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







                          AGENCY PERSPECTIVES

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

                                HEARING

                               BEFORE THE

                OVER-CRIMINALIZATION TASK FORCE OF 2014

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 11, 2014

                               __________

                           Serial No. 113-101

                               __________

         Printed for the use of the Committee on the Judiciary





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      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 2014

            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

                              ----------                              

                             JULY 11, 2014

                                                                   Page

                               WITNESSES

The Honorable Timothy J. Heaphy, United States Attorney, Western 
  District of Virginia, United States Department of Justice
  Oral Testimony.................................................     4
  Prepared Statement.............................................     6
The Honorable Irene Keeley, United States District Judge, 
  Judicial Conference of the United States
  Oral Testimony.................................................    22
  Prepared Statement.............................................    25
The Honorable Patti B. Saris, Chair, United States Sentencing 
  Commission
  Oral Testimony.................................................    45
  Prepared Statement.............................................    47
David E. Patton, Executive Director, Federal Defenders of New 
  York, Eastern and Southern Districts of New York
  Oral Testimony.................................................    65
  Prepared Statement.............................................    67

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Bob Goodlatte, a 
  Representative in Congress from the State of Virginia, and 
  Chairman, Committee on the Judiciary...........................     3
Material submitted by the Honorable Robert C. ``Bobby'' Scott, a 
  Representative in Congress from the State of Virginia, and 
  Ranking Member, Over-Criminalization Task Force of 2014........    90

 
                          AGENCY PERSPECTIVES

                              ----------                              


                        House of Representatives

                Over-Criminalization Task Force of 2014

                       Committee on the Judiciary

                            Washington, DC.

    The Task Force met, pursuant to call, at 9:06 a.m., in room 
2237, Rayburn Office Building, the Honorable Spencer Bachus 
presiding.
    Present: Representatives Bachus, Goodlatte, Conyers, Scott, 
and Jeffries.
    Staff Present: (Majority) Robert Parmiter, Counsel; Alicia 
Church, Clerk; (Minority) Ron LeGrand, Counsel; and Vanessa 
Chen, Counsel.
    Mr. Bachus. Good morning. The Over-Criminalization Task 
Force hearing will come to order.
    Without objection, the Chair is authorized to declare 
recess of the Task Force at any time.
    We welcome our witnesses here today. And at this time, I 
will turn to the Chair of the full Committee, Mr. Goodlatte, to 
introduce our first witness, Mr. Heaphy.
    Mr. Goodlatte. Mr. Chairman, thank you very much for 
holding this hearing, and thank you for allowing me the honor 
of introducing my United States Attorney, who has represented 
us well in the Western District of Virginia for the past 
several years. He is someone who is very interested in not only 
the enforcement of the law, but in criminal law and public 
policy. So I am delighted to have him here today to testify.
    Tim, welcome.
    Mr. Bachus. Thank you. Our other witnesses, we have the 
Honorable Irene M. Keeley from West Virginia. She is from 
Clarksburg, West Virginia, a U.S. District Judge. She received 
her undergraduate degree from the College of Notre Dame of 
Maryland in Baltimore, and her master's degree from West 
Virginia University, who will be playing the University of 
Alabama in its first game.
    Before attending law school, she was employed as a 
secondary education teacher. She received her juris doctorate 
from West Virginia University College of Law.
    We welcome you, Judge.
    From 1980 to 1992, she practiced law with the firm Steptoe 
& Johnson.
    Was that here in Washington?
    Judge Keeley. It was in the original office in West 
Virginia.
    Mr. Bachus. Okay, so they originally are a West Virginia 
firm. Okay, thank you.
    She was appointed a Judge in the United States District 
Court for the Northern District of West Virginia by President 
George H.W. Bush in 1992. She served as Chief Judge of the 
Northern District from March 2001 to March 2008.
    Currently, she serves as chair of the Criminal Law 
Committee at the Judicial Conference of the United States.
    We welcome you.
    Our next witness is the Honorable Patti Saris, who is no 
stranger to this Committee.
    We welcome you back.
    She has served as the chair of the United States Sentencing 
Commission since December 2010. Judge Saris has served as 
United States District Judge for the District of Massachusetts 
since 1994, having been nominated to the Federal bench by 
President Clinton.
    Prior to her appointment to the District Court, Judge Saris 
served as an Associate Judge for the Massachusetts Superior 
Court. Previously, Judge Saris served as a Federal Magistrate 
Judge for the United States District Court for the District of 
Massachusetts.
    Judge Saris served as staff counsel to the United States 
Senate Committee on the Judiciary. She also served as a law 
clerk to the late Justice Robert Braucher of the Massachusetts 
Supreme Judicial Court. She then became an attorney in the 
Civil Division of the Justice Department and held the position 
of Chief of the Civil Division in the Office of United States 
Attorney from Massachusetts.
    Judge Saris received her B.A. from Radcliffe College and 
her J.D. from Harvard Law School. She is the sister-in-law of 
Jim Segal, who many of you know, whose office was right down 
the hall for several years and served as Chief of Staff for 
Chairman Frank.
    Mr. Goodlatte. Mr. Chairman, if I might?
    Mr. Bachus. The Chairman is recognized.
    Mr. Goodlatte. I just want to say that I shortchanged my 
United States Attorney, and I never want to do that, by leaving 
out his credentials.
    He is a graduate of the University of Virginia and the 
University of Virginia School of Law. And upon graduation from 
law school, he served as a law clerk to the Honorable John A. 
Terry in the District of Columbia Court of Appeals. He 
subsequently spent 2 years as a litigation associate at 
Morrison Foerster in San Francisco.
    In addition to practicing law, he has taught several 
classes as a lecturer at the University of Virginia School of 
Law, and he has also lectured frequently at the U.S. Department 
of Justice's National Advocacy Center in Columbia, South 
Carolina.
    Prior to becoming a United States Attorney, he served 12 
years as an Assistant United States Attorney, both in the West 
District of Virginia and the District of Columbia, and he has 
prosecuted a broad spectrum of criminal matters.
    Thank you, Mr. Chairman.
    Mr. Bachus. Thank you, Mr. Chairman.
    Well, we have at least two Virginia grads. Our last witness 
is Mr. David Patton. He has been executive director and 
attorney in chief of the Federal Defenders of New York since 
July 2011. Mr. Patton, from 2002 to 2008, worked at the Federal 
Defenders as a trial attorney in the Manhattan office. During 
that time, he also served as adjunct professor at New York 
University School of Law.
    In 2008, Mr. Patton taught as an assistant professor at the 
University of Alabama. And from 2010 to 2011, he was a visiting 
associate professor of law at Stanford Law School.
    He currently teaches professional responsibility in 
criminal law and is an adjunct professor of law at NYU.
    Mr. Patton clerked for the Honorable Claude Hilton of the 
United States District Court for the Eastern District of 
Virginia. He is a graduate of University of Virginia School of 
Law.
    We welcome you to the Committee.
    We are expecting our first and only votes of the day at 
10:15, so without objection, Members' opening statements will 
be made a part of the record.
    [The information referred to 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 Bachus. I am very pleased to be here today to 
hear from representatives of our major Federal criminal justice 
agencies. Today's panel will offer their perspectives on the various 
topics covered in the Task Force's yearlong series of hearings on 
issues related to over-criminalization.
    While past hearings have examined over-criminalization from more of 
an academic point of view, today's hearing is designed to fill in the 
blanks by eliciting the practical, working knowledge of the agencies at 
the heart of the nation's Federal criminal justice system. The Justice 
Department, the Judicial Conference of the U.S. Courts, the U.S. 
Sentencing Commission, and the Federal Public Defenders are uniquely 
situated to provide valuable insight into the over-criminalization 
concerns examined by this Task Force. I look forward to hearing their 
perspective on all the issues faced by this Task Force in the past 
year, including criminal intent, regulatory crime, the need for 
criminal code reform, over-federalization, and many others.
    Concerns with fundamental fairness abound in the area of over-
criminalization. During its existence, this bi-partisan Task Force has 
endeavored to closely examine the problems posed by over-
criminalization and over-federalization, and to identify potential 
solutions in order to prevent the regrettable circumstances that 
inevitably arise from the tangled web of Federal criminal provisions. 
Examples of individuals convicted of offenses despite no proof of any 
level of criminal intent, have been detailed in prior hearings and are 
far too commonplace.
    Additionally, Iam very supportive of taking responsible legislative 
action to ensure that offenders who have served their debt to society 
are given the opportunity to become productive citizens and avoid 
returning to a life of crime. This result serves multiple purposes, 
including enhancing public safety, alleviating overcrowding in Federal 
prisons, and saving taxpayer dollars.
    It is my hope that the members of today's panel can share their 
thoughts on these issues as well others the Task Force has considered. 
I believe that with their input, it may be possible to begin resolving 
many of the problems we have examined during the previous eight 
hearings on the over-criminalization issue.
    Again, I thank our distinguished witnesses for appearing today and 
look forward to their testimony. I would also like to reiterate my 
continued appreciation for the work of my colleagues on the issues 
before this Task Force, and I yield back the balance of my time.
                               __________

    Mr. Bachus. Mr. Heaphy, you are recognized for your opening 
statement.
    Does that suit everybody? No objections?

  TESTIMONY OF THE HONORABLE TIMOTHY J. HEAPHY, UNITED STATES 
     ATTORNEY, WESTERN DISTRICT OF VIRGINIA, UNITED STATES 
                     DEPARTMENT OF JUSTICE

    Mr. Heaphy. Thank you very much for inviting the Department 
of Justice today, and thank you, Congressman Goodlatte, for 
that very nice introduction. We very much appreciate the 
opportunity to appear at today's hearing.
    Last August, in remarks at the annual meeting of the 
American Bar Association's House of Delegates, my boss, the 
Attorney General of the United States, spoke of his desire to 
forge a more just society and to reform and strengthen 
America's criminal justice system. He said it is our duty to 
identify those areas we can improve in order to better advance 
the cause of justice for all Americans.
    On behalf of the Attorney General, I want to thank the 
Members of this Task Force for your pursuit of the goal of 
reform. Your work has contributed and will continue to 
contribute significantly to the discussion of potential 
improvements to make our system more fair and efficient.
    The department has an interest in all of the issues that 
this Task Force has explored. In our written testimony, we 
address issues regarding so-called regulatory crimes, the 
possible uniform mens rea standard for Federal crimes, and 
criminal code reform, issues which have been a major focus of 
the Task Force.
    I look forward to answering questions on those issues and 
other topics today. But in this opening statement, we would 
like to use my very limited time to focus on the crucial and 
urgent need to improve Federal sentencing and correctional 
policies.
    As the Task Force has recognized, our crime reduction 
strategies have included, over the last 20 years, a greatly 
expanded use of the criminal sanction. Incarceration rates in 
this country have skyrocketed. Our Nation now has the greatest 
number of prisoners of any country in the world, nearly one in 
every 100 adults in America is in prison or jail, a rate that 
is five to 10 times higher than rates in Western Europe and 
other democracies.
    Such extensive use of prison is expensive and 
unsustainable. Currently, our State and Federal Governments 
spend about $74 billion a year on incarceration. At the 
Department of Justice, spending on prisons in detention now 
amounts to almost a third of our overall operating budget, 
compared to only about a quarter in 2000.
    As a result, prison spending has increasingly displaced 
other crucial justice and public safety investments, including 
resources for investigation, prosecution, prevention, 
intervention and assistance to State and local law enforcement 
agencies.
    In response to the increasing percentage of our resources 
devoted to incarceration, the Attorney General has launched a 
Smart on Crime initiative that began in August of last year.
    Smart on Crime requires all Federal prosecutors, the men 
and women with whom I work every day, to ensure that we are 
devoting our enforcement resources to the most deserving of the 
Federal criminal charge.
    Smart on Crime also augments our support for State and 
local law enforcement as well as our funding and other support 
of prevention and reentry programs.
    The goal is to maintain our ability to fulfill our core 
enforcement function while also pursuing other priorities in a 
comprehensive approach to community safety.
    One important component of Smart on Crime is the 
department's support for reform of sentencing practices for 
low-level drug offenders. Of the 217,000 people in BOP custody 
today, nearly half are serving time for drug-related offenses.
    The department is committed to modifying charging and 
sentencing policies for these offenses, both to help control 
Federal prison spending and to ensure that people convicted of 
certain low-level, nonviolent Federal drug crimes will face 
sentences appropriate to their individual conduct.
    To most effectively address that issue, however, 
congressional action is necessary. We strongly urge this Task 
Force and the full Committee to take up sentencing reform 
legislation this year.
    The department strongly supports the legislation introduced 
by Congressman Scott and Labrador, the Smarter Sentencing Act. 
By modestly reducing statutory penalties for certain nonviolent 
drug offenders, the bill could allow billions of dollars to be 
reallocated to other critical public safety priorities while 
enhancing the effectiveness of our Federal sentencing system.
    The kinds of reforms the department supports have already 
proven successful at the State level. State leaders, 
Republicans and Democrats, have begun to transform sentencing 
and corrections policy across the country. Changes in State 
laws and justice priorities have demonstrated that it is 
possible to spend less money on incarceration without 
sacrificing public safety.
    In fact, many of these States have seen a drop in 
recidivism since they enacted sentencing reform legislation.
    So by controlling prison spending, shifting away from an 
overreliance on incarceration, we can focus our limited 
resources on the most important law enforcement priorities, 
such as violence prevention and protection of vulnerable 
populations.
    The department has committed to an approach that is not 
only more efficient and more effective at deterring crime and 
reducing recidivism, but also more consistent with our Nation's 
commitment to treating all Americans as equal under the law.
    We cannot achieve these critical goals without the support 
of Congress. We urge you to seize this opportunity to make our 
criminal justice system fair and keep the American people safe.
    Thank you.
    [The prepared statement of Mr. Heaphy follows:]


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                               __________

    Mr. Bachus. At this time, I will recognize Judge Keeley for 
her opening statement.

TESTIMONY OF THE HONORABLE IRENE KEELEY, UNITED STATES DISTRICT 
        JUDGE, JUDICIAL CONFERENCE OF THE UNITED STATES

    Judge Keeley. Thank you, Chairman Bachus and Ranking Member 
Scott and distinguished Members of the Task Force for inviting 
me to testify today. It is an honor to appear before you and 
alongside such distinguished witnesses, especially my good 
friend and colleague, Chief Judge Saris.
    I testify today on behalf of the Judicial Conference of the 
United States, the policymaking body for the Federal Judiciary. 
The conference's Committee on Criminal Law that I chair 
oversees the Federal probation and pretrial services system, 
and reviews legislation and other issues relating to the 
administration of criminal law.
    My committee has watched this Task Force's progress with 
keen interest. The Judicial Conference has submitted letters 
for the record at past hearings, and I thank you for 
accommodating us with regard to that.
    I offer for your consideration today several strategies to 
address the pressing problem of over-criminalization in the 
Federal system. Each of these points--curbing over-
federalization, reforming mandatory minimum sentences, and 
amending the guidelines--are discussed at length in my written 
testimony.
    At the outset, however, I do wish to emphasize that major 
criminal justice reforms currently under consideration, 
frontend and backend sentencing reform legislation, executive 
clemency, and reforms to the sentencing guidelines, will 
increase the Federal Judiciary's workload.
    Congress must provide the courts, which currently are 
operating at 1997 staffing levels, with adequate resources to 
shoulder those additional burdens. The failure to do so will 
result in further delays for your constituents and ultimately 
could have public safety consequences.
    For nearly a century, the Federal Judiciary has expressed 
concern about the federalization of crime. The conference 
encourages Congress to conserve the Federal courts as 
distinctive judicial forum of limited jurisdiction in our 
system of federalism. It is the conference's long-standing 
position that Federal prosecution should be limited to charges 
that cannot or should not be prosecuted in State courts.
    To this end, the conference has identified five types of 
crimes that are appropriate for Federal prosecution: first, 
offenses against the Federal Government or its inherent 
interests; second, criminal activity with substantial 
multistate or international aspects; third, criminal activity 
involving complex commercial or institutional enterprises most 
effectively prosecuted using Federal resources or expertise; 
fourth, serious high-level or widespread State or local 
government corruption; and fifth, criminal cases raising highly 
sensitive local issues.
    The conference also recommends that Congress review 
existing Federal criminal statutes with the goal of eliminating 
provisions that no longer serve an essential Federal purpose, 
an idea that I know has been discussed at past hearings of this 
Task Force.
    Another pressing problem related to the issue of over-
criminalization is the burgeoning population of the 
correctional system, caused in part by the proliferation of 
crimes carrying a mandatory minimum sentence.
    Mandatory minimums, in the opinion of the conference, are 
wasteful of taxpayer dollars by unnecessarily increasing 
correctional costs, which are borne both by the Bureau of 
Prisons and by the probation and pretrial services system, 
which is within the Judiciary.
    For 60 years, the Judicial Conference has consistently and 
vigorously opposed mandatory minimum sentences. Mandatory 
minimums are incompatible with guideline sentencing, a point on 
which Judge Saris may expand.
    In the absence of mandatory minimums, judges would not have 
unfettered discretion in sentencing. The sentencing guidelines 
that have been carefully developed with the benefit of the 
Sentencing Commission's congressionally endorsed expertise 
would remain fully in force. Departures or variances from the 
guidelines would be reviewable on appeal for reasonableness.
    Mandatory minimums also cause disproportionality in 
sentencing by treating similarly offenders who actually may 
pose very different risks to society. The Judicial Conference 
endorses amending Section 924(c) to preclude the stacking of 
counts and to clarify that additional penalties only apply when 
one or more convictions have become final prior to the 
commission of the next offense.
    The conference has already shared draft legislation in this 
regard with Congress, which I would be pleased to resubmit to 
this Task Force.
    One example of the significant cost of stacking is the case 
of Weldon Angelos, a first-time nonviolent offender whose 55-
year sentence resulted from stacking mandatory minimums.
    I would urge your Task Force to consider whether taxpayers 
are truly well-served by spending $1.4 million or more to 
incarcerate Mr. Angelos for 55 years.
    Thus, the Judicial Conference has agreed to seek 
legislation, such as the Safety Valve Act of 2013. The Judicial 
Conference also supports the policies contained in the Smarter 
Sentencing Act of 2013, legislation that I know several Members 
of this Task Force have cosponsored.
    The third major public policy initiative that the Judicial 
Conference supports relating to over-criminalization is the 
Sentencing Commission's April 2014 decision to amend the 
guidelines to lower the base offense levels in the drug 
quantity table across drug types. The commission is currently 
considering whether to make this decision retroactive.
    The Judicial Conference endorses these reforms on 
principles of fairness, nevertheless recognizing that they will 
impose costs upon the Judiciary. Retroactivity, in particular, 
would cause a dramatic influx of offenders out of prison and 
into the probation system.
    Inadequate resources or preparation for this event would 
imperil public safety. The Judicial Conference, therefore, 
endorses retroactivity only if release of the first wave of 
prisoners is delayed by 6 months in order to give the probation 
system time to prepare for the first wave of new supervisees 
and if the commission coordinates a national training program 
among all of the affected agencies.
    Thank you for inviting me to testify today and for 
considering the conference's views on curbing over-
federalization, reforming mandatory minimum sentences, and 
amending the sentencing guidelines. I look forward to answering 
your questions.
    [The prepared statement of Ms. Keeley follows:]


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                               __________

    Mr. Bachus. Thank you, Judge Keeley.
    At this time, we will hear from Judge Saris.

TESTIMONY OF THE HONORABLE PATTI B. SARIS, CHAIR, UNITED STATES 
                     SENTENCING COMMISSION

    Judge Saris. Good morning to everyone. Chairman Bachus, 
Ranking Member Scott, distinguished Members of the Task Force, 
thank you so much for providing me with the opportunity to 
testify on behalf of the United States Sentencing Commission. 
We are so pleased that the House Judiciary Committee has set up 
this Over-Criminalization Task Force. I have been waiting for 
this hearing, and I am thrilled that we are all here with such 
a distinguished panel.
    The commission identified reducing cost of incarceration 
and overcapacity as a priority for the amendment cycle this 
year and last year. In doing so, the commission is carrying out 
its statutory duty, and I quote the statute, ``We are required 
to ensure that the sentencing guidelines minimize the 
likelihood that the Federal prison population will exceed the 
capacity of the Federal prisons.''
    While State prison populations have begun to decline 
slightly due to reforms, the Federal prison population has 
grown by about a third in the past decade and exceeds capacity 
by 32 percent overall and by 52 percent in high-security 
facilities. Drug offenders make up a third of the offenders 
sentenced federally every year, and a majority of the prisoners 
serving in the Federal Bureau of Prisons. So they are extremely 
important to the size and nature of the Federal prison 
population.
    Can you hear me better now? Usually, hearing me is not a 
problem. [Laughter.]
    The commission set out to determine ways to address the 
crisis in the Federal prison budget and population that are 
fair and appropriate. We sought out the perspectives of law 
enforcement to be sure that any proposed changes will be 
consistent with the goal of promoting public safety.
    The commission found in its 2011 review of mandatory 
minimum penalties that certain mandatory minimum provisions 
apply too broadly, are set too high, or both. And as a result, 
certain mandatory minimums penalties are applied inconsistently 
from district to district, and even within districts.
    We also found that 23 percent of all drug offenders were 
couriers who are usually low-level, and nearly half of these 
were charged with offenses carrying mandatory minimum 
sentences.
    The category of drug offenders most often subject to 
mandatory minimum penalties--that is, who didn't receive any 
kind of relief from mandatory minimums like the safety valve--
were street-level dealers who are many steps below high-level 
suppliers and leaders of drug organizations.
    We are concerned, too, about the differences in how 
mandatory minimum penalties apply and relief is granted in 
different racial and demographic groups.
    Mandatory minimums have contributed to the growth in 
Federal prison populations. The numbers tell the story. The 
number of offenders in Federal custody who are subject to a 
mandatory minimum penalty at sentencing increased from 29,603 
in 1995 to 75,000 in 2010, a 155 percent increase.
    So the bipartisan, seven-member commission has accordingly 
unanimously recommended that Congress reduce statutory 
mandatory minimum penalties for drug trafficking; that the 
provisions of the Fair Sentencing Act of 2010 should be made 
retroactive; and that Congress should consider expanding the 
safety valve that is allowing sentences below mandatory minimum 
penalties for nonviolent, low-level drug offenders to offenders 
with slightly greater criminal histories than currently 
permitted.
    The commission also this year unanimously approved an 
amendment to the guidelines to reduce by two levels the base 
offense levels assigned to most drug trafficking offenders 
based on drug quantity. Why? The guidelines were originally set 
slightly above the mandatory minimum penalties, so that even 
those offenders with no enhancements and minimal criminal 
history would benefit from pleading guilty and otherwise 
cooperating.
    Congress subsequently created the safety valve, which gives 
low-level offenders a much greater benefit for cooperating. So 
setting the guidelines above the mandatory minimum is no longer 
necessary for that purpose.
    Indeed, after a similar reduction for crack offenders in 
2007, the rates at which the crack cocaine defendants pled 
guilty and cooperated with authorities remained stable.
    In addition, at the time the original guideline levels were 
set, the guidelines only had one enhancement for a gun, but now 
it has 14 enhancements for specific conduct, which reduces 
somewhat the need to rely so heavily on drug quantity in 
setting guideline levels.
    We were encouraged. We recently did a recidivism study of 
those offenders who sentences were reduced following the 2007 
two-level reduction for crack offenders. After 5 years, there 
was no statistically significant difference in recidivism rates 
between those offenders and other ones who were released the 
previous year after serving their full sentences. This study 
indicated that a modest reduction in drug sentences may not 
lead to any increase in recidivism.
    The amendment we approved this spring, if it goes into 
effect on November 1, is an important but modest--and I 
underline ``modest''--first step to addressing prison costs and 
crowding consistent with the law on public safety.
    But more comprehensive change needs to come from Congress. 
The commission has been encouraged to see the bipartisan 
legislation introduced here in the House and in the Senate that 
is consistent with the recommendations we have made. We hope to 
see further progress toward enacting legislation in this area, 
and stand ready to work with you and others in Congress.
    So thank you very much, and I am sorry I if I spoke too 
quickly. I am the bane of my court reporter. So, thank you.
    [The prepared statement of Ms. Saris follows:]


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                               __________

    Mr. Bachus. Thank you.
    Mr. Patton, look forward to your testimony.

   TESTIMONY OF DAVID E. PATTON, EXECUTIVE DIRECTOR, FEDERAL 
 DEFENDERS OF NEW YORK, EASTERN AND SOUTHERN DISTRICTS OF NEW 
                              YORK

    Mr. Patton. Thank you, Mr. Chairman. Thank you, Members. It 
is truly an honor for me to be here.
    Mr. Chairman, as you said, I am the Federal public defender 
in New York City.
    It is good to see you, Representative Jeffries.
    Together with my defender colleagues from around the 
country and court-appointed attorneys who are assigned to 
cases, we collectively represent all those accused of Federal 
crimes who are too poor to afford a lawyer. Nationwide, that 
means we represent over 80 percent of all defendants in the 
Federal criminal justice system.
    And I can tell you that we are grateful to this Committee 
for holding these hearings on a very important topic of over-
criminalization.
    When I think of the term ``over-criminalization,'' I think 
of a quote by the late Harvard Law Professor William Stuntz who 
wrote, ``Legal condemnation is a necessary but terrible thing, 
to be used sparingly, not promiscuously.''
    As I think this Committee knows, the Federal criminal 
justice system has become remarkably promiscuous by any 
measure, whether it is by the size of the Federal Criminal 
Code, which has doubled since 1970; whether it is the sheer 
number of people arrested and prosecuted for Federal offenses, 
which has tripled since 1980; or, most significantly, if 
measured by the number of people the Federal Government 
imprisons.
    The Federal prison population has increased by 1,000 
percent since 1980. And in the past 10 years, it has increased 
at a rate three times the rate of State prison populations, and 
this is at the time of historically low crime rates. So it is 
not an increase in crime that is driving the increase in 
incarceration.
    So what is driving it? Two things in the Federal criminal 
justice system: one, a vast increase in the number of Federal 
prosecutions of basic, routine crimes that were once solely the 
province of State and local law enforcement; and two, vast 
increases in the severity of Federal sentences, largely driven 
by mandatory minimums that prevent sentencing judges from 
imposing what would otherwise be reasonable, common-sense 
appropriate levels of punishment.
    You have already heard a great deal about the human toll 
this state of affairs has taken and the fiscal toll it has 
taken. I would like to focus in my brief time on the toll it is 
taking on the very structure of the Federal criminal justice 
system.
    What do I mean by that? I will summarize it with one 
number: 2.7--2.7 is the percentage of Federal criminal 
defendants who go to trial.
    Thirty years ago, the trial rate was five times that 
number. It is a state of affairs that caused the Supreme Court 
just 2 years ago to state that criminal justice today is, for 
the most part, a system of pleas, not a system of trials.
    This vanishing trial rate poses a serious threat to the 
quality of justice in Federal courts. Why is that? Well, first, 
we have to ask, why are they disappearing? And the answer is 
straightforward: The disappearing trial rates correspond 
precisely with the enormous increase in power we have given 
prosecutors via severe and mandatory sentencing regimes.
    Prosecutors have always had enormous discretion in 
charging, but they now have full control over many cases from 
start to finish. And they control whether to charge a mandatory 
minimum or not. It is entirely at their discretion. And that 
power is used largely to create a spread in the sentence that 
someone will receive if they plead guilty versus if they go to 
trial. And that spread can be enormous, orders of magnitude, 
10, 20, 30 years or more.
    Why is that a problem? It is a problem because juries are 
fundamental to our criminal justice system. They are the most 
direct way that ordinary citizens can check government 
overreach. They are vital to a constitutional democracy like 
ours. And they also happen to be the best way we know in the 
history of the world at transparently and accountably getting 
at the truth of various matters.
    Juries teach us that sometimes government agents make 
mistakes. Sometimes witnesses make stakes mistakes. Sometimes 
witnesses lie. And those truths get lost in a system where only 
2.7 percent of defendants can go to trial, because they can't 
risk the decades of additional time they might face if they go 
to trial, not based on the severity of the offense, but purely 
based on their exercise of that trial right.
    It is a system that our Founders would surely find 
unrecognizable. It is a system that does great damage to our 
constitutional values.
    I see that my time is up, and I look forward to answering 
your questions. Thank you, Mr. Chairman.
    [The prepared statement of Mr. Patton follows:]


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                               __________

    Mr. Bachus. Thank you very much.
    At this time, we are going to have questions from Members. 
I am going to go directly to Mr. Scott, and I will reserve my 
questions, if there is enough time.
    Mr. Scott. Thank you, Mr. Chairman.
    I wanted to thank all the witnesses for their testimony and 
ask Judge Keeley, on mandatory minimums, I want to thank the 
Judicial Conference for their opposition to mandatory minimums. 
They have been studied. They violate common sense. They 
discriminate against minorities. They waste taxpayer money and 
frequently require judges to impose sentences that violate 
common sense.
    Now, if we eliminate mandatory minimums, not just in the 
Smarter Sentencing Act but in the Safety Valve Act that would 
allow judges to sentence below the mandatory minimum when the 
sentence violates common sense, would the departure from the 
sentencing guidelines be an appealable issue?
    Judge Keeley. Yes, as I noted in my comments, whether it is 
a departure specified under the guidelines or variance pursuant 
to the 3553(a) factors of the Sentencing Reform Act, it is 
reviewable on appeal for reasonableness, so no judge has 
unfettered discretion in that area.
    Mr. Scott. Thank you.
    Judge Saris, on the retroactivity, you mentioned the fact 
that those who got retroactive benefit last time recidivated at 
a rate statistically insignificant. In fact, is was actually a 
little lower than those who did not, is that right?
    Judge Saris. Yes, it was.
    Mr. Scott. Are there any statutory barriers that we need to 
look at that slow up the work of the Sentencing Commission?
    Judge Saris. That slow up our work? No. I mean, if I had a 
wish list, I could probably go through them.
    But I think right now, we are a bipartisan commission 
working at the crossroads. I think we feel as if we have worked 
well with Congress. We feel as if we have our hearings. At this 
point there are no statutory barriers to doing what we want.
    There are certain things that we would love, but the 
commission at this point feels as if we are able to work very 
well on the whole area of recommending changes to the Congress, 
as well as doing our own work with respect to the guidelines.
    Mr. Scott. Thank you.
    Mr. Heaphy, are you prepared to discuss prison issues?
    Mr. Heaphy. Yes, I think so.
    Mr. Scott. Okay, can you tell me some prison programs that 
help reduce recidivism?
    Mr. Heaphy. The Bureau of Prisons has created a reentry 
coordinator position in every Federal prison. Director Samuels 
has an assistant director who focuses exclusively on reentry 
programs.
    It is imperative that we spend time for people, men and 
women who are incarcerated, to develop skills so that when they 
get out, they can be productive. In our view, the vast majority 
of them want very much to make choices that are productive and 
not criminal, but they need assistance.
    And there are programs from anger management to substance 
abuse counseling to job skills, educational programs from GED 
on up to college classes. We are working very hard in Virginia, 
actually, to get some of the online content providers like 
Liberty University to provide content to the prisoners in the 
Virginia system.
    There is a great bipartisan movement across the country to 
provide more of these very tangible services to those who are 
incarcerated, to help reduce recidivism when they get out.
    Mr. Scott. Have those programs been studied to ascertain 
whether they are effective?
    Mr. Heaphy. Those studies really are ongoing because a lot 
of those programs are new. Anecdotally, we have lots of 
evidence that they absolutely work.
    And the Second Chance Act, which I think you pioneered, has 
been hugely successful. And we would urge that it continue to 
be fully funded.
    Mr. Scott. What about employment programs like Unicor?
    Mr. Heaphy. Unicor also provides tangible skills to those 
incarcerated. That translates to job opportunities when they 
get out. If Unicor also provides a bonding opportunity or 
certification for those incarcerated, then those are very 
portable skills that are used on the outside.
    Mr. Scott. That pays for itself, is that right?
    Mr. Heaphy. Absolutely, it does.
    Mr. Scott. And the recidivism rate for those who have had 
the opportunity to get into Unicor, how does that compare to 
the general recidivism rate?
    Mr. Heaphy. I can't give you a specific figure, but 
absolutely lower, Congressman.
    And it makes common sense that when you have a skill, and 
you can get a job, then you are less likely to make a criminal 
choice.
    Mr. Scott. And the opportunity to get into Unicor, as I 
understand it, is a great management tool?
    Mr. Heaphy. It is. It enforces discipline within an 
institution, and people who are involved in prison programs 
generally have a lot fewer disciplinary actions when they are 
incarcerated.
    Mr. Scott. Can any of the panelists discuss the need to get 
a mens rea requirement before we prosecute people?
    Mr. Heaphy. The vast majority of criminal statutes do 
include a specific mens rea standard. There are some, however, 
that do not.
    The department believes that there is a role for the very 
careful use of some strict liability offenses where there are 
highly regulated industries that impact health and safety or 
environmental protection. There are occasions when we believe 
statutes that provide for strict liability are appropriate. 
They just have to be very judiciously used.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Bachus. Now the Ranking Member and the former Chairman 
of the full Committee, Mr. Conyers.
    Mr. Conyers. Thank you, Mr. Chairman. I welcome the 
contributions of the witnesses.
    I can't emphasize too much how important this Task Force is 
in the Judiciary Committee, and I am so glad that this 
discussion is taking place.
    Judge Saris, the commission's own impact analysis 
demonstrates that 70 percent of the 51,000 inmates eligible for 
the ``drugs minus two'' amendment are of color, Black or 
Hispanic. Would you agree that denying retroactivity would 
disproportionately impact minorities who have already been 
prosecuted and sentenced at disproportionate rates?
    Judge Saris. Let me start off by saying we haven't made our 
decision yet. We vote next week, actually, next Friday. I am 
back in D.C., 1 o'clock, we vote. So we have not yet made a 
decision on retroactivity.
    We have, however, held extensive hearings, had innumerable 
letters from everyone from law enforcement to the courts to 
people from the various stakeholders groups, religious groups, 
prisoners. We have heard from everyone. And we will be making 
that decision next week.
    What I will say is that mandatory minimum penalties and our 
drug sentencing scheme overall have had a particularly 
significant impact on racial and ethnic minority communities, 
and that more than 70 percent of offenders subject to mandatory 
minimums are minorities, Black and Hispanic.
    One of the reasons for that is, especially Black offenders, 
they have qualified for the safety valve less, so that the 
mandatory minimums have disproportionately affected minority 
populations.
    Mr. Conyers. Thank you so much.
    Could I ask for the opinions of Judge Keeley and David 
Patton on the same issue, please? Thank you.
    Judge Keeley. Thank you, Ranking Member Conyers. I wanted 
to remind everyone that our committee, the Criminal Law 
Committee, did have authority from the Judicial Conference to 
make a decision regarding retroactivity. And at our June 
meeting of the Criminal Law Committee, we voted by a large 
majority in favor of making the ``drugs minus two'' amendment 
retroactive.
    Mr. Conyers. Thank you.
    Mr. Patton, would you comment on this, if you choose?
    Mr. Patton. I think it is safe to say defenders would 
strongly encourage the commission and Congress to make any 
ameliorative changes retroactive.
    It really does not serve the interest of justice for the 
amount of time somebody serves to just depend on the fortuity 
of when the law goes into place. If it is an unjust sentence, 
it is unjust for those people serving the time now, in addition 
to people who will be sentenced tomorrow.
    And it would, I think, greatly help to ameliorate some of 
the racial disparities, the significant racial disparities, 
that we see in the system.
    Mr. Conyers. Thank you.
    My last question is directed to Judge Saris, Judge Keeley, 
and Mr. Patton, and here it is. Congress intended mandatory 
minimums to be imposed against drug kingpins, but as we found 
out, it is often low-level offenders, often people of color, 
who receive it.
    Does this comport with your experience?
    Judge Saris. I am just going to jump in, because Congress 
asked us a few years ago to do a study on exactly this issue, 
and we issued our report in 2011. And at least as of that time, 
we studied it, and in fact the mandatory minimums, as we said, 
apply very broadly, not just to serious and major drug 
offenders, but they are also applying to street-level dealers, 
couriers, and mules.
    Now many of those get safety valve relief, but they are 
being hit at very high levels with convictions of statutes 
carrying mandatory minimums, and particularly the street-level 
dealers are, in the end, subject to them.
    Mr. Conyers. Thank you.
    Can I finish, Mr. Chairman, by asking Judge Keeley to weigh 
in on this, please?
    Judge Keeley. As you know, I speak for the conference, and 
the conference for 60 years has opposed mandatory minimums. One 
of the basic reasons we have opposed it is because of the 
disproportionality in sentencing that results by treating 
similarly offenders who actually may pose very different risks 
to society.
    And so to the extent that the statistics demonstrate that 
that disproportionality affects the African-American and the 
Hispanic community in a more disparate fashion, that is a 
result of the fact that mandatory minimums are viewing an 
offender who isn't similar in a very similar way, instead of 
individually, which is the way sentencing ought to result.
    Mr. Conyers. David Patton, would you give us your opinion?
    Mr. Patton. Absolutely. To your initial point about the 
fact that mandatory minimums sweep in people that they were not 
originally intended for, I think that the evidence is in. That 
is absolutely the case.
    Congress intended for mandatory minimums to apply to 
managers and organizers of large-scale drug organizations, and 
instead, they have swept in much lower level offenders.
    Mr. Conyers. Thank you all very much.
    Thank you, Mr. Chairman.
    Mr. Bachus. Thank you.
    At this time, I recognize the gentleman from New York, Mr. 
Jeffries.
    Mr. Jeffries. Thank you, Mr. Chairman.
    Let me first just thank the distinguished panel for your 
presence here today, and, of course, your tremendous service to 
our country.
    Let me start with Mr. Patton.
    It seems to me that there are four primary actors in the 
criminal justice system. You have the prosecution, the defense, 
the presiding judge, and the jury. But if you have a trial 
participation rate--I believe the number was 2.7 percent--it 
seems to me that the course of the criminal prosecution, as you 
point out in your testimony, is largely determined by only one 
of those four actors, the prosecution, to the exclusion of the 
other four contemplated to bring about a just result in our 
constitutional system. Meaning the presiding judge, largely 
excluded. Certainly, the jury, largely excluded. The 
opportunity to mount a meaningful defense, largely excluded.
    So the system is out of balance, in my view, I think it is 
fair to say.
    What would be your recommendations in terms of how to 
restore some balance to the system in a manner that allows for 
meaningful engagement and participation by all of the actors in 
a criminal justice system, so that we can have a better shot of 
reaching the most just result?
    Mr. Patton. I think the Committee is probably growing tired 
of hearing it, but the answer is straightforward in one 
respect, and that is to ameliorate and eliminate mandatory 
minimums.
    Prosecutors have always had a great deal of authority, and 
they always will, in the charging process. But when they 
control the backend of the process as well, that is an 
unhealthy state of affairs.
    And I want to be clear, I am not suggesting--I think most 
prosecutors like most Americans are trying to do the right 
thing, most of the time. But we are a Nation of laws, not of 
men. We are very wary, historically, and with good reason, of 
investing too much power in nontransparent decision-making. And 
that is what happens in the plea bargaining process.
    When a judge imposes a sentence, it is on the record. There 
is a transcript. It can be appealed. Others can review it. 
Congress can look at the reasoning and decide whether or not 
changes need to be made.
    But charging decisions about whether or not to stack 
multiple 924(c)s or file an 851 that exponentially increased 
somebody's sentences, those are done not transparently and not 
accountably.
    Mr. Jeffries. Well, thank you. Let me pick up on that point 
with Mr. Heaphy.
    Thank you for your service and your testimony, and the 
progressive positions that are being articulated. But I want 
follow up on this point in terms of prosecutorial incentives to 
move forward.
    Notwithstanding the direction I think appropriately that 
has been given by the Attorney General, in the context of a 
U.S. Attorney receiving a performance evaluation, a line 
attorney, is it normal practice that that performance 
evaluation is based in part on their conviction rate?
    Mr. Heaphy. No, absolutely not.
    Mr. Jeffries. How is prosecutorial advancement determined?
    Mr. Heaphy. It depends on the individual, but it is about 
judgment. It is about fairness. It is about compliance with our 
discovery, and obligations, and our legal requirement to 
provide what is material and exculpatory to the defense.
    I have never, in my 20 years as a Federal prosecutor, been 
asked about a conviction rate. I don't even know what it is, 
and I don't keep track of that for the lawyers in our office.
    Our paramount objective is to do justice, and we evaluate 
our people on their consistency with the pursuit of that goal.
    Mr. Jeffries. So how do you measure judgment and 
discretion, and the ability to do justice, consistent with what 
a prosecutor's ultimate obligation is?
    Mr. Heaphy. It is hard to do that empirically or 
statistically. I don't think justice is always reflected in a 
conviction rate or in a number of cases handled. It is really a 
product of a case-by-case evaluation of whether or not someone 
is fair, has an innate sense of justice, and is achieving 
outcomes that in the view of the management of the office are 
fair and are just, and that is what our people are trying to do 
every day.
    Mr. Jeffries. So some have articulated a concern based on 
performance evaluations being largely measured by conviction 
rate and/or enhanced length of sentencing. I am pleased to 
hear, at least from your perspective from what you sit in your 
capacity, that is not your view. Hopefully, that is the case 
across the country.
    The other side of the coin is the notion of what are the 
disincentives for prosecutorial misconduct? Can you cite 
instances where examples of bad judgment, perhaps even judgment 
that crosses the legal boundary into potentially unlawful 
conduct, has actually been sanctioned in a way that every other 
American citizen has to face consequences in the context of the 
criminal justice system when they make a grievous error?
    Mr. Heaphy. In the Federal system, we have the Office of 
Professional Responsibility that very closely monitors, 
receives complaints, and then investigates allegations of 
professional misconduct. State bars do the same thing.
    There is a doctrine of sovereign immunity, that actors, 
whether they are law enforcement or prosecutors, in good faith 
attempting to their job, if they make decisions that are later 
view to be unwise, are protected with immunity.
    But there are tremendous checks and balances internal 
within our department to ensure that our lawyers, our junior 
lawyers on up to senior decision-makers, are playing by the 
rules and are doing what is right.
    Mr. Jeffries. I think my time has expired, so I yield back. 
Thank you.
    Mr. Bachus. Thank you.
    Let me first go to our U.S. Attorney. You mentioned 
environmental crimes, where there may not be need to be a mens 
rea.
    We have had testimony before this Committee, and I 
personally know of two businessmen in my district that were 
convicted in the 1980's of violation of environmental statutes.
    I have actually looked at the statutes and none of them are 
actually criminal statutes. By regulation, it was made a crime, 
and the regulation basically said the storing of toxic 
materials.
    In both of those cases, what happened, and I will just give 
you one example, a gentleman who was a Vietnam War veteran, a 
businessman, bought a piece of property, which had been a 
business, an ongoing business. He found on that site some 
barrels, and he reported it to the EPA that he had found these 
barrels. He was told that he needed to dispose of them.
    He then contacted them back and said it was going to cost 
over $1 million. He started disposing of them, but they gave 
him a deadline, and he didn't meet that deadline.
    Here was an individual who bought a piece of property, not 
knowing there are chemicals stored on it, notified the agency, 
started disposing of them. But it was hard to get people to 
take these chemicals. That is a very expensive process.
    And then going with Mr. Patton, what he is saying, his 
testimony on page 7, I can actually see in a lot of cases where 
the U.S. Attorney's Office for the Environmental Protection 
Agency, they have all the resources. He is faced with a 
situation of hiring an attorney. He actually was indicted.
    He is offered a year and a day to serve 60 days. He is told 
that if he doesn't accept that, that he could get 10 years. He 
spent over $100,000 in the 1980's on attorneys.
    And what Mr. Patton said, he can go to court. He can roll 
the dice. He can pay his attorneys money he doesn't have, 
borrowed money.
    But he chooses to take a plea. He is obviously very bitter 
about this, because he thinks he has done everything.
    And he says to me, ``Everybody says, well, why didn't you 
go to trial?'' Of course, he's saying, ``I can't. I can't risk 
this. I have young children.'' He has a criminal record. He 
can't vote. That is how I found out about one of the 
situations. I don't think many people knew.
    Mens rea to me, and you mentioned environmental, so that 
triggered it. Shouldn't there be some intent? I mean, is intent 
to violate the law, even after you notify an agency of 
something that you didn't cause?
    Does anybody have any comment on that? And I have been 
told, I actually talk to people up here on various Committees 
and the Judiciary Committee, former staffers, they said, oh, 
there were a slew of these convictions back in the 1980's. 
There were literally thousands of these cases.
    Mr. Heaphy. Congressman, I appreciate the question.
    I would not want someone 20 years from now to second-guess 
every charging decision. But that said, if that case, just on 
the facts as you described and nothing more, came to me today, 
that would not be a Federal criminal case.
    Mr. Bachus. Now it is not. I think it has changed. They do 
not, as a matter of policy, prosecute right now.
    Mr. Heaphy. But let's assume that instead of it being an 
individual, sole practitioner, or someone that has a piece of 
property, found the barrels, that it is a company who routinely 
deals with hazardous waste, has sophisticated professionals who 
are aware of the regulations, perhaps are warned that you must 
dispose, or you will face a legal consequence, and they 
affirmatively choose not to, knowingly do not, then that 
probably should be a crime.
    And this gets down to prosecutorial discretion. The reality 
that we are dealing with, Congressman, is I don't have enough 
people, we don't have agents, we don't have enough prosecutors, 
to deal with the 100 statutes, the guns, the drugs, the fraud, 
the child exploitation, that we face every day, because we have 
so many people in prison and our budgets are so stretched.
    So in a case like an environmental regulation of someone 
not appropriately disposing of a barrel of waste, to be honest, 
that is anomalous and peripheral matter that I am even less 
likely to reach now, because I can't get my core work done.
    It is only if we really look hard at sentencing reform that 
we increase the amount of resources available for us to get our 
core work done, that we are really going to be sustain the 
system going forward.
    Mr. Bachus. Anybody else have any comment on it?
    My time has expired.
    Mr. Scott?
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, I don't know if we usually introduce guests 
in the audience, but a group of Sixth Mount Zion Baptist Temple 
children just arrived.
    Could they stand, so we know where they are?
    Thank you. They are touring the Capitol and wanted to see 
what a congressional hearing looks like.
    Mr. Bachus. So what church?
    Mr. Scott. Sixth Mount Zion Baptist Temple church.
    Mr. Bachus. Where are they located?
    Mr. Scott. Hampton, Virginia.
    Mr. Bachus. Oh, okay. That is your district, isn't it? 
[Laughter.]
    You have an outstanding Congressman. [Laughter.]
    Thank you very much.
    Mr. Scott. Thank you.
    I wanted to follow-up on the questions to Mr. Heaphy.
    You suggested that, perhaps, strict liability may not be 
appropriate if health and safety is not a factor. Even if it is 
a factor, we have willful disregard to get past the strict 
liability, and we have civil fines.
    What rational basis would there be even on health and 
safety where the people just didn't know? It is no deterrent 
effect, if you didn't know.
    Mr. Heaphy. Congressman, I think there is a greatly 
enhanced deterrent effect, if there is a criminal sanction. 
When you are talking about people who work in highly regulated 
industries like food and drugs, and the protection of public 
health and safety, then it is a policy choice that Congress has 
made to force those people to know the rules. And if they do 
not know the rules, then there is a criminal sanction.
    We had a recent case involving Jensen Farms. This was a 
business that produced fresh fruit, and they had cantaloupes 
that were insufficiently washed and they had listeria bacteria 
on the cantaloupe. Those cantaloupes got into the stream of 
commerce of 20 or 30 States and ultimately were tied to 33 
deaths because of the ingestion of that listeria.
    There is no evidence that the two proprietors or the two 
owners of the business, the Jensens, intentionally sent tainted 
cantaloupe. But because they are operating a business that 
directly has that kind of impact on the health, the strict 
liability misdemeanor of being responsible for ensuring that 
that did not happen was employed by the department.
    Mr. Scott. You mentioned misdemeanor. That was not a 
felony?
    Mr. Heaphy. It was not a felony. It was a misdemeanor.
    Mr. Scott. And civil fines were insufficient?
    Mr. Heaphy. The judgment of the prosecutor in that case is 
that if it is a business problem that can be ameliorated by 
writing a check and resolving a civil case, it is insufficient 
deterrence. That is a policy determination that Congress made, 
and we, frankly, agree with it.
    Criminal sanction has a greater attention-getting deterrent 
effect with corporate entities.
    Mr. Scott. But all of this would be limited to situations 
where health and safety are involved?
    Mr. Heaphy. Generally, strict liability offenses--the BP 
oil spill, for example. There is no one who intentionally 
injected oil into the Gulf of Mexico, but it was of such 
magnitude that a responsible corporate officer could be held 
responsible, as could the company.
    Generally, those crimes in that area are highly regulated 
industries with sophisticated actors who would have to make it 
their business to know the rules and ensure that people are 
protected.
    Mr. Scott. Highly regulated is an important factor because 
they know about the highly regulated nature of the business 
they are in.
    Mr. Heaphy. Congress has decided that we will put the onus 
on them. Essentially, the public, the person eating the 
cantaloupe, he can't really protect himself. That is why as a 
policy matter, the onus is on the company that distributes that 
to ensure health and safety is protected.
    Mr. Scott. Thank you.
    Judge Keeley, you mentioned State offenses should not be 
tried in Federal court. Should we repeal the statutes or rely 
on the discretion of the prosecutors to reduce the number of 
State offenses that are tried in Federal court?
    Judge Keeley. I think the response of the conference would 
be that we have always urged Congress to do reasonable review 
of statutes to see if they are still effective, if there is 
still a need for them.
    So, in those circumstances, it would make sense to review 
those statutes. It would, of course, be within the discretion 
of Congress to determine whether the statutes should remain in 
place or be repealed.
    Mr. Scott. Is the decision to try something in Federal 
court reasonable if there is a differential in punishment? 
Should that be a factor in ascertaining whether or not the 
Federal Government ought to prosecute?
    Judge Keeley. Certainly, it is not within the conference's 
prerogative to say what crimes should be prosecuted in Federal 
court for a particular reason, but we would say that among the 
factors that we have recommended to Congress to review, that 
would not be one of them.
    Mr. Scott. Thank you.
    Thank you, Mr. Chairman.
    Mr. Bachus. Back to me, I guess.
    Let me pursue again just some of the line I was hearing, 
and I know that when people read laws, they say, ``Well, 
Congress intended this.'' Many times, Congress didn't intend.
    You read a statute that says you shall not store hazardous 
waste. When that statute was passed, I don't think Members of 
Congress realized they were saying that if you buy a piece of 
property and discover toxic waste on it, or stored chemicals in 
barrels, or you buy a building and there are some chemicals 
stored in that building in an ongoing business, and you almost 
immediately report that, and you find out what it is and you 
report it, and the cost is several times even more than what 
you bought the piece of property for.
    I am back to this gentleman, because this is a real 
example. He actually said to the EPA, you can just have the 
property. But he said, can you just take the property?
    I am not sure that Congress ever intended, and it may be a 
misdemeanor, but a civil fine or forfeiture of a property or 
something of that nature.
    Do each of you agree that maybe there should just be a 
tighter general statute on mens rea? I will just start with 
you.
    Mr. Heaphy. No, candidly, Congressman Bachus. No matter 
what we do, the system depends upon the individual discretion 
of decision-makers. And if you came to my office on behalf of 
that client who had the barrel of hazardous waste, again, I 
cannot imagine why I would bring that case.
    Mr. Bachus. Oh, I agree.
    Mr. Heaphy. It just does not make sense without more facts.
    But to apply a uniform mens rea standard, without a careful 
review, case-by-case, statute-by-statute, in our view, it would 
be wildly overinclusive, because there may be cases, rare 
cases, with more sophisticated actors, more persistent conduct, 
where a responsible corporate officer should be held 
accountable as a matter of policy.
    And Congress really, again, has passed these statutes in 
the area of health and safety, so, again, Congress needs to be 
explicit, obviously, when drafting statutes. Generally, they 
are.
    Judges try hard to interpret them, and apply certain 
standards to their interpretation. But a blanket standard that 
would apply universally we think would be overinclusive.
    Mr. Bachus. Judge Keeley?
    Judge Keeley. Mr. Bachus, as you know, I am appearing here 
today as a conference witness, and I can only speak on issues 
on which the conference has taken a position, and it has not 
taken a position on the mens rea question.
    Mr. Bachus. Judge Saris?
    Judge Saris. As you know, the commission focuses on 
penalties, not on the elements of a crime, so we have not taken 
a position there either.
    Mr. Bachus. Okay.
    Mr. Patton. And I am sure that it won't come as a surprise 
to you, Mr. Chairman, that most of our clients are not facing 
regulatory misdemeanors. [Laughter.]
    Mr. Bachus. I am sitting here asking these questions and 
kind of the elephant in the room is this is maybe a half of 1 
percent of all cases. We are not dealing with the 99.5 percent 
here.
    I read on page 7 of your testimony, I saw this last night, 
and I am thinking this is Custer's last stand almost, but you 
say my office of the Federal defenders of New York represents 
indigent defendants in the Southern and Eastern Districts of 
New York. Those two Federal districts cover all of New York 
City, five counties north of the city, and Long Island.
    You have 39 lawyers. For those same two districts, there 
are 300 Federal prosecutors--39 to 300.
    Now, of course, my first question is, I read that and I 
didn't read the next sentence, of ``Well, a lot of them hire 
attorneys.'' But you have even considered that and you say, 
even after that, you represent over a third of those 
defendants. So over one third of them don't. And there is still 
an 8-to-1 ratio of prosecutors to defense attorneys.
    Now, there is no way that you can try all of those cases.
    Mr. Patton. And, I would say, Mr. Chairman, that that 
really understates the resource imbalance, because that doesn't 
take into account all of the Federal and local law enforcement 
agencies, and all of the resources they bring to bear. And 
cases require more and more time and energy these days.
    Mr. Bachus. DNA. So 90 percent of your budget is for 
salaries, so you have 10 percent. I wouldn't think that you 
could pay for many DNA tests.
    Mr. Patton. Well, we can. I don't want to overstate it. I 
think that the Judicial Conference works with us to help us 
with our funding.
    But it is out of whack. It is thoroughly out of balance 
with the resources on the other side of the aisle.
    Even a routine case today, not even a complicated case, 
will often involve cell phones or computers that need to be 
examined. The government will make claims based on cell site 
data or metadata on a computer.
    These are things that require experts, that require 
diligence and time and energy to investigate. And we are, 
certainly, outgunned in that regard.
    Mr. Heaphy. Could I jump in on that? The people who are 
with me are probably going to be upset that I am jumping in on 
any question, but I have to, very quickly.
    The Federal public defender, very talented lawyers, only 
represent in every district a percentage of all of the indigent 
criminal defendants. If a defendant cannot afford counsel of 
his or our choice, then they are appointed a lawyer who has to 
be constitutionally effective. It could be the Federal public 
defender. It could be a private lawyer who is on a list from 
which a judge selects.
    But we agree. The department strongly supports adequate 
funding of indigence defense. It is important for the system to 
work effectively that the resources are relatively balanced, 
that if a defendant needs a DNA expert or wants to bring a 
witness in from some other place, that he be able to do that, 
and that if he is indigent, that the court pays for that.
    The Attorney General has consistently spoken of the need 
for adequate funding for indigent defense. I as a trial lawyer, 
I know that I am frankly in a better position if my opponent on 
the defense side is an effective advocate. I think juries want 
to see a fair fight. And that is fair. That is the way the 
system should work.
    So we agree with David that indigent defense, Federal 
public defenders, and the Criminal Justice Act-appointed 
lawyers need to be well-resourced.
    Mr. Bachus. And I guess you mentioned you were a trial 
lawyer. I was a trial lawyer and you know if you have the 
resources, it is a tremendous advantage.
    I have actually sued the railroad, and I represented the 
railroads, and I appreciate the difference in resources. 
[Laughter.]
    Mr. Heaphy. You ought to go into environmental defense too. 
There is a future there.
    Mr. Bachus. My people, you are talking about your people, 
my people want me to ask this question. How would a requirement 
that a person, we are talking about cases where there doesn't 
seem to be any overt act or intention to violate, how would a 
requirement that the person actually acted willfully, did 
something, not just failed to do something--but I guess the 
food case you were talking about was a failure--but acted 
willfully to prevent prosecution of these types of egregious 
cases that I have described. And their characterization is 
``egregious.''
    Mr. Heaphy. The cases in which we have charged a person or 
company for doing something that was not willful, are extremely 
rare.
    Let me just emphasize again, they are a very, very small 
percentage of the overall number.
    But again, there are instances where Congress has made a 
policy judgment, and we agree that it is important as a matter 
of strict liability to hold someone accountable because they 
should have known the rules.
    The biggest example of strict liability offense in American 
justice is drunk driving. You don't necessarily have to hurt 
anyone. But if you make a decision to get behind the wheel 
while intoxicated, you are strictly liable even if you cause no 
harm.
    And again, that is because drunk driving----
    Mr. Bachus. Of course, that is a willful act, getting 
behind the wheel.
    Mr. Heaphy. That is true. But it doesn't necessarily have 
to cause injury.
    And I guess what we believe is that there are times when 
holding a company or an individual responsible, even if they 
weren't willful, they didn't take steps to prevent an injury, 
those rare instances we believe ought to be an arrow in our 
quiver to use in an appropriate case.
    Mr. Bachus. Of course, your case on food, there were 
deaths.
    Mr. Heaphy. There were, yes.
    Mr. Bachus. That was sort of different. In this case, it 
was toxic chemicals that had been stored there, and only just 
continued to be stored there. But there was actually an 
affirmative act of reporting. ``I have something here. What do 
I need to do?''
    Mr. Heaphy. We had a case in our district years ago 
involving a pharmaceutical firm that was marketing a pain-
killing medication, OxyContin, affirmatively hiding evidence of 
its addictiveness. And in that case, my predecessor in this job 
had three individual executives of that company plead guilty 
because they were responsible corporate officers who should 
have been aware that the marketing was deceptive. And they pled 
guilty to those misdemeanors.
    Mr. Bachus. And I understand, they acted willfully. They 
concealed, or they were warned. They were cautioned. I 
understand.
    Do you have any final comments?
    Mr. Scott. Yes, Mr. Chairman. Willful blindness is 
prosecutable under a mens rea requirement. The problem is when 
people honestly did not know if it violated some arcane 
regulation and end up in criminal court.
    I don't think there is any limitation on civil fines in 
that situation. But getting into a criminal prosecution is one 
of concern. When you are dealing with health and safety, I 
guess you can have different standards.
    But at some point, you have to know you were actually 
committing a crime.
    Mr. Chairman, I ask unanimous consent that three documents, 
one from the Urban Institute,* one from Families Against 
Mandatory Minimums, and a letter from Ranking Member Conyers 
and myself to the Sentencing Commission be entered into the 
record.
---------------------------------------------------------------------------
    *The material from the Urban Institute, ``Stemming the Tide: 
Strategies to Reduce the Growth and Cut the Cost of the Federal Prison 
System,'' is not reprinted in this hearing record but is on file with 
the Subcommittee and can be accessed at http://www.urban.org/
uploadedpdf/412932-stemming-the-tide.pdf
---------------------------------------------------------------------------
    Mr. Bachus. Well, thank you. In fact, without objection, 
all Members will have 5 legislative days to introduce any 
extraneous materials or statements, or to submit written 
questions to the witnesses.
    [The information referred to follows:]


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                            ________________

    Mr. Bachus. And at this time, I am going to recognize the 
Chairman of the full Committee for questions.
    Mr. Goodlatte. Mr. Chairman, thank you very much. I 
apologize for having to slip away. We have a Task Force that 
the Speaker appointed regarding the issue of our border, and 
children and others coming to the border, and I had to go to 
that meeting, but I am glad I got back in time to ask a few 
questions.
    I will address this to U.S. Attorney Heaphy. We learned 
recently that the Solicitor General's office filed briefs with 
the Supreme Court in three cases that reflect the Department of 
Justice's new position that the ``willfully'' element of 18 USC 
Sections 101 and 1035 requires proof that defendant made a 
false statement with knowledge that his conduct was unlawful.
    So my question to you is, do you believe it is appropriate 
to require proof of knowledge of unlawfulness for every Federal 
crime? And what about for every element of a crime?
    Mr. Heaphy. Yes, I am familiar with the recent position 
taken by the Solicitor General. It is limited to false 
statements in Federal health care programs, 1035 and 1001, 
which is the general statute, which prohibits false statements 
in a matter of Federal interest.
    But ``willfully'' in those statutes has to be read in 
context. I feel like I am giving you a very lawyerly answer, 
but it is important because the language matters.
    There are other contexts and statutes in which the word 
``willfully'' has a different interpretation, like in the 
Securities Act or in tax offenses. There is no specific intent 
requirement, even though the word ``willfully'' appears there, 
and that has been repeatedly upheld by the Supreme Court.
    So the Solicitor General opinion was limited to 1035 and 
1001, but it does not touch the long-settled view of how 
``willfully'' is defined in other areas of the law because of a 
different context.
    Mr. Goodlatte. I would imagine that would cause a lot of 
confusion for those who are not as lawyerly as you and I try to 
be. And I wonder, do you believe that the definition of 
``willfully'' should be consistent?
    Mr. Heaphy. Again, I think it depends on the sentence in 
which it appears. I think most of us understand----
    Mr. Goodlatte. As a legal term, so that when one is being 
given legal advice, and when one is attempting to abide by the 
law and not act in a willful way that would cause them to 
encounter that, would it not be helpful to have a definition 
that was consistent across the law?
    Mr. Heaphy. I think the department's position was based on 
sort of a similar view that it was important to make clear that 
``willfully'' in the context of 1001 and 1035 meant someone had 
to know that the statement was false. As a matter of fair 
notice, the important goal that you flagged, yes, it is 
important for people to understand that certain decisions will 
or will not violate the law.
    But again, Congressman, a uniform standard that would apply 
to that word in every context, we would not go that far.
    Mr. Goodlatte. And with regard to the underlying question 
of the appropriateness of requiring proof of knowledge of 
unlawfulness for every crime, I take it your answer is that you 
wouldn't require that in every case.
    Can you give us some examples of cases where it would not 
be appropriate to require that the person have mens rea or 
criminal intent?
    Mr. Heaphy. Yes. Right when you walked in, we were talking 
about the Purdue Pharma case, which you are probably familiar 
with that happened right in our district. And that was a 
responsible corporate officer prosecution, where Purdue Pharma 
was marketing OxyContin, explicitly not flagging the 
addictiveness of the medication. Three executives from the 
company, with no evidence that they were personally aware of 
and monitoring the marketing messages that were sent by the 
company, but they should have, and under that responsible 
corporate officer doctrine, they were charged with and pled 
guilty to a misdemeanor, essentially, responsible corporate 
officer doctrine misdemeanor.
    So again, these are rare cases, and I want to emphasize 
that we are talking here about a very miniscule percentage of 
the overall portfolio of the work that we have to do. The 
garden-variety, malum in se, day-to-day work in our department, 
as you know, Mr. Chairman, is dealing with garden-variety 
crimes. And that is what we are underresourced to do, and that 
is why we are talking so much about sentencing reform.
    But there are limited circumstances, like the Purdue Pharma 
matter, where we think that it is appropriate as a policy 
matter to hold people accountable even if they didn't know 
because they should have known, given that they work in a 
regulated industry.
    Mr. Goodlatte. And what about the rule of lenity and the 
possibility of codifying this rule, that, as I understand it, 
is a judicial construction that says when a statute is not 
clear, it should be interpreted in favor of the defendant?
    Mr. Heaphy. Yes, it would be anomalous for Congress to say, 
if we are ambiguous, give the benefit of the doubt to the 
defendant. Judges do that. That, as you said, is a canon of 
statutory construction.
    The answer is for Congress to very specifically identify 
intent standards, and we don't need a rule of lenity. That only 
kicks in if the language is ambiguous.
    So we would always urge Congress to be very specific in 
terms of what level of intent is required in defining crimes.
    Mr. Goodlatte. Congress tries, but with 4,500 separate 
Federal criminal statutes, it is not always as clear as one 
might think, especially when you don't have the real-life case 
matter before you that you are applying the test of that 
language to.
    And that is why I think some of the criminal law scholars 
who testified before us have advocated for something like that.
    Let me ask any of the panel witnesses if they have anything 
to offer on either of those two subjects.
    Judge Keeley. I had mentioned earlier, Chairman Goodlatte, 
that the Judicial Conference has not take a position on mens 
rea, and I am here as the conference representative, so I don't 
have any additional comments.
    Judge Saris. As I mentioned, as well, we focus on 
penalties, not on elements. The commission doesn't have a 
position.
    Mr. Goodlatte. All right. You are the representative of 
defendants in these cases, but what do you think?
    Mr. Patton. I am, Congressman. And a few moments ago, to 
many laughs, I noted that we don't deal with too many 
regulatory offenses, in my line of work. Most of our clients 
are facing more serious felonies.
    Of course, as a broad principle, I think mens rea is----
    Mr. Goodlatte. But this could apply in any type of criminal 
violation of the law.
    Mr. Patton. It could, and, certainly, we do deal with 
issues of false statements. And I do think that the mens rea 
requirement in those situations, outside of the health and 
environmental and regulatory situations, which we really don't 
deal with on a regular basis, but as a general principle, I, of 
course, agree that mens rea is vital.
    It is what often distinguishes criminal from civil 
misconduct, and it is an important distinction. It is why we 
impose some sort of separate moral sanction because of the 
person's intent and what they meant or didn't mean to do.
    Mr. Goodlatte. Well, thank you. I want to thank you all. I 
do have a concern that individuals who believe they are acting 
in good faith and do not know that they are willfully violating 
the law, I think the overall effectiveness of the rule of law 
is weakened when you don't take into account a requirement that 
you have a showing of mens rea.
    And I would be happy to work with you, Mr. Heaphy, and 
others on whether there is a narrow band of exception to that. 
But I think, in general, that should be a requirement.
    Thank you, Mr. Chairman.
    Mr. Bachus. Thank you.
    At this time, we are going to adjourn. Do any of you have 
closing statements you want to give?
    I will say this, there is a bipartisan recognition in this 
Congress, and I am retiring after 22 years, but I have never 
seen such a bipartisan recognition about the urgency to address 
over-criminalization, over-federalization of criminal cases, 
and sentencing reform, particularly. There is broad agreement 
among U.S. Attorneys, judges, Members of Congress, I think the 
general public. And it is a very important thing.
    And I commend Members of this Committee and our Chairman 
for recognizing that, Mr. Scott and Mr. Conyers and others for 
offering legislation, which we have some of our most 
conservative Members and our most liberal Members on.
    So hopefully, it is something that we can do. If we have to 
do it incrementally, I don't think there is any perfect 
solution, but I would hope that we can take some action on 
that.
    It looks like some of the other issues are going to be much 
harder to gain consensus.
    We appreciate your testimony. Our Federal judges have been 
telling us in my district for years we had a problem, and they 
continue to tell us. And I know our inaction, to a certain 
extent, is precipitating the problem.
    So I thank you for your attendance, and this is important 
testimony. As we read your testimony, we may have additional 
questions for you.
    We have a vote and less than 5 minutes remaining on the 
floor, and some of us are not as fast as others, so this 
hearing is adjourned.
    [Whereupon, at 10:31 a.m., the Task Force was adjourned.]

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