[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
REGULATORY CRIME: SOLUTIONS
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HEARING
BEFORE THE
OVER-CRIMINALIZATION TASK FORCE OF 2013
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 14, 2013
__________
Serial No. 113-61
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Printed for the use of the Committee on the Judiciary
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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
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NOVEMBER 14, 2013
Page
OPENING STATEMENTS
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Chairman, Over-
Criminalization Task Force of 2013............................. 1
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Ranking Member, Over-
Criminalization Task Force of 2013............................. 2
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 4
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 5
WITNESSES
John S. Baker, Jr., Ph.D., Visiting Professor, Georgetown Law
School, Visiting Fellow, Oriel College, University of Oxford,
and Professor Emeritus, LSU Law School
Oral Testimony................................................. 7
Prepared Statement............................................. 9
Lucian E. Dervan, Assistant Professor of Law, Southern Illinois
University School of Law
Oral Testimony................................................. 17
Prepared Statement............................................. 19
APPENDIX
Material Submitted for the Hearing Record
Additional Material submitted by Lucian E. Dervan, Assistant
Professor of Law, Southern Illinois University School of Law... 44
REGULATORY CRIME: SOLUTIONS
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THURSDAY, NOVEMBER 14, 2013
House of Representatives
Over-Criminalization Task Force of 2013
Committee on the Judiciary
Washington, DC.
The Task Force met, pursuant to call, at 10:40 a.m., in
room 2237, Rayburn Office Building, the Honorable F. James
Sensenbrenner, Jr., (Chairman of the Task Force) presiding.
Present: Representatives Sensenbrenner, Goodlatte, Bachus,
Labrador, Holding, Scott, Conyers, and Jeffries.
Staff present: (Majority) Daniel Huff, Counsel; and
(Minority) Ron LeGrand, Counsel.
Mr. Sensenbrenner. The Task Force will be in order. Let me
thank the Members and witnesses for their indulgence since I
have to deal with the EPA administrator upstairs at the Science
Committee.
Welcome to the Over-Criminalization Task Force's fourth
hearing. These hearings have followed a logical progression. At
the first hearing, the witness panel flagged two priority
issues for the Task Force's consideration: the need for a
default mens rea standard and the need to address regulatory
crime. The Task Force followed that road map, and that is why
we are here today.
The second hearing held on July 19 studied the lack of
consistent and adequate mens rea requirement in the Federal
criminal law. In its third and fourth hearings, the Task Force
turned to the second issue flagged by the experts, that of
regulatory crimes. Our work is not done.
We expect that the full Committee will vote to reauthorize
the Task Force next week. In the ensuing 6 months of work, the
Task Force will address issues including reforms to Title 18,
whether some crimes are left better to State law, the manner in
which Federal criminal laws are codified, and whether the
proscribed punishments fit the crimes.
In the meantime, today's hearing continues the discussion
of regulatory crimes. It focuses on solutions to address
potentially vague and overbroad criminal provisions triggered
by regulation. These include a default mens rea requirement
that would apply to regulations carrying criminal penalties.
Another suggestion is codifying the rule of lenity, which
dictates that courts should construe ambiguity in criminal
statutes in the defendant's favor. I am interested in exploring
how the rule of lenity would operate in the regulatory context
where the Chevron deference ordinarily demands that courts
defer to the agency's interpretation of an ambiguous statute.
Another possibility is requiring agencies to identify which
new regulations should carry criminal penalties. Federal law
could provide that these tag regulations have no criminal
effect until Congress approves them as such. To ensure
regulatory or agency enforcement is not stymied in the
meantime, the regulations would still have immediate civil
effect. These are just some of the solutions the Task Force
will be considering today. Our distinguished panel of experts
comes armed with ideas, and I look forward to hearing them.
It is now my pleasure to recognize for his opening
statement the Ranking Member of the Task Force, the gentleman
from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, at our
first hearing, this Task Force received testimony, which
provided an overview of the problem of over-criminalization.
Expert witnesses provided their insight on how we got there and
why. They left no doubt that over-criminalization is a serious
problem and in need of immediate attention and solutions.
When asked to identify the two most pressing issues facing
the Task Force, the witnesses unanimously agreed that the first
priority is a lack of a consistent, adequate mens rea
requirement in the Federal criminal statutory and regulatory
law. They identified a second major issue as overregulation. We
asked these experts their opinion, and they gave it to us, and
to that end our first two hearings focused on mens rea and
looked at regulatory crime and its effects.
We have invited today's witnesses to discuss solutions. And
while the title of this hearing may be regulatory crime
solutions, I would suggest that the solutions that we discuss
should address more than just regulatory crime. The real
question before us is how to address not only the regulations
that carry criminal sanctions, but also numerous provisions
throughout the Criminal Code that also have inadequate or no
mens rea requirement. What is the appropriate standard for
establishing the guilty mind? Is knowing enough, or should it
be willful, and what have the courts observed as the meaning of
willful? Many courts have come up with different
interpretations. When should strict liability be applied? Is
there a place for negligence?
The solutions that we are here to discuss must help
everyone charged with violating a regulatory or statutory
offense, which has a vague or no mens rea. That is part of the
charge of the Task Force, and we are not working solely on
regulatory over-criminalization. Addressing and resolving the
issue of inadequate or absent mens rea and in all of the
criminal code would benefit everyone.
I need to emphasize here that the aspects of over-
criminalization that have been discussed during the first three
hearings are not confined to the Regulatory Code. Overbroad,
poorly-defined crimes exist throughout our system. Unnecessary
laws and duplicative Federal crimes that overlap State criminal
justice systems create a network of criminal statutes that
geometrically increase our citizens' exposure to prosecution.
It does not matter whether you look at the Federal Code or the
Federal regulations to impose criminal sanctions, the entire
system is in need of repair.
We imprison more per capita in the United States and more
in actual numbers than any other Nation. We have two and a half
million people behind bars. The United States represents 5
percent of the world's population, but we have got 25 percent
of the world's prison population. We have made some very bad
choices, adopted some well-meaning, but wrongheaded, policies
that have turned America's criminal justice system into one
overridden with slogans and sound bites that do nothing to
reduce crime.
Yesterday, the ACLU published an in-depth study of people
in prison in the United States with no chance of parole for
nonviolent offenses. These offenses include relatively minor
drug and property crimes, such as taking a wallet from a hotel
room or serving as a middleman in the sale of $10 worth of
marijuana. That report, titled ``A Living Death: Life Without
Parole for Nonviolent Offenses,'' found over 3,000 prisoners
serving these sentences in Federal and State prisons combined.
Sentencing someone to life without the possibility of
parole is the harshest punishment except for the death penalty.
And yet the Federal Government and some States impose this
punishment on people for nonviolent drug offenses. According to
the report, the Federal courts account for almost two-thirds of
the life without parole sentences for nonviolent offenses. In
the Federal system, 96 percent of prisoners serving life
without parole for nonviolent offenses were sentenced for drug
offenses. More than 18 percent of Federal prisoners surveyed by
the ACLU who are serving the life without parole sentences were
serving sentences for their first offense.
While much time has been spent documenting the importance
of convicting persons only when they exhibit the requisite
level of culpable intent, I would also urge the Task Force to
explore current sentencing policies that place a premium on
lengthy sentencing, lengthy imprisonment, use the jail as a
punishment of first choice, drain precious resources from the
public treasury when less costly alternatives would be as
effective as a deterrent and more productive for society. I
would also urge the Task Force to continue to convene more
hearings on the impact of over-criminalization on our Nation by
exploring the collateral consequences facing individuals and
families after conviction.
There are, in fact, many aspects of the problem of over-
criminalization that the Task Force has yet to discuss. Such
issues must consider--could I have another 30 seconds?
Mr. Sensenbrenner. Without objection.
Mr. Scott. Thank you. There are, in fact, many aspects of
the problem of over-criminalization the Task Force has yet to
discuss. Such issues must include, but are not limited to,
mandatory minimum sentences, alternatives to incarceration,
such as civil penalties and fines. We also have to discuss the
failed war on drugs, which costs us annually $51 billion. There
must be better, more effective ways to address that problem.
So I look forward to the testimony of today's witnesses
regarding some of the proposed suggestions and to our future
meetings.
Mr. Sensenbrenner. The gentleman's time has expired.
The Chair of the full Committee, the gentleman from
Virginia, Mr. Goodlatte, is recognized for 5 minutes.
Mr. Goodlatte. Thank you, Chairman Sensenbrenner, for
holding this hearing on solutions to address regulatory crimes.
Often in Congress we hear a great deal about problems. There is
something very satisfying to be holding a hearing on solutions.
I want to commend the Task Force on the bipartisan nature of
these proceedings. As I stated when this Task Force was formed,
over-criminalization is an issue of liberty, and it is
reassuring to see that we can find common ground when it comes
to fundamental principles of American democracy.
The testimony from the Task Force's first regulatory
hearing demonstrated the problems associated with agency
regulations that carry criminal penalties. The Task Force heard
testimony from two ordinary citizens who described their
respective ordeals, noting that ``If this can happen to us, it
can happen to anyone.''
There are several issues for us to consider today. I think
there is wide, bipartisan agreement that the Judiciary
Committee should consider enacting a default mens rea standard
for the Federal Code. However, there are many more areas to
explore and solutions to consider. For example, I am interested
in further examining the propriety of criminal sanctions rather
than stiffer civil penalties for malum prohibitum offenses that
society does not consider inherently wrong. I am also
interested in hearing our witnesses' perspective on whether
Congress should consider codifying the common law rule of
lenity to ensure that courts apply it regularly and
consistently.
And again, I commend the Task Force for its efforts to date
to closely analyze the growing problem of over-criminalization.
I am confident the Task Force will continue its bipartisan and
effective analysis of this issue in the future. I am also very
pleased to note the progress that the Task Force has made and
would note my strong support for reauthorization of the Task
Force for an additional 6 months.
At the beginning of this process, we heard from a panel of
expert witnesses setting out some of the most pressing issues
facing the Task Force, and that agenda has been followed to
this point. However, I also know that there are Members of the
Task Force, and the gentleman from Virginia just referenced,
who note that we have not gotten to some of the issues that are
on that agenda. And I very strongly support moving onto
examining those issues as well, including the issue of over-
criminalization as it relates to other types of crimes covered
in the Federal Criminal Code.
Finally, the Crime Subcommittee has primary legislative
jurisdiction over Federal sentencing policy, including
mandatory minimums. However, not every Member of the Crime
Subcommittee serves on the Task Force, and we would be doing a
disservice to the Crime Subcommittee Members who do not serve
on the Task Force by limiting consideration of this issue
solely to the Task Force. So whether it be the Crime
Subcommittee, which has the same leadership as this Task Force,
or it be the Task Force itself, I do very much support and
anticipate that we will be examining issues like prison
overcrowding and mandatory minimums, and look forward to that
examination of the overall over-criminalization issue. And I
yield back to the Chairman.
Mr. Sensenbrenner. The time of the gentleman has expired.
The Chair recognizes the Ranking Member of the full
Committee for 5 minutes, the gentleman from Michigan, Mr.
Conyers.
Mr. Conyers. Thank you, Chairman Sensenbrenner. First of
all, my congratulations to you and to our colleague, Bobby
Scott, who began this inquiry even when he was Chair of the
Subcommittee on Crime. And I think that it is extremely
important. This takes on significance as other studies come
out, including the ACLU study of yesterday, and it leads to
even further inquiry. And today's hearing about regulatory
crime and possible solutions are certainly important and a very
significant part of this entire study.
It is imperative that the Task Force consider not only
crimes that impact white-collar defendants, but those that
truly contribute to over-criminalization. For example, more
than 60 percent of those serving in Federal prisons are there
as a result of convictions for drug and immigration offenses.
And yet, less than 1 percent of those in Federal prison are
there as a result of regulatory crime prosecutions, and I know
that we will hear more about that today.
This bipartisan Over-Criminalization Task Force was
established in recognition of the fact that Congress for a
number of decades has increasingly resorted to criminalizing
actions as the solution to many various problems, as evidenced
by the explosive growth of the Federal Criminal Code. And so,
the attention mentioned by our previous speakers this morning
is the need to focus on the Nation's war on drugs. And if we
have learned anything over the last 4 decades is that locking
people up for minor drug offenses and throwing away the key is
the one way not to solve the Nation's drug problems.
Nevertheless, we spend $51 billion annually on the war on
drugs. A couple of years ago, one and a half million people
were imprisoned for nonviolent drug charges. In the same year,
757,000 people were charged and arrested for marijuana law
violations.
Finally, we need to take a long, hard look at the scourge
of mandatory minimums. Eliminating judicial discretion has not
made our system more fair. Currently, more than 200,000
individuals are incarcerated in Federal prison. Nearly two
million are being held in State and local prisons and jails.
These appalling statistics give the United States the dubious
distinction, as has been observed, the highest incarceration
rate in the world.
The last embarrassing point that has to be made here is
that the racial disparities are overwhelming, African-American
citizens making up 38 percent of the prison population, 6 times
the rate among Whites. And we have got some further
examinations to make. I like some of the ideas that are being
brought forward already about where we go from here. But the
disproportionate impact upon minority Americans is incredible,
and I think that that will be continually revealed in these
excellent hearings.
I urge the Task Force to broaden its consideration for
over-criminalization in future hearings, and I commend the
Members and originators of this very important Committee, and
yield back the balance of my time. Thank you.
Mr. Sensenbrenner. I thank the gentleman. Without
objection, other Members' opening statements will be made part
of the record.
Mr. Bachus. Mr. Chairman, just a point of personal
privilege, if I could take 15 seconds. Dr. Baker testified in a
previous hearing that he favors the term ``strict
construction'' as opposed to ``lenity.'' And since we get
there, we might, I think----
Mr. Sensenbrenner. The gentleman will have his 5 minutes to
explore that. Be warned.
And also, without objection, the Chair is authorized to
declare a recess during votes on the House floor.
I will introduce today's witnesses.
Dr. John S. Baker, Jr. is a visiting professor at
Georgetown Law School, a visiting fellow at Oriel College at
Oxford, and professor emeritus at LSU Law School. He also
teaches short courses on separation of power for the Federalist
Society with Supreme Court Justice Antonin Scalia.
Dr. Baker previously worked as a Federal court clerk and an
assistant district attorney in New Orleans. He joined the LSU
faculty in 1975. He has served as a consultant to the U.S.
Department of Justice, the U.S. Senate Judiciary Subcommittee
on Separation of Powers, the White House Office of Planning,
USIA, and USAID. He was a Fulbright scholar in the Philippines
and a Fulbright specialist in Chile. He also served on an
American Bar Association task force which issued the report,
``The Federalization of Crime,'' in 1998.
He received his bachelor of arts degree from the University
of Dallas and his juris doctor from the University of Michigan
Law School, and his doctor of philosophy and political thought
from the University of London.
Lucian E. Dervan is an assistant professor at Southern
Illinois University School of Law and served as a visiting
faculty member at the University of Georgia Law School. In
2011, Professor Dervan was appointed to the Advisory Committee
of the NACDL, White Collar Criminal Defense College at Stetson.
He also served as a faculty member in the program.
Prior to joining the SIU Law School, Professor Dervan
served as a law clerk to the Honorable Phyllis A. Kravitch of
the United States Court of Appeals for the 11th Circuit. He
spent 6 years in private practice with King & Spaulding LLP and
Ford & Harrison LLP.
He received his bachelor of arts degree from Davidson
College and his juris doctor from Emory University School of
Law.
I would like to ask each of the witnesses to summarize
their testimony in 5 minutes or less. And without objection,
the full testimony will be included in the record at the part
where each of you gives your verbal remarks.
Dr. Baker, you are first.
TESTIMONY OF JOHN S. BAKER, JR., Ph.D., VISITING PROFESSOR,
GEORGETOWN LAW SCHOOL, VISITING FELLOW, ORIEL COLLEGE,
UNIVERSITY OF OXFORD, AND PROFESSOR EMERITUS, LSU LAW SCHOOL
Mr. Baker. Mr. Chairman, Members of the Committee--Task
Force, that is--thank you for having me back. I must say that I
have written and spoken on this subject for many, many years.
And as I recorded the increase in Federal crimes, I really
never believed Congress would do anything about this, so I am
thrilled to find such bipartisan support for doing something.
And I must say my approach today on solutions really tilts
toward what Mr. Scott said. I am not limiting what I am talking
about really to regulatory crimes because I think it is much
more fundamental than that.
The solutions really have to come from what the problem is,
and we know what the problem is. It is consensus, fundamentally
two things. One is the mens rea problem, which we have heard
over and over again. The second one is the notice problem. How
do you know what is a crime? And that has to do with two
things. One, there are too many crimes, so you cannot know what
the law is, and, two, the way they are defined. You cannot
really understand if you are an ordinary citizen what is
prohibited. So that is what the problem is, so, therefore, the
solutions have to identify and respond to those.
Now, we have heard two things repeated quite often. One is
the default mens rea. I am just repeating that. I am not going
to go into it. I am happy to discuss it, but we have heard
plenty about that. Second, I have already mentioned before, and
it was just brought out, about the question of rule of
construction. I always say the rule of strict construction
because that is what John Marshall said. And it was not just
because of the common law criminal interpretation. That came
from the common law, but he grounded it also in separation of
powers.
It is one thing to delegate noncriminal matters over to
executive agencies. It is a totally separate issue to delegate
criminal matters over to executive agencies. At the founding,
they had a clear distinction that only the sovereign, meaning
the legislature, can define the crime at the Federal level.
That was critical. So Congress coming back and taking over the
definition of crime is very important.
Now, there was some mention about maybe repealing some
crimes. That would be wonderful, but my solutions do not
necessarily focus on that because I know how difficult it
actually is to repeal anything, much less asking a Member to
say he or she voted to repeal a crime and then have to run for
office saying you are soft on crime. That is a difficult thing.
So my solutions focus on much more fundamental things that
have to do with the definition and Congress' business. The
first one that I mentioned is the definition of crime. When you
look at the general section of Title 18, you have got a
definition of petty offenses, which blurs what is really a
crime and what is not a crime, and then have the definition of
a crime of violence. Any criminal code has a basic definition
of it, what is and what is not a crime.
And so, this is where you could put in, depending on the
other choices you make in the definition, a clear statement
that to be a crime includes not only the act, but it includes
the mens rea. That is one way to deal with it. If you want to
say that while there are other crimes that do not have a mens
rea, then the second solution, I would say or related to that
is, okay, it is a crime, but no jail time unless you actually
prove a mens rea, which would address the point over here by
Mr. Conyers that there is too much incarceration. That is a way
to cut down on a lot of that incarceration.
The whole issue of Congress defining the crime is critical.
Mr. Sensenbrenner mentioned that about the question of the
criminal as opposed to the administrative being done by the
Congress. The Congress really needs to define these things, and
if the penalties are too high, then that is the job of
Congress. The difficulty is when you turn it over to an
administrative agency, they do not have the same kind of
concerns and accountability that you have. So that is the basic
solution as far as I can see definitionally.
But beyond that, you have to think like the actors involved
in the criminal prosecution think. And this, in part, addresses
the question of mandatory minimums. I was a prosecutor, and we
had mandatory minimums, and I know what it does. What it does
is it does not eliminate discretion. It shifts the discretion
from the judge to the prosecutor. And a big part of the
difficulty where people do not go to trial is due to the fact
that they know they are facing mandatory minimums, so that the
prosecutor has a terrible hammer over their head, and they
cannot afford in many cases to go forward.
The other part you have to understand is the mindset of a
Federal district judge. I do not care what party, what
president, put them on the bench, and they have one thing in
common: none of them want to be reversed. And the key on this
is to understand that when you have legal issues that the
defense raises on a motion that would kick out the case, the
judge is looking at that and thinking--and I know this
happens--they are thinking, if I rule for the defendant and
this thing goes up, I might get reversed. If I rule for the
government, it goes forward, maybe there is a plea 95 percent
of the time. If it goes to trial, maybe he is convicted. That
is where the real pressure is.
So if you really want to make effective the rule of strict
construction and courts reading what you write and construing
it narrowly, you have got to give them the incentive to do it.
Remember, under separation of powers, you write the law, but
they interpret it. And if you want to give them the incentive
to interpret it the way you want to do it, you allow the
defendants in certain cases--and I am not saying this is easy
to draft--the ability to take it up immediately if the
defendant loses. If that happens, then the judge is in
equipoise. That is, he or she could get reversed either way, so
let us take a good look at what are the merits of this.
Those are my suggestions in brief. I am happy to answer any
questions. Thank you for the time.
[The prepared statement of Mr. Baker follows:]
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__________
Mr. Sensenbrenner. Thank you.
Mr. Dervan?
TESTIMONY OF LUCIAN E. DERVAN, ASSISTANT PROFESSOR OF LAW,
SOUTHERN ILLINOIS UNIVERSITY SCHOOL OF LAW
Mr. Dervan. Thank you, Mr. Chairman, Ranking Member Scott,
Members of the Task Force. Let me begin by commending you for
your work on this very important issue of over-criminalization
in the American criminal justice system. There has been much
attention during these hearings to the issue of regulatory
offenses, and so I feel I should offer my own anecdote in that
right regarding the sheer volume of these offenses.
As one of my courses I teach white-collar crime, and we
talk about regulatory crimes in that course. And inevitably as
we began to move into the materials, the students will ask, how
many of these crimes are there. And the answer is always the
same: we just do not know. And that is a very troubling thing
for me to have to say about American criminal law. It is
troubling to me as a law professor. It is troubling to the
students who may one day have to either prosecute or defend
someone alleged to have violated these. And it should be
troubling to the American people who may one day innocently and
without a guilty mind violate one of these obscure offenses.
As evidenced by the work of this Task Force, there is now a
deep and bipartisan appreciation for the significance of over-
criminalization in our criminal justice system, and, therefore,
let us consider some solutions, solutions that will reduce the
negative impact of past over-criminalization and also prevent a
return to over-criminalization in the future. Now, while this
hearing is focused on solutions to regulatory offenses, it is
important to note that the solutions I will propose apply to
all criminal offenses in the Federal system, and should,
therefore, be considered a possible solution to the broader
issue of over-criminalization and not just regulatory over-
criminalization.
First, as has been mentioned before, mens rea is a
cornerstone of our criminal justice system, yet today as a
result of over-criminalization, there are many Federal offenses
for which there is no mens rea or only a weak mens rea. And,
therefore, to correct this problem, Congress should consider
adoption of a default mens rea rule. Such a rule would correct
unintentional omissions of mens rea in existing and future
legislation and ensure that those without a guilty mind are
protected from unwarranted prosecution.
In addition to adoption of a default mens rea rule,
consideration must be given to codification of rules of
construction that will assist in protecting the constitutional
rights of defendants. As one such example, the Task Force
should consider adoption of a provision requiring courts to
apply any mens rea term contained in or applicable to a
statutory or regulatory offense to all material elements of
that offense. There are several advantages to adopting such a
rule, which is already a well-accepted provision of the Model
Penal Code. These advantages include assisting in clarifying
ambiguities if a default mens rea rule is adopted, assisting in
preventing costly litigation regarding existing statutes,
assisting in creating greater uniformity amongst the various
courts, and finally, furthering the goals of this Task Force by
helping to ensure that individuals are not prosecuted where
they have not acted with a guilty mind.
As a second rule of construction, the Task Force should
consider codifying the rule of lenity, a doctrine with a long
and respected history in American law. The rule of lenity
states that ambiguous criminal laws are to be interpreted in
favor of defendants subjected to them. Unfortunately, the
application of this rule of lenity by lower courts has not been
consistent. Therefore, the codification of this vital doctrine
is necessary to ensure its uniform and appropriate application.
Importantly, however, codification of the rule of lenity alone
is not sufficient to correct the problems emanating from over-
criminalization; rather, codification should be viewed only as
an additional safeguard in combination with the previously
proposed solutions.
In addition to these three solutions to the issue of over-
criminalization and its impact on statutory and regulatory
offenses, I believe consideration should also be given to
several other ideas which I discuss briefly in my written
statement.
In closing, I would like to address one additional issue.
Today, almost 97 percent of criminal cases in the Federal
system are resolved through a plea of guilty. As the number,
breadth, and sentencing, severity of Federal criminal statutes
increased over the last century because of over-
criminalization, prosecutors gained increased ability to create
overwhelming incentives for defendants to waive their
constitutional right to trial by jury and plead guilty. At the
same time, the financial and emotional cost to defendants and
their families of proceeding to trial have grown into often
insurmountable obstacles. The result is a system in which even
the innocent will plead guilty. We know this from both actual
cases and from new research in the field, including the
findings of a study conducted by Dr. Vanessa Edkins and myself
in which we discovered that more than half of the innocent
participants in our study were willing to falsely admit guilt
in return for a perceived benefit.
I hope that this Task Force and the Committee on the
Judiciary will next turn its attention to modern day plea
bargaining, one of the many outgrowths of the over-
criminalization phenomenon. Along with plea bargaining, there
are many other issues that are ripe for investigation and
analysis by this Task Force, including collateral consequences
of conviction, mandatory minimum sentences, forfeiture
provisions, and conspiracy laws. I look forward to this Task
Force's continued good works, and I hope to have the
opportunity to return to focus more specifically on plea
bargaining and these other issues of importance at a future
hearing.
Thank you for the opportunity to testify today. I welcome
any questions the Task Force might have regarding my comments.
[The prepared statement of Mr. Dervan follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
See Appendix for additional material submitted by this witness.
__________
Mr. Sensenbrenner. Thank you, Professor. And I will
recognize myself for 5 minutes to start the questions.
Both of you have alluded to the fact that we do not know
how many regulations have criminal penalties attached to them.
We tried to get an answer to that and asked the Congressional
Research Service to provide the answer, and they said they did
not have the staff to be able to give us a complete and
accurate list. That is a problem.
So I have been trying to think of a way to get at this
problem in a way that maybe the agencies would be forced to
tell us what criminal statutes they enforce. And let me toss
this question out to both of you. Say, for example, the Task
Force recommended and the Congress enacted legislation that
says that all criminal penalties, not civil, but criminal
penalties would sunset in a period of time somewhere between 3
and 5 years, and then would have to be affirmatively reenacted
by Congress, otherwise they would go away. This way each one of
the agencies that does have criminal enforcement authority
would come before the Judiciary Committee and explain all of
what they would like to throw people in jail for doing, and it
would be up to the Congress to make a determination of whether
that regulatory criminal penalty would remain on the books or
not.
Is this an effective way to go about it, and what do you
see the pitfalls in doing this are?
Mr. Baker. Well, I certainly support anything along that
line, and I know without identifying the agency, I know that,
in fact, an agency with broad rules was requested internally to
do something to restrict those rules, and they declined.
I think what would be very interesting is to simply send
requests to agencies and asking them not only what statutes
they apply criminally, but have they been asked to, in fact,
include a mens rea. Have they been asked to use less ambiguous
language?
I remember hearing the general counsel of the Treasury
talking about what he did after 9/11 when he drafted the rules
on money laundering, and I have quoted it a number of times in
law review articles. It was chilling.
Mr. Sensenbrenner. The Chair will direct the staff to draft
the appropriate oversight letters. You know what Dr. Baker
suggests we ask them, and I agree with you.
Mr. Dervan?
Mr. Dervan. I would just add that it makes a lot of sense,
I think, to ask the agencies to identify those regulations
which they believe are important to enforce and criminalize.
Mr. Sensenbrenner. Well, if you will yield, do you not
think we ought to find out all of the regulations that have
criminal penalties rather than allowing the agencies to pick
and choose?
Mr. Dervan. I wholeheartedly agree----
Mr. Sensenbrenner. Okay.
Mr. Dervan [continuing]. Because on the one hand, if the
agency itself is unable to identify all of the regulations at
issue, that speaks volumes to the issues that this Task Force
has reviewed. Secondly, to the extent that the agency believes
that there are just a handful of regulations that they have
actually been enforcing and that they believe are important,
they will be able to identify those for the Judiciary Committee
and this Task Force's review. And then you can make that
affirmative decision which of these will be criminalized. And
again, as has been said in previous testimony, those are the
types of decisions with regards to criminal sanctions that
should be made by the Congress. And I believe that the
procedure that you have identified is one by which you can
place that decision before the Congress with adequate
information to make a recommendation.
Mr. Sensenbrenner. Thank you. I yield back the balance of
my time.
The gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman. I would just like to
ask the witnesses whether or not civil fines can be effective
as criminal sanctions in coercing compliance with regulations.
Mr. Dervan. Well, I think that civil fines certainly have a
place, and they can deter. Clearly in the United States we rely
both on traditional criminal penalties in the sense of
imprisonment in the individual cases as well as fines. And so,
we have to consider in which cases are one or the other more
appropriate. Obviously with regards to regulatory offenses,
there are many arguments that a fine is sufficient to deter.
I think what is interesting here is if we go back to the
issue of mens rea and the idea that we are going to impose a
default mens rea, in those cases where the act of the
individual is actually innocent, that is one where there would
still be the option to impose a fine or an administrative
sanction, and that would, one, punish in one way, and it would
also deter. But interestingly, if we think about it with
regards to recidivism, if that individual were to commit that
offense again, there would be no argument essentially that they
were unaware that this regulation, that this law existed. And
so, therefore, we could satisfy the willful mens rea, and we
could utilize more traditional punishments for a second
offense. So I think there is a very strong place for the use of
fines in this area.
Mr. Scott. Let me follow up on that point. The SEC has a no
knowledge defense. How would that work, particularly in light
of the possible willful ignorance of people not doing due
diligence, should have known? How would that work?
Mr. Dervan. Right. Well, the notion of willful ignorance is
one that has been misinterpreted and misapplied by many courts,
so it is one that should be looked at very carefully. Many
courts have misapplied the idea of willful ignorance and said
that it is essentially a negligence standard, but of course
that is wrong and that is a very low mens rea requirement, and
that is not the way that it is meant to be applied.
But the Supreme Court has spoken to this issue directly. In
2011 in the Global-Tech case, for instance, the Supreme Court
indicated that even when utilizing a willfulness standard of
mens rea, there can still be an argument of willful ignorance.
And the standard is a high one, but it is one that applies, I
think, very appropriately to the types of cases that you may be
concerned about.
The standard is that the person had a subjective belief of
a high probability that the fact existed, in this case, that
there was a law prohibiting their conduct, and they took a
deliberate act to avoid learning that fact. And in that case,
the Supreme Court said the deliberate act of avoidance
essentially means that we can almost say they had actual
knowledge of that crime. And so, I would say that that type of
a case is one that would still be captured, even if we were to
apply willfulness as the default mens rea.
Mr. Scott. Dr. Baker, you might want to comment on the
other two questions. But is it feasible for each and every
regulatory crime to be individually passed by Congress? Is that
feasible, and what would that do to the timeliness of the
prohibition?
Mr. Baker. Well, since there are at least 300,000
regulations that carry criminal penalties, I cannot imagine
that Congress, except in very large bills, would approve these
things. But at least it would have the formality of coming
through the Congress. We know that Congress does not read every
bill that comes through, and Members would not necessarily read
all these things. Hopefully, members of the staff would read
it. But I think for separation of powers purposes and for the
purpose of restraining the executive agency, it is important.
But I want to go back, if I could, to, I think, what was
implied in part of your question, which Mr. Dervan answered.
Are civil penalties as effective? That is an empirical
question. There have been studies on it, and I am not prepared
really to take sides on that. But I would say this: the idea
that by criminalizing everything that you are through a
deterrent effect changing behavior is false. What happens is
that it loses the sting. It loses the sting. You can go to
other countries where everything is criminal, and so people
kind of laugh at it. And you want to save the criminal for the
really criminal. Felony used to have a stigma. We have people
on television who are convicted felons. It was only a speed
bump. Being a convicted felon does not mean what it used to
mean because we have so many of them, and we have so many
crimes.
If you want the conviction to mean something, and to have
some deterrent effect, it cannot be applicable to everything.
Mr. Scott. In mine safety, Mr. Chairman, we on the
Education and Workforce Committee put in some civil fines
because the choice of the regulation was either essentially a
capital offense, criminal, or nothing.
Mr. Baker. Yeah.
Mr. Scott. And so, no sanctions were being applied at all,
and the ability of the civil fines gave some meaningful
sanction.
Mr. Sensenbrenner. The time of the gentleman has expired.
The gentleman from Alabama, Mr. Bachus.
Mr. Bachus. Thank you. Is the microphone working? All
right. We have discussed a default mens rea statute. Would you
gentlemen maybe submit to the Task Force maybe how you would
draft that?
Mr. Baker. Wow. I have looked at a draft that came out of
Heritage, and I sent a complimentary note to them because it
had a lot of nuances in it that took a lot of work. I can tell
you, I have drafted legislation, and legislation, I do not have
to tell you, is difficult. But Federal criminal legislation is
so much more difficult than State criminal legislation.
And that is why, although I did not support it, in the
1980's the Judiciary Committee considered a criminal code for
the Federal Government, and that was not an easy thing to
write. And it is just very complicated because when you talk
about mens rea and whether this willfulness or knowing is
adequate, it is really impossible to say unless you look at the
act of the particular crime, because the mens rea is
meaningless without regard to the act and the consequence. And
that is what the Model Penal Code did was break things down.
But in Federal criminal law, it is complicated by
jurisdictional things and other things. That is why you have
such long statutes.
So I could not easily draft one for you. It would take a
long time, and it would take a Committee basically.
Mr. Bachus. And, you know, you are an expert, and of course
we are dealing with----
Mr. Baker. An expert is somebody from out of town with a
briefcase. Yeah, I will accept that. [Laughter.]
Mr. Bachus. Where would we go in town or out of town to
find the right people to----
Mr. Baker. Well, when we did the ABA task force, we had
prosecutors, defense attorneys, Republicans, Democrats,
liberals, conservatives, and we came to an amazing consensus. I
think if you take technically competent people who are
committed to the end, that they will come up with something
that may have to be compromised here and there, but will
basically do the job.
Mr. Bachus. I agree, but, you know, this is long past due,
and I----
Mr. Baker. Oh, I know. I know. I wrote about this in 1984.
Mr. Bachus. Yeah.
Mr. Dervan. I will just echo Professor Baker's sentiments
that it has to be done very carefully, obviously. And I agree
also that in drafting such legislation, the more parties who
are in the room to examine it from different perspectives, the
more likely it is that any potential issues would be identified
in the beginning and corrected before it was finalized.
Mr. Bachus. Well, maybe what we could do is what you have
suggested and the Chairman of the Task Force has agreed to do,
and that is write every agency. And maybe we could write them
and say, are there any criminal--I mean, what are you enforcing
criminally, and what do you consider the elements of that
crime, and is mens rea on each element of the crime necessary.
And then maybe pass a statute that says if it is not on this
list, you know, let the agencies come back. It is not a crime.
Mr. Baker. Well, you might also ask them this. If it is a
strict liability offense, when do they decide and whom do they
decide to prosecute as opposed to those that they do not
prosecute? What are the factors involved in a prosecution?
Mr. Bachus. But I wonder if there is some stop gap
definition that we could use, and if we do, it would have to
include, I guess, every element of the crime. What is your
thought on that?
Mr. Dervan. Well, my position is that, to the extent that
we are going to utilize a stop gap, that it should be
willfulness because that is the highest level of mens rea. And
we are talking about cases presumably where the mens rea has
been left out inadvertently. So I think the idea is that we
should use, for instance, the principles of the rule of lenity
which say that we should give the defendant the benefit of the
doubt there. Of course that does not mean that in any specific
case Congress could not make a decision to utilize a different
mens rea, but that would have to be an affirmative decision.
Mr. Bachus. What about considering codifying a mistake or
an ignorance of law as a defense in a regulatory offense?
Mr. Baker. Well, if you had a mens rea, it would not be as
much of a problem. Certainly as, I think, I watched Professor
Barkow testify last time, when you have so many regulations and
if they have strict liability, it is very difficult to know
what the law is. You know, the principal----
Mr. Bachus. That is why I am saying if we as an interim
measure, we just said----
Mr. Baker. Well, what happens in certain industries, I
mean, if you are in the financial world, if you go in your
training is going to be such that you are put on notice. So the
question is, are they issuing regulations in areas where people
are not likely to be informed. That is the real problem, or is
it--go ahead.
Mr. Dervan. I was just going to add, if I may, one other
thing to consider is that, of course, that is an affirmative
defense, and it is a defense that would often be done at trial.
And, of course, there are very few trials. As I mentioned, 97
percent of defendants in the Federal system are convicted
through a plea of guilty. So I think that is something to
consider if we are going to rely on a mistake of law defense.
Mr. Bachus. And let me just say that----
Mr. Sensenbrenner. The time of the----
Mr. Bachus [continuing]. Maybe a jury charge or maybe we
could come up with two jury charges that have to be given in
these cases.
Mr. Sensenbrenner. The time of the gentleman has expired.
The gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Chairman Sensenbrenner, I applaud you and my
dear friend, Bobby Scott, from Virginia because this subject
matter, this series of hearings are of such incredible
importance. I think it is important, I agree with you, that we
ought to find a way to continue because each hearing brings
forward even more challenging questions than we have gotten to
before.
I want to start off with something that I had on my mind
because since 2008, we have had the Wall Street scandals, which
billions, if not trillions, of dollars have been revealed to
have been improperly and illegally taken out of the system. And
I am wondering if you can start off, Doctor, with an overview
of how that episode in American financial history plays into
these series of hearings of Sensenbrenner and Scott.
Mr. Baker. Well, that is an interesting question. When I
looked back at this issue some years ago, I saw that until the
early 80's, the public was not much concerned about so-called
white-collar crime. And it began really with the savings and
loan business, and then with the publicity of various events
that have occurred since then, and that has grown. As people
have had money in the stock market and they have been more
affected by it, there has been more of a demand that something
be done.
I mean, you also have to recognize that fundamentally our
financial system runs on trust, and when people lose trust in
the system, it is damaging all the way around. But in the end,
if there is widespread dishonesty throughout the financial
system, which is really what you are suggesting, I suggest to
you that there is ultimately not that much even the strongest
enforcement is going to do. You have got a moral problem
because remember, the criminal law there is really a backstop
on the assumption that most people voluntarily obey the law. If
we have a country in which large numbers of people are
routinely disobeying the law, we have got serious problems,
much more than that.
You have talked about widespread incarceration, and this is
especially true in the large cities. As large as the
incarceration is, though, the actual percentage of people doing
it in the community is relatively small. If that percentage
grows by any significant rate, we would have to have a police
state.
The founders of this country believed that a republic could
only function if people were virtuous; that is, that they
voluntarily obey the law, that they are honest. The law cannot
solve that problem ultimately. So that is not a complete answer
to what you want, but I think it is the truth.
Mr. Conyers. Well, it is a beginning. And, Professor
Dervan, would you weigh in on that as well, please?
Mr. Dervan. Well, I will relate it to an earlier financial
scandal with regard to the issue of over-criminalization, and
that is a paper that I have recently published looked at the
response by Congress to the Enron collapse in the early 2000's
and some of the legislation, including Sarbanes-Oxley, that
resulted.
And as an example, there were contained in Enron the
passage of a number of additional obstruction of justice laws,
which were thought to sort of cure this issue. And I went back
and looked to see if the creation of these new crimes, which I
interpreted as essentially being overlapping of crimes that
already existed, did, in fact, result in more prosecutions. Did
they actually fill a gap that was there? And my research showed
it did not.
What it did do is it gave prosecutors a broader statute to
apply to essentially the same class of defendants that they
were applying the law to be previously. And what does that do?
Well, it brings up this issue of prosecutorial discretion, and
that plays directly into plea bargaining and the idea that the
broader a prosecutor's discretion is to select from a number of
different laws, including some laws that carry mandatory
minimum sentences, the more likely it is that they are able to
convince someone to give up their constitutional right to trial
and plead guilty. And I think that is exactly what we are
seeing.
And so, I think that is perhaps an example where a response
to a well-publicized white-collar crime results in over-
criminalization, which does not necessarily achieve the results
Congress had hoped, but does add to the relationship between
plea bargaining and over-criminalization.
Mr. Sensenbrenner. The time of the gentleman has expired.
The gentleman from North Carolina, Mr. Holding.
Mr. Holding. Thank you, Mr. Chairman. Both of you gentlemen
have touched upon the topic of discretion. And it is my belief
that discretion and who should be allowed discretion, whether a
judge has the discretion or the prosecutor has the discretion,
is the thing that drives the political decisions, you know.
Congress reacts to someone as perceived having abused their
discretion.
So mandatory minimums or the sentencing guidelines, I mean,
they are enacted by Congress because we believe that the judges
have abused their discretion or they are not giving high enough
sentences. Or in the current Administration under the new
Attorney General guidelines, prosecutors are instructed to, you
know, do not charge drug weights. You know, do not put the drug
weights in your indictment because you do not want to trigger
the mandatory minimums. You want to take the discretion away
from prosecutors to trigger the mandatory minimums, thereby
giving judges the discretion to give sentences that are not
bound by the mandatory minimums.
So I want you all, starting with you, Dr. Baker, to delve
into discretion and the role that discretion should play in the
criminal process. You know, should the judges have more
discretion? I think the founding fathers thought that judges
ought to have ultimate discretion because they are appointed
for life, you know. They should be free from any concerns other
than just doing what is right and what is just. Or should
prosecutors have more discretion, you know, when you have
crimes where you do not have to have a mens rea, or it is in
the discretion of the prosecutor whether to charge the crime or
not.
So just delve into that a little bit more. I think it is
interesting in how it drives the political process.
Mr. Baker. Well, I am happy to. I mean, in the rule of law,
which is a term used so often, there is by nature the role of
the legislature, which is to legislate for the future. But
somebody has to deal with the particular case, and those are
what come into court. There will always be some discretion. The
question is where it is placed. The whole business of the right
to jury trial is that ultimately discretion is supposed to be
in the jury, and the discretion both of the judge and of the
prosecutor is supposed to be relatively limited.
Now, you know, I have worked with judges who did not want
to go to trial, and I have worked with a judge who did not want
plea bargaining, and they are two different extremes. And there
is no way to completely control the courts because of what the
system is. But there is the question of accountability, and one
of the reasons to have this as the founders had it, the power
in the local area, is because elected officials ultimately have
to be accountable. U.S. attorneys are not accountable except
maybe to the senator who was responsible for their appointment.
They are not really terribly accountable to Washington and the
DoJ. I mean, they do their own thing in many districts out
there. So there is going to be discretion. What you want to do
is you want to limit it, and you want to be able to check it in
what they do.
And the other thing you have to think about is discretion
is different in a big city than it is in a rural area. You
know, a judge from the country once said to us, you know, in
the country I could put a marijuana defendant in jail, and I
could go look at him every day in jail, and I knew nothing was
going to happen to him. Now, down here in the big city, my
choice is do I put him in prison where he is going to get a
graduate degree in crime, or do I let him go. The two choices
were not great. They were both bad.
So it is difficult from Washington to do anything that is
not uniform. The basis of our Federal system is to allow
different places to do different things tailored to their
circumstances.
Mr. Holding. Thank you. Do you want to chime in for about
15 seconds before my time expires?
Mr. Dervan. I will just add that discretion is an issue
that differs depending on who we are talking about. I mean,
discretion is an important thing for prosecutors to have.
Prosecutors cannot charge everybody with every offense. There
are too many offenses on the books obviously. So it is an
important mechanism for them to utilize. It is important
obviously for judges because they need to in sentencing decide
between defendant A and defendant B, and there may be some very
significant differences between those individuals that would
require the utilization of that idea to distinguish between the
two.
Where you run into problems is when we have so many laws
that prosecutors can choose from. Their exercise of discretion
is not so much as to which is the most appropriate statute, but
rather if we are going to target this defendant, let us go find
one that applies, and they will.
And there is a very interesting story told in a book that
discusses this issue, and it says that in a particular U.S.
attorney's office, they used to get together on Friday
afternoons and they would pick someone. And the challenge was
you would pick someone that would be very hard to indict
presumably. And then the challenge was for the other assistant
U.S. attorneys to think up what charge they could levy against
them. And from my understanding of the story, they always came
up with something.
Mr. Sensenbrenner. Well, the time of the former U.S.
attorney from North Carolina has expired.
And the Chair now recognizes the gentleman from New York,
Mr. Jeffries.
Mr. Jeffries. Let me first just thank the distinguished
Chairman Sensenbrenner and distinguished colleague in
government, Representative Scott, for their tremendous
leadership on this very important series of hearings that we
have had, and thank the witnesses for their insightful
observations.
Let me start with Professor Dervan. You mentioned something
earlier in your testimony that was very disturbing for me to
hear, though I believe it to be the case. And you indicated, I
believe, that even the innocent will plead guilty in the system
that we currently have right now. Now, that is a far departure
from how the founders and others have conceived our system of
justice where innocence is presumed until guilt is proven. And
I believe it has often been stated that the guidepost for us
historically has been that we as a country would rather see 10
guilty folks be let go rather than put one innocent person
behind bars, stripping away their liberty.
How is it that we have arrived at a place where in your
testimony you have concluded that even innocent individuals in
the face of the weight of a prosecution and the loss of liberty
have concluded that their best course of option is to plead
guilty?
Mr. Dervan. Well, it is something that happened gradually
over time. If we go back and we look at the founding period, is
fairly clear, particularly from appellate court decisions at
the end of the 1800's, that the idea of creating strong
incentives for individuals to plead guilty was thought to be
unconstitutional. That line of cases slowly shifted in part
because of pressure on criminal dockets and a realization by
judges that they had to use plea bargaining to sort of push
these cases through the system lest the entire criminal justice
structure collapse overnight.
And so eventually in 1970, the Supreme Court in the Brady
decision signs off on plea bargaining. And what begins to
happen over time is that as this sort of becomes the mainstay
in the way that we prosecute cases in the United States,
prosecutors began to become very effective at creating very
strong incentives for individuals to plead guilty. And when you
combine those incentives, which are traditionally related to
the sentence that the individual received and what we call
either the sentencing differential or the trial penalty, in
combination with the expense and impact on families and such by
going to trial, you create a system in which there are very
strong incentives to plead guilty and not go to trial.
And we have lots of examples of these. I mean, we heard
from, you know, two individuals, Mr. Lewis and Ms. Kinder, who
testified before this Committee previously that they felt very
strongly that they had no choice but to plead guilty, either
because they could not afford to risk going to prison or they
could not afford to go to a trial. And we know from other
cases, you know. One that has received a lot of attention in
the last couple of years is the Brian Banks case. Brian Banks
out in California was headed to a football career. He had been
scouted by a number of schools. He was then accused of
committing sexual assault, and by many accounts was given
roughly 10 to 15 minutes to decide whether to take a deal. The
deal was that if you plead guilty, you will get 3 years in
prison, and if you do not, then we will go to trial, and you
will be sentenced to 41 years to life.
Mr. Jeffries. Well, that is extreme. I appreciate your
observations, but my time is limited, and so I want to follow
up on that. Do we think, Dr. Baker, that looking at leveling
the playing field in terms of the resources that prosecutors
can bring to bear on advancing a case seem to be uneven as it
relates to the ability for most defendants to effectively
defend themselves at trial? And are there ways in which we can
balance the playing field that would limit the coercive power
of a prosecution?
Mr. Baker. Well first of all, I do not like plea
bargaining, one. Two, Congress has put in so many resources
since the beginning of the '70s to the prosecutorial side, law
enforcement generally, that it has tilted the balance, there is
no question about it, whereas they were fairly well balanced
when I was a law clerk watching the two sides in big cases, and
we had a lot of big cases. They are no longer balanced. That is
one thing.
But the big thing is the complexity because the complexity
creates more lawyer time. More lawyer time creates more
expense. You know, I told you about this judge I was working
with where we did not do plea bargaining. We were trying cases
like that, and we had a lower docket than anybody else, but it
was in a simple system. State court systems generally are a
whole lot simpler than the Federal court system. If you can cut
down on the time it takes to pick a jury and you can cut down
on the jury charge, you can collapse the time it takes to try a
case if you have got a judge who wants to try the case fast.
Mr. Jeffries. Thank you.
Mr. Sensenbrenner. The time of the gentleman has expired.
The gentleman from Idaho, Mr. Labrador.
Mr. Labrador. Thank you, Mr. Chairman, thank you,
gentlemen, for being here. I just want to follow up on
something you just said, Dr. Baker. One of the concerns I have,
and I am trying to do sentencing reform and all of those
things. But there is an argument being made against sentencing
reform that we have so many people in prison now, which I think
is a bad thing. But some people think that the crime rate has
actually gone down because the bad people are in prison. Even
if they are in prison for, you know, low-level offenses, at
least we have them incarcerated as opposed outside in the real
world. What do you both think about that?
Mr. Baker. Well, that was the theory when I was a
prosecutor and DoJ was funding my State prosecution office. And
basically, the attitude is so-called career offenders, 2 to 4
percent of the population, we are going to warehouse them and
take them off the streets, and it will change things. We know
the crime rate is down. I do not know exactly all of the
reasons for it.
I think what States are finding, certainly Louisiana is
finding, that a lot of these get tough on crime approaches have
resulted in a prison population that the State cannot afford.
And so, for purely economic reasons, you are finding the former
hard-liners rethinking it in a lot of States. In Texas there is
a big movement to rethink things there. I think that we are out
of balance, and we need a balance, and we are not there.
Mr. Labrador. Mr. Dervan, do you have----
Mr. Dervan. Well, I think it is worth looking at those
numbers more specifically, too, and I think we have to consider
how many of the individuals who are in prison today are in
prison and have received very long sentences for first-time
offenses. And so, that is very different from talking about
career criminals who have been through the system many times
and we have been unable to rehabilitate them.
When we put people in prison for decades at a time for a
single offense, I think that contributes in a very significant
way to a very large prison population, and I think it is hard
to make an argument that we have definitively reduced crime
because of the incarceration of those particular individuals.
Mr. Labrador. Okay, thank you. Dr. Baker, you talked about
interlocutory appeals, and that is the first time I heard of
that concept. I was a criminal defense attorney, so I am
thinking, you know, number one, how long would a trial take if
you are having all of the interlocutory appeals?
Mr. Baker. You would have to draft it in such a way that it
only applied to novel legal theories put forward by the
prosecution. If it is a prosecution that does not involve a
real debate over what the statute means, then it would not be
permitted.
Mr. Labrador. Okay. Can you give an example of what you
mean by that?
Mr. Baker. Well, sure. I mean, I was involved in litigation
over the DoJ's salary theory of mail fraud, which was just
another end run to get around Supreme Court decisions that went
the wrong way for them. And the district judge ruled our way,
so it went up and we won. In the 6th Circuit, the defendant
also won, but after a long trial and everything else.
Most people cannot afford to go through the trial and then
take it on appeal. That is why these issues, the legal issues
do not get up there, or when they get up there, the Court often
is influenced by this is a bad actor, therefore, we cannot
interpret the statute in a way that will benefit this bad
actor, when, in fact, you are not there just to interpret it
for this defendant. It is a question of how the statute should
be interpreted.
Mr. Labrador. For everyone, yeah. Mr. Dervan, is there any
reason why most regulatory crimes cannot be handled through the
civil system? Why do we need a criminal regulatory system?
Mr. Dervan. Well, I think there is little question that
there is a particular stigma that comes from criminal offense,
and that is true for both individuals and for corporations. So
to refer to my previous statements, I think that fines and
civil sanctions, administrative sanctions, can certainly deter,
and they can certainly serve as punishment. But I think there
are----
Mr. Labrador. So you talked about fines. What other kinds
of civil sanctions would you recommend?
Mr. Dervan. Well, I mean, there is a lot of sort of
oversight that could be in place. There are debarment issues
that could be in play, all of the types of things that create
incentives for individuals to act within the confines of the
law. But when we say, you know, are there any examples where he
might want to have criminal liability in the regulatory
setting, I mean, I think there are some regulations obviously,
that are very important, for instance, health and safety
issues, and I think that those may be areas to consider.
But again, those are decisions for Congress to make, not
for regulators to decide. And so, Congress should be deciding
which of these issues are so important that we need to
criminalize them, and which can be best handled civilly. And as
it stands today, those decisions are not really being made on
an individual basis.
Mr. Labrador. Dr. Baker, can you address that issue for a
while? You know, we can have criminal fines, but what else
could we----
Mr. Baker. Here is what my concern is. You cannot put a
corporation in jail, okay? So if you want to attach stigma,
fine. Figure out a way to do it. My concern is for the
individual, because if corporations can be criminals and you do
it on a strict liability basis in reality, then we tend to take
that attitude toward individuals. I am concerned about the
individuals.
I mean, big corporations can take care of themselves, and
they do not really do a good job of taking care of themselves.
That is their problem. The corporations that you might be
concerned about are the little ones that are not really, I
mean, they are corporate and formed for tax purposes, but they
are really mom and pop operations. They are really individuals.
But then there are the individuals who are popped. They are the
ones to be concerned with.
Mr. Labrador. Okay, thank you.
Mr. Sensenbrenner. The gentleman's time has expired.
This concludes today's hearing, and I would like to thank
all of the Members and witnesses for attending.
Without objection, all Members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record.
And without objection, the hearing is adjourned.
[Whereupon, at 11:50 a.m., the Task Force was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Additional Material submitted by Lucian E. Dervan,
Assistant Professor of Law, Southern Illinois University School of Law
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]