernmental organizations in matters before the Departments 
of Justice, Defense, Energy, and Agriculture, the Environmental 
Protection Agency, the Food and Drug Administration, the U.S. 
Congress, State agencies, and in the civil and criminal courts. 
He joined Dinsmore after serving as Senior Counsel for 
Environment, Technology, and Regulatory Affairs for the U.S. 
Chamber of Commerce. Prior to joining the U.S. Chamber, he was 
a shareholder of the Washington, D.C. office of Greenberg 
Traurig, LLP, where he practiced environmental and 
administrative law litigation, corporate, and real estate law.
    He has regularly published and has spoken around the world 
on environmental regulatory trends, U.S. Government programs, 
anti-terrorism strategies, and litigation matters.
    He also received his bachelor of arts, master of arts, as 
well as juris doctorate from the University of Michigan.
    And with that, let me mention to all the witnesses you may 
have more of a written statement that exceeds 5 minutes, and 
that will be made part of the record, is part of the record. 
But for purposes of the hearing here, if you would restrict 
your opening statements to 5 minutes, and you can see the light 
will go from green to yellow to red, and red is time to 
complete. So thank you. At this time, we will start with our 
first witness.

           TESTIMONY OF REED D. RUBINSTEIN, PARTNER, 
                      DINSMORE & SHOHL LLP

    Mr. Rubinstein. Thank you, Mr. Chairman, Ranking Member 
Scott, Task Force Members and staff.
    My name is Reed Rubinstein, as you have heard. I am here 
testifying today on behalf of the U.S. Chamber Institute for 
Legal Reform. ILR is an affiliate of the U.S. Chamber of 
Commerce that works to make our Nation's legal system simpler, 
fairer, and faster for all.
    The U.S. Chamber is the world's largest business 
federation, dedicated to defending America's free enterprise 
system.
    As, Mr. Chairman, you pointed out in your opening remarks, 
regulatory over-criminalization is a big problem. It is big for 
the people who are caught up in the system, and it is big from 
a systemic standpoint. No one knows precisely how many Federal 
regulations of possible criminal consequences. The best 
estimates are in the tens of thousands. But what we do know is 
that this kind of a sprawling code based substantially on 
regulations is especially likely to contain crimes in which the 
prohibited conduct and state-of-mind elements are incompletely 
fleshed out. This kind of a code engenders abuses, especially 
in agencies unencumbered by the cultural limits that restrain, 
for the most part, State and Federal prosecutors.
    Regulatory over-criminalization is a particularly 
pernicious phenomenon for at least three reasons.
    First, regulations criminalize vast expanses of conduct 
without notice to the ordinary person that his or her everyday 
activities may be subject to criminal punishment.
    Second, regulatory crimes are the product of bureaucratic 
not legislative action. Given that the criminal law is the 
primary system for public communication of societal values, it 
is unwise and generally improper for crimes to be defined 
through convoluted agency rulemaking processes.
    Third, criminalizing regulatory violations without respect 
for intent has a chilling effect on small businesses, 
entrepreneurs, and scientific innovation. ILR supports laws 
that conserve our environment, guard the quality of our food, 
and ensure the efficacy of our medicines. But it is simply 
wrong to give unaccountable Federal agencies functionally 
limitless discretion first to make the law by rule and then to 
criminally prosecute citizens for their violations without 
either predictability or proof of wrongful intent.
    The human cost of regulatory over-criminalization has been 
well documented, and you will hear stories today that ought to 
cause this Committee's Task Force substantial concern. Reports 
of armed administrative agency agents breaking into homes, 
factories, and even animal shelters on the pretext of enforcing 
arcane Federal and State regulations ought to be unsettling. 
From a systemic standpoint, however, the chief vice of 
regulatory over-criminalization is the wholesale abandonment of 
the basic principle of legality upon which law enforcement in a 
democratic community must rest. That is, close control over the 
exercise of the delegated authority to employ official force 
through the medium of carefully defined laws and judicial and 
administrative accountability. The paucity of carefully defined 
laws and the minimal administrative accountability that define 
our current system inevitably lead to abuses.
    Regulatory over-criminalization has very strong secondary 
and tertiary effects that inhibit economic and personal 
liberty. Generally speaking, for a company or an individual 
caught up in this morass, settlement or a plea is almost always 
the only cost-effective and rational strategy. Public companies 
facing charges of criminal violations settle, at least in part, 
because the risk of insolvency associated with an indictment is 
so great that contesting a charge amounts to a breach of 
fiduciary duty in many circumstances. Small businesses lack the 
resources to effectively contest enforcement actions. 
Therefore, it is only a very rare few who are capable and 
willing to stand up and defend themselves and their rights when 
facing charges.
    Furthermore, agency decision-making in this environment is 
rarely clear, consistent, or predictable. If a law declares a 
practice to be criminal, but the agency does not or cannot 
apply its policy with consistency and predictability and 
fairness, the law's moral effect and public faith in government 
are necessarily weakened.
    Time and again in the course of my practice in many 
contexts and in various ventures, I have seen large companies, 
small companies, entrepreneurs, individuals assess the risks 
and the uncertainty posed by regulatory over-criminalization 
and then decline to build, to invest, or to grow. I do not know 
and cannot point you to an empirical study that authoritatively 
accounts for the jobs lost and the economic activity aborted by 
regulatory over-criminalization, but the harm is unquestionably 
pervasive and real.
    Again, ILR strongly supports good laws that protect the 
public welfare and the well-ordered administrative agencies 
that implement them. But regulatory over-criminalization 
needlessly conflicts with our constitutionally enshrined 
commitment to individual freedom and unduly interferes with 
entrepreneurship, investment, and job growth.
    This Task Force and the Congress must take a hard look at a 
general and clear mens rea statute for all Federal crimes, 
especially those based on regulations. There are simply too 
many offenses and regulations for Congress to act piecemeal. 
The reality is that a large solution, a generally applicable 
statute, is the only practical and effective one.
    Also, we call upon this Task Force and the Congress to 
explore carefully the secondary and tertiary effects of the 
over-criminalization phenomenon. There ought to be mechanisms 
for meaningful agency oversight, transparency, and 
accountability to counteract some of the more egregious 
secondary and tertiary effects of this phenomenon. These 
mechanisms should include reasonable limits on agencies' 
prosecutorial discretion and stronger procedural guarantees to 
ensure that the targets of agency action are given an 
independent, fair, and level review of their cases.
    Thank you for your attention to this important matter. I am 
happy to answer any questions that you might have.
    [The prepared statement of Mr. Rubinstein follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Gohmert. Thank you very much, Mr. Rubinstein. We 
appreciate the testimony.
    At this time, we will hear from Professor Rachael Barkow. 
She is the Segal Family Professor of Regulatory Law and Policy 
and Faculty Director of the Center on the Administration of 
Criminal Law at NYU. In June of 2013, the Senate confirmed her 
as a member of the United States Sentencing Commission. Since 
2010, she has also been a member of the Manhattan District 
Attorney's Office Conviction Integrity Policy Advisory Panel. 
Professor Barkow teaches courses in criminal law, 
administrative law, and constitutional law.
    She has written several articles on sentencing and has 
explored in numerous articles the role of prosecutors in the 
criminal justice system. In a series of major articles, she has 
explored the relationship between separation of powers and the 
criminal law and the relationship between federalism and the 
criminal law. Professor Barkow has been invited to present her 
work in various settings and has testified before Congress.
    She previously served as a law clerk to Judge Lawrence 
Silberman on the District of Columbia Circuit and Justice 
Antonin Scalia on the U.S. Supreme Court.
    Professor Barkow received her bachelor of arts degree from 
Northwestern University and her juris doctorate from some place 
called Harvard Law School. [Laughter.]
    It is an honor to have you here, Professor, and we look 
forward to your comments.

   TESTIMONY OF RACHEL E. BARKOW, SEGAL FAMILY PROFESSOR OF 
       REGULATORY LAW AND POLICY, NEW YORK SCHOOL OF LAW

    Ms. Barkow. Thank you so much. Thank you, Mr. Chairman, 
Ranking Member Scott, and Members of the Task Force for 
inviting me today to talk to you about the problem of over-
criminalization as it relates to regulatory crimes.
    I want to briefly raise three issues associated with 
regulatory crimes that I believe are worth further 
consideration by the Task Force.
    First, regulatory crimes are unique among criminal laws in 
that they often lack mens rea requirements that establish that 
a defendant was blameworthy when he or she acted as he or she 
did. Now, some of these offenses are strict liability, and to 
establish criminal liability for these offenses, all the 
government has to show is that the defendant engaged in conduct 
and there is no requirement that the government has to 
demonstrate that the defendant knew that he or she was engaging 
in the prohibited conduct. Strict liability offenses have long 
been criticized by criminal law scholars because they lack any 
culpability requirement that would merit criminal punishment 
and the stigma of a conviction.
    Other regulatory crimes are not pure strict liability but 
they, nevertheless, criminalize conduct that the defendant may 
not know is wrongful. The law normally adopts the view that 
ignorance of the law is no excuse, and for most crimes, it is 
common knowledge that the act is prohibited. With regulatory 
crimes, however, this common knowledge may be lacking. 
Sophisticated players may be aware of regulations, but people 
who are not regular industry players may have no reason to know 
there is a regulatory landscape that requires compliance at the 
risk of a criminal sanction.
    The Supreme Court has dealt with this issue by interpreting 
some statutes to require an awareness of wrongdoing or 
illegality, even when the statute is silent about that element. 
But the Court has not interpreted all regulatory criminal laws 
this way, and it typically does not do this if it believes that 
a reasonable person should know that the area is subject to 
stringent public regulation. So if Congress wishes to tie 
regulatory crimes to traditional notions of criminal liability, 
modification of many of these laws may be in order.
    The second point I want to make is that regulatory 
violations have been subject to criminal penalties on the 
theory that criminalization will make the regulatory scheme 
more effective. So this is an empirical question, whether 
criminalization is the optimal strategy for addressing the 
violation of all regulatory offenses or whether civil 
enforcement and penalties could achieve the same levels of 
deterrence and regulatory compliance for some provisions. Sound 
criminal justice policy, I believe in all areas, not just 
regulatory offenses, should rest on an assessment of the costs 
and benefits of criminal punishment to determine whether 
limited Federal dollars are best spent on prison terms or if 
less costly options are available and just as effective.
    In assessing whether criminalization is necessary for an 
effective regulatory regime, I believe Congress should evaluate 
particular regulatory provisions to assess their importance 
instead of simply making blanket determinations to criminalize 
an entire regulatory area without attention to detail. And that 
leads to my final point.
    So currently, Congress is typically not aware of the 
specific regulations that an agency will pass when Congress 
authorizes criminal punishment for their violation which 
effectively delegates to agencies the authority to fill in 
details about what is criminalized. So whatever the usual 
merits of delegating authority to agencies, I believe criminal 
law is distinct for at least four reasons.
    First, criminal law is about blameworthiness and should 
reflect society's moral judgments, and Congress has a decided 
advantage over administrative agencies because Congress 
represents the broadly held views of the electorate.
    Second, constitutional principles of separation of powers 
have special force in criminal law where government power is at 
its height.
    Third, Congress is more attuned to the problem of the 
unmanageable expansion of criminal laws.
    And fourth, the administrative landscape constantly changes 
which means that criminal laws tied to regulations will be a 
moving target. Having Congress take the lead in identifying 
those situations that merit criminalization would inject more 
stability and make it easier for actors to keep track of their 
obligations.
    Thank you again for allowing me to testify and share my 
thoughts, and I would be happy to answer any questions you may 
have.
    [The prepared statement of Ms. Barkow follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Gohmert. Thank you very much, Professor.
    At this time our next witness is Lawrence R. Lewis, Sr., a 
licensed class one steam engineer originally from Washington, 
D.C. In 2007, while working as the Chief Engineer of the 
Knollwood Military Retirement Residence, Mr. Lewis was arrested 
for unknowingly violating the Clean Water Act. He pleaded 
guilty and was sentenced to 1 year of probation in 2008. His 
story has been featured in the Wall Street Journal and in a 
video series by the Heritage Foundation. He is a single father 
with 2 daughters, ages 22 and 17, and resides in Bowie, 
Maryland.
    Mr. Lewis, it is an honor to have you here. We look forward 
to your testimony.

          TESTIMONY OF LAWRENCE LEWIS, BOWIE, MARYLAND

    Mr. Lewis. I just wanted to share with----
    Mr. Gohmert. I am sorry. Would you pull that microphone a 
little closer? You are an important man and your testimony is 
important, and we want to make sure everybody hears. Thank you.
    Mr. Lewis. I just wanted to share with everyone the human 
impact that the new Federal laws have on ordinary citizens like 
myself.
    You know, I was born and raised in the projects and through 
the grace of God, was able to get through the criminal justice 
system without being a part of it. In fact, I am proud to say 
several members of my family, my sister's two daughters, are a 
part of the D.C. Police Department, police officers.
    And after working so hard to make my family, my parents and 
my children, proud of me, I go to work at an Army military 
retirement home, a place that meant something special to me, 
along with other places I have been, because my father was in 
the military for 20 years, and the kind of care and stuff I 
expected him to have and wanted him to have--that is what I 
wanted to provide for the people there.
    This particular institution had a history of sewage 
problems, to my knowledge, at least 28 years prior to when I 
came there. And we did everything we could to prevent the 
sewage from affecting the most vulnerable people, which is the 
people that were in the hospice section of that retirement 
home, which is on the ground floor. That is the first area that 
it affected. So the protocol was when flooding started, you get 
a pump, pump it to the sewage drain while you are trying to 
unstop the drain. Other than doing it, you are going to flood 
all these areas. And these areas are not areas that you can 
just sanitize. I mean, it takes extensive sanitization. And a 
lot of people were bed-ridden. You just could not move them 
quickly.
    And sometime in March 2007, I think on the 29th, someone 
there in a nearby park saw a white substance that they thought 
could be some threat. So law enforcement came about and they 
traced the substance back to Knollwood. The substance was not 
sewage. Sewage is not white. The substance was from a new 
building the contractors were building. They were doing some 
testing because the blueprints were not adequate to see where 
did their sewage go where they are trying to.
    Law enforcement traced that white substance back to 
Knollwood, but to the new facility. So they thought since 
during that same time we were having a spillage, a sewage 
backup to. So they thought that was actually sewage.
    I was home. I came back on site, which I was asked to come 
back. And I took the men aside and showed them there is nothing 
white in color in that facility in the sewage system anywhere. 
We went in and we looked at it, pulled up different sections of 
the sewage part of the facility and were able to verify there 
was nothing in there that associated with the white substance.
    At that time, I did not know the contractor was doing any 
testing. I did not find out until the following morning, but I 
knew it was not sewage.
    In any event, the law enforcement force threatened with 
arresting me, saying I violated some law and they had a pre-
written statement they wanted me to sign to implicate my 
superiors that they had knowledge of it. They were saying some 
of the military officers had suggested that. And I was telling 
them I had no personal knowledge of them knowing the effects 
that the sewage would have on anything. And for that reason, I 
was threatened with a 5-year prison sentence if I did not 
provide--really lie on someone, which I was not able to do. I 
was taught better than that.
    So subsequently I had to worry. My immediate effect of it 
was worrying about where my mother and my kids are going to 
live. I had a 13-year-old and a 16-year-old then and an 86-
year-old mother. Where are they going to live at for 5 years 
because I cannot pay a mortgage for 5 years from prison. I knew 
I had enough in my 401 to pay for a year. So I subsequently 
pleaded guilty to something I really did not do in order to 
make sure my family had some place to live.
    So that is the impact it had on me is I really lost 
confidence in law enforcement even though I had family law 
enforcement. I feel like if they are prosecuting me for 
something I had no knowledge of, I was not aware of--and there 
was nothing in the records ever saying that it was a violation 
for this to go on. They looked at all the records where the 
plumbing companies came for years and years and years. Nothing 
suggested that this was a violation. This stuff took place 
regularly.
    Also, there had been times when D.C. and Federal inspectors 
which come several times a year was there when this happened. 
No one--the fire department, no one--ever said this was 
improper. They usually seemed to admire the fact that we were 
doing everything we could to maintain and control it until we 
could get a contractor in.
    So, I would just like to make sure that this Committee 
understands that there are real lives being affected, normal 
people, because we do not know. We are not aware of the law. 
And I would hope that we could send regulations to the 
facilities to educate the people who work in the facilities and 
send them to the schools, have it a part of schooling where 
people would be aware of the new laws that exist because like 
myself there are many other people who are going to experience 
the exact same thing.
    So I believe I have a little more time. So what I am saying 
to you is that the best thing that could come from what to me 
is if Congress could go back and look at the new laws and the 
parts that say having knowledge or intent to get prosecuted 
and/or if a fine could be implemented, in this particular case, 
it would be appropriate, I would think, that you initially fine 
the institution and not the individual should be the norm and 
not prosecuting individuals from a history of a facility 
functions.
    [The prepared statement of Mr. Lewis follows:]

    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Gohmert. Thank you, Mr. Lewis. I imagine we will be 
exploring those thoughts further during our questions. And 
thank you for the testimony.
    At this time, we will hear from Ms. Cornelia Joyce Kinder 
of Grand Rivers, Kentucky. She is the former owner, along with 
her husband Steven, of two Kentucky caviar businesses. Their 
business involved collecting paddlefish eggs in the Ohio River 
and exporting them. They had all of the appropriate licenses, 
reported all of their catches in the State of Kentucky. 
However, the Ohio River forms the Ohio-Kentucky border. The 
Kinders would connect one side of their net to land in Kentucky 
and the other to land in Ohio. Therefore, some of the caviar 
was actually harvested from Ohio waters.
    Federal investigators charged the Kinders with violating 
the Lacey Act, which makes it a felony to import flora or fauna 
in violation of another State's or Nation's laws. The Kinders 
faced up to $250,000 in fines and 5 years in prison because of 
the possible steep penalties. The Kinders pleaded guilty and 
were sentenced to 3 years probation and a $5,000 fine, and they 
were forced to forfeit their fishing boat and a work truck.
    Ms. Kinder, I look forward to your testimony. Thank you. 
And, yes, go ahead and pull that close to you as well and speak 
right into the microphone.

           TESTIMONY OF MR. AND MRS. STEVEN KINDER, 
                        GRAND RIVERS, KY

    Ms. Kinder. I have had an asthma attack this morning.
    Mr. Gohmert. Well, let's get it right up close to your 
mouth so you don't have to try too hard.
    Ms. Kinder. Can you hear me now?
    Thank you for having me here today to tell my story. My 
name is Joyce Kinder.
    My husband Steve and I just wanted to run a caviar 
business. We did not hurt anybody. We did not deliberately 
violate any law. But in 2011, we were convicted of Lacey Act 
violations because we unknowingly fished on the wrong side of 
that Ohio River. We have lost everything.
    I am here because I want the over-criminalization caused by 
the Lacey Act and other laws to stop.
    My husband and I live and work in Owenton, Kentucky. We own 
Kinder Caviar and Black Star Caviar Company. We use nets to 
collect the paddlefish eggs. We harvest them into caviar and we 
export them to foreign countries. Ever since we started, we 
fished in the Ohio River. We never connected anything that was 
not to be done. We, in fact, connected one end of our nets to 
the land in Kentucky and the other end to the branches out in 
the water of the Ohio River on the Ohio side.
    We did not come from a wealthy family, but we did work hard 
and we loved our work. We were the first established caviar 
company in Kentucky, and we were the first to export Kentucky 
caviar. This was our American dream. We never took chances with 
the law. We were fully licensed and permitted to fish in 
Kentucky waters. We always have reported all of our catches. We 
knew that paddlefish are a protected species. We never 
deliberately fished in Ohio's portion of the water. We knew 
that the Lacey Act makes it a felony to export fish in 
violation of another State's laws. That is why we hired two law 
enforcement officers and an ex-fish and game officer to work 
for us. We thought we were obeying the law.
    But on May the 5th, 2007, my husband was confronted with 
Federal agents from the U.S. Fish and Wildlife Service. The 
agents told him that he was fishing in Ohio because his nets 
extended past the Ohio-Kentucky boundary out in that river.
    On March 14th, 2011, my husband and I were charged in 
Federal court in a four-count indictment with illegally 
harvesting the paddlefish in Ohio waters and falsely reporting 
that we caught the fish in Kentucky waters.
    How were we supposed to know where the boundary line was? 
There is no buoy. There is no sign, and there is no markings of 
any kind on the river to identify the border. Even Kentucky and 
Ohio officials were confused where the boundary was. We fished 
in the clear light of day and no official ever told us to move 
our nets.
    We felt then and we still feel now that we did nothing 
wrong. But on January 17th, 2012, we made the painful and 
humiliating decision to plead guilty. We were facing prison 
time. We could not suffer the emotional and financial trauma of 
a trial. We did not want to risk losing our freedom, as well as 
our property.
    Today we are in poverty, and during our probation, we are 
prohibited from fishing and from applying for or receiving an 
export permit that would allow us to engage in international 
business. We cannot pay our fishermen. We have lost our 
customers. My husband and I are not physically able to work 
anymore. We cannot make ends meet. Our conviction has 
devastated us psychologically as well. We feel humiliated, 
utterly helpless. We do not feel as if the law protects us 
anymore right here in our own country.
    The only thing that got me through this community service 
that I was to serve was the hope that I could come and tell my 
story so that what happened to us would not happen to anyone 
else. The Government should go after people who have done 
things that we all know are wrong. We still think this is the 
best Government and the best country in the world. In fact, I 
had hoped, after my retirement, to go into public service. But 
we are living proof that it is becoming impossible for decent, 
honest people to work without fear of unknowingly breaking a 
criminal law and end up in prison. If this can happen to us, as 
it did, it can happen to anyone.
    I beg you make it stop.
    I thank you for your time, and I will be happy to answer 
any questions that you might have.
    [The prepared statement of Ms. Kinder follows:]

           Prepared Statement of Mr. and Mrs. Steven Kinder, 
                         Grand Rivers, Kentucky





















                               __________
    Mr. Gohmert. Thank you very much, Ms. Kinder.
    At this time, we will begin questioning. Each of us will 
have 5 minutes, and I will recognize myself for 5 minutes.
    Mr. Lewis, Ms. Kinder, as a judge, I have looked into the 
eyes of many hardened criminals and sent them to prison. I have 
looked into the eyes of a couple of people and ordered they be 
taken and put to death. But I look in your eyes and my heart 
breaks for what you have been through. And I am very sorry for 
your travails that was brought on by a system that does not 
seem to have worked as it should. So thank you for being here 
to hopefully help us get our system corrected.
    Professor, you clerked for Antonin Scalia. I was with a 
group that he was speaking to, a small group. When he said what 
questions you got, one of them said would you say our country 
is the freest in history because we have the best Bill of 
Rights. And you know Justice Scalia. He is very abrupt, and he 
said, oh, gosh, no. He said the Soviet Union had a better bill 
of rights than we do. And I had forgotten. I did a paper on the 
Bill of Rights in college, and they did. They had more 
enumerated rights than we do. That was not the key, and Justice 
Scalia pointed out we are the freest Nation in history because 
the Founders did not trust government. And so they made it as 
difficult as they possibly could to create laws.
    I see the case of Mr. Lewis and Ms. Kinder, so many others 
that Mr. Scott and I have listened to over the years and read 
about. And it looks like one of the biggest problems is when 
none of those safeguards are utilized and agencies, 
bureaucrats, totally unaccountable, make the rules, make 
criminal laws.
    Mr. Lewis, you mentioned a civil penalty. Obviously, this 
whole thing was embarrassing, take the criminal violation 
alleged out. Do you think you would have ever been a part of 
sewage moving as it did if you had been fined or had your pay 
docked and some civil penalty like a fine without ever going 
through the criminal court? Do you think you ever would have 
done that again?
    Mr. Lewis. Absolutely not. In fact, everywhere I have been 
since then, I made everybody around me aware, look, it's out 
there you may not be aware of, and there are certain things 
that I see, if I see some concerns with it, some possibilities 
with it, I share that with the people around, the employer and 
my coworkers. No, if I had any idea, there is no way I would 
risk my family being in a shelter somewhere to stop water for 
anyone. I would have never done that knowing that would result 
in me going to a prison. I would have never.
    Mr. Gohmert. Ms. Kinder, do you think given the 
embarrassment just from having Government agents come and talk 
to you--do you think if you had been civilly fined without ever 
having to go through the criminal justice system, that you 
would have ever violated such a regulation again?
    Ms. Kinder. Of course, not, Your Honor. I would like to say 
a little bit more about that.
    Mr. Gohmert. Okay.
    Ms. Kinder. We operated in the day of light. Our nets 
were--you could see them for a long distance away. We had big 
buoys that floated on top of the water. We fished that river in 
those same holes for 7 years. No one ever told us that we were 
doing anything wrong. No one ever told us to move our nets. No 
one ever said anything that we were doing wrong. Even the Ohio 
and Kentucky officials--they did not know that there was a 
boundary. I guess they figured there was a boundary out there, 
but no one knew how to identify it. So in 7 years, we were 
never told anything that we were doing anything wrong by Ohio, 
Kentucky, or the Coast Guard.
    Mr. Gohmert. Thank you.
    Mr. Rubinstein and Professor Barkow, just one last question 
before my time runs out. And our lights have been really messed 
up here.
    But do you think that we can solve the biggest part of our 
problem by adding an intent, a mens rea requirement to statutes 
such as what captured Mr. Lewis and Ms. Kinder?
    Mr. Rubinstein. Just before I answer, in answering the 
questions, these are my opinions, not necessarily those of ILR. 
Yes.
    Mr. Gohmert. Well, it is you that is testifying, so it is 
your opinion. I am not asking anybody else's.
    Mr. Rubinstein. My opinion, yes. The lack of an intent 
requirement, particularly when you are imposing criminal 
penalties, is tremendously problematic, at a human level, as 
you heard, and at a systemic level. It undermines, you know, 
the basic bedrock propositions of our entire polity. It has to 
be fixed.
    Ms. Barkow. I agree with that. The only thing I would add 
is it is complicated to draft that in a way that is not going 
to raise some of the same issues because the Federal criminal 
code does not have any default rules about how you apply mens 
rea to different elements. So unlike lots of States that follow 
the model penal code where you just assume if Congress puts a 
mens rea term in there, it applies to everything. But there is 
no default standard for congressional statutes. So even if you 
plopped in the word ``knowingly'' or ``willfully,'' there would 
still be an interpretive question for the courts of what it 
applies to. So if you did do that, you would want to make clear 
or pass a default rule that says it applies to all the elements 
of this provision.
    Mr. Gohmert. Okay, thank you. We would welcome your 
submission of anything in writing you think would do that 
trick.
    My time has expired, and at this time, it is my pleasure to 
recognize Mr. Scott for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman.
    I want to thank all of our witnesses for their testimony. 
This has been very helpful.
    Professor Barkow, one of the questions that we had is the 
effect of regulatory crime on over-incarceration. I think in 
your written statement you had a comment on that. Could you 
comment on the effect on over-incarceration?
    Ms. Barkow. Yes. It actually does not make up a large 
proportion of the number of people who are incarcerated in 
Federal prisons. So the number of people in the Bureau of 
Prisons who are there for regulatory crimes is not actually 
categorized separately. It would fall under the category that 
BOP calls ``miscellaneous.'' So it is going to include things 
other than regulatory crimes as well. So at most it would be .8 
percent of the total prison population and something south of 
that because ``miscellaneous'' includes other things.
    Mr. Scott. That is .8 of the Federal system, and the 
Federal system is a small portion of the overall national 
incarceration.
    Ms. Barkow. That is correct.
    Mr. Scott. You mentioned also that there are some crimes--
there appears to be a mens rea requirement, intent implied. How 
can we ensure that health and safety regulations may qualify 
for criminal prosecution when you have actually endangered 
people's lives?
    Ms. Barkow. So I think there are a lot of statutes and 
regulations out there. So you would want to identify which 
ones, if any, that you wanted to have mens rea requirements to, 
and obviously, Congress has the power to decide that it wants 
to have different mental state requirements depending upon the 
regulatory scheme. But you could certainly distinguish those 
regulations that are designed to protect health and safety and 
go to the core of those issues and then decide what you thought 
the appropriate mental state would be that you would want to 
have.
    Mr. Scott. So it should be one at a time, individualized?
    Ms. Barkow. Well, right now what Congress does typically is 
it just passes a general provision that basically says any 
regulations that are going to be passed under this statute--
they are all subject to this criminal fine. And so what it 
essentially does is it puts it in the hands of Federal 
prosecutors to decide who will be charged and who will not.
    What you could do instead would be to identify, after 
regulations are passed, which regulations you believe should, 
in fact, be subject to criminal penalties. So you could 
identify those that really go to the core of these health and 
safety concerns, and if you wanted to, you know, you certainly 
have the power to make those strict liability or you could have 
a negligence standard, whatever you saw fit, whereas you could 
have more paperwork type regulations, things that you do not 
view as serious, as not being subject to criminal penalties.
    Mr. Scott. Thank you.
    Now, Mr. Rubinstein, one of the problems we have with this 
is that the regulators may not have the expertise in criminal 
law to make them precise and have proportional penalties. But 
we also have the problem that Congress may not have the 
expertise to figure out which regulations in the nuclear plant 
ought to be subject to criminal sanctions. Can you help us with 
how we would actually write laws in areas where we may not have 
the expertise?
    Mr. Rubinstein. Well, I think it goes back to something 
that Professor Barkow just said, which is that there needs to 
be some communication with respect to the core health and 
safety issues that are of concern. The fact of the matter is in 
a large number of Federal statutes, differentiations are made 
between conduct that is theoretically going to lead to criminal 
penalties and conduct that is not. The problem is, though, as 
the professor pointed out, that in many cases Congress will 
enact a general statute that effectively criminalizes a whole 
set of behavior and then leave it to the agencies to fill in 
afterwards.
    So what you have, practically speaking, are cases in which 
there is a statutory standard but then there is an 
incorporation of these regulations, and by the time you work 
your way through the chain, you have situations, for example, 
of that of a marine biologist named Nancy Black who just is in 
the middle of a criminal matter in California as the result of 
feeding orcas, killer whales, or alleged feeding. The conduct 
that she was charged with was prohibited by a regulation, but 
legally walking up the chain, eventually you ended up with a 
much more stringent prohibition of behavior that the regulation 
was really never meant to reach. And so there is a disconnect 
between what Congress said in the first instance and what the 
regulators ultimately did.
    It is a very knotty question, I agree, but at some point, 
as I said in my testimony and wrote in some detail in the 
written submission, the big solution here may be the only one 
that is practical, which is creating a default mens rea 
provision perhaps with a carve-out for certain kinds of core 
health and safety violations that are just so egregious that 
per se they are wrong. But the way the system is working now, 
you end up with these terrible abuses. You end up with stories 
like we heard this morning, and it needs to be fixed.
    Mr. Gohmert. Thank you, Mr. Scott.
    At this time, we recognize the distinguished gentleman from 
Alabama, Mr. Spencer Bachus.
    Mr. Bachus. Thank you.
    First of all, I want to commend each of you for, I think, 
your pursuit of justice, which is what I think this is all 
about.
    Most of us had heard anecdotal evidence, stories like the 
two of you shared, but I do not think any of us--and I am an 
attorney who has tried many cases, including criminal cases, 
murder cases early in my career. But I never imagined that this 
was out there. And it is almost like an iceberg in that it is 
invisible to the general public and to most of us until someone 
hits it and, obviously, people hit it every day. And the result 
is not a benefit to society--cost/benefit. But it also 
violates, I think, our sense of justice and of democracy. It is 
inconsistent--and, Professor, you said this--with our 
democratic values.
    In some respects, I think the Constitution as our 
forefathers drafted it--they would have never imagined this. It 
certainly violates, I think, our traditions and our values.
    I think for most of us or all of us--we are, as the sitting 
Chairman said--in a bipartisan way, the bigger problem that I 
was focused on was criminalization of drug cases and that 
sector and that we are, by a multiple of many times, 
incarcerating more people. And I was actually shocked that 
sentences are now longer than they ever have been in the 
history of our country, which was a shock, I think, to me.
    But the question now is not whether this problem exists. It 
is how do we address it.
    And my first question was, is there anyone making up, say, 
a database catalog of these offenses?
    Mr. Rubinstein. Not that I am aware of. There have been a 
couple of studies that are published in the literature, and 
some of these are older. The American Bar Association did a 
very widely cited study in the late 1990's. The numbers, 
though--they are estimates. I think it is about 4,500 Federal 
crimes, so to speak. And then, as I said, it is pretty much 
anybody's guess about the number of regulations. One professor 
estimated it, I think, at about 300,000, and that seems to be 
the study that is out there most significantly.
    As I suggested, the problem is that the way the law is 
written and the discretion that the agencies have and then that 
the prosecutors have allows them to take laws that Congress 
wrote, never intending to reach the conduct that the 
regulations prohibit, and back into a criminal violation. And 
then what you end up with, as you heard, are situations where 
people who are thinking they are doing nothing wrong are put in 
a position where they have to make a cost/benefit analysis 
between standing up and fighting or watching their lives be 
destroyed even more. So the obvious, rational thing to do is to 
do exactly what they did, to do what most people do.
    Mr. Bachus. And you would think discretion will be used 
with good judgment, but obviously it is being used to make bad 
judgments or people that do not have, I think, the legal 
background.
    Let me ask you this. You know, we could come at it by 
saying, okay, here are all of them, and it would be almost 
impossible, if you are talking about 300,000. You testified 
that the actus reus of prohibited conduct is not always spelled 
out in the regulations. And, of course, I think that is a 
start, that we just require that. And I would like maybe to get 
from you later some examples of that.
    Should Congress consider codifying a mistake or an 
ignorance of the law defense for regulatory offenses? I will 
ask anyone. First, I am going to ask the legal experts because 
your stories speak for themselves.
    Ms. Barkow. So I guess I will give you the pros and the 
cons. Right? So the benefits of doing that would be that it 
would make a defense available to people who could say that 
they were unaware of the law. The con against it----
    Mr. Bachus. Of course, they would have to prove that.
    Ms. Barkow. Well, now I am getting to the con part, which 
is that the Government, I think if you had a government witness 
here, would tell you that it may be difficult to demonstrate. 
And so if that is a requirement of a statute, it is going to 
make it harder for the Government to bring prosecutions.
    Mr. Bachus. It ought to be hard if we are talking criminal.
    Ms. Barkow. That is your decision, obviously.
    Mr. Bachus. Not in civil, but if we are talking criminal.
    Let me ask one more question, if I can. Under a 
``knowingly'' standard, a person can be convicted of a crime 
for knowingly engaging in the conduct without knowing that the 
conduct is illegal. And I think that was in your testimony. And 
that is the essence of it.
    Ms. Barkow. Yes. Some statutes have been interpreted that 
the ``knowing'' just refers to that you knowingly engaged in 
the conduct, but you do not have to have the additional 
knowledge that the conduct was against the law. So you could 
either cure that by doing what you said, which is to have a 
mistake of law defense, or you could make it clear that 
``knowing'' actually applies to the knowledge that there are 
regulations that you violated.
    Mr. Bachus. I would think we need a default mens rea 
standard, and I would invite you all to give us your thoughts 
and elaborate at some point in time.
    And I appreciate the Chairman's indulgence.
    Mr. Gohmert. Thank you.
    At this time, I will recognize the distinguished gentleman 
from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, Mr. Chairman.
    Underlying this important hearing is the concern that has 
not been cleared up for me about whether or not mens rea should 
apply in which cases. And, Professor Barkow, I wanted to engage 
you in this discussion because regulatory crime violations--
sentencing is less than 1 percent, while all these other 
offenses, particularly drug offenses, weapons, explosives, 
immigration, robbery, all constitute the rest. Can you point 
out to the Committee the circumstances under which mens rea is 
determined to be a requirement or not?
    Ms. Barkow. So if I understand the question correctly, you 
know, I think it is a very difficult question to answer----
    Mr. Conyers. It is.
    Ms. Barkow [continuing]. Because I think it is really a 
congressional policy call. I do not feel like I have the 
expertise to give you the answer of what conduct you view as 
sufficiently morally blameworthy that you want to have criminal 
sanctions attached to it. I mean, I can tell you that I think 
if we are talking about 300,000 regulations, that not all of 
them are probably going to go to the core of health and safety 
protection that I think you would want to use this very 
powerful hammer on. I think if you say, well, maybe we need 
criminal law in order to deter because the consequences of 
violations are so great that we want to stop these things from 
happening, I think it just requires careful attention to what 
those consequences are that you think justify lowering the 
traditional notions of mens rea and culpability.
    So when all this started when Congress initially started 
doing this sort of thing, you know, it was basically 
industrialization and lots of products going out there and 
drugs and harmful food that could kill hundreds of thousands of 
people, and the idea was we have to make sure that does not 
happen. So we will just pass strict liability offenses, and now 
we know that these big industrial players will know that if 
they make a mistake, they are going to face heavy sanctions. 
And I think the question for Congress is when do you feel that 
those circumstances are analogous that you want to continue to 
maintain criminal penalties.
    And then the second would be whether you need them because 
the other thing I would add is that it may be that a civil 
sanction regime where companies could lose their license, for 
example, if they engage in certain conduct, that that may be 
sufficient in some contexts. So you just want to know when do 
you need the threat of criminal punishment because the way it 
plays out in practice is exactly as we heard, which is it is a 
way to get pleas and it is a way to get offenders to agree to 
terms. It is something that Government prosecutors like very 
much because it enables them to threaten something quite severe 
in order to get the sanction that they think is appropriate.
    Mr. Conyers. Well, that is a good start. We are confronted 
here on this end with some incredible questions that have not 
been raised before. This is a separation of the Subcommittee on 
Crime, and you are on the commission. And I am wondering--this 
could be the beginning of a huge inquiry into where mens rea is 
required and when it is not.
    What about the mandatory minimums that are found so much in 
the drug offenses? Has your commission--have you inquired into 
that very deeply?
    Ms. Barkow. So I am testifying today in my personal 
capacity and not as a member of the Sentencing Commission. So 
it would not be appropriate for me to comment at this time on 
the matters that are relevant to the work of the commission at 
this hearing. I myself have written, before I joined the 
commission, about the topic of mandatory minimums and would be 
happy to talk about that in another context. But today I am 
just here in my personal capacity and not as a member of the 
commission.
    Mr. Conyers. So we can get your testimony after you give it 
today.
    Ms. Barkow. My longer written statement?
    Mr. Conyers. No. The one that you are going up for this 
afternoon.
    Ms. Barkow. I am not testifying about mandatory--in my 
academic capacity, I have written quite a bit about mandatory 
minimums.
    Mr. Conyers. Oh, I see.
    Ms. Barkow. That is separate from what the commission's 
work is.
    Mr. Conyers. Well, can you talk about mandatory minimums in 
an individual capacity like you are here for today?
    Ms. Barkow. Well, I am here today actually to talk about 
the regulatory crimes and not questions about sentencing. So I 
do not think it would be appropriate for me to comment now as a 
member of the Sentencing Commission because there is a spectrum 
of views on the commission as they relate to mandatory 
minimums.
    Mr. Conyers. All right. I will accept that. I do not know 
if the gentleman from New York is going to let you off the hook 
as easily as I do.
    But at any rate, what is the bottom line that Chairman 
Gohmert and us are struggling with here? And this has sort of 
crept up over the years. My time is also out. This is my last 
question to you then.
    Is there any organized way we could go about this? Maybe 
Ranking Member Scott and Chairman Gohmert could have Committee 
staff go through all of the laws and recommend to us what is 
mens rea and where it is not. And I say that, Chairman Gohmert, 
because we have just had one of the biggest financial collapses 
on Wall Street, and they are just beginning to bring people 
into court charged with crimes. And it seems that there is a 
stark reminder of the privilege that many white-collar 
defendants enjoy when they violate regulations. Well, I guess 
maybe they do not have a mens rea element. Oh, they do. Okay.
    Can you help close this out with a few ideas on this 
subject?
    Ms. Barkow. The one thing I will say is that the Federal 
system decided not to follow the model penal code, which was a 
model code to try to help States put their criminal laws in 
order and avoid some of the things that we have seen happen in 
the Federal system. In the 1970's, Federal code reform was 
considered and ultimately was abandoned. But if Congress were 
serious about these issues and wanted to do something like that 
again, I do think that it is possible to think of some sort of 
body that could think systemically and broadly about Federal 
code reform and maybe do something similar to the model penal 
code project.
    Mr. Conyers. Well, thank you very much.
    Mr. Chairman, could I put the Public Citizen comments on 
this subject that were sent to the Over-criminalization Task 
Force in the record?
    Mr. Gohmert. Without objection, so ordered.
    [The information referred to follows:]

    
    
    
    
                               __________
    Mr. Conyers. Thank you.
    Mr. Gohmert. Thank you, Mr. Conyers.
    At this time, we recognize the distinguished gentleman from 
New York, Mr. Nadler.
    Mr. Nadler. Thank you, Mr. Chairman.
    Professor Barkow, I cannot resist this. Without 
compromising your status as a member of the Sentencing 
Commission, without testifying perhaps about your current 
opinions, could you tell us in a couple sentences the thrust of 
the conclusions of your prior academic writing on mandatory 
minimums?
    Ms. Barkow. I will say this, and I will try this approach 
instead. And I am going to apologize in advance that I said in 
advance I was going to leave early. It is not because of this 
line of questioning.
    Mr. Nadler. This is my last question in that line.
    Ms. Barkow. I will say that the commission as a body 
recently submitted to the Senate its views on some of the 
proposed mandatory minimum reform legislation that is pending 
in the Senate. And so as a body, there is a statement that 
reflects the commission's views on possible reforms to improve 
those things.
    Mr. Nadler. We could get from NYU, I assume, your prior 
academic----
    Ms. Barkow. You could get that from your Senate--you could 
get it. It is a public document.
    Mr. Nadler. Thank you.
    Let me just switch topics now. Obviously, the question of 
mens rea and the question of intent and the question of 
knowledge is a very serious question, and it is not as simple 
as it might appear at first glance.
    Secondly, the obvious question of very few big-time bankers 
being prosecuted, if any, for causing the catastrophe that 
happened when the--obviously, many crimes were committed and 
people getting away without criminal prosecutions and the blow-
up of the British Petroleum rig in the Gulf years ago shows one 
extreme of not prosecuting people who perhaps should be, but 
maybe they are too powerful or whatever. And here we have two 
witnesses who, assuming the truthfulness of their testimony--
and I have no reason to doubt it--were obviously victims of 
very bad prosecutorial decisions and perhaps badly drafted laws 
and regulations.
    My question is this because certainly Mrs. Kinder's 
testimony raises a different problem for me. Let me ask you 
this, Mrs. Kinder. Your testimony is that--first of all, I am 
not familiar with the Lacey Act, but I assume from your 
testimony that the Lacey Act is a Federal law which makes it a 
crime to do something with fishing in the wrong State?
    Ms. Kinder. Actually the State of Ohio claims that their 
portion of water--the paddlefish is threatened or endangered 
in. Kentucky it is not.
    Mr. Nadler. Okay. So the Lacey Act makes it a crime to take 
endangered fish which would only be endangered in Ohio in this 
case?
    Ms. Kinder. Right, in that body of water.
    Mr. Nadler. Okay. It would certainly be an element of the 
alleged crime that you were, in fact, taking fish in Ohio. If 
you were doing it in Kentucky, it would not have been a 
problem.
    Ms. Kinder. That is true.
    Mr. Nadler. And your testimony is that there is no way to 
tell the boundary, that the GPS was confused and no one knew 
anything about this and so forth. Given that, it would seem to 
me that the real problem here--although that may be one 
problem, but the other problem here is that the Federal 
Government comes down, threatens a prosecution which you could 
have, had you had the money and the time and the funds and the 
lawyers, defeated because based on what you are saying, you 
would not have met the--you did not commit any crime even 
unknowingly because there was no delineation of the boundary 
between the two States and so forth. One real problem here is 
the way the Federal Government comes down on people who end up 
feeling compelled to plead guilty to a lesser included offense 
to avoid a risky, expensive trial. And I suspect that that is a 
bigger problem, that a lot of people plead guilty to things 
they are not guilty of simply because they cannot fight the 
might of the Federal Government in court. Do you agree with 
that?
    Ms. Kinder. Thank you, sir. Thank you so much. Yes.
    Mr. Nadler. And that to me is not the question of over-
regulation, although there may be over-regulation here too. I 
do not know. But it is a larger problem that I think this 
Committee ought to deal with, where people feel compelled to 
plead guilty simply because they do not have the resources that 
you need to fight the Federal Government in court. It is 
something I think this Committee has to deal with quite 
separately from whatever we do in the area of over-regulation 
or non-over-regulation.
    In coming back to over-regulation, let me just say that the 
mandate of this Subcommittee is really not just regulatory 
crimes. It is over-incarceration, et cetera. The regulatory 
problem is a problem, but it results in less than .8 of 1 
percent of the people in jail. That is not say we should not 
deal with it because one person being a victim of injustice is 
one person too many. But we also have to deal with 30 percent 
of drug crimes. 30 percent of the people in Federal jail are 
there for drug crimes, most of which in my opinion should not 
be crimes at all.
    So it seems to me we have three different problems here: 
the alleged over-regulation, the whole function of mens rea and 
state of mind being one very serious problem which leads to 
witnesses and the testimony of the two academic witnesses 
illustrate. Second, the problem is, of course, the whole drug 
problem. The third problem is the problem of how do you deal 
with people who may be coerced into plea bargains because of 
the power of the Federal Government.
    You look like you wanted to say something, Mr. Rubinstein.
    Mr. Rubinstein. Just briefly with respect to the Lacey Act, 
the Congress has been considering amendments because it does 
apply without respect to knowledge, and it criminalizes not 
only all United States laws but all foreign laws.
    Mr. Nadler. How does it do that?
    Mr. Rubinstein. Because that is what Congress said. It says 
specifically that any law that deals with fish or game or 
plants, so forth--a violation of that can lead to criminal 
sanctions. And you may remember a case involving Gibson Guitar, 
the guitar company, where agents came in in the middle of the 
day, herded all the employees into the offices at gunpoint and 
so forth because of allegations with respect to the illegal 
importation of Indian wood. The law that was violated in that 
case was an Indian domestic content regulation. And so the 
United States Government in its wisdom in this particular case 
decided that that warranted an armed raid on Gibson's 
factories.
    The Lacey Act has some significant issues. I mean, 
obviously, it serves a very salutary purpose and you do not 
want to throw the baby out with the bath water, but that is 
actually a pretty good paradigm for the issue that we are 
talking about today with respect to regulatory over-
criminalization.
    Mr. Nadler. Because it violates any foreign act too, any 
foreign law?
    Mr. Rubinstein. Absolutely.
    Mr. Nadler. So if Russia passed a law that said Americans 
who fish in this area, but nobody else, are guilty, that would 
make that an American claim too?
    Mr. Rubinstein. That is correct. Or if you are failing, if 
somebody fails to pay taxes to the local czar of whatever the 
province is or so forth, yes. In that respect Lacey is unique, 
but as I said, as a paradigm it works really well because 
essentially what the statute says and the way that it has been 
interpreted and enforced, if you violate a foreign law, even if 
you did not know about it, you can go to an American prison.
    Mr. Nadler. The question of regulatory relief--it sounds 
like we ought to take a look at the Lacey Act too.
    Thank you. I have exceeded my time. I yield back.
    Mr. Gohmert. Thank you.
    Ms. Bass, the Chair recognizes the gentlelady for 5 
minutes.
    Ms. Bass. Thank you. I actually wanted to follow up on my 
colleague's question and wanted to ask you if maybe you could 
give a little more history about the Lacey law, when it was 
passed, why. Are there parts of it that you think are positive?
    Mr. Rubinstein. Last question first. There are certainly 
parts of it that are positive. The reason it was passed--and 
that is actually the first of the Federal environmental laws. 
It was passed really at the beginning of the last century to 
prevent poaching and to prevent killing of what we today call 
endangered species.
    But what has happened, as typically does, over time the 
expanse of the statute has grown. There was a determination 
made that in order to stop the international trade in things 
like elephants and rhinoceroses and so forth, that it was 
important to add this extra criminalization component. Several 
years ago, Congress expanded Lacey to include plants and plant 
products. And so the way it is written and as the world has 
become more--economies become more integrated, the way it is 
written, it charges pretty much Americans with the obligation 
to know foreign laws.
    The Department of Justice and the various agencies charged 
with enforcing it have said they are not able to provide a 
database. That is one of the suggestions that stakeholders have 
made. Give us a place we can go to find the laws. And the 
answer is that we are not going to do that. You are charged 
with knowledge. And if it is a tax law, if it is a law about 
domestic content in India, if the foreign government itself you 
are not in violation of the law, it does not matter. Lacey 
needs some work.
    Ms. Bass. Well, I think it was Professor Barkow was 
mentioning about what should be done prospectively about the 
law, and I wanted to know your opinions about what should be 
done with the laws that are already on the book, the 
regulations.
    And I also want to associate myself with Congressman 
Nadler's comments in regard to both of the witnesses, Lewis and 
Kinder, because as I listened to your testimony, you know, I 
thought of just numerous times where there were other offenses 
that were not regulatory but where people really wind up 
pleading to crimes they did not commit because they really did 
not have the resources, you know, to defend themselves. And 
that is certainly a problem here, but it is a general problem 
within our system. Maybe you could respond to that.
    Mr. Rubinstein. Certainly. And one of the issues with the 
over-criminalization discussion generally is that to some 
extent over-criminalization is in the eye of the beholder, and 
there is a lot of good writing about this. Depending on sort of 
where you sit, you see different aspects of the problem. So it 
is important to take a step back, as the Task Force is doing, 
in a bipartisan way and really get back to first principles. 
And the first principles, the way the system is supposed to 
work, the way we assume the criminal law works is that the 
criminal law is supposed to reflect deeply held societal values 
about what is or is not right and wrong, and that individuals 
are able to exercise, through their own reason, the ability to 
identify what is and is not right and wrong in a given 
situation within limits. And obviously there are exceptions, 
but generally, that is the way it is supposed to work.
    The problem with the regulatory state, for want of a better 
word, is that you have many moving parts. It is very arcane. 
The law is very convoluted. And if you are very wealthy, you 
can hire a whole raft of lawyers, people like me, to sit down 
and try and tease this all out. If you are like these people, 
that is just not an option. And so there is a reason that we 
have laws to protect clean water, and there is a reason that we 
have laws to protect the fish. But there has to be some balance 
and there has to be some transparency and there has to be some 
accountability. And right now, particularly with respect to 
regulatory crimes, there just is not.
    Ms. Bass. Let me ask you a question. It is a little bit off 
topic, but your answer kind of raises it with me and that is 
our drug laws, which several people have referenced. But you 
talk about something that is changing in our society, and that 
is certainly one area of law that is changing depending on what 
State you live in. So we have on our books now, if you are a 
student applying for financial aid and you want Federal 
financial aid, there is a box that you have to check as to if 
you have had a drug conviction. But we have States now that 
have legalized the use of marijuana. So what is your thought on 
that. I mean, I have legislation to try to address that, but I 
would like to know your thoughts on that.
    Mr. Rubinstein. It is a very complex topic. Obviously, this 
is a big country and we have very different attitudes toward 
all sorts of things in many of the States, and frankly, that is 
reflected in many cases in the exercise of prosecutorial 
discretion. Years ago, I was working in Michigan and drug 
offenses in the northern part of the State would be prosecuted 
very aggressively but drunk driving would not. But if you were 
in the southern part of the State, you would have the exact 
opposite. Drunk driving would be prosecuted very aggressively, 
but drug offenses would not. And that was reflective of local 
norms and mores. And that is just in one State. That is not all 
over the country. So it is a very difficult topic.
    Part of the problem again is just sort of a proliferation 
of laws. By one count, there are over 300 Federal statutes that 
deal with fraud, going to the banking question earlier. There 
are plenty of laws on the books and it comes down to the 
exercise of prosecutorial discretion.
    The space that I know best is the regulatory one, and here 
again the issue is framed in a very specific way. The solution 
is, frankly, to go back to first principles, things like mens 
rea, things like making it clear what the prohibited actions 
are, and then perhaps letting localities, the States work it 
out in the exercise of prosecutorial discretion.
    Federal agencies are a different beast, and that is part of 
a longer discussion frankly.
    Ms. Bass. Thank you.
    Mr. Gohmert. We thank the gentlelady from California.
    At this time, we recognize Mr. Jeffries, the gentleman from 
New York.
    Mr. Jeffries. Thank you, Mr. Chair.
    And let me thank the witnesses for your testimony here 
today and certainly Mr. Lewis and Mrs. Kinder for your 
presence, for your willingness to relive what I think we all 
understand would be a difficult moment, unnecessarily difficult 
moment in your lives, but also to take the opportunity to share 
that moment with us in the hopes that Congress will act and 
that we can prevent others from going through the similar 
trauma that you have gone through. And certainly I think the 
power of the narratives that you have both communicated are 
compelling in that regard.
    Let me ask Mr. Lewis first. It is my understanding that 
initially you were charged with a Federal felony offense. Is 
that correct?
    Mr. Lewis. Yes, sir.
    Mr. Jeffries. And then ultimately you pled to a 
misdemeanor.
    From the moment of the initial charge to the ultimate plea, 
what was the time period.
    Mr. Lewis. I believe 10-11 months, 12 months, something 
like that.
    Mr. Jeffries. And during that time period, did you retain 
counsel or was counsel appointed?
    Mr. Lewis. The company that I worked for obtained counsel 
that represented me, yes.
    Mr. Jeffries. And, Mrs. Kinder, initially you were charged 
with a felony and ultimately pled guilty to a felony. Is that 
right?
    Ms. Kinder. Yes.
    Mr. Jeffries. And what was the sort of duration of the 
legal process from initial charge to plea?
    Ms. Kinder. All together, we went through about 5 years. I 
cannot remember the date today. We went through about 5 years 
of wondering day to day.
    Mr. Jeffries. And are you still under Federal supervision, 
probation?
    Ms. Kinder. We are on probation. Even though I have 
satisfied all of the requirements, they still hold us on 
probation. They will not let us go.
    Mr. Jeffries. And as a consequence of the felony 
conviction--I am not as familiar with Kentucky law in terms of 
disenfranchisement, but have you lost your ability to vote?
    Ms. Kinder. I am sorry. Would you ask me that again?
    Mr. Jeffries. Have you lost your ability to vote as a 
result of the conviction?
    Ms. Kinder. Not that I know of to vote.
    Mr. Jeffries. Okay. Well, I appreciate the testimony of 
both of you. Obviously, under certain State laws, one gets a 
felony conviction and they are prohibited from participating in 
the electoral process in some instances temporarily, in some 
instances permanently.
    Ms. Kinder. May I elaborate on that?
    Mr. Jeffries. Sure.
    Ms. Kinder. They offered us a $25 fine and a misdemeanor. 
So we had to weigh that. Did we want to go to trial where we 
could not afford a trial to start with at that point in time 
and take chances on going to prison? So we could not refuse.
    Mr. Jeffries. Well, I think that both of the stories that 
you have told illustrate the point that several of my 
colleagues have mentioned. In facing the power of the Federal 
Government and possibly in the absence of the inability to 
bring to bear an equivalent level of legal representation, 
folks are put in an untenable situation in terms of ultimately 
having to plead guilty. And in the continuum of justice, which 
moves from congressional action to administrative rulemaking to 
prosecutorial discretion and judicial review, obviously there 
is a breakdown, at least I believe respectfully, in that 
prosecutorial discretion phase that requires some measure of 
corrective action.
    Mr. Rubinstein, if you can comment on sort of the notion of 
one of the things that have been explored is the possibility of 
default mens rea. Another possibility, maybe additive, is the 
notion of applying the rule of levity to some degree which, as 
I understand it, would require construing the defendant's 
behavior in the best possible light as it relates to 
criminality. Can you make an observation on that possibility in 
addition to----
    Mr. Rubinstein. That is certainly one of the tools in the 
toolbox. There are a variety of options available to you to try 
and solve the problem, particularly in dealing with it from the 
regulatory standpoint. And part of it could be related to a 
regulatory reform issue to open up the process to make sure 
that there is, as I said, some transparency in terms of how 
agencies make rules so that there is more notice and that 
people have the ability to understand what the law is.
    There are potential limits on prosecutorial discretion. For 
example, the way the Department of Justice now handles RICO 
violations or RICO prosecutions. There is this kind of 
centralized process that might be appropriate with respect to 
these kinds of regulatory decisions to take them away from the 
people who are making the laws, so to speak, writing the 
regulations, and giving those functions to an independent body 
to make determinations about enforcement because, again, 
regulatory agencies are kind of unique beasts. In many cases, 
they act as--they write the laws, they enforce the laws, and 
then they prosecute the violations. More often than not, those 
are civil, than criminal instances obviously, but the problem 
obtains in both realms.
    So I think there are certainly solutions, and the one you 
suggest absolutely ought to be part of the mix. It is not a 
simple problem, but it is one that you need to fix and there 
are fixes.
    Mr. Jeffries. Thank you. I yield back.
    Mr. Gohmert. I thank the gentleman.
    At this time, we have finished the questioning. However, it 
is important to note that all Members will have 5 legislative 
days to submit additional written questions for the witnesses, 
and the witnesses may have 5 additional days, if you think of 
something else you would like to have submitted for the record 
in this hearing.
    But that at this time concludes today's hearing. Thank you 
to the witnesses very much for your assistance, as we pursue 
this problem. This hearing is adjourned.
    [Whereupon, at 11:36 a.m., the Task Force was adjourned.]


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