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






                      REGULATORY CRIME: SOLUTIONS

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

                                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

                               __________

         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

                              ----------                              

                           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

                              ----------                              


                      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



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