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



 
                          CRIMINAL CODE REFORM

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

                                HEARING

                               BEFORE THE

                OVER-CRIMINALIZATION TASK FORCE OF 2014

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                           FEBRUARY 28, 2014

                               __________

                           Serial No. 113-71

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
SPENCER BACHUS, Alabama              SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa                       Georgia
TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas                 JUDY CHU, California
JIM JORDAN, Ohio                     TED DEUTCH, Florida
TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah                 KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina       DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]

           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


                            C O N T E N T S

                              ----------                              

                           FEBRUARY 28, 2014

                                                                   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 2014.............................     1
The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Ranking Member, Over-
  Criminalization Task Force of 2014.............................     2
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     2

                               WITNESSES

Michael Volkov, CEO, The Volkov Law Group LLC
  Oral Testimony.................................................    10
  Prepared Statement.............................................    13
Julie Rose O'Sullivan, Professor, Georgetown University Law 
  Center
  Oral Testimony.................................................    23
  Prepared Statement.............................................    24
Roger A. Fairfax, Jr., George Washington University Law School
  Oral Testimony.................................................    24
  Prepared Statement.............................................    27
John D. Cline, Esquire, Law Office of John D. Cline
  Oral Testimony.................................................    41
  Prepared Statement.............................................    43

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable F. James Sensenbrenner, Jr., 
  a Representative in Congress from the State of Wisconsin, and 
  Chairman, Over-Criminalization Task Force of 2014..............     2
Prepared Statement of the Honorable Robert C. ``Bobby'' Scott, a 
  Representative in Congress from the State of Virginia, and 
  Ranking Member, Over-Criminalization Task Force of 2014........     3
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................     5
Prepared Statement of the Honorable Bob Goodlatte, a 
  Representative in Congress from the State of Virginia, and 
  Chairman, Committee on the Judiciary...........................     6
Witness Biographies/Introductions submitted by the Honorable F. 
  James Sensenbrenner, Jr., a Representative in Congress from the 
  State of Wisconsin, and Chairman, Over-Criminalization Task 
  Force of 2014..................................................     7


                          CRIMINAL CODE REFORM

                              ----------                              


                       FRIDAY, FEBRUARY 28, 2014

                        House of Representatives

                Over-Criminalization Task Force of 2014

                       Committee on the Judiciary

                            Washington, DC.

    The Task Force met, pursuant to call, at 9:01 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, 
Gohmert, Labrador, Conyers, Scott, Cohen, Johnson, Bass, and 
Jeffries.
    Staff Present: (Majority) Robert Parmiter, Counsel; Alicia 
Church, Clerk; and (Minority) Ron LeGrand, Counsel.
    Mr. Sensenbrenner. The Over-Criminalization Task Force 
hearing will come to order, and without objection, the Chair is 
authorized to declare recesses of the Task Force at any time.
    I will recognize myself for an opening statement. Good 
morning and welcome to the fifth hearing of the Judiciary 
Committee's Over-Criminalization Task Force. During its first 6 
months, the Task Force conducted an in-depth evaluation of the 
over-criminalization problem. We held four hearings, focusing 
on the lack of a consistent and adequate mens rea requirement 
in the Federal code, and the problems associated with 
regulatory crime.
    Earlier this month, the Committee took the important step 
of reauthorizing the Task Force for an additional 6 months. We 
intend to conduct hearings on a variety of topics, including 
penalties, over-federalization, and the perspectives of various 
executive and judicial agencies. Today's hearing will focus on 
criminal code reform.
    The criminal code is a mess. Rather than a well-organized, 
systematic tool for enforcing important Federal criminal 
statutes, the code is riddled with provisions that are 
outdated, redundant, or simply inconsistent with more recent 
modifications to reflect today's modern approach to criminal 
law.
    This is due, at least in part, to Congress' penchant for 
legislating in a vacuum in a politically popular manner, or in 
a rapid response to a crisis or a national news story, instead 
of thoughtfully and deliberately.
    The resulting code is a vast chaotic, disorganized 
amalgamation of Federal criminal statutes that is difficult to 
use for practitioners and nearly incomprehensible for the 
average American. The size and disorganization makes it 
extraordinarily difficult to ferret out the law applicable to a 
particular factual situation, which does a great disservice to 
the public.
    Because we will be voting at 10:30 this morning, and I 
doubt anybody is going to come back after the votes, I am going 
to ask unanimous consent to put the rest of my statement into 
the record, and hope that other Members will do the same.
    And with that, I will recognize the gentleman from 
Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, a code is defined as a systematic and 
comprehensive compilation of laws, rules, regulations that are 
consolidated and classified according to subject matter. What 
we refer to as our criminal code is anything but systematic.
    Taking a clue from the Chair, we have asked the 
Congressional Research Service to give us the most accurate and 
current count of the criminal provisions in the code. Their 
initial response is that is too hard to do. We hope to hear 
from them in the near future.
    But rather than take time to utilize evidence-based 
research in drafting criminal law legislation, we have 
responded in a knee-jerk fashion, charging ahead with the 
failed tough-on-crime legislation. In order to appease public 
opinion by addressing the crime of the day, we fail to use 
evidence-based approaches to fashion criminal penalties.
    For example, we frequently use absurd mandatory minimums to 
address drug laws when we know that evidence has suggested that 
it is much more effective in treating and prevention, than 
mandatory minimums and long sentences.
    Mr. Chairman, I look forward to the rest of the testimony, 
and I will put the rest of my statement in the record.
    Mr. Sensenbrenner. With the same hint that Mr. Scott has 
taken, I will recognize the gentleman from Michigan, Mr. 
Conyers.
    Mr. Conyers. Thank you, Chairman Sensenbrenner. I, too, 
will follow the leads that have been set out for me.
    I just want to emphasize that we have an explosive growth 
of the Federal criminal code. We have counted 4,450 Federal 
crimes on the books.
    And this hearing, among other things, is to determine how 
the criminal code should be modernized. And the cost, I have 
detailed here in my opening statement, and I will make some 
more comments about it.
    And I will put the rest into the record, and I yield back 
the balance of my time.
    Mr. Sensenbrenner. I thank the gentleman.
    Without objection, all Members' opening statements will 
appear in the record at this point.
    [The prepared statement of Mr. Sensenbrenner follows:]

  Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a 
 Representative in Congress from the State of Wisconsin, and Chairman, 
                Over-Criminalization Task Force of 2014

    Good morning and welcome to the fifth hearing of the Judiciary 
Committee's Over-Criminalization Task Force. During its first six 
months, the Task Force conducted an in-depth evaluation of the over-
criminalization problem. We held four hearings, focusing on the lack of 
a consistent and adequate mens rea requirement in the federal code and 
the problems associated with regulatory crime. Earlier this month, the 
Committee took the important step of re-authorizing the Task Force for 
an additional six months. We intend to conduct hearings on a variety of 
topics, including penalties, over-federalization, and the perspectives 
of the various Executive and Judicial agencies. Today's hearing will 
focus on Criminal Code Reform.
    The federal Criminal Code is a mess. Rather than a well-organized, 
systemic tool for enforcing important federal criminal statutes, the 
Code is riddled with provisions that are outdated, redundant, or simply 
inconsistent with more recent modifications to reflect today's modern 
approach to criminal law. This is due, at least in part, to Congress's 
penchant for legislating in a vacuum, in a politically popular manner, 
or in rapid response to a crisis or national news story, instead of 
thoughtfully and deliberately. The resulting Code is a vast, chaotic, 
disorganized amalgamation of criminal statutes that is difficult to use 
for practitioners and nearly incomprehensible to the average American. 
This size and disorganization makes it extraordinarily difficult to 
ferret out the law applicable to a particular factual situation, which 
does a great disservice to the public.
    Another major problem for the Code is the lack of clear, concise 
definitions; indeed, some scholars consider the real problem of over-
criminalization to be qualitative, not quantitative. Last year, the 
Task Force encountered this problem with respect to the disparate and 
ill-defined criminal intent requirements scattered throughout the Code. 
However, mens rea is certainly not the only area where this is a 
problem. The Code is replete with undefined and inconsistently-applied 
terms. For example, the term ``serious bodily injury'' is used hundreds 
of times throughout the Code. However, there are at least two different 
definitions of this term. There are many instances where the term is 
undefined, or where the section refers the reader to another section of 
the Code, which criminalizes wholly unrelated conduct, for a definition 
of the term.
    The Code also suffers from problems of redundancy. For example, the 
Supreme Court estimated in 1997 that there were at least 100 separate 
sections in the Code criminalizing false statements--and we know that 
the penalties imposed by these separate sections are all over the map. 
This redundancy means that two people may be punished differently under 
federal law for the same conduct, depending on which statute the 
government chooses to use. That is clearly not what Congress intended, 
and is a particular concern of mine.
    Over the last several sessions of Congress, I have introduced 
legislation to consolidate and streamline the federal code. The 
Criminal Code Modernization and Simplification Act cuts more than one-
third of the existing Criminal Code, reorganizes the Code to make it 
more user-friendly, and consolidates criminal offenses from other 
titles so that Title 18 includes all major criminal provisions. During 
its work on code reform, I hope the Task Force will carefully consider 
the drafting principles contained in H.R. 1860. The bill is a mere 
1,200 pages, so it should be easy for the Task Force to vett it.
    The issue of code reform is a worthy exercise for the Judiciary 
Committee and this Task Force. We have a responsibility to ensure that 
the criminal laws passed by this body--which can deprive citizens of 
life, liberty, and property--are carefully and thoughtfully drafted, 
and clearly identify the prohibited conduct.
    I want to thank all the witnesses for appearing today, and 
especially want to welcome Mr. Volkov back to the Committee. I look 
forward to hearing your perspectives on this important issue.
                               __________

    [The prepared statement of Mr. Scott follows:]

   Prepared Statement of the Honorable Robert C. ``Bobby'' Scott, a 
  Representative in Congress from the State of Virginia, and Ranking 
            Member, Over-Criminalization Task Force of 2014

Thank you, Mr. Chairman.
    A ``Code'' is defined as, ``a systematic and comprehensive 
compilation of laws, rules, or regulations that are consolidated and 
classified according to subject matter.''
    What we refer to as our criminal code is anything but systematic. 
It is neither thoughtful nor is it organized in a way that gives 
citizens fair notice of which behavior is lawful and which might land 
them in jail.
    For years we and others have acknowledged that federal criminal law 
has dramatically expanded in size and scope over recent decades. We're 
very familiar with the history of this increase. Federal criminal law 
grew from 165 offenses in the year 1900 to 2,000 offenses by 1970, and 
then expanded to 4,000 federal crimes in 2003. By June 2008, 452 more 
criminal provisions had been added.
    The problem has become so serious that the term, ``over-
criminalization'' has been coined to describe how Congress has 
criminalized behavior that too often is not, by its very nature 
``criminal''.
    Truthfully, we don't really know the actual number of federal 
criminal provisions. We've asked the Congressional Research Service of 
the Library of Congress to give us their most accurate and current 
count of provisions in the Code, although their initial response was 
that it would be hard to calculate; we hope to hear from them in the 
near future, although their initial response was that it would be hard 
to calculate.
    What we do know is that the current body of laws that we refer to 
as the Federal Criminal Code is overly broad and very often poorly 
defined. We have unnecessary and redundant federal crimes that overlap 
state criminal justice systems. They create a network of criminal 
statutes that exponentially increase citizens' exposure to prosecution 
with no regard to the crushing economic, human and societal costs of 
over-incarceration.
    Too often we haven't considered these costs. Too often this 
increase or expansion in the Federal Criminal Code is an outcome of a 
politically expedient response to a public crisis or a tragic event. 
That crisis might be a surge in gang activity, a breakdown on Wall 
Street, or a perceived increase in misconduct or corruption on the part 
of public officials.
    Rather than take the time to utilize evidence-based research in the 
drafting of legislation, we have responded in knee-jerk fashion, 
charging ahead with failed ``tough on crime'' determination in order to 
appease public opinion by addressing the crisis of the day. We have 
failed to use evidence based approaches to shape the penalties imposed. 
For example, we have frequently resorted to the use of absurd mandatory 
minimums and long sentences for drug possession when prevention and 
treatment consistently are found to be more effective than the drug 
war.
    As a result, the United States imprisons more people per capita and 
in actual numbers than any nation on the planet. We have two and a half 
million people behind bars here. While the United States represents 5% 
of the world's population, we've got 25% of the world's reported prison 
population. While most of the world incarcerates at a rate of about 50-
200 people per 100,000, the U.S. is the world's worst incarcerator with 
over 700 per 100,000. Research tells us, however, that anything over 
500 per 100,000 is considered counterproductive. As a nation, we've 
made some very bad choices. We've adopted well-meaning, but wrong-
headed policies that have turned America's criminal justice system into 
one over-ridden with slogans and sound bites that do nothing to reduce 
crime.
    With all of the focus on ``tough on crime'' and ``locking people up 
and throwing away the key'', we've devoted too little attention to 
these policies' actual effect on crime and to the tragic and life-
altering consequences that face individuals, families and communities 
after conviction.
    It's time we pressed the ``Pause'' button and asked ourselves, 
``What is it that we seek to accomplish?''
    Despite the differences we've encountered from time to time, as 
Members of Congress, we all share many of the same set of goals, and I 
believe that we're striving to fulfill the same responsibilities. For 
example, we want to:

          protect the safety of our fellow citizens and the 
        security of our nation;

          safeguard the civil rights to which everyone in this 
        country is entitled;

          prevent and combat violent crime, financial fraud, 
        and threats to the most vulnerable members of society;

          improve the effectiveness of our criminal justice 
        systems.

    We've invited today's witnesses, all experts, to give us their 
thoughts about criminal code reform. How do we achieve reform? What 
should be the process? Who are the stakeholders to be included in the 
discussion? Is the creation of another commission necessary, similar to 
the Brown Commission created a few decades ago? What lessons can be 
learned from that and other commissions and task forces that have taken 
on this challenge in the past? Where do we begin?
    In the Crime Subcommittee as well as in this Task Force we have 
discussed specific reforms suggested by various coalitions. Those 
suggested reforms have included recommendations that Congress establish 
a default criminal intent mens rea standard to assure that there is a 
criminal intent standard for any existing criminal provision that does 
not specify one. It's also been suggested that Congress provide written 
analyses of, and justification for, all new or modified criminal 
offenses and penalties.
    The recommendations further provided that, in order to avoid adding 
to the problems of over-criminalization, Congress should ask these hard 
questions before enacting new criminal laws:

          Do we need to enact more criminal laws at the federal 
        level for a particular type of conduct, or would civil 
        penalties accomplish our goals?

          Is there a valid purpose to be served by creating 
        criminal law at the federal level when it duplicates an 
        existing state level law?

          Would it be a better use of resources for the federal 
        government to supplement state enforcement of criminal laws 
        rather than replicating their efforts at the federal level?

    And Congress should also be asking these same questions about the 
thousands of civil laws that can be found throughout the federal code.
                               __________

    [The prepared statement of Mr. Conyers follows:]

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

    In past hearings, this bipartisan Over-Criminalization Task Force 
has recognized the explosive growth in the federal criminal code. We 
now have more than 4,450 federal crimes on the books.
    More than 1,500 of these crimes are codified in Title 18 of the 
U.S. Code, and many others are scattered elsewhere, such as Title 8, 
which deals with immigration, and Title 21, which concerns controlled 
substances.
    Today we consider whether and how the Criminal Code should be 
modernized.
    In undertaking this task, however, there are several factors we 
should keep in mind.
    To begin with, the financial ramifications of our Nation's criminal 
system should be considered.
    Federal prisons currently house more than 200,000 people at an 
annual cost to taxpayers in billions of dollars.
    More than half of these inmates, however, are serving time for drug 
offenses, many of which are non-violent. And, 11% of the prison 
population has been convicted of immigration violations.
    We must also not forget the fact that the United States spends $51 
billion annually on the ``war on drugs'' and its disproportionate 
impact on minorities.
    It is clear that drug and immigration laws are very real 
contributors to over-criminalization and over-incarceration, all of 
which come with a huge cost.
    Second, further clarification of the Criminal Code's mens rea 
requirements is needed.
    For example, 17 of the 91 federal criminal offenses enacted between 
2000 and 2007 lacked any mens rea requirement.
    In the absence of such a standard, innocent individuals can be 
convicted for acts where it may not even be clear that a crime has been 
committed.
    But the mens rea standard must be clear. Laws in the Criminal Code 
exist that provide so many paths by which mens rea can be evidenced for 
a single criminal act, that it becomes incredibly confusing to 
prosecutors and the courts to determine which standards must be met.
    As Professor Julie O'Sullivan has written, and who I am happy to 
say will be able to shed more light on the subject today through her 
testimony, the Code includes over 100 types of mens rea standards, 
which may not be applied uniformly even within a single statute.
    This has led to a massive expansion of prosecutorial discretion, 
which is one of the problems this Task Force has been created to 
address.
    Lastly, the ever-expanding prosecutorial discretion inherent in the 
Criminal Code must be addressed.
    Too frequently, the Code contains multiple statutes that have 
overlapping provisions for a single offense.
    Often these overlaps provide different evidentiary requirements 
that must be proven to result in a conviction, some easier and some 
more difficult.
    This allows prosecutors to cherry pick the statutes with which they 
will charge defendants, which will usually be those containing the 
easier to prove elements.
    Even more concerning is that these vague and internally 
inconsistent criminal statutes regularly contain different maximum 
sentences for what would otherwise be considered identical crimes.
    For instance, a defendant accused of destroying documents he or she 
knew would be subpoenaed by a grand jury can be charged under 18 U.S.C. 
1503, 1512, 1519, or 1520, all of which have different evidentiary 
standards, and which have maximum sentences ranging between 10 and 20 
years.
    Accordingly, I look forward to hearing the testimony of our 
witnesses.
                               __________

    [The prepared statement of Mr. Goodlatte follows:]

Prepared Statement of the Honorable Bob Goodlatte, a Representative in 
  Congress from the State of Virginia, and Chairman, Committee on the 
                               Judiciary

    Thank you, Chairman Sensenbrenner. I am very pleased to be here at 
the first hearing of the Over-Criminalization Task Force following its 
reauthorization. I particularly appreciate your leadership on the issue 
of criminal code reform.
    As we all heard last year, the U.S. Code currently contains an 
estimated 4,500 federal crimes, and Congress is adding new crimes at a 
rapid rate--approximately 500 per decade. The fact that this is only an 
estimate means that no one knows exactly how many provisions in the 
federal Code subject American citizens to criminal sanctions. The 
explosive growth of the Criminal Code is due in large part to what many 
have termed ``legislation by accumulation,'' which means that Congress 
has simply accumulated new offenses for two hundred years or so, with 
little examination or reformulation of existing offenses. This has 
resulted in serious, chronic overlaps in coverage and irrationalities 
among offense penalties, which create new possibilities for disparity 
in treatment and for double punishment for the same harm or evil. This 
sort of ``legislation by accumulation,'' or by anecdote, is undoubtedly 
contrary to Congressional intent, not to mention the fair 
administration of justice.
    As Chairman of the Judiciary Committee, I have a particular 
interest in ensuring that the provisions in the Criminal Code are 
carefully and thoughtfully drafted. Last year, the House passed 
legislation to ensure that the criminal prohibitions against cigarette 
smuggling apply to the U.S. territories of American Samoa, Guam and the 
Northern Mariana Islands just as they do in the rest of the country. 
Without this fix, cigarettes sold in those territories without evidence 
that taxes were paid would not fall within in the definition of 
``contraband cigarettes.'' The House passed similar legislation last 
Congress, but it was not taken up by the Senate, so we had to pass it 
again this Congress. This legislation was necessary because something 
as simple as a general, uniform definition of the term ``state'' does 
not exist in title 18. This is an example of Congress having to go back 
and fix a problem it created by imprecise drafting. We should be able 
to be specific when drafting laws that affect Americans' fundamental 
liberties.
    Additionally, many of the criminal offenses contained in Title 18 
are not graded according to their relative severity. Distinguished 
scholars--including Professor Julie O'Sullivan of Georgetown 
University, who is with us today--have described this problem. For 
example, the statutory maximum penalty for violating certain sections 
of the Animal Welfare Act--five years--is the same as the penalty 
prescribed for female genital mutilation of girls under eighteen. The 
fact that these crimes are punished equally by the Criminal Code speaks 
volumes about the need for reform.
    The Judiciary Committee has an excellent track record when it comes 
to careful and precise drafting, particularly with respect to the 
quality of criminal intent requirements. However, the federal Criminal 
Code, over which this Committee maintains jurisdiction, still suffers 
from severe problems of redundancy, overlap, and a lack of clear, 
consistent definitions. Under my leadership, this Committee is 
dedicated to ensuring that the legislation we produce employs clear and 
defined terms, and clearly outlines the conduct that is prohibited. The 
American people deserve no less.
    I thank our distinguished panel of witnesses, and look forward to 
their testimony.
                               __________

    Mr. Sensenbrenner. I will give abbreviated introductions of 
all of the witnesses. And without objection, the full text will 
be put in the record at this time.
    [The information referred to follows:]

    
    
    
    
    
    
                               __________
    Mr. Sensenbrenner. The first witness is Mr. Michael Volkov, 
who is the CEO of the Volkov Law Group, which has expertise in 
areas of compliance, internal investigation, and enforcement 
matters, and an alumnus of the staff of this Committee.
    Ms. Julie Rose O'Sullivan is the associate dean for the 
J.D. program at Georgetown Law School. She has written many 
articles and has the leading casebook on white-collar crime, 
and is a recognized expert in both Federal sentencing 
guidelines and white-collar criminal law.
    Mr. Roger Fairfax, Jr., is professor of law at G.W. 
University Law School, where he teaches and writes on criminal 
law and procedure, and criminal justice policy.
    And finally, Mr. John Cline practices in the Law Office of 
John Cline in San Francisco. His practice focuses on Federal 
criminal defense at trial and appellate levels. He has tried 
criminal cases nationwide, and argued before a number of 
Federal courts of appeals and the United States Supreme Court.
    I thank all of the witnesses for appearing. Without 
objection, your full statement will appear in the record.
    The Chair would request that witnesses confine their 
testimony to 5 minutes. You all have experience with red, 
yellow, and green lights. You know what they mean.
    Mr. Volkov, you are first.

               TESTIMONY OF MICHAEL VOLKOV, CEO, 
                    THE VOLKOV LAW GROUP LLC

    Mr. Volkov. Chairman Sensenbrenner, Ranking Member Scott, 
Ranking Member Conyers, and other Task Force Members, thank you 
for the opportunity to appear and testify before the Task 
Force.
    First, let me say it is an honor to return to the 
Committee, where I worked on the staff for several years. I am 
very comfortable with addressing the Task Force Chair as Mr. 
Chairman. As a matter fact, he requires that, and I still do 
that, too.
    It is also an honor to return to the Committee to appear 
before Ranking Member Scott, with whom I worked for many years 
on important criminal justice issues, debated a lot of issues.
    And I am sure the Committee and you miss our colleague, 
Bobby Vassar, who contributed so much to the Committee's work.
    My years on the Judiciary Committee staff were the 
highlight of my professional career, and I will always be 
grateful to all of you and to the Committee for the opportunity 
to serve the public.
    Now I welcome the opportunity to address the Task Force on 
the important issue of Federal criminal code reform. This is an 
issue that is near and dear to my heart.
    Mr. Chairman, you have led the charge on this issue by 
introducing over the last 4 years the Criminal Code 
Modernization and Simplification Act. Having worked as a staff 
member on this important legislation, I know the effort that is 
required to introduce this bill each year. It is a Herculean 
task. Your work represents an important bipartisan invitation 
and challenge to enact meaningful criminal code reform.
    I want to take a moment to commend your former staff 
director, Phil Kiko, and I am sure there is no objection to 
that, hopefully.
    Mr. Sensenbrenner. Without objection, so ordered. 
[Laughter.]
    Mr. Volkov. And Legislative Counsel Doug Bellis--he just 
appeared--and Legislative Counsel Doug Bellis, who both devoted 
significant time to this effort, as well as your staff in the 
last three congressional sessions.
    We can all agree on one thing: The Federal criminal code, 
if left unchecked, will continue to resemble the United States 
Tax Code. That is not a good thing. In fact, it threatens any 
hope we have of equal justice.
    Each year, a new edition of the current United States 
Criminal Code with a new color, or at least portions of it, is 
delivered to lawyers, congressional staff, and practitioners. 
Each year, it accretes new crimes, resembling the old Yellow 
Pages, if anyone here remembers those days.
    I am reminded of one of my favorite scenes from a Marx 
brothers movie, ``Duck Soup,'' when Groucho Marx is the 
president of the mythical country Fredonia. He is given a 
report by one of his ministers, who asked Groucho if he 
understands the report. Groucho replies, ``Of course, I 
understand the report. Why, even a 4-year-old child could 
understand this report.'' Groucho looks down at that report, 
starts to read, and then says, ``Run out and get me a 4-year-
old child. I can not make head or tail of it.'' The same can be 
said about our Federal criminal code.
    No one can make heads or tails of the code, except 
possibly--possibly--prosecutors, judges, and defense counsel. 
Our citizens have no idea the scope of Federal crimes, nor are 
they aware of the coverage of specific Federal crimes.
    The Federal criminal code is unusable, unwieldy, and a maze 
of Federal criminal offenses, few of which are drafted 
consistently and even fewer of which provide clarity to law-
abiding citizens.
    The danger of the Federal criminal code is well known to 
the Task Force, as reflected in the title and the charter right 
here: ``Over-Criminalization.''
    The Federal criminal code gives Federal prosecutors even 
more power and discretion to exercise against defendants. It 
enables them to manipulate the criminal justice system to 
charge similarly situated defendants with a variety of crimes.
    Prosecutors can exercise this power without violating the 
double jeopardy clause of our Constitution. This is 
inconsistent with our commitment to equal justice.
    Our Federal criminal code needs to reflect three clear 
principles. First, it must be written clearly. Second, it must 
be concise with a minimal use of clear and defined terms. And 
third, it must be accessible.
    Right now, the Federal criminal code sits as a monstrosity 
that no one has the time or the inclination to tackle, much 
less understand.
    The issue of reform is much more serious than references in 
the criminal provisions to prevent improper use of ``Smokey 
Bear,'' ``Woody Owl,'' or protecting the emblem of the Swiss 
Confederation.
    As it now stands, the code is littered with criminal 
offenses that are used in the criminal justice system to obtain 
desired results without regard to Congress' intent.
    The Over-Criminalization Task Force is at the right place 
and at the right time to advance revision of the Federal 
criminal code. I urge you, as a former Federal prosecutor and 
now a defense lawyer, and an alum of the staff here, to 
recommend that the Federal criminal code be reviewed and 
revised with a goal of providing clarity, applying consistent 
drafting principles, and reducing the number and reach of 
Federal crimes in order to protect our constitutional system of 
justice and respect federalism.
    First, let me just go over the principles that should guide 
any type of reform--and I appreciate the Chair's hammering, and 
I will submit my statement, obviously, for the record.
    [The prepared statement of Mr. Volkov follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Sensenbrenner. Without objection.
    Ms. O'Sullivan?

   TESTIMONY OF JULIE ROSE O'SULLIVAN, PROFESSOR, GEORGETOWN 
                     UNIVERSITY LAW CENTER

    Ms. O'Sullivan. Thank you, Mr. Chairman, Ranking Member 
Scott, and the Task Force. I am honored to be invited to speak 
to you today about a topic about which I have written quite a 
bit. I feel a little bit like a weekend hacker advising the 
wizards on their defense. It strikes me as a little 
presumptuous for an academic to come and tell expert lawmakers 
how to revise a code. That said, you have invited me, so I am 
delighted to participate.
    Thus far, those of us who have written in this field have 
witnessed a remarkable phenomenon in Washington; that is, the 
ACLU sitting cheek by jowl with the federalists and Cato and 
everybody else. Concerned groups on the left and the right 
agree that the code is broken, and it has to be fixed.
    I do not think that there is real question about that any 
longer. The question is what is to be done.
    I would imagine that this Kumbaya moment is going to be 
fleeting. I assume it will break down fairly quickly, once we 
start getting into the specifics of code revision, because the 
parties that are coming together now actually have very 
different underlying values.
    So for example, the ACLU is principally concerned, as I 
understand it, with over-incarceration, racial equity, juvenile 
justice, and overly harsh drug sentencing. By contrast, I think 
a lot of the conservative groups who have made their voices 
heard are much more concerned with federalism issues, with the 
overabundance and vagueness of white-collar offenses, and with 
deficiencies in mens rea that permeate the code.
    What does this mean? Two things. First, once the actual 
process of code reform begins, we are going to see a 
splintering, and the politics are going to become much more 
contentious. And second, in light of that, although it is 
arguable, it may be best to take the entire project on at once, 
so that those with different priorities will be forced to 
negotiate, horse trade, compromise, with the result that we 
actually get something done.
    Prior efforts to reform the code ended in frustration, but 
they eventually bore fruit. I believe that the U.S. Sentencing 
Commission was created in part because one could not fix the 
code in the front end--that is, fix the actual code--so the 
decision was made to rationalize the back end, rationalize the 
punishment.
    The issues surrounding sentencing are as contentious, if 
not more contentious, than formulating a criminal norm. But the 
Sentencing Commission was very successful in appearing 
bipartisan and expert. As part of its processes, it regularly 
called in experts and solicited the views of all stakeholders, 
and it still does.
    Many people are unhappy with the guidelines, but that is 
the nature of the enterprise. We are not going to make 
everybody happy. For present purposes, what is really important 
is that the commission got the job done, that Congress, at 
least at that point, was unable to do. And it got the job done 
in a credible and expert fashion.
    With this in mind, I urge lawmakers to create a permanent, 
expert, bipartisan body, perhaps this one, whose charge it is 
to overhaul and continuously respond to emerging issues and 
problems that percolate up from the courts. This type of body 
is essential to ensure a devotion to this difficult task that 
otherwise may well ebb and flow with political seasons, the 
tenure of committed Members of Congress, and the like.
    It would also provide the means by which consultation with 
all stakeholders, and many experts could actually be 
institutionalized. And this kind of consultation strikes me as 
absolutely essential to the kind of credibility and viability 
of a revised code.
    It would also ensure uniform drafting and consistent use of 
mens rea terms, and it would allow Congress to remedy much more 
promptly problems emerging in the application of the statute.
    For example, this expert body no doubt would have advised 
Congress to respond sooner to problems with the honest services 
doctrine than the 20 years it took the Supreme Court to decide 
that all the people who--not all, but many of the people who 
went to jail for 20 years did not, in fact, commit a crime.
    Obviously, how such a body is structured, financed, to whom 
it reports, the weight given its work product, and myriad other 
issues, would have to be resolved consistent with 
constitutional and practical constraints. But I think that code 
reform may well continue to be just a fond dream without such a 
permanent commitment to the code.
    Thank you.
    [The prepared statement of Ms. O'Sullivan follows:]

        Prepared Statement of Julie Rose O'Sullivan, Professor, 
                    Georgetown University Law Center

    For my written statement, which is an article entitled ``The 
Federal Criminal `Code' Is a Disgrace: Obstruction Statutes as Case 
Study,'' published in the Journal of Criminal Law and Criminology in 
2006, please go to the following link:

        http://www.federalwhitecollarcrime.org/pdf/criminal--Law--and--
        Criminilogy.pdf

    Additional thoughts can be found in:

    Julie Rose O'Sullivan, The Federal Criminal ``Code'': Return of 
Overfederalization, 37 Harv.J.Law & Public Policy 57 (2014).
                               __________

    Mr. Sensenbrenner. Thank you very much.
    Mr. Fairfax?

              TESTIMONY OF ROGER A. FAIRFAX, JR., 
            GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

    Mr. Fairfax. Chairman Sensenbrenner, Ranking Member Scott, 
and Members of the Task Force, I thank you for the kind 
invitation to participate in this hearing on criminal code 
reform. And at the outset, I would like to voice my 
appreciation for the hard work and dedication of this Task 
Force, the Members of which are exhibiting exactly the kind of 
leadership and bipartisan cooperation necessary for the 
improvement of our Nation's criminal justice system.
    I come to this topic as a former Federal prosecutor who has 
handled cases brought under the Federal criminal code, and as 
an attorney who has defended individuals and corporations 
charged under statutes in the code, and as a legal scholar who 
has dedicated much of his work to the improvement of our 
Nation's laws and the justice system.
    And Members of this Task Force have been instrumental in 
exposing and responding to the deficiencies of the Federal 
criminal code. Of course, Chairman Sensenbrenner has introduced 
the Criminal Code Modernization and Simplification Act. In 
addition, Mr. Scott, when he was Chairman of the Subcommittee 
on Crime, Terrorism, and Homeland Security, held hearings 
soliciting views and concerns regarding the state of the 
Federal criminal code.
    Many well-respected commentators have criticized the 
Federal criminal code for its excessive length, lack of 
organization, redundant provisions, and outdated offenses. 
There also have been calls for certain substantive changes to 
the code, such as the bolstering of mens rea requirements, the 
decriminalization of some regulatory and other offenses, and 
the reduction in the number of mandatory minimum sentences. 
Many of these and other critiques are quite persuasive, and 
there is no doubt that most observers would agree that the 
Federal criminal code is in need of reform.
    However, before we contemplate how Congress might best 
streamline, reorganize, refine, and modernize the Federal 
criminal code, it is essential to draw lessons from past 
efforts.
    The seeds of serious modern-day efforts at comprehensive 
code reform, Federal code reform, were sown in the 1950's and 
early 1960's by the American Law Institute's Model Penal Code, 
which with its technical precision, elegant organization and 
draftsmanship, and its attention to principles of culpability 
and mens rea, spurred many States to undertake significant 
revisions of their criminal codes.
    With the Model Penal Code and President Johnson's 1965 
crime commission as the backdrop, Congress established in 1966 
the National Commission on the Reform of Federal Criminal Laws, 
commonly known as the Brown commission.
    The 1971 final report of the Brown commission proposed a 
new Federal criminal code. This proposed code included a 
general part that set out definitions, defenses, principles for 
liability, and general standards for the exercise of Federal 
criminal jurisdiction.
    The proposed code also featured a special part containing a 
comprehensive collection of all the Federal felony offenses.
    Despite the Brown commission's tremendous efforts over 4 
years, however, the proposed comprehensive Federal criminal 
code never was enacted into law, although there were repeated 
attempts in the House and the Senate over a period of almost 12 
years.
    So it may be time to revisit Federal criminal code reform. 
And to be sure, many of the challenges that face Congress after 
the Brown commission remain. Nevertheless, I believe that we do 
have a meaningful opportunity for reform, because today, a 
strong bipartisan consensus has been developing around the idea 
that we should be smart on crime.
    And given the current receptivity to evidence-based 
innovation in criminal justice policy, the time may be ripe for 
reconsideration of Federal criminal code reform.
    I do have a number of suggestions for consideration, if 
Congress were to contemplate embarking on an effort to revise 
the Federal criminal code.
    The first is the establishment of a new broadly 
representative commission, just much like the Brown commission, 
to draft Federal criminal code reform legislation or to work 
with existing legislation, like Chairman Sensenbrenner's bill.
    The second is a partnership with established and respected 
law reform entities, such as the American Law Institute or the 
ABA Criminal Justice Section, and the utilization of the 
technical assistance of members of the legal academy and 
experts in criminal justice policy community.
    And third, the establishment of a permanent, professionally 
staffed criminal law revision commission in Congress that can 
assist Members and Committees with the technical analysis 
regarding the question of whether a contemplated new criminal 
law or penalty is actually needed, and also the design and 
drafting of criminal statutes so that they are well constructed 
and fit appropriately within the larger criminal code.
    I believe that these ideas, derived from the work of 
individuals who have been involved in criminal code reform 
efforts for decades, are worthy of consideration. And if the 
Members have questions later, I will be happy to elaborate on 
any or all of these ideas and discuss how criminal code reform 
might fit into the larger bipartisan criminal justice reform 
agenda, responsive to concerns about over-criminalization.
    [The prepared statement of Mr. Fairfax follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Sensenbrenner. Thank you, Mr. Fairfax.
    Mr. Cline?

             TESTIMONY OF JOHN D. CLINE, ESQUIRE, 
                  LAW OFFICE OF JOHN D. CLINE

    Mr. Cline. Mr. Chairman, Ranking Member Scott, and Members 
of the Task Force, thank you for the opportunity to share my 
views as a criminal defense lawyer.
    A comprehensive revision of the Federal criminal code 
should focus on five main points: reducing the number of 
Federal crimes, ensuring that the revised code strikes a proper 
balance between Federal and State law enforcement, clearly 
defining the appropriate levels of mens rea, establishing 
uniform rules of construction, and revising the overly harsh 
punishment system. I will take those in turn.
    First, reducing the number of Federal offenses. The list of 
Federal crimes has grown from a handful in the Crimes Act of 
1790 to thousands today. This growth has occurred in part 
because the country has become more complex, but it also occurs 
because every time there is a national crisis, the reaction is 
to enact new Federal crimes. The result is a morass of 
overlapping statutes.
    For example, there are more than two dozen different false 
statements statutes in Chapter 47 of Title 18. There are seven 
different fraud statutes in Chapter 63 of Title 18. And I count 
19 different obstruction offenses in Chapter 73 of Title 18.
    This proliferation of Federal offenses has two main 
practical consequences, from my perspective. First of all, the 
sheer number of crimes creates a notice problem. Justice Holmes 
declared that ``fair warning should be given to the world, in 
language that the common world will understand,'' talking about 
notice of crimes. But with the statutory scheme that now 
exists, fair warning is a fiction.
    Second, the existence of multiple Federal statutes that 
address the same conduct encourages Federal prosecutors to 
overcharge. Some prosecutors take advantage of overlapping 
offenses to charge the same course of conduct in multiple 
counts under multiple statutes. The result is often juror 
compromise. Jurors who can not agree unanimously on guilt or 
innocence decide to split the baby, to convict on some and to 
acquit on others, thinking that they are giving the defendant a 
break by doing that. But they can not be told, but the truth 
is, that a conviction on one count in Federal court is 
typically as bad as a conviction on all counts.
    So reducing the number of Federal crimes will reduce 
overcharging. It will reduce juror compromise. And it will help 
ensure fairness to defendants.
    Revising the Federal criminal code affords the opportunity 
to address other troublesome areas as well. I will just touch 
briefly on one of those, which is conspiracy.
    Justice Jackson warned about the elastic, sprawling, and 
pervasive conspiracy offense. The offense of conspiracy to 
defraud the United States is especially amorphous. A revision 
of the code affords an opportunity to think carefully about 
conspiracy, and to focus more clearly on who truly deserves to 
be caught up in its net.
    The second principle is restoring the Federal and State 
ballots. Our Federalist system initially contemplated that the 
States would have the primary role in law enforcement. Over the 
last 50 years, however, Federal criminal jurisdiction has 
exploded to the point that almost any culpable conduct can be 
brought within the Federal ambit.
    As a result, just to cite some examples from my own 
practice, we see vote buying in local elections charged us 
Federal RICO offenses. We see nondisclosure under State 
campaign finance laws charged as mail fraud or wire fraud. And 
we see violation of local anti-patronage laws being charged as 
Federal honest services fraud. And of course, there are drug 
laws where the gap between Federal enforcement and State 
enforcement seems to grow.
    Reforming mens rea, I will just touch on one area there, 
which is willful blindness. There is a Federal doctrine of 
willful blindness, which is a judge-made notion that allows the 
awareness of a high probability of a fact, and a deliberate 
effort to avoid knowledge, to substitute for actual knowledge, 
which is the element that Congress has provided. That is a 
dangerous provision for defendants, because it weakens the mens 
rea requirement, which is often the only element that is 
disputed in a Federal criminal case. Revising the Federal 
criminal code affords an opportunity to take a look at willful 
blindness and make a reasoned decision as to whether it should 
be used or not.
    The fourth area is uniform rules of construction. I will 
touch on one, the rule of lenity. Now it is applied in sort of 
a haphazard, ad hoc way by courts. A revision of the Federal 
criminal code affords an opportunity to make that a uniform 
rule of construction, so that doubts about the meaning of a 
Federal criminal statute are uniformly resolved in favor of the 
defendant. That is important to fair notice. It is important to 
fairness, generally.
    And finally, revision of the code affords an opportunity to 
fix some of the harsh punishment provisions now, especially 
mandatory minimums, that have resulted in an enormous and 
unnecessarily large Federal prison population.
    Thank you very much.
    [The prepared statement of Mr. Cline follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Sensenbrenner. Thank you very much, Mr. Cline.
    The Chair will now recognize Members under the 5-minute 
rule, and I will start by recognizing myself.
    One of my goals in this effort is to try to avoid the traps 
of having an omnibus revision of the criminal code becoming a 
debate on numerous criminal justice policies, from the death 
penalty to mandatory minimums to disparate sentences and the 
like. So in order not to repeat the record of failure of past 
attempts to revise the criminal code over almost 50 years, I am 
trying to have at least the first attempt at this be policy 
neutral.
    I would like each of the four witnesses to give us some 
advice on how to try to keep it policy neutral, because if it 
is not, I think this effort will go down in flames, just like 
the previous ones.
    Mr. Volkov. Thank you, Chairman Sensenbrenner.
    I see this as the most important principle, which is to 
stay policy neutral, because there are so many issues that have 
to be addressed with regard to drafting, with regard to 
inconsistencies, with regard to penalties, that we need to get 
a foundation document that is almost like the beginning of 
building a house that is clear and is done in the right way, 
with technically making the right choices, and consistency.
    From that point, everybody can then debate the issues. What 
is the right penalty? Should we have a death penalty?
    But we first need a document that make sense. And the way 
to do that, and I share the recommendation of some type of 
body. And you started the anti-trust modernization commission 
back in 2006, when we did the Department of Justice 
reauthorization bill. That would be some model that could work 
for rewriting the code in a policy-neutral basis. Just make 
that their charge and get a group of people together who are 
experts in the field to do that.
    Mr. Sensenbrenner. Ms. O'Sullivan?
    Ms. O'Sullivan. Thank you for an excellent and challenging 
question.
    What I would suggest is that you begin with what I think 
Roger mentioned as the general part, which is addressing the 
sort of default rules for statutory construction, maybe 
legislating the rule of lenity.
    But also providing default provisions for mens rea, 
definitions of mens rea, definitions of when omissions are 
actionable or not actionable. So you could deal with a lot of 
the endemic problems of the code by articulating a general 
part, much like the ALI's Model Penal Code, that would be sort 
of neutral, because there would be no context. It applies to 
drug cases; it applies to white-collar cases, right? So you 
would be forced, people would be forced to deal with these 
issues in the abstract on a criminal law basis rather than a 
political or public policy basis.
    Mr. Sensenbrenner. Thank you.
    Mr. Fairfax?
    Mr. Fairfax. I agree with both suggestions, Mr. Chairman. I 
would really urge the idea of having a separate entity, a body 
with broad representation, perhaps undertake a first cut at a 
lot of these issues. I think it is much better to have things 
that perhaps do not even seem like they are controversial in 
the first instance, but that later turn out to be somewhat 
controversial taken up by a commission or by a group in the 
first instance, rather than for the first time in the course of 
legislative debate. I also agree with Mr. Volkov.
    Mr. Sensenbrenner. Thank you.
    Mr. Cline?
    Mr. Cline. Mr. Chairman, I think true policy neutrality is 
hard to obtain. I think in almost any judgment, for example, 
about mens rea, there are policy judgments that need to be 
made.
    I think the best way to achieve a politically acceptable 
result is to have the sort of commission that Mr. Fairfax 
talked about. I am on the ABA Criminal Justice Standards 
Committee. We have prosecutors, defense lawyers, judges, 
stakeholders, who meet and try to agree on standards. I think 
that approach is probably the best way to get to a result that 
could actually be enacted into legislation.
    Mr. Sensenbrenner. Thank you very much.
    I yield back the balance of my time.
    The gentleman from Virginia, Mr. Scott?
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Fairfax, you mentioned a couple times the idea of being 
smart on crime. Compared to what we are doing on drug abuse, 
what would be a smarter approach?
    Mr. Fairfax. Well, you know, it is interesting. A lot of 
innovation is taking place right now in the States. And I have 
been involved with the American Bar Association Criminal 
Justice and State Policy Implementation Project. And the goal 
of that project is to show States how they can enhance public 
safety, reduce crime and recidivism, enhance justice and 
fairness, and save the taxpayer dollars, which is a win-win-win 
across the board.
    And States that have been successful in working in this 
area have looked at changes to their sentencing policies in the 
same way that legislation that I know you have cosponsored in 
the Smarter Sentencing Act. And then also with regard to 
reentry of ex-offenders, Michigan, for example, through their 
prisoner reentry initiative, has slashed their budget for 
corrections and has reduced the overall number of prison beds 
that they need.
    So I think there are lots of great ideas in the States, and 
I am starting to see them come up to the Federal level.
    Mr. Scott. There have been several mentions of mandatory 
minimums. How do mandatory minimums comply with a smart-on-
crime approach?
    Mr. Fairfax. Well, I think that the legislative trends we 
are seeing right here in the Congress, again with the Smarter 
Sentencing Act, is really starting to take that question head-
on.
    I was actually very heartened a couple weeks ago. I know 
that you, Mr. Scott, were present at a roundtable at which 
Attorney General Eric Holder, Senator Mike Lee, Senator Rand 
Paul, Senator Sheldon Whitehouse, participated in a discussion 
about these very issues, mandatory minimum sentences. And all 
of the aforementioned individuals have either cosponsored 
legislation or supported a new approach to mandatory minimums. 
And I think that that is the trend that we are seeing.
    Mr. Scott. Ms. O'Sullivan, did you want to comment on that, 
and also on the value of having all the criminal code in one 
place, what the value of that would be?
    Ms. O'Sullivan. I would be delighted to.
    I think mandatory minimums are wasteful and unjust. They do 
not permit the kind of even rough estimate of culpability that 
is necessary to a fair justice system. And I think that they 
also target certain populations.
    In any case, the second part of your question was?
    Mr. Scott. Putting all the----
    Ms. O'Sullivan. What benefits there are.
    It is not just tidiness--right?--that argues for a tight 
and discrete code. I can tell you that, as a former prosecutor, 
it is almost impossible to figure out the obstruction chapter. 
It is overlapping. It is confusing. It makes no sense.
    It also, for example, you can charge the same crime under a 
20-year count or a 10-year count or a 5-year count, which gives 
prosecutors a lot of power that can be used for good or ill.
    And so I think that it is a much more efficient--you do not 
have prosecutors making mistakes. You do not have things being 
cleaned up on appeal. Everybody knows what the rules are. You 
have notice. And then are able, once you have this code, to 
make thoughtful judgments about relative culpability.
    So, for example, in my article I talk about these two 
statutes. One statute is fleeing from an INS checkpoint. The 
other statute outlaws female genital mutilation. They are both 
5-year counts. That makes no sense. But you do not know that 
until you have a code that you are able to sit back, look at 
the sections, and say, how culpable is this?
    So, for example, obstructing a judicial proceeding is a 10-
year count. Did you know that obstructing a congressional 
investigation is only 5 years? I do not know why there is a 
disparity. [Laughter.]
    Mr. Scott. I want to get in one more question.
    Mr. Volkov, I wanted to give you an opportunity to go 
through your principles that you did not have an opportunity to 
do.
    Mr. Volkov. Actually, that was the first point I wanted to 
make. With regard to the principles, and I know I am preaching 
to the choir here, but there has to be a single Committee in 
the Congress that supervises, reviews, and legislates with 
regard to criminal offenses.
    Right now, we have other Committees that put criminal 
offenses into the code, and it is an absolute disaster. And we 
had to fight that on the staff all the time. And right now, we 
need to get all of the criminal offenses that are all 
throughout the code, and bring them into Title 18, and let the 
Judiciary Committee supervise it and monitor it.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The Chair of the full Committee, the gentleman from 
Virginia, Mr. Goodlatte.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    Mr. Volkov, I like the way you think about that, and I have 
a pretty good idea which Committee should have that 
responsibility for all aspects of the criminal code. 
[Laughter.]
    Mr. Goodlatte. I would like to ask all of you to talk a 
little bit about drawing the line between where something 
should be civil and regulatory, and where should it be a 
criminal offense.
    Before we get into figuring out what kind of consistency we 
can have with regard to mens rea, I think we also need to think 
about what kind of consistency we need to have or can have, if 
possible, between what things should be civil and regulatory, 
and what things should be criminal offenses.
    So I will start with you, Mr. Volkov, and we will go right 
across. You can tell me how to draw that line.
    Mr. Volkov. I think that goes right to the work that you 
have been doing up to this point, that the Task Force has been 
doing, which is we get to criminal offenses versus civil 
offenses based on the impact or the action, the conduct or the 
failure to act, and the requisite intent. That is how we do it.
    We do not say that, for example, something that you have no 
responsibility for but occurred on your watch, or you had 
nothing to do with it, that you should be criminally punished 
for it. There are civil obligations that can come up in that 
context, if you have a duty to act.
    But before we make something criminal, there has to be an 
important part of conduct that we are trying to protect and 
prevent; and number two, that there is a culpable state of 
mind. And you always have to be consistent with that.
    And what has happened, as you all know from all of your 
work up to now, is that issue has been diluted. And it has been 
diluted down to such a point that Congress does need to act in 
some respects to fix the intent issue.
    Mr. Goodlatte. Thank you.
    Ms. O'Sullivan?
    Ms. O'Sullivan. I very much agree with Mr. Volkov's 
comments. You would have to look at the harm, culpability, and 
the mens rea.
    I have to say this is a particularly important question in 
the regulatory sphere. As you know, Congress very frequently 
delegates the authority to formulate regulations to an agency 
and then in advance provides that any knowing violation of the 
future regulation constitutes a crime.
    Mr. Goodlatte. So we are creating a crime without knowing 
what crime we are creating.
    Ms. O'Sullivan. Exactly. We do not know what the content 
yet is.
    But more seriously, I do not think anybody is going to 
count the number of criminalized regulatory offenses. I think 
at last count there were 300,000. That strikes me as crazy.
    Also, the courts have interpreted ``knowingly violated'' to 
mean know that you are doing the conduct that violates the 
provision, not that you knowingly violated the law, but that 
you knowingly shipped sulfuric acid without the right label on 
it. People can go to jail. That is a felony offense.
    That is a problem, and that language is used, and that 
Supreme Court interpretation of that language, is used 
consistently across all of these regulatory offenses. So that 
persons who are mixing two types of turpentine, or not making 
scaffolding in compliance with OSHA regulations, could actually 
go to jail.
    Now, we know they are not all going to do that. We do not 
have the resources to pursue all those people. But the problem 
is, the prosecutors--and I was one, so I trust them, for the 
most part--but they get to pick and choose. And you obviously 
have potential there for arbitrary and discriminatory 
enforcement. You have almost guaranteed it.
    Mr. Goodlatte. Mr. Fairfax?
    Mr. Fairfax. I do not have much else to add, other than to 
say that this actually connects to the initial point, which is 
what body, perhaps even within Congress, should have 
responsibility for implementing, for drafting, and passing 
criminal laws. Whether it is an exclusive jurisdiction 
arrangement or referral arrangement, as was discussed in the 
Heritage and NACDL ``Without Intent'' policy paper, or whether 
it is a criminal law revision commission within Congress, as 
was suggested, I think those types of solutions can help to 
address that problem.
    Mr. Goodlatte. Thank you.
    Mr. Cline?
    Mr. Cline. I think part of the problem, part of the reason 
we are here, is that whenever there is a crisis, the first 
reaction is to enact new crimes to address problems. That is 
what has led to all the overlapping crimes that we have, at 
least in part.
    I think the analysis should work the other way. I think the 
first question should be, is an administrative or civil film 
civil penalty provision, something along those lines, 
sufficient to deal with the problem? And only if it is not, 
then proceed to look to criminal legislation.
    I think the analysis is on its head right now. It needs to 
be reversed.
    Mr. Goodlatte. Thank you, Mr. Cline.
    Mr. Sensenbrenner. The gentleman from Michigan, Mr. 
Conyers, the Chairman emeritus of the Committee.
    Mr. Conyers. Thank you, Mr. Chairman.
    This is one of the more important discussions we have been 
having on this Task Force, and I commend the Chairman for 
inviting these witnesses that are here. And I hope that I can 
work with him on his legislation, which to me presents a few 
problems that we will get into at the appropriate time.
    Let me say that, Professor O'Sullivan, and anyone else can 
join in afterward, you talked about creating a standing 
commission or task force to reform the criminal code all at 
once, so that we can begin this work. And I see that as an 
enormous challenge in the legislative system in our country.
    Might you and others comment about who might be, what kind 
of person would be on this commission?
    Ms. O'Sullivan. Yes. Thank you for the question.
    One concern is constitutional. Obviously, the creation of 
the Sentencing Commission sparked a great deal of litigation 
about whether, constitutionally, you can vest the power to 
create sentencing in an independent agency. So I am very aware 
that the Committee would have to confront how much you could 
actually delegate, and the like.
    I think that you would have to have a situation much like 
the commission, where you have judges, you have practitioners, 
and here, obviously, you would have to have Members of Congress 
who participate.
    I would see it as a fairly broad ranging group with a 
variety of experience and expertise.
    Mr. Volkov. Could I comment?
    I actually do not see the commission as being that broad. I 
clearly would not recommend going toward another Sentencing 
Commission, because we have a commission which is dealing with 
nonbinding type of guidelines these days, and I do not think 
that there is any reason to go to that.
    I do think, though, an expert group of practitioners, 
defense counsel, judges, prosecutors, sitting in a room and 
saying--the last time the code was reviewed, Mr. Gainer put one 
woman in a room and had her go through every page until she was 
finished. Six months later, she came out with, ``Here is 
everything that I found,'' in the 1980's.
    We need a group of practitioners, just put us in a room and 
say get the job done. No elaborate commissions. Not a lot of 
money. And just get a group of people and do the work.
    Mr. Conyers. Interesting.
    Anyone else want to comment? Yes, sir?
    Mr. Fairfax. So I would say, I actually think that the 
balance of representation we saw on the Brown commission was 
relatively well thought out. I would say that there would need 
to be more representation. I agree with Mr. Volkov that there 
would need to be more representation from the practitioner 
community, and particularly from career and political folks at 
DOJ, because what happened in the aftermath of the Brown 
commission is that there was not buy-in from the executive 
branch, and that produced an executive bill. And I think that 
the goal is, particularly if you want to pass this in the 
lifespan of one Congress, is to have one bill from the outset. 
And I think getting the engagement and the buy-in of all 
stakeholders early on is essential.
    Mr. Conyers. Thank you so much.
    Let me ask, Attorney Cline, do you have any thoughts about 
how prosecutors overcharge and the consequences of such a 
practice, even when a jury decides to convict only on a few 
counts?
    Mr. Cline. I do. Thank you for asking that question.
    It is a real problem. I understand why prosecutors want to 
do it. They are advocates, and they want to win their case. But 
what happens is, the same course of conduct is charged in a 
whole series of counts. Jurors are not told the consequences of 
a partial conviction. They think they are giving the defendant 
a break, or maybe splitting the loaf by convicting on some and 
acquitting on others. But under the sentencing guidelines, and 
under the sentencing practices, generally, a conviction on one 
count is really no different than a conviction on every count. 
So the defense lawyer has to pitch a no-hitter, in essence, if 
he wants to win the case.
    Jurors do not know that, and the result is compromised 
verdicts that pose real problems.
    Let me give you an example of a prosecuting agency that 
does it in what I would say is the right way. The Antitrust 
Division, when they bring a price-fixing case, a Sherman Act 
case, they typically charge one count--just one count. And so 
the jury has an up or down decision, guilty or not guilty.
    That is the fair way to do it. But the multiplication of 
offenses now makes it very rare that that occurs outside the 
antitrust context.
    Mr. Conyers. Thank you very much.
    Thank you, Mr. Chairman.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Alabama, Mr. Bachus.
    Mr. Bachus. Thank you.
    Professor O'Sullivan, you had talked about some of us focus 
on one thing, others focus on other things. I think that is 
true.
    I will tell you, though, that the harsh sentences, I think 
there is general agreement that some of the longer sentences 
are actually not working. They are probably causing harm. They 
are almost institutionalizing or causing young people to become 
criminals, and our system is failing for it.
    I think some of the hard questions are plea-bargaining. I 
have gone back and I have talked to defense attorneys. I have 
talked to prosecutors. Prosecutors say to me, and I used to be 
an assistant attorney general, we have to plea-bargain, and if 
you take this away from us, we are not going to be able to get 
people to plea.
    But they are pleading for the wrong reasons. They are 
pleading not because they think they are guilty, a lot of 
times, but because if they plead, it is just 6 months and a 
misdemeanor, sometimes. If they try the case, it can be 5 years 
or 10 years imprisonment. And Mr. Cline, as he said, there are 
actually examples of people who are offered 6 months or a year 
and no time served who refuse to plead because they really 
thought they were innocent, and were indicted on 15 counts, 
were found innocent on 14 of those with the offer out there of 
a year and a day if they pled, and went to jail for 5 years.
    And the jury, there was a case in Birmingham I am aware of, 
because it was widely reported, where that the jury came out 
and congratulated the defendant's family. Yet they convicted 
him on one count and he went to jail for 5 years. And some of 
the jury said we had no idea here. We thought that was one of 
the more minor charges.
    We are talking about discretion, how much discretion to 
give judges, everything from complete to no discretion. No 
discretion has been a failure. I think it is how far do we 
leave it until we obtain it.
    But let me emphasize something else. There is also a 
problem that we have as Members of Congress, and we have dealt 
with this on the civil and criminal side, we pass a law and 
then the regulators or the agencies decide that they are going 
to make it a crime. We pass a statute, and I am not even sure 
we have that realization.
    I was Chairman of Financial Services. We passed things and 
suddenly read they are using those things in the criminal 
courts. We never even imagined that we were passing a criminal 
law.
    So I think you have to take some discretion away from the 
agencies, like OSHA, EPA.
    Finally, let me say this, one of the most complex things, 
and I am a Congressman from Birmingham, Alabama, so I feel like 
I am handling a stick of dynamite, it is obvious when you look 
at the numbers, the high incarceration rate for young Blacks. 
It is kind of difficult for us to talk about.
    That is a very complex issue, and I do not believe there is 
an intention with 99 percent of prosecutors and judges to be 
racially motivated. I really do not. I think with the cocaine, 
crack, that obviously resulted in a terrible problem.
    But if you listed the reasons, there would probably be 50 
reasons why incarceration is higher among young Blacks, even 
the presence of police. I can drive through my suburban 
community and not see a police car. There is no police 
presence. You can drive through some areas, and there is a 
police car every two blocks, just a high concentration of 
police officers. The crime, the violent crime in those 
communities, the higher evidence of that.
    So I do not know how we address that. I know some of it I 
think is we approach it not as a criminal matter, but more as 
an educational matter, or divert some of these cases.
    But that is something we have to look at.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentlewoman from California, Ms. Bass?
    Ms. Bass. Thank you, Mr. Chair.
    And thank you for your testimony today.
    It seems like the panel kind of agrees that the way we 
should go about this is an outside commission, although I think 
you were describing a committee inside as well as outside.
    Mr. Volkov. No, I actually share the same--whether you want 
to call it a commission or whatever, we need to have all of the 
practitioners in the room, and their charge is to come up with 
a document that makes sense, instead of having overlapping 
crimes, enabling stacking by prosecutors, all of that. We need 
to have one rational document to work from.
    Ms. Bass. I guess you were saying, then, on the Judiciary 
Committee, that when other Committees pass laws, they should 
all come through here.
    Mr. Volkov. Right. And that is probably one of the most 
important recommendations I can make, because as a staff member 
here, we had to go and fight other Committees that were 
legislating crimes, and they really did not know what they were 
doing. In this Committee is a repository of knowledge, history, 
expertise, that every criminal offense that is enacted in this 
country should be reviewed by the Judiciary Committee, enacted, 
and you can have successive referrals if they want to look at 
it, too. But we all spent too much time watching the territory 
to make sure that things were not done stupidly by other 
Committees, to be honest with you.
    Ms. Bass. Are you suggesting Members of Congress did not 
know what they were doing? [Laughter.]
    Mr. Volkov. I am telling you----
    Ms. Bass. You do not need to respond to that.
    Mr. Volkov. Ms. Bass, we were brought into situations where 
a Committee would bring to the floor, okay, all of a sudden on 
the floor of the House were 25 criminal offenses being added to 
the criminal code in different statutes. Mr. Vassar and I had 
to run immediately to the parliamentarian and say, what is 
going on, go to the Committee, argue with the Committee, and 
tell that Committee to remove the amendment from the floor.
    Ms. Bass. Okay. Let me ask about a couple situations.
    I really appreciate, Ms. O'Sullivan, the way you were 
describing the differences in values and goals coming from two 
different directions, and I would certainly want to associate 
myself with the side that is concerned about over-
incarceration, especially with the drug laws, especially now, 
in light of drug laws changing within the States. So when it 
comes to purpose of mind, I just want to ask in terms of 
directionthat the Committee was going with the draft, how do 
you think a situation would be viewed--this is hypothetical, 
although there were a lot of cases, in particular with women 
who were involved with men, examples of females being a blind 
mule, not knowing that they were being asked to transport 
drugs. I do not know if that falls into what you were saying, 
in terms of being blind, I believe, is the way you described 
it.
    Or a female who might be stuck in an abusive relationship. 
There are drugs in the house. The house is raided, and she is 
caught up as well.
    Ms. O'Sullivan. That is a difficult thing to legislate. 
That strikes me as something that is quintessentially a 
prosecutorial judgment, but it is one that has to be an 
educated judgment. I am not sure that the mule problem is 
restricted to women, although certainly a big issue.
    I actually had a defendant who was 18. He took a gym bag 
from point A to point B. He had no idea--he probably knew it 
had drugs in it. He did not know what type. He did not know how 
much. He got five bucks for it. And he was looking at 10 years.
    One thing you could do in the drug area is require proof, 
provide gradations of offenses by amount and type, and require 
the person to know what type of drug they are carrying and 
approximate quantities. Right now, people get sentenced for 
whatever type or quantity actually exists, and they do not have 
to know how much. But it is relevant to culpability.
    May I just add one thing to what Mr. Volkov said?
    Ms. Bass. Sure.
    Ms. O'Sullivan. As far as the commission, I think this 
Committee is really busy. I assume that you are already fully 
tasked. So that is one of the reasons I propose--I did not 
necessarily mean a totally independent committee, more of a 
commission that is sort of advisory to you all.
    So, for example, if the SEC issues regulations, before you 
vote to criminalize them, that commission would review them, so 
you do not have to review all that stuff, and advise you on 
what they think is appropriate.
    It would be helping this group do what they needed to do, 
because what we are all proposing that you do is probably the 
work of 20 people forever.
    Mr. Sensenbrenner. The gentlewoman's time has expired.
    The gentleman from Texas, Mr. Gohmert?
    Mr. Gohmert. Thank you, Mr. Chairman. And I thank each of 
you for being here and for your insights.
    Mandatory minimums have been, obviously, quite 
controversial over the years. When I was a judge, a district 
judge, handling State felonies, I had absolutely no problem 
with being given a wide range of punishment and let me have the 
discretion to consider all of the factors and set a punishment 
within that range. But I get the impression that if we 
completely eliminate mandatory minimums, that means the range 
will always be from no punishment whatsoever to whatever cap we 
want to put on them.
    Are any of you advocating that for everything that Congress 
makes a crime, there should be the possibility of absolutely no 
punishment whatsoever? Or is it okay to have a range and give 
judges that discretion?
    Mr. Cline. I will be glad to start. I think mandatory 
minimums are a bad idea, pretty much across the board.
    Mr. Gohmert. My question was about having a range, because 
when we talk about mandatory minimums, that may completely 
eliminate having anything as a bottom for a range. So my 
question is--so we do not get into, ``Well, what does he really 
mean by mandatory minimums?''--do you have a problem with a 
range being set by Congress and giving the judge discretion 
within that range, or is it your adamant contention that there 
should never be a crime which the least punishment is not 
nothing, no punishment whatsoever? You want that as a 
possibility in every single crime, is that correct?
    Mr. Cline. I think it is. And I say that----
    Mr. Gohmert. So every State that has ranges of punishment, 
like in Texas, third degree, 2 to 10; second degree, 2 to 20; 
first degree, 5 to 99 years or life. Texas is completely wrong 
in having that minimum of 2 or 5 years? That is your 
contention?
    Mr. Cline. Well, I hesitate to say that Texas is wrong 
about anything. I am a Texas law graduate. [Laughter.]
    But let me say this, I think that Federal judges in the 
pre-guidelines era, and since the guidelines became advisory, 
have demonstrated that they have the ability to impose rational 
and fair sentences without mandatory minimums.
    Mr. Gohmert. Absolutely. Most of them do. Most of them do.
    Mr. Cline. I disagree with plenty of sentences, but most 
Federal sentences do not carry mandatory minimums, and you do 
not see very many serious offenders getting away with----
    Mr. Gohmert. Yes, but you get into the range, and I 
remember when the Sentencing Commission came in, Federal judges 
were absolutely livid that their discretion was being hampered 
like that. And then I was shocked 10 years later to find many 
of them liked not having to make the tough calls, and it 
narrowed their decisions and made sentencing so much easier. I 
was shocked.
    Mr. Cline. I think where the guidelines stand now, which is 
advisory, a factor to be considered, but not mandatory, I think 
Federal judges, I am guessing, find those to be of real value.
    Ms. O'Sullivan. May I add something?
    Mr. Gohmert. Yes.
    Ms. O'Sullivan. I am a fan of mandatory guidelines. I 
actually wrote probably the only article defending the 
guidelines. I do not think judges are born with some wisdom 
that the rest of us do not possess. And I think that the 
evidence of racial and gender and other really unacceptable 
disparities that existed prior to the guidelines really were 
shocking. And actually, if you look at the statistics since the 
guidelines have become advisory----
    Mr. Gohmert. My time is about to expire, and I want to ask 
one other thing very quickly.
    With regard to regulations, I appreciate what you say. I ca 
not think of a regulation that I think we ought to make a crime 
without Congress ever considering it. Don't you think there 
should be no regulation ever being a crime without Congress 
actually voting to make it a crime? Does anybody disagree?
    Mr. Volkov. I agree.
    Ms. O'Sullivan. I agree.
    Mr. Gohmert. And if we make it a requirement that any bill 
that has a criminal penalty has to come through Judiciary, I 
think that would help a lot. A bipartisan problem has been both 
sides of the aisle, when we want to show we are really tough on 
something, then throw a criminal penalty. And it has resulted 
in vast injustice.
    And I appreciate all of you bringing that forward.
    Mr. Sensenbrenner. Well, now we have found where there is 
policy agreement, so let's keep on with this roll.
    The gentleman from Tennessee, Mr. Cohen?
    Mr. Cohen. Thank you, Mr. Chairman. I do thank you for 
putting this together.
    I do not necessarily agree with the concept that we could 
not agree, and I may be wrong. Most of you all have been here a 
lot longer than me. But I think what the ACLU is interested in, 
and what I think what maybe Professor O'Sullivan said 
Republicans are looking at, that we could all agree on it, that 
there is a lot of white-collar crime that should not 
necessarily penalized as it is, and there are a bunch of people 
being put away for drugs that should not be either.
    And we all value liberty. That is one thing we come 
together on. And taking someone's liberty is a serious offense, 
and it is a costly offense, $30,000 a year.
    So I think we could work together on the policy.
    Professor Fairfax, you are familiar with the controlled 
substances schedules, I presume? Do you think they may make 
sense?
    Mr. Fairfax. Well, I think that as part of the project of 
looking at the Federal criminal code, a reconsideration of the 
controlled substances schedule would be in order. But I think 
that raises one of the points made earlier, that we really need 
to rely on expertise, right? And we need to supply to the 
Committee and the Congress----
    Mr. Cohen. But you think there are problems with the 
controlled substances, or do you think it is all logical?
    Mr. Fairfax. Well, not necessarily all logical. So I think 
that there can be differences of opinion with regard to the 
schedules.
    Mr. Cohen. Do you think marijuana should be in the same 
class as heroin?
    Mr. Fairfax. Again, my mother is a pharmacist and has much 
greater expertise, and I have neither never used either 
substances, but I can tell you----
    Mr. Cohen. You do not have to use the substances. 
[Laughter.]
    Mr. Fairfax. I know, but so again----
    Mr. Cohen. You probably know some people that have used one 
of the substances more than the other. [Laughter.]
    Mr. Fairfax. But I do think that a rational approach to 
making gradations among the various controlled substances, and 
determining which substances even belong on the schedule, 
should be part of the conversation, yes.
    Mr. Cohen. Mr. Cline, Attorney Cline, do you have a thought 
about it?
    Mr. Cline. First, I want to ask for immunity for Mr. 
Fairfax. [Laughter.]
    Mr. Fairfax. I do not need it.
    Mr. Cline. I think the drug laws are a mess, partly because 
of the substantive provisions and the way different substances 
have been lumped in together, largely because of the mandatory 
minimums, which just produce these ridiculously harsh sentences 
and distort the whole rest of the system.
    There was a discussion about plea-bargaining. When a 
prosecutor has as a mandatory minimum in his back pocket, the 
plea-bargaining is going to take a much different form than 
when he does not. And it is going to produce, in many cases, an 
unjust result.
    Mr. Cohen. And, Professor O'Sullivan, you said that you are 
one of the rare people who support the guidelines, and I am 
against any racial, ethnic, blah, blah, blah. But is not the 
effect of that is that there is now injustice for all, rather 
than just for most?
    Ms. O'Sullivan. I do not actually think so. I think, yes, 
they are too harsh, but they are too harsh because the 
statutory maximum, they are built on the statutory maximum that 
Congress set. I am not accusing you. But I think if Congress 
decided to scale down the penalties, there is nothing 
inevitable about the amount of time that the guidelines provide 
for.
    What I like is the structure, that there is a guaranteed 
set of considerations that we view as necessary to a particular 
sentence. It is relevant how much loss there is for fraud.
    And I just think that we are all human. And it used to be, 
and it is now today, true, that if you walked into courtroom A 
and this judge thought antitrust was terrible, you could get 20 
years. If you walk into courtroom B and this judge does not 
have a problem with it, you can get probation.
    Mr. Cohen. As you said, we are all human, and every case 
has individual factors. What if one person had a certain drug--
marijuana--and the second person had it, and they both 
possessed it in same quantity, but one person had it because 
their spouse was dying, and the State had not allowed medical 
marijuana, but the spouse needed it and wanted it. And the 
other was doing it because it made their dinner better. Do not 
you think the judge should be able to distinguish in those 
cases?
    Ms. O'Sullivan. And there are two ways you could do it 
under the guidelines. You could do it by looking where within 
the range you should sentence people, and you could depart. The 
original contemplation of the guidelines was that departures 
would be freely given based on offender circumstances because 
offender circumstances could not be reduced to formulas the 
way----
    Mr. Cohen. Let me go to your favorite subject. You wrote 
about the Honest Services Act. I have to admit, I have not read 
you law review article, which maybe I should.
    Do you give a proposed statute to cure the problem with 
honest services there?
    Ms. O'Sullivan. No.
    Mr. Cohen. Thank you.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Idaho, Mr. Labrador?
    Mr. Labrador. Thank you very much for being here today.
    And, Mr. Chairman, thank you again for this I think very 
important Committee. It is one of my favorite things that I am 
doing here in Congress.
    But Justice Scalia said a few years ago that maybe we 
should take more cases to trial, that one of the problems with 
our criminal system is that we do not have enough incentive to 
go to trial. And I believe, as a conservative, that what he was 
talking about is I think what Mr. Cline said, or somebody said, 
that liberty should be a very difficult thing to take away from 
an individual.
    Our Constitution was not contemplating a bunch of people in 
prison. Our Constitution, our Founding Fathers, were 
contemplating a very difficult time for the state to take 
somebody's liberty away.
    So as we are contemplating redoing the criminal code, and 
all those things, how much should we consider that it should 
actually be more difficult to try cases, not easier to put 
people in prison?
    Mr. Volkov. Well, I think that you are getting at a very 
big point. Remember this, only 7 percent of the Federal cases 
go to trial; 93 percent end up in a plea bargain. What is the 
best tactic that prosecutors have? I have been at meetings, I 
was a prosecutor for 20 years, it is called stacking.
    You take the crime, you put as many offenses into it as he 
can, and you stack it up. I have had people and prosecutors 
tell me straight up when I was working up here on the 
Committee, I would say, why do we have this 18 U.S.C. 371 
conspiracy? It is a 5-year maximum. They said, ``Don't ever 
take that away. I stack it up and I use it for plea-bargaining 
leverage, so that I can take a case, and if I want to say, 
instead of charging a 20-year offense, a 10-your offense, and 
making someone plea to it, I will say, you know what? Your 
circumstances are not so bad. I will give you this 5-year 
offense.''
    They are dispensing justice, not the judge, in that 
circumstance. And I do not think that this Committee or 
Congress ever thought that that is the way the system was going 
to work.
    Mr. Labrador. So I would take other comments from the rest 
of the panelists.
    Mr. Cline. I am happy to address that. There are so few 
trials in the Federal system these days because the prosecutor 
holds all the cards. The defense knows that. And so the plea-
bargaining process is a very imbalanced procedure.
    I am not saying do away with plea-bargaining. I think it is 
always going to have an important role.
    Mr. Labrador. Correct.
    Mr. Cline. But when you have mandatory minimum sentences, 
you have a multiplicity of charges that can be brought against 
the defendant. You have forfeitures, often mandatory, that can 
ruin somebody financially. You have extremely harsh sentences. 
You have vague doctrines like willful blindness that increase 
the chances of conviction.
    When that is the arena and a defendant is looking at a 
choice between pleading guilty, even if he thinks he is not, 
and getting 2 or 3 years, and risking going to trial and 
perhaps getting 20 years and a multimillion dollar forfeiture, 
many defendants are going to decide to cut their losses.
    I think to have more trials, many different interrelated 
aspects of the Federal system need to change in the direction 
of fairness.
    Ms. O'Sullivan. I will just bring one other point up, 
because I do white-collar. I ca not remember the last time a 
corporation went to trial, because it is literally impossible 
for corporations to resist prosecutors these days, because of 
the fine, market value problems, all kinds of different kinds 
of penalties that are applicable to corporations, including 
debarment and suspension from government contracting or 
delicensing, like Arthur Anderson.
    So I can tell you that the accepted wisdom in the defense 
bar is do not even think about resisting a Government overture 
for a plea in a corporate context.
    And now the Government is just going with what are called 
D.P.s. They are not even resolving these cases criminally 
because that is too difficult. So the Department of Justice 
reaches a civil resolution.
    Mr. Labrador. Thank you. Just for the Committee, I just 
think that is something we should think, especially on our side 
of the aisle, as conservatives, I think we should be very 
concerned about the state having so much power that criminal 
defense attorneys are afraid to go to trial, because they know 
that they take more risk going to trial than defending liberty 
and property, and the things that the Government should not 
easily take away from defendants.
    But thank you very much. I yield back my time.
    Mr. Sensenbrenner. I am told that we will be voting between 
10:20 and 10:30.
    The gentleman from Georgia, Mr. Johnson?
    Mr. Johnson. Thank you. It is not so much the sheer volume 
of criminal laws on the books and how they are apportioned 
among the various titles of the U.S. Code. It is really a 
matter of what is the impact of over-criminalization on 
society.
    And I think that from the standpoint of how the Committee 
should approach this issue, I think we should do it in a 
piecemeal fashion as opposed to an overall solution, because it 
will simply take too much time to get at the worst aspects of 
over-criminalization.
    In my mind, it has to do with the realm of drug 
prosecutions. And to piggyback on one of the issues that Mr. 
Labrador raised, the defendant's ability to take a case to 
trial, any time you can get a 2 percent to 3 percent offense 
level downward departure for acceptance of responsibility, then 
it means that if you go to trial, then you are going to be 
deprived of that downward departure.
    And, in fact, you would probably end up at the top end, if 
you dared to go to trial and then testify. So you actually get 
punished for having a trial and taking the stand and 
testifying. You may do so because you feel like you are not 
guilty, but you end up getting punished on top of the base 
offense level and whatever criminal history you may or may not 
have. You are going to get punished for going to trial.
    So that is one thing that I can do pretty easily to address 
Mr. Labrador's concern.
    But when it comes to the overall sentencing guideline 
concept, what we have is the transfer of discretion from the 
judge in terms of disposition, to the prosecutor in terms of 
charging. So a prosecutor can decide to charge a person with a 
crime that has a base offense level higher than perhaps one 
that would be better suited for the conduct alleged.
    So with that prosecutorial decision having been made, then 
it limits the judge in terms of how to best dispose of the 
case, taking into mind the crime itself, the condition of the 
victims, the status of the defendant, or prior criminal 
history, those kinds of things.
    And I think that we can get to those kinds of issues and 
address the problem that President Obama highlighted yesterday 
with his call for this My Brother's Keeper concept that would 
keep so many young Black males, would really enhance their 
ability to become first-class citizens of society, as opposed 
to this second-class citizenship, which some call Jim Crow.
    Would anyone comment on that?
    Mr. Fairfax. Thank you, Mr. Johnson.
    Your comments raise a couple points. One is the issue of 
collateral consequences. That is a significant issue and it 
relates to what Mr. Cohen and I were discussing, and what Mr. 
Baucus alluded to in his earlier comments on the impact of 
collateral consequences, particularly on those convicted of 
lower-level, nonviolent drug offenses. It is just tremendous.
    And there is a project under way right now under the 
auspices of the Department of Justice, and being conducted by 
the American Bar Association, to essentially catalog all of the 
collateral consequences in jurisdictions all around the 
country, so that practitioners and policymakers and lawmakers 
can understand the implications of the criminalization that 
they engage in when they make these criminal laws.
    Mr. Sensenbrenner. The gentleman's time has expired.
    And last but not least, the gentleman from New York, Mr. 
Jeffries.
    Mr. Jeffries. Thank you, Mr. Chair, and I thank the 
witnesses for their very thoughtful testimony.
    It seems that as it relates to the problem of over-
criminalization that this Task Force is encountering, there are 
potentially three areas of exploration as it relates to the 
problem we seek to address.
    We have a tremendous explosion of the Federal criminal 
code, as it relates to regulatory offenses, as it relates to 
drug offenses spanning a wide spectrum.
    You have limitations on judicial discretion, perhaps 
inconsistent with a view of an independent judiciary as a third 
branch but co-equal branch of government.
    And then I think a related issue that some of you have 
begun to mention, and some of my colleagues have talked about 
during their time, is prosecutorial overreach.
    That third area, prosecutorial overreach, seems to be 
enhanced by or made more difficult by both an explosion of the 
Federal criminal code and a limitation on judicial expression.
    And so I would be interested, and perhaps we can start with 
Mr. Cline, how do we deal with the problem of prosecutorial 
overreach and the imbalance or the harm that is caused by it, 
and the imbalance and the threat to liberty, when you have an 
overly aggressive prosecutor taking advantage of the explosion 
of Federal crimes, and, in certain instances, the limitation of 
judicial discretion?
    Mr. Cline. Let me start by distinguishing between 
prosecutorial misconduct and prosecutorial overreach. 
Misconduct is, for example, the failure to turn over 
exculpatory information, improper comments in closing 
arguments, that kind of thing. And I take it that is not what 
you are talking about.
    What you are talking about, I think, is prosecutors as 
advocates using the tools they have to extort--I use that word 
advisedly--harsh plea agreements, to coerce defendants into not 
going to trial.
    I do not view that, necessarily, as anything bad on the 
part of prosecutors. They are advocates. They want to win their 
cases, and they use the tools available to them.
    The key is many of those tools I view as unfair. Mandatory 
minimums are a perfect example, but there are others as well--
the whole doctrine of willful blindness, some aspects of the 
sentencing guidelines, forfeitures.
    There are tools prosecutors have that they should not have. 
If you take those tools away, if you level the playing field, I 
think you will see many fewer instances of prosecutorial 
overreach.
    Another example, by the way----
    Mr. Jeffries. I appreciate that distinction. I want to hone 
in on it for a second, as long as things that can be done to 
deal with prosecutorial overreach.
    As it relates to misconduct, the withholding of exculpatory 
evidence, for instance, do you think that the law currently has 
sufficient incentives built into it to punish or deter 
prosecutorial misconduct?
    Mr. Cline. Absolutely not. I realize that is not the topic 
of this hearing, but I feel very strongly that discovery reform 
is necessary. Brady is not working.
    Mr. Jeffries. Professor O'Sullivan?
    Ms. O'Sullivan. I completely agree. There have been scandal 
after scandal after scandal on the Brady front.
    I agree with your point about prosecutorial discretion. The 
difficulty, of course, is that constitutionally it would be 
very difficult for Congress to constrain their discretion 
directly. And that is why we all think code reform is such a 
good thing, because you can affect their discretion by 
affecting what tools have.
    Mr. Jeffries. Yes?
    Mr. Volkov. The best way to constrain what you see as 
prosecutorial overreach is to have a clean code, a code that 
does not allow stacking, does not allow multiplicity of 
offenses.
    One act can result in 10 charges. It should not work that 
way. You should have the ability to constrain that discretion.
    One important point, though, when we go back to the 
guidelines, that has not been raised, is that Senator Kennedy 
was probably the biggest proponent of the guidelines for fear 
of what he saw was racial discrimination in terms of the 
sentencing by judges at that time.
    Mr. Jeffries. Now what is interesting about that question, 
I think you are going to have human error, and you are going to 
have human bias in any judicial system. And I think the one 
thing for us all to explore is whether we think that that human 
error, human bias, is more likely or more dangerous when vested 
in the prosecutorial area or whether it is more likely or more 
dangerous when found in the judicial branch.
    And I think the Founders, at least, built a system in place 
as it relates to lifetime tenure that that was designed to 
mitigate out at least the possibility of human bias in the 
judiciary.
    And that is something we should all think about, and I 
yield back.
    Mr. Sensenbrenner. The gentleman's time has expired.
    I think that this has been another very interesting hearing 
that this Task Force has had with a lot of ideas.
    I get back to the fact that I think that the challenge of 
getting this done is to have the first step be policy neutral.
    So with that happy admonition, without objection, the Task 
Force is adjourned.
    [Whereupon, at 10:27 a.m., the Task Force was adjourned.]

                                 
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