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



 
                      THE CRIMES ON THE BOOKS AND 

                         COMMITTEE JURISDICTION
=======================================================================


                                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 25, 2014

                               __________

                           Serial No. 113-102

                               __________

         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 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 25, 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.............................    22

                               WITNESSES

John S. Baker, Jr., Ph.D., Visiting Professor, Georgetown Law 
  School, Professor Emeritus, LSU Law School
  Oral Testimony.................................................    26
  Prepared Statement.............................................    29
Steven D. Benjamin, Immediate Past President of the National 
  Association of Criminal Defense Lawyers (NACDL)
  Oral Testimony.................................................    35
  Prepared Statement.............................................    37

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material 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..............     3
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..............    24
Prepared Statement of the Honorable Bob Goodlatte, a 
  Representative in Congress from the State of Virginia, and 
  Chairman, Committee on the Judiciary...........................    25


           THE CRIMES ON THE BOOKS AND COMMITTEE JURISDICTION

                              ----------                              


                         FRIDAY, JULY 25, 2014

                        House of Representatives

                Over-Criminalization Task Force of 2014

                       Committee on the Judiciary

                            Washington, DC.

    The Task Force met, pursuant to call, at 10:20 a.m., in 
room 2237, Rayburn House Office Building, the Honorable F. 
James Sensenbrenner, Jr. (Chairman of the Task Force) 
presiding.
    Present: Representatives Sensenbrenner, Bachus, Holding, 
Conyers, Scott, Johnson, and Jeffries.
    Staff Present: (Majority) Brian Northcutt, Counsel; Robert 
Parmiter, Counsel; Alicia Church, Clerk; (Minority) Ron 
LeGrand, Counsel; Veronica Chen, Counsel; and Veronica Eligan, 
Professional Staff Member.
    Mr. Sensenbrenner. Committee on the Judiciary Over-
Criminalization Task Force will be in order. We have to get 
this hearing in before the votes start between 11:30 and noon.
    Even though it is noticed for 10:30, I think the time for 
opening statements will burn up the time between now and 10:30. 
So we can get to the witnesses.
    I would like to welcome everyone to today's hearing on the 
Judiciary Committee's Over-criminalization Task Force. The 
tenth and final hearing will focus on the abundance of Federal 
criminal offenses on the books, and the role of the Judiciary 
Committee's jurisdiction, or lack thereof, under House rules 
plays this issue.
    Over the past year, the Task Force has examined many 
important topics in this area, gained valuable perspective on 
the issues from a number of highly qualified witnesses, two of 
which rejoin us today for today's hearing.
    I anticipate that they will be able to provide this body 
with meaningful insight into the subject of today's hearing, 
and I appreciate their continued cooperation in the furtherance 
of the goals of the Task Force.
    Despite the fact that it is generally accepted that the 
Federal Government does not possess a general police power, 
recent studies have concluded that the number of Federal 
criminal offenses on the books has grown from less than 20, 
which were directly related to the operation of the Federal 
Government in the years following this Nation's founding, to 
nearly 5,000 today, which cover many types of conduct 
undoubtedly intended by the framers to be left to the 
individual States.
    At the current rate, the Congress passes an average of over 
500 new crimes every decade. This surge is highlighted by a 
particularly telling statistic. Nearly 50 percent of the 
Federal criminal provisions enacted since the Civil War have 
been enacted since 1970.
    The sheer number of Federal crimes leads to a number of 
concerns, issues of notice and fairness where legal 
practitioners, not to mention the general public, have 
difficulty in determining if certain conduct violates Federal 
law and, if so, under which statute.
    The disorganization, decentralization and duplicative 
nature of the Federal collection of criminal laws needs to be 
addressed. I have introduced legislation to do just that in the 
Criminal Code Modernization and Simplification Act.
    This bill would cut more than a third of the existing 
Criminal Code, reorganize the code to make it more user 
friendly, then consolidate criminal offenses from other titles 
so that Title 18 includes all major criminal provisions.
    There are likely a number of reasons for this rapid 
expansion of Federal criminal law, including the fact that many 
criminal statutes are drafted hurriedly in response to pressure 
from the media or the public and, as a result, often duplicate 
offenses already on the books and omit critical elements, such 
as a valid mens rea or criminal intent.
    Additionally, under the current interpretation of the House 
Rules, it is possible and not uncommon for new criminal 
legislation to make its way to the House floor without ever 
receiving proper scrutiny from the Judiciary Committee.
    This Committee is comprised of lawmakers and professional 
staff with expertise in drafting criminal provisions and the 
ability to avoid redundancy through situational awareness of 
the entire body of Federal criminal law.
    As we move toward wrapping up the business of the Task 
Force, in addition to other potential recommendations, we 
should consider pursuing an amendment to the rules clarifying 
the jurisdiction of the Committee with respect not only to 
criminal law enforcement, but criminalization and criminal 
offense legislation as well.
    Again, I would like to thank our witnesses for appearing 
today and would also like to thank the Members of the Task 
Force for their service over the past year. In the coming 
months, I hope we can begin to come together to address many of 
the concerns with over-criminalization that have been 
identified.
    Before introducing Mr. Scott for his opening statement, I 
would like to ask unanimous consent to include for the record a 
memorandum dated July 21, 2014, from the Office of the House 
Parliamentarian, and a CRS report entitled ``Subject: Updated 
Criminal Offenses Enacted From 2008-2013,'' dated July 7, 2014, 
into the record. And without objection, it is so ordered.
    [The information referred to follows:]
    
    
    
    
    
    
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                               __________
    Mr. Sensenbrenner. And it is now my pleasure to introduce 
the gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, we created this Task Force in recognition of 
the need to address the explosive growth of the Federal prison 
population and the dramatic expansion of the U.S. Criminal 
Code.
    For 5 decades, Congress has increasingly addressed societal 
problems by adding a criminal provision to the Federal code. 
Too often we have done this in a knee-jerk fashion, charging 
ahead with the same failed tough-on-crime policy and addressing 
the crime of the day instead of legislating thoughtfully and 
with the benefit of evidence-based research.
    When it comes to criminal law, only those matters that 
cannot be handled by the States need to be addressed by the 
Federal Government. What valid purpose is served by creating 
crimes at the Federal level if they duplicate crimes being 
effectively enforced by the States?
    For example, why should there be a Federal carjacking 
statute? State and local law enforcement have investigated and 
prosecuted carjacking effectively for years, long before 
Congress made it a Federal crime.
    Two weeks ago, in testimony before this Task Force, Judge 
Irene Keeley reminded us of the following recommendations made 
by the Judicial Conference in 1995 regarding five types of 
criminal offenses it deemed appropriate for Federal 
jurisdiction: Offenses against the Federal Government or its 
inherent interest, criminal activity with substantial 
multistate or international aspects, criminal activity 
involving complex commercial or institutional enterprises most 
effectively prosecuted using Federal resources or expertise, 
serious high-level, widespread State or local corruption, and 
criminal cases raising highly sensitive issues.
    We have ignored these recommendations. Earlier this month 
the Congressional Research Service of the Library of Congress 
informed us that 403 criminal provisions were added to the U.S. 
Code between 2008 and 2013, for an average of 67 new crimes a 
year.
    Of those 403 new provisions, 39 were not even referred to 
the Judiciary Committee. Over the past several years, we have 
estimated that there were 4,500 Federal crimes. Now, the new 
estimate from CRS is approximately 5,000.
    In addition to the 5,000 crimes in the U.S. Code, there are 
approximately 300,000 Federal regulations that are enforced 
with criminal penalties.
    Several witnesses at our hearings have testified that many 
of the regulations lack an adequate criminal intent or mens rea 
requirement to protect those who do not intend to commit 
wrongful or criminal acts from prosecution.
    Witnesses have suggested the enactment of a default mens 
rea as well as legislating the rule of lenity for statutory 
construction as an appropriate fix for existing statutes and 
regulations.
    We have also heard concerns about Federal agencies' 
promulgation of regulations that carry criminal sanctions. It 
is time for Congress to put an end to that practice, reclaim 
that authority and retain sole discretion in determining which 
actions are criminal and what sanctions are appropriate when 
deprivation of one's liberty is at stake. Regulations can still 
be enforced with civil penalties. But when criminal penalties 
are considered, Congress should be involved.
    The result of decades of criminalizing more and more 
activities has been the growth of the Federal prison population 
from about 25,000 in 1980 to over 200,000 today, making the 
United States the world's leader in incarceration, about seven 
times the international average.
    The Pew Center on The States estimates for any 
incarceration rate over 350 per 100,000, the crime reduction 
value begins to diminish because, at that point, you certainly 
have all the dangerous people locked up.
    We have also learned from the collateral consequences that 
more than 65 million Americans are now stigmatized by the 
criminal convictions, bombarded by over 45,000 collateral 
consequences of those convictions, making reentry and job 
prospects dim.
    In spite of this research that over 350 per 100,000 
population yields diminishing returns and the Pew Research 
Center also said that anything over 500 per 100,000 is actually 
counterproductive, the United States leads the world at over 
700 per 100,000.
    That is because unnecessarily locking up people wastes 
money that could be put to better use. Families are disrupted, 
making the next generation more likely to commit crimes, over 
700 per 100,000 counterproductive, and we lock up well over 700 
per 100,000--500 per 100,000 counterproductive. We lock up over 
700.
    The testimony received during these hearings has 
consistently told us that longer sentences are not the answer. 
Yet, we continue to create more crimes, increase sentences and 
add more mandatory minimums.
    Mandatory minimums has specifically been studied 
extensively and have been shown to disrupt rational sentencing 
patterns, discriminate against minorities, waste the taxpayers' 
money, do nothing to reduce crime, and often require judges to 
impose sentences that violate common sense.
    A ``code'' is defined as a systematic and comprehensive 
compilation of laws, rules, regulations that are consolidated 
and classified according to subject matter.
    Our Criminal Code is not a criminal code by that 
definition, as Federal criminal offenses have spread all over 
the 51 titles of the U.S. Code, making it virtually impossible 
for practitioners, not to mention an ordinary citizen, to make 
any sense out of it.
    It is time not only to move all criminal provisions into 
one title, Title 18, but also clean up and revise it as 
recommended by witnesses in previous Task Force hearings.
    We need to consider how to proceed, and we also need--how 
to proceed and whether or not this should be done by Congress 
itself or by an appointed commission. It is time that we 
consider evidence-based research and make wiser policies in our 
sentencing policy.
    We are wasting billions of dollars in crime policy that has 
been failing for the past 4 decades. It is time we look for 
more realistic and reasoned approach to the issue of 
incarceration, understanding that not every offense requires a 
long sentence of incarceration.
    Mr. Chairman, while this is a final Task Force hearing, 
there is still much more to do, and I look forward to working 
with you in drafting a consensus report, presenting it to the 
full Committee and taking the necessary actions to improve our 
criminal justice system.
    Mr. Sensenbrenner. Time of the gentleman has expired.
    Without objection, all Members' opening statements will be 
placed 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 I would like to welcome everyone to today's 
hearing of the Judiciary Committee's Over-Criminalization Task Force. 
This tenth and final hearing will focus on the abundance of federal 
criminal offenses on the books and the role that the Judiciary 
Committee's jurisdiction, or lack thereof, under House Rules plays in 
this issue.
    Over the past year, the Task Force has examined many important 
topics in this area, and gained valuable perspective on the issues from 
a number of highly qualified witnesses, two of which rejoin us for 
today's hearing. I anticipate that they will be able to provide this 
body with meaningful insight into the subject of today's hearing and I 
appreciate their continued cooperation in furtherance of the goals of 
this Task Force.
    Despite the fact that it is generally accepted that the federal 
government does not possess a general police power, recent studies have 
concluded that the number of federal criminal offenses on the books has 
grown from less than 20, which were directly related to the operation 
of the federal government in the years following the nation's founding, 
to nearly 5,000 today, which cover many types of conduct undoubtedly 
intended by the Framers to be left to the individual states.
    At the current rate, Congress passes an average of 500 new crimes 
every decade. This surge is highlighted by a particularly telling 
statistic: Nearly 50% of the federal criminal provisions enacted since 
the Civil War have been enacted since 1970.
    The sheer number of federal crimes leads to a number of concerns. 
Issues of notice and fairness abound where legal practitioners, not to 
mention regular citizens, have difficulty determining if certain 
conduct violates federal law, and, if so, under which statute. The 
disorganization, decentralization, and duplicative nature of the 
federal collection of criminal laws need to be addressed.
    I have introduced legislation to do just this in the Criminal Code 
Modernization and Simplification Act. This bill would cut more than 
one-third of the existing Criminal Code, reorganize the Code to make it 
more user-friendly, and consolidate criminal offenses from other titles 
so that Title 18 includes all major criminal provisions.
    There are likely a number of reasons for this rapid expansion of 
federal criminal law, including the fact that many criminal statutes 
are drafted hurriedly in response to pressure from the media or the 
public, and, as a result, often duplicate offenses already on the 
books, and omit critical elements such as a valid ``mens rea'' or 
criminal intent.
    Additionally, under the current interpretation of the House Rules, 
it is possible, and not uncommon, for new criminal legislation to make 
its way to the House floor without ever receiving proper scrutiny from 
the Judiciary Committee. The Judiciary Committee is comprised of 
lawmakers and professional staff with expertise in drafting criminal 
provisions and the ability to avoid redundancy through situational 
awareness of the entire body of federal criminal law. As we move toward 
wrapping up the business of the Task Force, in addition to other 
potential recommendations, we should consider pursuing an amendment to 
the rules clarifying the jurisdiction of the Committee with respect to 
not only criminal law enforcement, but criminalization and criminal 
offense legislation as well.
    Again, I would like to thank our witnesses for appearing today and 
would also like to thank the members of the Task Force for their 
service over the past year. In the coming months, I hope we can begin 
to come together to address many of the concerns with over-
criminalization that have been identified.
    It is now my pleasure to recognize for his opening statement the 
Ranking Member of the Task Force, the gentleman from Virginia, Mr. 
Scott.
    It is now my pleasure to recognize for his opening statement the 
Chairman of the Judiciary Committee, the gentleman from Virginia, Mr. 
Goodlatte.
    It is now my pleasure to recognize for his opening statement the 
Ranking Member of the Full Committee, the gentleman from Michigan, Mr. 
Conyers.
    Without objection, other Members' opening statements will be made a 
part of the record.
    And without objection, the chair is authorized to declare a recess 
during votes on the House floor.
                               __________

    [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 
today to hear again from our distinguished witnesses as we conclude the 
Task Force's series of hearings on the issues surrounding Over-
criminalization.
    Today we focus on a recurring theme from the past year, the 
problems associated with a bloated, disorganized and often redundant 
collection of federal criminal offenses. I hope to explore potential 
explanations for how we have gotten to this point, with particular 
emphasis on the interpretation of the House Rule regarding committee 
jurisdiction which often permits consideration and passage of 
legislation creating or modifying Federal criminal laws outside of 
oversight by the very lawmakers with such expertise.
    The Congressional Research Service recently provided this committee 
with an updated count of the federal crimes on the books, which brings 
the total to nearly 5,000. Unfortunately, Congress continues to add to 
this number at a rate of roughly 50 new crimes per year, and as my 
colleague from Virginia, Ranking Member Scott, is often quick to point 
out, the first rule of holes is, when you find yourself in one, stop 
digging. That certainly seems to apply here.
    There are widespread concerns with notice and fairness within this 
topic. Throughout 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 to combat the regrettable circumstances that inevitably arise 
from the tangled web of federal criminal provisions. Examples of 
similarly situated defendants convicted of the same conduct under 
different statutes with different penalties, or individuals convicted 
of offenses without proof of any level of criminal intent, have been 
detailed in prior hearings and are far too commonplace.
    The House Rules define the jurisdiction of the various committees, 
and the Judiciary Committee is given jurisdiction over, among other 
things, ``the judiciary and judicial proceedings, civil and criminal,'' 
and ``criminal law enforcement.'' Unfortunately, this language has been 
interpreted to exclude some forms of ``indirect criminalization,'' 
restricting Committee jurisdiction to only new criminal provisions or 
amendments to the penalties included in a criminal offense. This has 
resulted in many criminal offenses being enacted without being 
considered by lawmakers on the Judiciary Committee, which is the 
Committee best situated to provide valuable expertise in drafting and 
resolving potential conflicts with existing criminal law.
    A change in the House Rules to address this issue by clarifying the 
Committee's jurisdiction over criminal matters would help us ``stop 
digging'' and begin remedying the many problems associated with the 
overabundance of federal criminal statutes.
    I would like to welcome our two witnesses back to the Task Force, 
and reiterate my appreciation for the perspectives they will provide 
today as we move toward addressing the issues raised during this series 
of hearings. I would also like to again express my gratitude to the 
members of the Task Force, including Chairman Sensenbrenner and Ranking 
Member Scott, for their dedication to the issues surrounding over-
criminalization. I look forward to working closely with them moving 
forward.
                               __________

    Mr. Sensenbrenner. It is now my pleasure to introduce the 
witnesses.
    First is Dr. John S. Baker, Jr., who is the visiting 
professor at Georgetown Law School, a visiting fellow at Oriel 
College, University of Oxford, and Emeritus Professor of Law at 
the LSU Law School. He also teaches short courses on the 
separation of powers for the Federalist Society with Supreme 
Court Justice Antonin Scalia.
    Dr. Baker previously worked as a Federal court clerk and an 
assistant district attorney in New Orleans and has served as a 
consultant to the U.S. Department of Justice, U.S. Senate 
Judiciary Subcommittee on Separation of Powers, the White House 
Office of Planning, USIA and USAID.
    He was a Fulbright scholar in the Philippines and a 
Fulbright specialist in Chile. Dr. Baker served as a law clerk 
in the Federal District Court and Assistant District Attorney 
in New Orleans before joining Louisiana State University in 
1975.
    While a professor, he has been a consultant of the State 
Department and the Justice Department. He has served on the ABA 
Task Force, which issued the report ``The Federalization of 
Crime.''
    He received his bachelor of arts degree from University of 
Dallas, his JD from the University of Michigan Law School, and 
his Ph.D. in political thought from the University of London.
    Mr. Steven D. Benjamin is the President of the National 
Association of Criminal Defense Lawyers. The NACDL is a 
professional bar association founded in 1958. Its members 
include private criminal defense lawyers, public defenders, 
active duty U.S. military, defense counsel, law professors, and 
judges committed to preserving fairness within America's 
criminal justice system. He is in private practice at the 
Virginia firm of Benjamin & DesPortes.
    ``DesPortes''? ``DesPortes''?
    Mr. Benjamin. ``DesPortes.''
    Mr. Sensenbrenner. He serves as special counsel to the 
Virginia Senate Courts of Justice Committee and is a member of 
the Virginia Board of Forensic Science and Virginia Indigent 
Defense Commission. He previously served as the President of 
the Virginia Association of Criminal Defense Lawyers.
    I would like to ask each of you to confine your remarks to 
5 minutes. You know what the red, yellow and green lights mean. 
Without objection, your full written statements will be placed 
in the record.
    And, Dr. Baker, you are first.

  TESTIMONY OF JOHN S. BAKER, JR., Ph.D., VISITING PROFESSOR, 
   GEORGETOWN LAW SCHOOL, PROFESSOR EMERITUS, LSU LAW SCHOOL

    Mr. Baker. Thank you, Mr. Chairman, Mr. Ranking Member and 
Members of Congress.
    I have testified here twice before and I appreciate----
    Mr. Sensenbrenner. Turn the mic on.
    Mr. Baker. I have testified here twice before, and I thank 
the Task Force for allowing me to come back. Actually, I am 
coming back on the issue that I started out on on my own, which 
was counting Federal crimes.
    And I have to concur with everything that I have heard 
about the problem of Federal courts. And I began with the 
numbers. And while numbers are not everything, they do tell a 
certain story.
    So I want to do three things quickly: One, talk a little 
bit about what the numbers are; two, where are we going with 
the numbers; and, three, what is the significance of these 
numbers.
    When I testified on November 13th, I mentioned the 
tremendous number of Federal crimes and, really, the unknown 
number of Federal regulatory offenses. After that, this Task 
Force asked the Congressional Research Service to conduct a 
count from 2008 to 2013, which is where my last count left off. 
They came up with the number of 403 new Federal crimes. That is 
a not counting regulatory offenses. That is just from the U.S. 
Code.
    And it is important to say that the counts from CRS, my 
count and the Department of Justice counts have used 
fundamentally the same methodology, and that is important for 
consistency.
    What is significant--second point--about where we are 
going, it seems to me, is what this says about the average 
number of crimes and the total number of crimes.
    When I did the count in 2008, as of 2008, there were 4,450 
crimes at least. CRS has noted that we have an additional 403 
crimes. That brings us up at least to 4,853 crimes, almost 
5,000 crimes. It means that, essentially, Congress is passing 
500 new crimes a decade.
    Now, in the ABA Task Force that I served on back in the 
1990's, the notation was that, since the Civil War, 40 percent 
of all Federal crimes since the Civil War had been passed since 
1970, from 1970 until about 1996.
    Well, when you add what has gone on since 1996, we are 
approaching 50 percent of all Federal crimes ever enacted in 
this country, enacted since 1970, and that was the beginning of 
the war on crime, which, you know, we haven't been winning that 
war too well.
    What does this mean for the future? Well, the rate of 
crimes appears possibly to be increasing. When I did my count, 
it was 56.5 crimes a year. CRS count shows 67-point-something 
per year. Now, that number may be skewed because, in 2008, 
Congress passed 195 crimes.
    What is the significance of all this? Well, if you talk to 
an assistant U.S. attorney--and I have debated a number of 
former assistant U.S. attorneys--they will tell you that the 
numbers mean nothing.
    They don't use all of these crimes, and they are right. In 
a certain sense, they don't mean that much to the prosecutor or 
to the judges because there are only so many cases that you can 
bring in Federal court.
    But where they are really important is in law enforcement, 
that we have plenty of law enforcement agencies out there that 
do searches and seizures and arrest in cases that never 
actually get even an indictment, much less trial.
    Given the broad array of crimes, there is virtually nothing 
that you can't get a basis for probable cause on, which is the 
basis for arrest, search and seizure.
    There is a lot of concern in this country, rightly, about 
privacy, but I think people ought to be focusing on the fact 
that surveillance is not just a matter of ``privacy,'' it is a 
matter of the police power.
    The Federal Government, which the Supreme Court has stated 
twice in recent years, has no general police power. In reality, 
de facto, it has complete police power, and we are going to see 
it in the surveillance.
    Now, people have been focusing on NSA, but think about 
drones. There is nothing a drone can't search, basically, 
because there is every possibility for coming up with the basis 
of it.
    And some of the Federal agencies will conduct raids that 
will never result in an indictment or, if it does result in an 
indictment, will not result on those crimes.
    It is easy to come up with a RICO charge and a money 
laundering charge and go out and seize somebody's property. 
That is the reality of where the real power is.
    I think that this Task Force has done an amazing job of 
bipartisanship in coming together and identifying the problem. 
Now it is necessary for your colleagues in both houses to 
understand what the problem is.
    They are taking this tremendous power and dumping it in the 
executive branch with various agencies that, in reality, have 
their own agendas. I am not saying they are bad agendas, but 
they are agendas. And there is really lack of control over what 
is happening out there in the field.
    Thank you for allowing me to make this statement.
    Mr. Sensenbrenner. Thank you, Dr. Baker.
    [The prepared statement of Mr. Baker follows:]
    
    
    
    
    
    
    
    
    
    
    
    
                               __________
    Mr. Sensenbrenner. Mr. Benjamin.

 TESTIMONY OF STEVEN D. BENJAMIN, IMMEDIATE PAST PRESIDENT OF 
  THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS (NACDL)

    Mr. Benjamin. Mr. Chairman and Members of the Task Force, 
my name is Steve Benjamin, and I am the immediate Past 
President of the National Association of Criminal Defense 
Lawyers, this country's preeminent Bar Association advancing 
the goals of justice and due process for persons accused of 
crime.
    On behalf of NACDL, I commend the House Judiciary Committee 
for creating the Over-criminalization Task Force, and I 
congratulate the Task Force for its impressive work over the 
past year.
    I am especially grateful for the leadership and support of 
two members of my own congressional delegation, Judiciary 
Committee Chair Goodlatte and Task Force Ranking Member Scott, 
whose work on this critical issue demonstrates that the danger 
of over-criminalization transcends the traditional ideological 
divide. This problem is real and it affects us all.
    The sheer number of Federal offenses--4,800 at last count, 
with 439 new enactments since 2008--competes only with our 
number of prisoners, a number greater than any nation on Earth 
as the most visible consequence of over-criminalization. But 
the consequences of this problem extend far beyond the number 
of those imprisoned or stigmatized.
    One such consequence is the difficulty of being a law-
abiding citizen. Because criminal law is enforced by 
punishment, fairness and reason require adequate advanced 
notice of conduct that is considered criminal.
    Adequate notice of prohibited conduct permits people to 
conform their conduct to the law and, at the same time, 
justifies punishment when they cross a clearly drawn line. 
Notice is especially important in a legal system that presumes 
a knowledge of the law.
    Before punishing someone for breaking the law, we should at 
least ensure that the law is knowable. This is especially true 
where the conduct is not wrongful in itself and the offense 
requires no criminal intent. Criminal laws must be accessible 
not only to laypersons, but also to the lawyers whose job it is 
to identify those laws and advise their clients.
    The problem, however, is that the Federal statutory crimes 
in the 10,000 to 300,000 Federal regulations that can be 
enforced criminally are scattered throughout 51 titles of the 
code and 50 chapters of the CFR.
    NACDL does not have a position on whether all criminal 
statutes should be organized into a single title of the code. 
Common sense would dictate that most criminal provisions should 
reside in a single title unless clear evidence exists that a 
particular criminal provision belongings elsewhere.
    Fair notice goes beyond being able to locate criminal 
statutes within the code. It includes clarity in drafting 
precise definition and specificity in scope.
    With rare exception, the government should not be permitted 
to punish a person without having to prove that she acted with 
a wrongful intent, and criminal law should be understandable. 
When the average citizen cannot determine what constitutes 
unlawful activity in order to conform her conduct to the law, 
that is unfairness in its most basic form.
    Unfortunately, when legislating criminal offenses, Congress 
has failed to speak clearly and with specificity, has failed to 
determine the necessity of new criminal provisions, and has 
failed to assess whether targeted conduct is already prohibited 
or better addressed by State law.
    While the cause of these failures is not clear, the 
solutions are. Moving forward, Congress should approach new 
criminalization with caution and ensure that the drafting and 
review of all criminal statutes and regulations is done with 
deliberation, precision and by those with specialized 
expertise.
    Given the unique qualifications of the Judiciary Committee 
and their counsel, which alone possess a special competence and 
broad perspective required to properly draft and design 
criminal laws, this congressional evaluation should always 
include Judiciary Committee consideration prior to passage.
    This practice could be guaranteed by changing congressional 
rules to require every bill that would add or modify criminal 
offenses or penalties to be subject to automatic sequential 
referral to the relevant Judiciary Committee.
    The Members of this Committee are far better suited to take 
on this critical role and to encourage other Members to always 
seek Judiciary Committee review of any bills containing new or 
modified criminal offenses.
    Hopefully, such oversight would stem the tide of 
criminalization and result in clearer, more specific, 
understandable criminal offenses with meaningful criminal 
intent requirements and would reduce the number of times 
criminal law-making authority would be delegated to unelected 
regulators.
    These comments are limited to the issues I was invited to 
address. The problems of over-criminalization are pervasive, 
and the measures necessary to reform go much further than 
reorganization or Committee oversight. Further discussion, of 
course, is contained in my written testimony.
    I thank you for your bipartisan commitment to the task of 
ensuring that our Nation's criminal laws are not themselves a 
threat to liberty. NACDL will continue to support and assist 
you however we can.
    Mr. Sensenbrenner. Thank you very much, Mr. Benjamin.
    [The prepared statement of Mr. Benjamin follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
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    Mr. Sensenbrenner. The Chair is going to reserve his 
questioning to the end of the questions, assuming we still have 
time before the bell rings.
    And the Chair at this time recognizes the gentleman from 
Alabama, Mr. Bachus.
    Mr. Bachus. I thank the Chair.
    I was looking at Mr. Benjamin's testimony--both your 
testimony, but I think we are to the point where we are ready 
to act, hopefully. We know the problem. It has been reinforced 
several times. We have gotten the message. And I think the key 
is what do we do.
    And on page 9 of your testimony, Mr. Benjamin, you suggest 
at least four things I hear, and I know Congressman Scott has 
mentioned one or two of these.
    One is by changing congressional rules to require every 
bill that would add or modify criminal offenses or penalties be 
subject to automatic referral to the relevant judicial 
Committee, you know, and I think that is very important 
because, as you say, this is the Committee with the expertise.
    Two: Enact a statutory law establishing a default criminal 
intent requirement to be read into any criminal offense that 
currently lacks one.
    Three--and it says this requirement should be protective 
enough to prevent unfair prosecutions and should apply 
retroactively to all or nearly all existing laws. And I 
actually know that is a radical idea, but I believe in that.
    And I think there ought to be something where you can go 
before a judge and present some evidence or before a board, 
particularly some of these environmental crimes. I could 
mention several cases of where people discovered hazardous 
waste on their property and reported it, but they couldn't 
afford to dispose of it fast enough.
    And a lot of these cases, I talked to a former 
Congressman--Energy and Commerce was dealing with this--and he 
said we had a lot of these cases in the 1980's and early 1990's 
and we kept trying to do something, but we couldn't figure out 
what to do. And maybe that is because it wasn't judiciary.
    The next thing--and I am going to ask your reaction--on 
strict liability, your association urges strict liability not 
be imposed in a criminal law as a general matter. Where strict 
liability is deemed necessary, the body only employ it only 
after full deliberation and then only if explicit in the 
statute. I think that, you know, we ought to say, if it is not 
explicit in the statute, there is no strict liability.
    And the fourth one is that--I did not know this, but--and I 
will say this to the members of the panel. At the bottom of the 
page, he says, ``Supreme Court has cautioned against the 
imposition of strict liability and criminal law and has stated 
that all but minor penalties may be constitutionally 
impermissible without any intent requirement.''
    You know, we have said several times in our deliberations--
and witnesses have--that, without an intent requirement, you 
know, I can see a minor fine, but when you are talking about 
putting someone in jail for a year and a day, that is pretty 
scary.
    But I would just say--I would ask both of you to give us 
five or six specific statutes that we can do or your 
associations can even, you know, draft some just as a model and 
we could look at them, and I think that would be particularly 
helpful.
    I really appreciate your testimony. And, Dr. Baker, you 
have been here before.
    This, to me, is such an important thing because I think we 
have seen travesties of justice. We have seen people with no 
criminal intent. And, if anything else, the government can use 
that power to force them to do things just with the threat. You 
know, they don't have to get a conviction.
    And you could really--it could be used in a way that we see 
some countries around the world that use the judicial process 
simply to put people in jail that stand in their way of 
whatever their goal is. And I hate that, on certain cases, 
people with agendas have maybe done that here. That is a shame 
because that is not America. That is not what our 
constitutional forefathers envision.
    My time is up.
    Mr. Sensenbrenner. Time of the gentleman has expired.
    The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Dr. Baker, what problems could occur if we defer to States 
for prosecution of virtually all cases that do not have a bona 
fide Federal nexus?
    Mr. Baker. Well, even today, in most cases, the 
overwhelming number of cases are still prosecuted at the State 
level. It is more or less on a selective basis that prosecutors 
pick cases.
    Sometimes there are conflicts between local law enforcement 
people in terms of where the jurisdiction is fighting over 
certain cases--high-profile cases. Other times, it's 
cooperation based on money.
    When I was prosecuting in New Orleans, we had longer 
sentences than the Federal, if you can believe that. And so all 
of the Federal drug cases the Federal agents would steer into 
our courts because of the longer sentences. Some States, the 
drug people will steer the case still into State court if there 
is a tougher provision on search and seizure.
    So law enforcement people are very practical. And so to 
give a general answer to it, you would have to be specific 
place by place. I am not exactly sure what you are trying to--
would it overwhelm the State? Is that what you are talking 
about?
    Mr. Scott. No. Just as a general matter, we ought to defer 
to the States.
    One of the previous witnesses said, in ascertaining--when 
you go through the list of things that you ought to consider, 
the differential in penalties was not on their list of things 
that were legitimate to consider.
    Mr. Baker. Really?
    Mr. Scott. Do you agree with that?
    Mr. Baker. No.
    Mr. Scott. That you can pick and choose your jurisdiction 
based on the----
    Mr. Baker. Absolutely. We did it.
    Mr. Scott. Well, yeah, you did it.
    Mr. Baker. Yeah. I mean, we did it. The question was----
    Mr. Scott. And then we did it in Richmond, and people brag 
about the fact that Project Exile worked.
    Mr. Baker. I wrote against--I have an article against 
Project Exile. I will show it to you.
    Mr. Scott. Good. Well, without pointing out that, in 
Richmond, the crime rate went down because it had Project 
Exile, but in other cities in Virginia that didn't have Project 
Exile, the crime rate went down more.
    Mr. Baker. Exactly. I point that out in my article.
    Mr. Scott. Mr. Benjamin, you mentioned a notice. How do you 
get noted--if you had mens rea, obviously, you had notice 
because you had criminal intent.
    How else would you get notice out there so the people know 
that they are committing a crime?
    Mr. Benjamin. Well, you make the laws accessible. Now, if 
someone wants to determine in advance whether their conduct--
their proposed conduct is criminal, they have got to hire a 
lawyer to answer that question and then the lawyer has got to 
find the statute within the 51 titles of the code.
    It is nearly an impossible task. And that is why we always 
hedge our bets. Few lawyers are going to say you can do that. 
It is because the law permits such uncertainty. It is so 
ambiguously written that it is impossible to know even by 
lawyers whether proposed conduct is truly lawful or unlawful.
    Mr. Scott. Is that why the rule of lenity is so important?
    Mr. Benjamin. That is exactly why the rule of lenity is so 
important.
    Mr. Scott. Can you say a word about the overlapping crimes 
in State and Federal and what it does for the so-called trial 
penalty.
    Mr. Benjamin. I certainly can.
    The trial penalty is the penalty for going to trial, 
meaning that, if you--let me back up. Because I think it is a 
unique and cherished American value consistent with freedom and 
liberty, that if the government accuses us of a crime and 
threatens to take away our freedom, we have that right to stand 
up to the government and not only deny it, but make them prove 
it, to say, ``Oh, yeah? Prove it.''
    But we have completely lost that right because, if we go to 
trial either because we want to make the government prove their 
allegation or we want to challenge the constitutionality of a 
dubious statute or because we are innocent, we can no longer do 
that because, if we lose our bid to challenge the government, 
then we face staggering mandatory minimum sentences that can be 
stacked by the prosecution to beat us into guilty pleas. That 
is not how our system was designed.
    Mr. Scott. Are there problems in consolidating all of our 
codes into Title 18 or would it be better to have them spell 
all around where the subject matter crime goes with the subject 
matter like the Agriculture Code?
    Mr. Baker. Well, first of all, when the proposed Federal 
Criminal Code back in the 1980's came before the Judiciary 
Committee, the real problem was, in organizing the code, people 
didn't pay attention to all of the many provisions. In one 
sense, it was a code, but in another sense the Federal 
Government should not have a code, because a code is a 
comprehensive statement of criminal law.
    And if you believe, as I do, constitutionally that Congress 
has only limited powers and has to justify it on particular 
enumerated powers, then the idea of a comprehensive Criminal 
Code is very difficult to create without, in effect, expanding 
Federal power.
    My main concern about a general code like that would--even 
with an attempt to limit Federal power, it would de facto end 
up expanding Federal power.
    Mr. Sensenbrenner. The gentleman's time is expired.
    The gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, Mr. Chairman.
    I want to thank both of you gentlemen.
    And this is our tenth hearing, and both of you have been 
here before. So this is a good place and a good point to begin 
with, is: How do you see the cumulative effect and impressions 
and understanding that we have gleaned out of these ten 
hearings this year and last year?
    Dr. Baker, why don't you start us off on that.
    Mr. Baker. Well, if I compare back to Federal criminal 
trials that I sat back--through when I was a law clerk and 
Federal trials today, the biggest thing that strikes me is the 
imbalance of power and how the power has shifted so 
dramatically toward Federal law enforcement to the point where 
not everyone, but there is a certain arrogance that pervades 
the prosecutors. And it goes with the territory, unfortunately. 
When you give anybody too much power, they are going to use it.
    And I don't mean that they are using it for what they 
perceive to be bad things. They believe that what they are 
doing is the right thing. Of course, when they then resign and 
become criminal defense attorneys, they get a different 
perspective and they realize, ``Well, maybe, maybe, we were a 
little too aggressive.'' And I can tell you that I have been on 
panels with former AUSAs and they have said that, now that they 
are on the defense side.
    The reality is there are three perspectives: The 
prosecutor, the defense, and the judge or jury. And they are 
not the same perspectives. And there has to be a balance 
between the two sides, and I think at this point that the 
balance is too much in favor of Federal prosecution.
    Mr. Conyers. But, still, State crimes are far more numerous 
than are Federal.
    Mr. Baker. They do. But here is the difference: You know 
from Detroit--and I can tell you from New Orleans--people 
trying to prosecute and arrest, they are running around trying 
simply to deal with the violent crimes that they have to. Very 
few prosecutors in major cities have time to go looking for 
things. They can't find what has already been done.
    That is not the case in Federal court. In Federal court, 
you convene the grand jury and you go out looking. You got the 
defendant, potential target, and then you figure out, ``Well, 
what has this person''``What can we nail him on?'' That is not 
the way local prosecutors work.
    Mr. Conyers. Attorney Benjamin, would you weigh in on this 
discussion, please.
    Mr. Benjamin. I agree absolutely with Dr. Baker, that the 
most striking facet of the current state of the criminal 
justice system and the biggest, most dramatic change when I 
first began 35 years ago to defend criminal cases is the 
overbalance of power. Federal criminal defense now is all about 
negotiating a resolution.
    Mr. Baker. That is all it is.
    Mr. Benjamin. That is all it is.
    It is no longer about guilt or innocence. Guilt is 
presumed, at least by the prosecution, and they have the tools 
available to compel the guilty plea so that that is not even a 
question. It is all about snitching out, cooperating, doing 
whatever you have to to get the leniency--the fair treatment 
that you seek.
    Mr. Conyers. So what, then, do we bring to our full 
Judiciary Committee in the House of Representatives in terms of 
these ten hearings that we have had this year and last year? I 
mean, what can we take?
    And I want to commend the Chairman and Ranking Member, 
Sensenbrenner and Scott, for having put this together as they 
have. But where do we go from here?
    Mr. Benjamin. I think the immediate thing is reform of the 
mens rea problem. The immediate band-aid that is necessary is a 
default rule of mens rea where none appear in criminal statutes 
and are a rule of construction that applies a mens rea to all--
at least to all material elements.
    Mr. Conyers. A single mens rea standard or----
    Mr. Benjamin. No. No. Uniform mens rea standards----
    Mr. Conyers. Okay.
    Mr. Benjamin [continuing]. Clearly defined across the 
board.
    Mr. Conyers. Uh-huh.
    And what would you add, Dr. Baker?
    Mr. Baker. Well, I would agree with that. I have been 
involved a little bit in trying to draft that statute, and I 
can tell you it is not an easy statute to draft because of the 
way, first of all, the Federal crimes are drafted and how 
differently they are.
    I would add to those two things, which I endorse, clear 
definitions of what is a crime, what is a felony, what is a 
misdemeanor.
    And a way to deal with the strict liability is simply to 
say noncriminal offense so that--and this is in the model Penal 
Code, but not many States adopted it. I mentioned it in earlier 
testimony.
    You have a provision for noncriminal offenses and that 
strict liability is limited to those. So if you think they need 
to be prosecuted, fine, but the stigma of crime is not on 
there.
    Mr. Sensenbrenner. Time of the gentleman has expired.
    Gentleman from Georgia, Mr. Johnson.
    Mr. Johnson. Yes. As I listened through--to the testimony 
and did a little reading, I was impressed with the fact that, 
Dr. Baker, in your paper, you cite statistics showing that, in 
1983, it was estimated that there were 3,000 or so criminal 
offenses----
    Mr. Baker. Right.
    Mr. Johnson [continuing]. In the code and, in 1998, you 
cited DOJ figures of 3300, as of 1998.
    Mr. Baker. Well, no. Those were two different studies, and 
it is noted in there. One was by DOJ, the first one. The other 
one involved the same person, but there were different 
methodologies used and that is why the different numbers.
    Mr. Johnson. I see.
    But that does not indicate that there was no growth in the 
number of offenses.
    Mr. Baker. Oh, there was growth. But, actually----
    Mr. Johnson. May or may not have been 300, but----
    Mr. Baker. No. It was more. It was more than that.
    Mr. Johnson. Well, okay. All right. Well--so that is a 
modest assessment, 3,300 as of 1998. That was 300 more than in 
1983. And then between 1998 and 2008, that 10-year period saw a 
rise to 4,450, according to your----
    Mr. Baker. The 1998 figure, which I explain in there, is 
not a reliable figure because it did not follow the methodology 
that----
    Mr. Johnson. So you think it was higher?
    Mr. Baker. It was much higher.
    Mr. Johnson. Okay.
    Mr. Baker. The DOJ methodology, which I used and which has 
been by email told to me by the person who conducted it that I 
use the same methodology that DOJ did, we explained that 
methodology to CRS and CRS basically followed that.
    But what happened in the 1998, they did not break 
particular statutes down into the various crimes within one 
statute. They simply counted the statutes.
    Mr. Johnson. I see. Okay.
    So--and between 2008 and 2013, you cite an additional 403.
    Mr. Baker. Well, that is a CRS report, and the skewed year 
is 2008 with 195 crimes.
    Mr. Johnson. Well, it puts us, according to the reports, to 
close to 5,000 offenses. And it looks like from 1983 through 
2008 was an explosion, also, in the number of human beings we 
have imprisoned----
    Mr. Baker. Right.
    Mr. Johnson [continuing]. In this country.
    And then, at the same time, we have had the growth of what 
I will say is the conservative movement in the country, which 
has called for less government, less taxes, which, when you put 
on top of that the fact that you are needing more prisons--more 
jail space and more prisons, you have seen a growth in the 
private prison----
    Mr. Baker. Right.
    Mr. Johnson [continuing]. Industry.
    --and, in fact, 1983, 3,000; 2013, close to 5,000.
    1984, it should be noted, is when the Corrections 
Corporation of America, which is the largest private prison 
for-profit corporation--that is the year that that was founded, 
1984.
    And since that time, they have experienced exponential 
growth and--to the point where they, along with--there is 
another big one. I forget the name--Georgia--not Georgia--GPC 
or something like that. But those corporations are publicly 
held corporations selling stock on Wall Street.
    What connection do you see between the growth of the 
private prison industry and the number of--and the amount of 
contributions that those companies make to legislators, 
including on the Federal level, and the growth in the prison 
industry--the growth in the prisons industry, the growth in 
lobbying, and the growth in statutes putting people in prison? 
What connection do you see?
    Mr. Baker. Well, I can draw a connection between the growth 
and certain things. I can't between all of them. I actually 
represented at one point a sheriff in Louisiana who built the 
largest public prison system, and the whole thing was funded by 
Federal dollars. He went in the business of taking in Federal 
prisoners because the Federal rate was much higher than the 
State rate. There is a definite connection in terms of the 
growth of prisons.
    But on the conservative side, especially in Texas and in 
Louisiana, they are understanding that this is bankrupting the 
States. And so now you have some conservatives flipping and 
calling for a reduction even in State criminal penalties and 
State prison sentences because they realize that the growth of 
it, the expense is unsustainable.
    Mr. Johnson. Well, I tell you----
    Mr. Sensenbrenner. Time of the gentleman----
    Mr. Johnson. Mr. Chairman----
    Mr. Sensenbrenner [continuing]. Has expired.
    Mr. Johnson. Mr. Chairman, could I make just one last 
statement?
    I would imagine that we will now see a rise in lobbying 
costs that are incurred by the private prison industry.
    Thank you, Mr. Chairman.
    Mr. Sensenbrenner. Okay. The gentleman from New York, Mr. 
Jeffries.
    Mr. Jeffries. Thank you, Mr. Chairman.
    And let me thank the witnesses for your presence here today 
and your continued contributions to the efforts of this panel.
    Attorney Benjamin, you mentioned something that was very 
troubling--and, Dr. Baker, you agreed with it--the notion that 
Federal criminal defense has simply become negotiation efforts 
toward resolution.
    Mr. Baker. Right.
    Mr. Jeffries. And that just seems fundamentally 
inconsistent with the notions that have always served to 
undergird our criminal justice system, the presumption of 
innocence.
    If there is going to be a presumption of innocence, it 
seems to me it cannot be the case that, once someone is being 
investigated and/or is indicted by our government, that the 
only real option available to someone who, in theory, should be 
presumed innocent is to negotiate the most favorable 
resolution, which ultimately will likely result in some form of 
sanction and/or jail time.
    Mr. Baker. Right.
    Mr. Jeffries. So the question becomes: How do we unpack 
this dynamic in a way that allows this Task Force, the House, 
this Congress, to make a meaningful impact?
    And I would suggest--and I would like to get the 
observations of both of you--that it seems to me that there has 
got to be some way to reign in the inappropriate exercise of 
prosecutorial decision-making.
    You referenced the term ``arrogance'' that exists perhaps 
amongst some prosecutors, and I believe the majority are 
operating in good faith, though I may not agree with the 
decisions that they make.
    But who, as it currently exists right now, has the capacity 
to oversee prosecutorial behavior and/or decision-making? And 
what consequences are there when inappropriate public policy 
decisions are being made?
    Start with Attorney Benjamin, and we will go to Dr. Baker.
    Mr. Benjamin. Well, the power of oversight and the power to 
reign in Federal prosecutors resides in either DOJ and the 
Attorney General or the U.S. attorney for a given district. The 
reality, however, is that rarely will these individuals want to 
interfere with the career prosecutors who have been doing this 
all their lives and are on the line.
    And so the answer is to take a look at the tools that are 
being used to produce this result. And I think that the biggest 
problem is the existence and the expansion of the use of 
mandatory minimum sentences. That is what gives the 
unfathomable power to Federal prosecutors, because they can, in 
their charging decisions, threaten 10, 20, 30 lifetime 
mandatory sentences.
    That takes the judge completely out of it. If somebody is 
convicted, what we will say to our clients is, ``Yes. Sure. I 
understand you are innocent. And maybe you have a triable case. 
But if you lose, you will get a life sentence.''
    Mr. Jeffries. Right. I appreciate that observation.
    Dr. Baker, I want you to respond. But, also, I want to add 
this observation: Currently, Federal prosecutors have absolute 
immunity, as I understand it.
    Mr. Baker. As long as they are--well----
    Mr. Jeffries. In the context of their----
    Mr. Baker. Prosecution--as long as they are not getting out 
of prosecution. Sometimes they get involved in investigation.
    Mr. Jeffries. Okay. In the context of the prosecution, they 
have got absolute immunity. Law enforcement has got qualified 
immunity, as I understand it.
    Is that something that we should explore?
    Mr. Baker. I guess, as a former prosecutor, I liked 
absolute immunity when I had it.
    I haven't given it enough thought. I think that there is a 
reason for immunity, whether it should be qualified and more 
like law enforcement. The assumption is that a prosecutor is 
under the control, to some extent, of a judge in a way that law 
enforcement is not.
    Mr. Jeffries. Right. That is the assumption.
    But I think the testimony that we have received is that 
that is no longer the case, that even Article III Federal 
judges to some degree have lost control.
    So I am trying to figure out----
    Mr. Baker. But the real responsibility is with the 
President and then the Attorney General.
    Mr. Jeffries. Right.
    Mr. Baker. The political reality is that--I don't care what 
party you are talking about--that it depends on the particular 
U.S. attorney and how he or she got appointed and whether they 
have got a Senator protecting them. That is really what it 
comes down to.
    Mr. Jeffries. One last observation. The problem that we 
confront is both to rectify the damage that has been done, but 
also figure out how, moving forward, we can prevent a return to 
just the cycle of endless criminal statutes being added to the 
books. And it is often the case that elected officials react to 
the passions of the public. In fact, that is the kind of 
constitutional charge of the House of Representatives.
    Mr. Baker. Right.
    Mr. Jeffries. But in the criminal context, when you respond 
to the passions of the public, particularly as it relates to a 
particularly heinous crime, that results in perhaps doing 
things that, in retrospect, aren't in our best interest.
    And I would just encourage all of us, certainly those who 
are contributing to this effort, to think about that dynamic as 
we move forward.
    Mr. Sensenbrenner. Thank you very much. The time of the 
gentleman has expired.
    Let me recognize myself for 5 minutes to wrap up, and this 
will be more of comments looking at the last year and what we 
have been able to discover.
    First of all, I want to thank the witnesses for appearing.
    The two authorizations of this Task Force I think have only 
scratched the surface of what needs to be done because, 
literally, the Congress and a lot of the agencies have been 
putting more and more layers on the onion and we are beginning 
to start to peel off the ones on the outside, and that just 
asks more questions.
    You know, looking at how we got to this and, I think, in 
order to stop this from getting worse, we do have to very 
vigorously pursue a change in House Rules. And some of the 
lapses that have allowed other Committees that really don't 
know very much about the criminal law--to make criminal law is 
the fact that the Judiciary Committee has not been very 
vigorous in asserting its jurisdiction, and that has got to 
stop.
    The parliamentarians have always said that, once we lose 
jurisdiction, because we didn't claim it, then it is much 
harder to get it back and they will just forget about us when 
they refer bills. So exchanges of letters for further 
legislation, I think, is necessary.
    We are going to need help in developing a default mens rea 
statute. ``Default'' means, when there is not a specific 
criminal intent in a statute, there will be one. If there is a 
specific criminal intent, the default statute would not apply. 
And at least you have to have a criminal intent as one of the 
elements in terms of obtaining an indictment or a conviction.
    Now, in order to get at the proliferation of criminal 
penalties--some of them are statutory; some of them are done 
administratively--I would like to see the Judiciary Committee 
draft and get passed and enacted into law a sunset provision of 
all administrative criminal penalties. It should be a fairly 
long sunset.
    And the Committee, I think, can then ask each agency to 
come in and justify which of those criminal penalties they wish 
to have continued on the statute books and why. And if they 
can't justify that in order to get a reenactment through the 
Congress, then those administrative penalties would simply 
vanish and we wouldn't have to worry about them anymore.
    Now, I think a way to start on the anti-duplication 
provisions of the code is to start scrubbing the bill that I 
have introduced in this Congress and the two preceding 
Congresses, which was designed to reorganize the code and to at 
least put some sense in it so that people could look and see 
what activities were criminal in nature without having to go to 
a lawyer who can never give them a definitive answer because, 
no matter how hard the lawyer tries, he will never be able to 
find what statutes are involved in that.
    And I know that, in the few days that we have left in this 
Congress, none of this is going to be accomplished; however, I 
would hope that, as we prepare to start the next Congress, we 
will be able to in a bipartisan manner, which has certainly 
permeated this particular Task Force, pick up each of these 
areas to figure out what to do and to figure out what we can 
get enacted into law.
    And I think the American public--while they will not see an 
immediate change in how we approach criminal issues, that there 
will be something that will be long term that will deal with 
many of the results of our over-criminalization.
    So, again, I want to thank the witnesses.
    I want to thank the Members of this Task Force for putting 
in a lot of time and doing a lot of good work. Remember, we 
have got probably the first two layers off the onion, but there 
are many more layers that we have got to go.
    So, without objection, this Subcommittee hearing is 
adjourned.
    [Whereupon, at 11:20 a.m., the Subcommittee was adjourned.]

                                 
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