    [House Hearing, 118 Congress]
    [From the U.S. Government Publishing Office]

      OVERREACH: AN EXAMINATION OF FEDERAL STATUTORY AND REGULATORY CRIMES

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

                                    HEARING

                                   BEFORE THE

           SUBCOMMITTEE ON CRIME AND FEDERAL GOVERNMENT SURVEILLANCE

                                     OF THE

                           COMMITTEE ON THE JUDICIARY

                         U.S. HOUSE OF REPRESENTATIVES

                        ONE HUNDRED EIGHTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                            TUESDAY, APRIL 30, 2024

                                   __________

                               Serial No. 118-72

                                   __________

             Printed for the use of the Committee on the Judiciary

         [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                   Available via: http://judiciary.house.gov

                            ______

                 U.S. GOVERNMENT PUBLISHING OFFICE
     55-574          WASHINGTON : 2024

                           COMMITTEE ON THE JUDICIARY

                            JIM JORDAN, Ohio, Chair

    DARRELL ISSA, California             JERROLD NADLER, New York, Ranking
    MATT GAETZ, Florida                      Member
    ANDY BIGGS, Arizona                  ZOE LOFGREN, California
    TOM McCLINTOCK, California           SHEILA JACKSON LEE, Texas
    TOM TIFFANY, Wisconsin               STEVE COHEN, Tennessee
    THOMAS MASSIE, Kentucky              HENRY C. ``HANK'' JOHNSON, Jr.,
    CHIP ROY, Texas                          Georgia
    DAN BISHOP, North Carolina           ADAM SCHIFF, California
    VICTORIA SPARTZ, Indiana             ERIC SWALWELL, California
    SCOTT FITZGERALD, Wisconsin          TED LIEU, California
    CLIFF BENTZ, Oregon                  PRAMILA JAYAPAL, Washington
    BEN CLINE, Virginia                  J. LUIS CORREA, California
    KELLY ARMSTRONG, North Dakota        MARY GAY SCANLON, Pennsylvania
    LANCE GOODEN, Texas                  JOE NEGUSE, Colorado
    JEFF VAN DREW, New Jersey            LUCY McBATH, Georgia
    TROY NEHLS, Texas                    MADELEINE DEAN, Pennsylvania
    BARRY MOORE, Alabama                 VERONICA ESCOBAR, Texas
    KEVIN KILEY, California              DEBORAH ROSS, North Carolina
    HARRIET HAGEMAN, Wyoming             CORI BUSH, Missouri
    NATHANIEL MORAN, Texas               GLENN IVEY, Maryland
    LAUREL LEE, Florida                  BECCA BALINT, Vermont
    WESLEY HUNT, Texas
    RUSSELL FRY, South Carolina
    Vacancy

                                     ------

                       SUBCOMMITTEE ON CRIME AND FEDERAL
                            GOVERNMENT SURVEILLANCE

                           ANDY BIGGS, Arizona, Chair

    MATT GAETZ, Florida                  SHEILA JACKSON LEE, Texas, Ranking
    TOM TIFFANY, Wisconsin                   Member
    TROY NEHLS, Texas                    LUCY McBATH, Georgia
    BARRY MOORE, Alabama                 MADELEINE DEAN, Pennsylvania
    KEVIN KILEY, California              CORI BUSH, Missouri
    LAUREL LEE, Florida                  STEVE COHEN, Tennessee
    RUSSELL FRY, South Carolina          HENRY C. ``HANK'' JOHNSON, Jr.,
                                             Georgia

                   CHRISTOPHER HIXON, Majority Staff Director
             AARON HILLER, Minority Staff Director & Chief of Staff
                                C O N T E N T S

                                  ----------

                            Tuesday, April 30, 2024
                               OPENING STATEMENTS

                                                                       Page
    The Honorable Andy Biggs, Chair of the Subcommittee on Crime and
      Federal Government Surveillance from the State of Arizona......     1
    The Honorable Sheila Jackson Lee, Ranking Member of the
      Subcommittee on Crime and Federal Government Surveillance from
      the State of Texas.............................................     4
    The Honorable Jerrold Nadler, Chair of the Committee on the
      Judiciary from the State of New York...........................     5

                                   WITNESSES

    Patrick Purtill, Director of Legislative Affairs, Faith and
      Freedom Coalition
      Oral Testimony.................................................     8
      Prepared Testimony.............................................    10
    Patrick A. McLaughlin, Senior Research Fellow, Director of Policy
      Analytics, Mercatus Center, George Mason University
      Oral Testimony.................................................    13
      Prepared Testimony.............................................    15
    Bianca Tylek, Executive Director, Worth Rises
      Oral Testimony.................................................    18
      Prepared Testimony.............................................    21
    Brett Tolman, Executive Director, Right on Crime
      Oral Testimony.................................................    30
      Prepared Testimony.............................................    32

              LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING

    All materials submitted for the record by the Subcommittee on
      Crime and Federal Government Surveillance are listed below.....    53

    A statement from Michael P. Heiskell, President, National
      Association of Criminal Defense Lawyers (NACDL), Apr. 30, 2024,
      submitted by the Honorable Jerrold Nadler, Chair of the
      Committee on the Judiciary from the State of New York, for the
      record

      OVERREACH: AN EXAMINATION OF FEDERAL STATUTORY AND REGULATORY CRIMES

                                  ----------

                            Tuesday, April 30, 2024

                            House of Representatives

           Subcommittee on Crime and Federal Government Surveillance

                           Committee on the Judiciary

                                 Washington, DC

        The Subcommittee met, pursuant to notice, at 10:14 a.m., in
    Room 2141, Rayburn House Office Building, the Hon. Andy Biggs
    [Chair of the Subcommittee] presiding.
        Members present: Representatives Biggs, Jordan, Tiffany,
    Moore, Lee, Fry, Jackson Lee, Nadler, Dean, and Johnson.
        Mr. Biggs. Thank you. The Subcommittee on Crime and
    Government Surveillance will come to order. Without objection,
    the Chair is authorized to declare a recess at any time. We
    will begin today's hearing with the gentleman from Wisconsin
    leading us in the Pledge of Allegiance, Mr. Tiffany.
        All. I pledge allegiance to the Flag of the United States
    of America, and to the Republic for which it stands, one
    Nation, under God, indivisible, with liberty and justice for
    all.
        Mr. Biggs. We welcome everyone to today's hearing on
    Federal statutory and regulatory crimes. I will now recognize
    myself for an opening statement.
        I thank the Members who are here this morning. I thank our
    witnesses who are here, and I thank those in the gallery both
    here and on video. Today's hearing is titled ``Overreach: An
    Examination of Federal Statutory and Regulatory Crimes.'' We
    could have just as easily called it Oversight of Congress
    because in many respects Congress has created a problem that we
    are here to discuss today. The problem is the number of Federal
    and regulatory crimes has escalated out of control to the point
    that law-abiding Americans, unknowingly, commit several crimes
    every day.
        According to one study, the average American commits three
    felonies per day which does not take into account the
    overwhelming number of misdemeanors or civil violations. In
    some instances, the laws are so obscure and vague that even law
    enforcement and Federal agencies are unaware that they exist.
    The United States Code is estimated to contain more than 5,000
    crimes today. Just a decade ago, some scholars estimated that
    they were approximately 4,500 crimes and the fact that these
    numbers are just estimates underscores the severity of the
    problem.
        According to a study by the Federalist Society, the number
    of Federal criminal offenses increased by 30 percent between
    1980-2004. There were 452 new Federal criminal offenses enacted
    between 2000-2007, averaging 56.5 new crimes per year and over
    the past three decades Congress has been averaging 500 new
    crimes per decade. It is ironic, quite frankly, that tomorrow
    we are going to be considering more crimes in this Committee,
    the entire Committee of the Judiciary. We will be considering
    more potential crimes. Keep in mind the estimated 5,000
    criminal laws are not all neatly found in Title 18. They are
    scattered around the other 49 titles as well. The fact that
    this is only an estimate means that no one knows exactly how
    many Federal laws subject U.S. citizens to criminal sanction.
    That includes Congress, the Department of Justice, and other
    Federal agencies responsible for enforcing those laws, yet
    alone your ordinary American.
        How did we get here? After all, our Founding Fathers first
    enumerated Federal crimes in the Crimes Act of 1790. That act
    enumerated 23 Federal crimes and established the punishments
    for those crimes. Among other crimes, the Crimes Act of 1790
    established Federal crimes for treason, piracy, and
    counterfeiting. While the legislation did establish some crimes
    against the person, such as murder; and crimes against
    property, such as larceny, the Federal jurisdiction of those
    crimes was limited to Federal property and territories.
        Over the past century, Congress has lost its way. Instead
    of methodically and deliberatively crafting a common-sense
    criminal code, Congress acted in a knee-jerk reaction to every
    minor and major crisis. In doing so, Congress believed that
    there always had to be a Federal response to every headline and
    breaking news story. In fact, it was even--sometimes I get off
    script, sorry about that. If you think about it, if you look in
    the 1950s, you will see that there was a popular radio show.
    There was a popular newspaper article that said, ``There Ought
    To Be a Law.'' So, if you got the Reader's Digest, when I was a
    kid and you looked at it, every month or two there was some
    outrageous conduct, and the response was there ought to be a
    law. Of course, Congress responded and made many laws, some of
    them criminal in nature.
        One academic has aptly noted it was the State of bank
    robberies by John Dillinger in the 1930's that provoked passage
    of the Federal bank robbery statute. The kidnapping of the
    Lindbergh baby, about the same time, caused passage of the
    Federal statute on kidnapping. The assassination of President
    Kennedy in the early 1960s prompted the statute on Presidential
    assassination, and the killing of Senator Robert Kennedy in the
    late 1960s that resulted in the passage of a statute finally
    making it a Federal crime to kill a Member of Congress.
        More recently, we saw the enactment of Sarbanes-Oxley in
    response to the Enron scandal. All of us on this dais have
    witnessed this phenomenon among our colleagues. Some have
    termed this the accumulation approach to offenses whereby
    Congress has simply accumulated new offenses for 200 years or
    so with little examination or reformulation of existing
    offenses which has resulted in serious overlaps in coverage and
    irrationalities among offense penalties which create new
    possibilities for disparity and treatment of a double
    punishment for the same harm or evil. This leads to
    absurdities. For example, the Code of Federal Regulations makes
    it a Federal crime to try to sell a quarantined zebra while it
    is still in quarantine. In another example, 16 U.S.C. 703 and
    50 CFR Section 20.91(a) make it a Federal crime to offer to buy
    swan feathers for use in making a woman's hat.
        According to one scholar, the proliferation of crimes makes
    it extraordinarily difficult to ferret out the law applicable
    to a particular factual situation. It also creates unfairness
    within Federal law which provides Federal prosecutors with a
    near limitless menu to pursue criminal defendants. When
    Congress isn't creating new criminal code provisions, it is
    passing laws that allow unelected bureaucrats to write
    regulations that carry civil and criminal penalties. What we
    all too often forget is that many of the problems we seek to
    solve are actually State and local issues.
        Under the Federal system, the U.S. Supreme Court has
    observed that,

            States possess primary authority for defining and enforcing
            their criminal law.

    Also,

            Our national government is one of delegated powers alone. Under
            our Federal system, the administration of criminal justice
            rests with the States except as Congress acting within the
            scope of those delegated powers has created offenses against
            the United States.

    Congress has not relented and continues to add Federal crimes
    to our Federal code. Congress can and should restrain from
    over-legislating on issues that should be left to State and
    local governments.
        This hearing is an opportunity to examine potential
    legislation introduced in past Congresses to restrict Federal
    agencies' ability to criminalize conduct that a reasonable
    person would consider lawful.
        We have wonderful, excellent, expert witnesses today and I
    have read every one of your testimoneys that you have
    submitted. I think it is so important. I look forward to
    hearing what you have to say today. One of you has said,
    ``every criminal record comes with a host of consequences that
    we rarely think about,'' and I am talking about the results of
    the overabundance of criminal offenses, but also with what
    happens to those who are charged and even convicted. These
    collateral consequences are legal and regulatory restrictions
    that limit or prohibit people convicted of crimes from
    accessing employment, business, occupational licensing,
    housing, voting, education, and other opportunities.
        Another view has said,

            The sheer quantity of Federal regulations on the books today
            would require about three years to read if reading was your
            full-time job.

    Another view said, and you quoted James Madison. I appreciated
    this from Federalist 62,

            It will be of little avail to the people if the laws be so
            voluminous that they cannot be read or so incoherent that they
            cannot be understood.

    The Congressional Research Service, the Justice Department, and
    the ABA have all tried and failed to count the Federal criminal
    laws, but we believe there may be around 4,000 existing Federal
    criminal laws, but even this massive number is dwarfed by
    incredibly high estimates that Americans are subjected to about
    300,000 Federal regulatory offenses.
        Also, the note that prosecutions, even politically inspired
    ones, are protected under the veil of legitimacy because of the
    overabundance of the criminal laws that we--that Congress keeps
    putting into place. Another pointed out that 50 percent of laws
    related to nonviolent and nondrug offenses lacked a mens rea
    requirement which is perhaps one of the easiest solutions we
    could put into effect immediately is a mens rea requirement.
        I look forward to hearing from each of our witnesses and
    with that, I yield back and recognize the distinguished Ranking
    Member, Ms. Jackson Lee, for her opening statement.
        Ms. Jackson Lee. Good morning, Mr. Chair. It is a pleasure
    to be with you this morning. This is more than a unique moment
    in history. We are having a hearing on the over-proliferation
    of the potential impossibility of over-Federalization of laws.
    We have both responsibility to keep this Nation safe and the
    responsibility to ensure that laws have common sense and that
    the common sense is used effectively to ensure that we have
    good governance. I think that is what we all want to see and
    hear. So, I am delighted to open with you the hearing on
    ``Overreach: An Examination of Federal Statutory and Regulatory
    Crimes,'' this morning on April 30th.
        We could not open these hearings without taking special
    note of the conditions of this Nation, around the world, when
    Americans youth are speaking out in loud voices asking for
    guidance and help and assistance in trying to seek direction so
    that some of the oldest laws that are grounded in our
    Constitution, those rights are adhered to and respected. That
    is the respect for people's differences and the respect for
    people's words and as well, the respect for people's feelings.
        We cannot have a Nation of laws for which I believe is our
    greatest strength without understanding the passion for both
    our laws and the land that we love. We pledge allegiance to the
    flag. Thank you so very much, Mr. Chair, for that, because it
    gives us the grounding of this hearing.
        So, thank you, Chair Biggs, for convening this hearing to
    discuss the very real problem of overcriminalization. In more
    than a decade, the overcriminalization of Federal criminal law
    has been identified as a significant issue in our justice
    system. In 2014, the Congressional Research Service identified
    435 offenses having criminal penalties that were created
    between 2008-2013. That means Congress created nearly 90 new
    criminal offenses each year during that five-year period. This
    trend of expanding the scope of Federal crime statutes has
    resulted in an excess of ambiguous and broadly defined offenses
    leading to confusion among citizens and even legal
    professionals. The potential for individuals to unknowingly
    commit a crime due to the complexity and sheer volume of
    Federal laws only undermines the principles of justice and
    fairness, but also erodes public trust in the legal system.
        Additionally, the proliferation of Federal criminal laws
    has led to instances where individuals, particularly in
    marginalized communities, are unfairly targeted, prosecuted,
    and incarcerated for minor offenses that do not warrant such
    harsh punishment. This not only perpetuates social
    inequalities, but also strains an already overburdened prison
    system. It is crucial for Congress to reexamine and streamline
    the Federal criminal statutes to ensure that these laws are
    proportionate, clear, serve the Federal interest and promote
    the interests of justice and fairness. By focusing on
    meaningful and necessary criminal legislation, we can prevent
    further overcriminalization and safeguard the integrity of our
    legal system.
        Since the number of existing Federal regulations has
    mushroomed to more than roughly 300,000, we should also
    consider whether the criminalization of conduct that could be
    better addressed through civil means necessarily burdens the
    criminal justice system. However, we must also recognize the
    importance of these regulations that they are sometimes
    criminalized for good reason and that the criminal penalties
    often exists within a system that begins with administrative
    and civil tools that promote compliance and correction.
        Let us not forget that the purpose of prosecuting,
    punishing, and deterring future bad actors is to protect us
    from the harms contemplated by the Clean Air Act, the Clean
    Water Act, the Federal Food, Drug, and Cosmetics Act, and the
    Occupational Safety and Health Act. For instance, following an
    explosion at British Petroleum's Texas City refinery that
    killed 15 workers and injured another 180, BP pled guilty to
    knowing the violations of the Clean Air Act for its actions
    that led to the explosion and paid a $50 million criminal fine,
    the largest ever at the time under the CAA. An examination of
    the company's safety records showed that Texas City was not an
    isolated occurrence as the corporate culture had come to
    prioritize revenue over safety and maintenance.
        We have to learn, I believe, to match the punishment with
    the crime, of course, but we must also learn to understand the
    volume of criminalization and overcriminalization and we must
    learn to work through the crisis of overcriminalization. I look
    forward to hearing from our very astute witnesses today and
    engaging in what I hope will be a productive conversation.
        With that, Mr. Chair, I would like to reserve, but I will
    reserve and yield at the same time.
        Mr. Biggs. The gentlelady yields back. I understand that
    the Ranking Member is arriving.
        Ms. Jackson Lee. We are checking, yes.
        Mr. Biggs. We will pause for just a moment. The Chair
    recognizes the Ranking Member of the Full Committee, Mr.
    Nadler, for his opening statement.
        Mr. Nadler. Thank you, Mr. Chair, for convening this
    important hearing. Roughly a decade ago, we learned through
    this Committee's bipartisan Overcriminalization Task Force, of
    which I was a Member, that there are simply too many Federal
    criminal laws on the books, that the reach is often too broad,
    and that too many individuals are jailed for far too long
    because of them.
        For too long, Congress, under both parties, has created new
    offenses or extended existing laws in response to a national
    crisis, daily headlines, or highly publicized tragedies, often
    Federalizing crimes traditionally prosecuted by the States,
    without inquiring as to whether the Federal Government should
    be involved at all. Instead of playing politics and trying to
    prove who is toughest on crime, we should be doing more to
    prevent crime before it even happens. For instance, we could
    address substance abuse and mental health disorders, end the
    school-to-prison pipeline, cutoff the iron pipeline that
    funnels guns into major cities like New York and Philadelphia,
    or provide real solutions to the unhoused. Nonetheless, I am
    pleased that we have the opportunity to tackle the important
    subject of overcriminalization today which as long as it
    recognizes the major contributing factor to both mass
    incarceration and overpolicing in America. Let's be clear. This
    hearing should not be about Donald Trump or about the January
    6th rioters. The courts will decide whether they were properly
    charged. Nor should it serve as a platform to undermine the
    Federal regulations that keep us, our constituents, and our
    communities safe.
        While overcriminalization in the regulatory context is
    certainly cause for concern, we should remember that
    regulations ensure that we breathe clean air, drink clean
    water, consume safe food and medicines, and that our loved ones
    work in safe environments. This hearing should be about
    countless individuals, mostly Black, Brown, and poor, who for
    decades have borne the brunt of the overuse and abuse of
    criminal law in the Federal system. As the number of Federal
    criminal statutes has ballooned, overcriminalization has had
    wide-ranging negative impact on individuals who are at a social
    or economic disadvantage, whether by exploiting already
    existing disparities and access to legal resources, by leading
    to the increased surveillance and targeting of minority
    communities by law enforcement, or by driving mass
    incarceration. The Department of Justice, and particularly the
    Bureau of Prisons, continues to grapple with the cost of
    overcriminalization and mass incarceration, both fiscally and
    with respect to other resources such as manpower. That is why
    Congress should be working together to craft legislation that
    ensures that the resources of Federal agencies, Federal law
    enforcement, and Federal courts are used most effectively and
    not wasted on the enforcement of crimes that are better handled
    by the States.
        If we are to have a real discussion about the problems
    associated with overcriminalization and solutions, we must
    first recognize the many forms that overcriminalization takes
    in the Federal criminal justice system. It occurs most
    frequently through Federalizing crimes traditionally reserved
    for the states, adopting duplicative and overlapping statutes,
    enacting vague or broad criminal statutes and enacting criminal
    statutes that fail to set meaningful mens rea standards.
    Whether Republican or Democrat, we should all agree that the
    resulting broad expansion of Federal criminal law undermines
    any efforts to provide just and proportionate punishment for
    criminal conduct and lessens the legitimacy of the criminal
    justice system overall.
        It is vitally important that we rein in the growth of the
    Federal criminal code and ask whether all the laws on the books
    are truly necessary and whether they are accomplishing what
    should be their ultimate goal, the protection of the public
    safety. I look forward to hearing from our witnesses and before
    I yield back the balance of my time, I ask unanimous consent to
    enter into the record a written statement from Michael P.
    Heiskell, President of the National Association of Criminal
    Defense, an organization that has worked for more than a decade
    on the issue of overcriminalization.
        Mr. Biggs. Without objection.
        Mr. Nadler. Now, I yield back the balance of my time.
        Mr. Biggs. The gentleman yields back. I appreciate that.
    Without objection, all other opening statements will be
    included in the record and now it is now my pleasure to
    introduce today's witnesses.
        We have Patrick Purtill, who serves as the Director of
    Legislative Affairs at Faith and Freedom Coalition and is the
    Charles Evans Hughes Lecturer in Politics at Colgate
    University. Previously, he practiced law advising corporations
    on formation, transactions, corporate governance, and
    compliance issues. In the George W. Bush Administration, he
    spent three years as Special Assistant to Deputy Attorney
    General, where he served on the Serious and Violent Offender
    Reentry Initiative Working Group. We thank you for being with
    us today, Mr. Purtill.
        Dr. Patrick McLaughlin. Dr. McLaughlin is Director of
    Policy and Analytics and a Senior Research Fellow at the
    Mercatus Center at George Mason University. His research
    focuses primarily on regulations and the regulatory process.
    Dr. McLaughlin has authored more than a dozen peer-reviewed
    studies on topics such as regulatory economics, administrative
    law, industrial organization, and international trade. Thank
    you for being with us, Doctor.
        Mr. Brett Tolman. Mr. Tolman is the founder of the Tolman
    Group, a public policy law firm that works to hold Federal,
    State, and local governments accountable and advance
    transparency. He previously served as the United States
    Attorney for the District of Utah, and has testified before
    Congress multiple times on criminal justice issues including
    the First Step Act. Thank you, Mr. Tolman for being here.
        Ms. Bianca Tylek. Did I say that right? OK, thank you. Ms.
    Tylek is the founder and Executive Director of Worth Rises, a
    nonprofit organization that advocates for reform in the
    criminal justice system. She has previously worked at the
    Brennan Center for Justice and the ACLU and co-founded College
    Way, the program that worked to prepare students in Rikers
    Island to pursue higher education on their release. Thank you
    for being with us, Ms. Tylek.
        We welcome all our witnesses, and we will begin by swearing
    you in. If you would each, please rise and raise your right
    hand?
        Do you swear or affirm under penalty of perjury that the
    testimony you are about to give is true and correct to the best
    of your knowledge, information, and belief so help you God?
        Let the record reflect that each of the witnesses has
    answered in the affirmative. You may be seated. Please know
    that your written testimony will be entered into the record in
    its entirety. Accordingly, we ask that you summary your
    testimony in five minutes and if you get close, I will probably
    tap like this a little bit, not trying to break your flow, but
    just trying to let you know that you are near the end of your
    time. I mean your time for testimony. You might have all the
    time in the world. I don't know, but I just want to make clear
    of that.
        So, with that, Mr. Purtill, you may proceed.

                      STATEMENT OF PATRICK PURTILL

        Mr. Purtill. Very good. Mr. Chair, Madam Ranking Member,
    the Members of the Committee, thank you for the opportunity to
    speak to you today on the topic of overcriminalization, its
    impact on our criminal justice system, and its impact on the
    rule of law. I commend the Committee for examining this
    important, but often overlooked issue.
        The power to punish is the greatest domestic power that the
    Government has the ability to take life, liberty, and property.
    As Government continues to grow exponentially, the number of
    acts and beliefs that it prohibits has continued to grow as
    well. The overcriminalization, the proliferation of laws is
    often--they are often in vague or ambiguous terms. They expand
    the scope of criminal behavior beyond reasonable limits. This
    proliferation has resulted in a regime of statutes that
    criminalize conduct previously considered innocuous or
    noncriminal. Consequently, individuals, including those with no
    intent to break the law, find themselves ensnared in a complex
    web of statutes and regulations that are difficult, if not
    possible, to navigate.
        It is illuminating to remember that at common law, there
    were only nine major felonies: Murder, robbery, arson, rape,
    for example, and various misdemeanors. Our Constitution itself
    only specified three felonies within the body of the document
    although, as the Chair pointed out, one of the first acts of
    Congress was to create another 23, I believe it was, certainly
    a number that was comprehensible. Today, we have got more than
    5,000 Federal crimes and there are so many rules and
    regulations with criminal consequence that no one is able to
    count them. A complete and systematic effort to count stops
    somewhere at--just North of 300,000 including the Federal
    regulations.
        This is one of the chief reasons that one in three
    Americans today has a criminal record of some sort and that
    many Americans, frankly, have lost faith and trust in the
    impartiality of the justice system and in the equal application
    of our laws. It can't be overstated how dangerous this loss of
    faith and trust in the justice system is for a democratic
    republic.
        So, why is this important? I think that overcriminalization
    is important for several key reasons. First, is that it enables
    the proliferation of criminal laws tilts the playing field too
    far in favor of the prosecutor. It has effectively undermined
    the Sixth Amendment right to a jury trial. According to the
    American Bar Association, 98 percent of criminal cases in
    Federal court end with a plea and there is substantial evidence
    that innocent people are coerced into guilty pleas because of
    the power that the prosecutors have over them.
        Now, I should pause for a moment to say I think prosecutors
    are trying to do a good job. They are an integral part of our
    system in protecting public safety, so I don't mean this to be
    an overt attack on them. I think that this is the nature of the
    problem when you have these many criminal statutes. You are
    going to have this happen. Too many laws make overcharging or
    charge stacking one of the most common tools used by Federal
    prosecutors which is why trials have become essentially just
    rare artifacts. Overcharging can be used not only to force a
    plea deal, but it can also if you do decide to exercise your
    Sixth Amendment and go to trial, overcharging also can
    influence the jury into thinking that well, there are so many
    charges, one of these must be accurate. So, you can see
    situations where defendants are acquitted on a number of
    charges, but sometimes juries feel like they have to come back
    with a guilty charge on something just because there were so
    many charges to begin with.
        So many criminal laws make it impossible for an ordinary
    citizen or probably anyone for that matter, as you noted that
    it would take three years to simply read through all the
    criminal statutes and regulations on the books today, but that
    means that ordinary citizens can't actually know what the law
    is. The legal maxim used to be that ignorance of the law is no
    excuse and this made sense when we had nine felonies at common
    law. Those felonies were inherently blameworthy. Everyone
    understands that murder is wrong. You don't need to know that
    someone passed a statute criminalizing murder to know that it
    is wrong. They were inherently blameworthy offenses, but if a
    free citizen cannot be certain that they are in compliance with
    the law, the problem is with the overly complicated legal
    regime. It is not with the citizenry. It is because we are
    criminalizing actions and beliefs that are not inherently
    blameworthy.
        When you add this to the way that we go about charging now
    and indicting, a New York Judge, Sol Wachtler, famously
    observed years ago that if a District Attorney wanted, a Grand
    Jury would indict a ham sandwich. The simple truth is that the
    mass of Federal criminal laws and regulations makes this easier
    and makes every American a potential criminal. Rather than
    seeing a crime and then investigating to find the perpetrator,
    the staggering labyrinth of criminal statutes and regulations
    means you can identify an individual for prosecution and dig
    until you find some rule that they have violated.
        Mr. Biggs. You are over your time limit.
        Mr. Purtill. I am sorry. I will stop there, but the only
    other thing I would say if you did mention this comes with a
    host of collateral consequences and I think that the real
    danger in why I think it is important what you are doing here
    today is the real danger is it undermines the public confidence
    in the fair application of the law. That is truly a dangerous
    situation to be in. So, I commend you for having this hearing.
        [The prepared statement of Mr. Purtill follows:]
       [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Biggs. Thank you, Mr. Purtill. Now, I recognize Dr.
    McLaughlin for your five minutes.

                    STATEMENT OF PATRICK McLAUGHLIN

        Mr. McLaughlin. Thank you.
        Chair Biggs, Ranking Member Nader, and Ranking Member
    Jackson Lee, the Members of the Committee, I'm Patrick
    McLaughlin, a Senior Research Fellow at the Mercatus Center at
    George Mason University, and Mercatus Center is a nonprofit,
    nonpartisan research center dedicated to bridging the gap
    between academic ideas and real-world problems. Thanks again
    for inviting me here to testify today.
        For more than a decade, I have specialized in using
    computer algorithms to quantify various aspects of accumulated
    laws and regulations. I learned early on in my career that it
    would be impossible for any human to read the entirety of
    Federal laws and regulations. So, I devised computational
    solutions instead.
        Some of my work on regulatory accumulation has demonstrated
    how the buildup of rules over time significantly slows economic
    growth, but I have also studied the accumulation of crimes, as
    defined in the U.S. Code. On that topic, I have three main
    points today.
        First, there has been a significant increase in the number
    of Federal criminal statutes and regulations over the past
    three decades.
        Second, the expansion of Federal criminal laws over the
    past few decades has been linked to an increase in Federal
    incarceration rates.
        Third, the haphazard expansion of Federal crimes may
    duplicate State laws or existing Federal laws, resulting in
    redundant crimes.
        A few years ago, I worked on a project that used some of
    these advanced computer algorithms to create an inventory of
    criminal laws within the U.S. Code. Using a carefully
    cultivated set of search terms, such as the phrases
    ``imprisoned for not more than'' or ``shall be guilty of,'' we
    were able to estimate not only how many crimes Congress has
    written into the U.S. Code as of 2019, but also how that number
    has changed over time.
        Our work revealed a significant increase in the number of
    Federal criminal statutes over the past three decades. We
    estimated that 3,825 Federal crimes were on the books as of
    1994. By the year 2019, that number had increased by more than
    a third to 5,199.
        Interestingly, more than half of the total growth in that
    entire 22-year period that we studied occurred between 1994-
    1996. This matched our expectations, because a tough-on-crime
    agenda played a significant part in politics in the 1980s
    through the mid-1990s.
        I recently ran the same algorithm on the Code of Federal
    Regulations to estimate the crimes that are defined in Federal
    regulations. I estimate that an additional 2,157-2,876 crimes
    are defined in similar ways as in the U.S. Code within the Code
    of Federal Regulations as of 2023.
        Now, the number 300,000 has also been used in this hearing,
    and I will just point out that I'm using the same algorithms to
    look for these search terms that we devised by looking through
    the statutes and applying it to the CFR, to the regulations.
    So, my number is probably on the floor, probably not the
    ceiling. Anyway, that means the total number of crimes defined
    across Federal laws, including both statutes and regulations,
    likely falls at least in the 7,000-8,000 range.
        Now, a longstanding criticism of the haphazard expansion of
    Federal crimes is that new Federal criminal laws may duplicate
    State laws or existing Federal laws in a patchwork of redundant
    crimes. This duplication has a number of downsides.
        It erodes principles of federalism by having Federal
    authorities police conduct that has been traditionally viewed
    as better left to State and local governments.
        This duplication also dilutes political accountability
    because the public is not able to discern who has primary
    authority for addressing a particular crime or whom to blame if
    a crime is not addressed.
        Finally, duplicative Federal crimes give prosecutors wide
    latitude to charge different people committing the same
    offenses with different crimes--opening the door for bias to
    factor into charging decisions.
        The U.S. has the highest incarceration rate of any country
    in the world, and that rate seems obviously linked to the
    number of crimes defined in law. The number of Federal prison
    inmates alone has risen by 500 percent since 1980. Any action
    by Congress to reduce the number of duplicative or otherwise
    undesirable crimes could only serve the reduce that
    incarceration rate.
        The accumulation of laws and regulations, and the crimes
    that are defined within them, should not be assumed to be
    harmless. The U.S. needs legislative reforms to simplify
    Federal laws and regulations, period. Such reforms could
    involve reducing the number of Federal crimes, clarifying the
    language of statutes, and considering decriminalization or the
    use of civil penalties for certain offenses to alleviate the
    burden on the criminal justice system.
        Reforms like these are crucial to ensuring that laws are
    fair, just, and proportionate to the behaviors they aim to
    regulate, safeguarding against the negative consequences of
    overcriminalization.
        Thank you again for inviting me here today to discuss this
    important topic.
        [The prepared statement of Mr. McLaughlin follows:]
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        Mr. Biggs. Thank you, Dr. McLaughlin.
        Ms. Tylek, we recognize you now for your five minutes.
        You might need to hit that microphone button, please. Thank
    you.

                       STATEMENT OF BIANCA TYLEK

        Ms. Tylek. Sorry. There we go. Thank you. Good morning,
    Chair Biggs, Ranking Member Jackson Lee, and the Members of the
    Committee.
        I am Bianca Tylek, Executive Director of Worth Rises, a
    national organization working to remove the financial
    incentives to incarcerate people. I am also a crime victim and
    have had a loved one who has been murdered.
        Thank you for the opportunity to appear before you to
    discuss the issue of overcriminalization. We all want safe and
    thriving communities and we can get there by working together.
        While the others on this panel are and will continue to
    speak about some of the legal specifics of overreach in the
    Criminal Code, I will cover--which I also cover in my written
    testimony--I will focus my comments today on the impact that
    Federal overcriminalization has on the American people.
        To start, any discussion of overcriminalization at the
    Federal level must reflect on the significant influence it has
    over State policies, especially when funding is attached. This
    was the case throughout the 1990s and 2000s, when Congress
    provided Federal funding for prison construction to States that
    enacted tough-on-crimes laws, like mandatory minimums.
        Unfortunately, today, Federal programs like civil asset
    forfeiture continue to root the issue of Federal
    overcriminalization in State and local budgetary policy. As a
    result of overcriminalization at the Federal and State level,
    someone is arrested every three seconds in the United States.
    This amounts to 10\1/2\ million arrests annually, with over 80
    percent for low-level offenses like drugs and disorderly
    conduct. Those arrested are disproportionately Black and Brown
    and low-income people--leading to the overincarceration and
    oversurveillance of these communities.
        Core to the overcriminalization crisis is that even
    committing a minor offense can impart a lifetime of negative
    consequences. A simple arrest can lead to job loss, while a
    criminal conviction--and, worse yet, incarceration--can
    threaten the financial stability and economic mobility of the
    person convicted and their family for years, even generations
    to come.
        Consider that, roughly, 57 percent of people in Federal
    prison are the parents of minor children, and more than half
    were the primary breadwinners for their families before they
    were incarcerated. Though most incarcerated people in prison
    work, their penny wages prevent them from sending anything
    home. So, unsurpris-ingly, about half of families with an
    incarcerated loved one struggle to make ends meet.
        It's not just the loss of income at issue, but families end
    up with new egregious expenses for basic food and hygiene
    products and communication services for their incarcerated
    loved ones.
        To make matters worse, funds deposited by families for
    their incarcerated loved ones can be garnished for court fines
    and fees. The Federal Bureau of Prisons recently sought to
    garnish as much as 75 percent of what families deposited.
        Thankfully, Congress has recently created some relief. For
    decades, one in three families with an incarcerated loved one
    has gone into debt trying to stay connected over expensive
    calls. Some cutoff contact, unable to afford it, which is
    detrimental to correctional officers and public safety--with
    studies repeatedly showing that, when incarcerated people are
    connected to their support systems, facility violence decreases
    and reentry success increases.
        Congress passed the Martha Wright-Reed Just and Reasonable
    Communications Act to increase regulation of the prison telecom
    industry and made all calls free in Federal prisons through the
    CARES Act, a policy I urge Congress to implement permanently.
        For too long, women like Martha Wright-Reed, who skipped
    medication to afford calls with her grandson in Federal prison,
    have carried the cost of overcriminalization. Indeed, over 80
    percent of carceral costs, like the cost of calls, commissary,
    and court fees, are borne by women, largely Black and Brown
    women.
        See, the issue of overcriminalization is not just about
    criminal justice. It's about gender equity, children's health,
    family unity, economic justice, and more that we don't have the
    time to talk about today, like privacy rights and regressive
    taxes. The intersection of these issues--all or one of which
    may matter to you--should bring us collectively to the table to
    address them.
        Importantly, overcriminalization does not just impact those
    arrested and sentenced, but all of us. Overcriminalization
    dramatically hinders public safety by exacerbating the social
    conditions that lead to crime in the first place. In doing so,
    it lines the pockets of the $80 billion niche prison industry
    with a deep financial interest in the overcriminalization of
    Americans.
        In fact, major players in the prison industry have plainly
    stated that declining crime rates, which improve our safety,
    hurt their business. An industry so offensive that it cannot
    advertise uses public fearmongering to hide its interests and
    boost its business. A huge reason for overcriminalization, the
    prison industry is an impediment to passing smart policies that
    promote safety, freedom, and justice, and we must put an end to
    it.
        In closing, I would be remiss not to mention that the roots
    of overcriminalization, and even the prison industry, date back
    to the exception in the Thirteenth Amendment which gave way for
    the passage of Black Codes during the Reconstruction Era that
    applied only to newly freed Black people and criminalized minor
    offenses, like vagrancy, to feed the brutal practice of convict
    leasing, by which states leased incarcerated people to private
    businesses.
        More than a century later, slavery is still legal as
    criminal punishment--
        Mr. Biggs. Ms. Tylek, your time is expired. If you would
    wrap it up?
        Ms. Tylek. OK. I have two seconds.
        Mr. Biggs. OK. All right.
        Ms. Tylek. More than a century later, slavery is still
    legal as criminal punishment, and we are still
    overcriminalizing minor offenses with a disproportionate impact
    on Black and Brown people. I urge you to not just seek minor
    tweaks to existing policy, but truly shift the trajectory of
    our country by ending the exception in the Thirteenth
    Amendment, ending Federal overcriminalization, and using the
    Federal power of the purse to incentivize State and localities
    to do the same.
        I appreciate the opportunity.
        [The prepared statement of Ms. Tylek follows:]
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        Mr. Biggs. Thanks, Ms. Tylek, for being here.
        The Chair now recognizes Mr. Tolman for his five minutes.

                       STATEMENT OF BRETT TOLMAN

        Mr. Tolman. Chair Biggs, Ranking Member Nader, Ranking
    Member Jackson Lee, and distinguished Members of the Committee,
    thank you for inviting me to testify today.
        I am a former United States Attorney for the District of
    Utah, appointed by George Bush in 2006. Today, however, I serve
    as the Executive Director of Right on Crime, a national
    criminal justice campaign focusing on conservative, data-driven
    solutions to reduce crime, restore victims, reform offenders,
    and lower taxpayer costs.
        As U.S. Attorney, I remember a plaque in the halls of
    Justice that read, ``The hallmark of fairness in the
    administration of justice is consistency.'' Yet, this principle
    can be easily lost when there are too many Federal criminal
    laws to keep track of, let alone understand.
        James Madison warned of this issue in Federalist Paper 62
    writing,

            It will be of little avail to the people, that the laws be so
            voluminous that they cannot be read, or so incoherent that they
            cannot be understood.

    Madison was onto something, because we have no idea how many
    crimes are on the books, as many have commented today. Nobody
    really knows the number of crimes. What we do know is the
    overcriminalization offends both sides of the aisle and is
    antithetical to our Nation's founding principles.
        Criminal laws now cover so many facets of our everyday
    lives that the government can target citizens with impunity.
    Many of these crimes are easy to prosecute because many lack
    the mens rea element. To commit a crime, you have to do it and
    you have to mean to do it, or at least know that it could
    happen. Often, mental State requirements are abandoned,
    allowing the government to prove its case by a person's actions
    alone. This isn't how our criminal laws are meant to function.
        The bloated administrative State contributes greatly to
    overcriminalization. Faceless bureaucrats have made thousands
    of activities illegal, but they don't have to justify their
    decisions to the voters.
        Last, overcriminalization encroaches on State prosecution
    powers. When Congress oversteps into the traditionally State-
    held criminal prosecution space, State offenses can be
    unnecessarily replicated, making everything a crime and
    everyone a potential criminal.
        Overcriminalization is problematic in normal times, but
    we're living in a unique time with political pressures taking
    precedent over the rule of law. I've worked in the criminal
    justice system for over 25 years and cannot believe how the
    current DOJ is choosing to throw away the rule of law to attack
    political enemies.
        When I was U.S. Attorney, I was determined to prosecute
    both Republicans or Democrats alike, so far as the facts and
    law supported the charges. Times have changed. Now, Federal
    prosecutors use their massive discretion, and the overabundance
    of applicable laws, to target whomever they choose.
        Even State prosecutors have jumped on the bandwagon--with
    the most relevant example being the targeted prosecution of
    President Trump by DA Alvin Bragg. This case didn't have enough
    evidence to support a legitimate Federal charge, but
    prosecutors seeking to gain political points have chosen to
    target political enemy No. 1.
        Even for Democrats this should be concerning. Because if
    it's Donald Trump today, it could be you tomorrow.
    Prosecutions, even politically motivated ones, have the guise
    of legitimacy and are difficult to undercut or question.
        Partner this with our overcriminalization problem, and it's
    easy to see how power can be abused. Justice Scalia pinpointed
    this issue almost 30 years ago warning that prosecutors, if
    left to their own devices, can pick people they think they
    should get, rather than cases that need to be prosecuted.
        With there being thousands of crimes to choose from, a
    prosecutor can target a man, and then, search the books to pin
    an offense on him. This should scare every Member of this
    Committee.
        My written testimony goes into more detail on how to avoid
    and solve this problem, but I'll quickly summarize some
    suggestions.
        First, Congress should practice restraint in creating more
    Federal criminal laws. Decriminalization should be equally
    important. If Congress does pen a new criminal statute, it must
    ensure that it has a mens rea element. Also, this Committee can
    revive broader mens rea reform by considering bills that attach
    a default mens rea to every statutory and regulatory offense.
        Next, Congress can conduct robust oversight. President
    Trump issued an Executive Order that told agencies to specify
    mens rea standards and make regulatory crimes understandable.
    President Biden undid this Executive Order. Why? This Committee
    can get to the bottom of that and urge the administration to
    take overcriminalization seriously.
        In a similar vein, agencies' powers must be reined in. The
    Fourth Branch shouldn't be able to impose weighty criminal
    sanctions on Americans. This power belongs to the people's
    representatives.
        Overcriminalization threatens our public safety, individual
    liberties, and the fair administration of justice. Consistent
    application of the law is a cornerstone of our criminal justice
    system, and addressing our overcriminalization is a critical
    step to achieving this goal.
        I appreciate your time and look forward to any questions
    you have.
        [The prepared statement of Mr. Tolman follows:]
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        Mr. Biggs. Thank you, Mr. Tolman.
        We appreciate all the statements that you have given to us.
        Now, the Chair recognizes Mr. Tiffany, the gentleman from
    Wisconsin, for his five minutes.
        Mr. Tiffany. Thank you, Mr. Chair. I really appreciate you
    using the term ``crisis'' in your opening remarks. Everything
    in America is a crisis today, and when everything is a crisis,
    nothing is. It is really unfortunate that the word gets used
    the way it does, especially to drive public policy.
        Mr. Tolman, it is attributed to one of the worst despots in
    the history of the world, Joseph Stalin, ``Show me the man and
    I will show you the crime.''
        What role does Federal agencies play in the complication of
    the Criminal Code through their regulations?
        Mr. Tolman. Well, it's fascinating to me that three
    entities--the ABA, the Department of Justice, and the research
    agencies--all attempted to identify the number of regulations
    that have criminal penalties. It is an abdication, but Congress
    to let anybody pass a criminal law, but I don't necessarily
    blame Congress on this. It is the Branch, the Executive Branch
    and the Branches seeking to expand that regulatory power, and
    they're bloating these agencies with both the power, and then,
    no accountability.
        Mr. Tiffany. Are there any Federal agencies--are there any
    you name, in particular, that have exceeded their authority
    more than others that are repeat offenders?
        Mr. Tolman. Well, you certainly have--history has proven
    the IRS has gone from not a single agent carrying a firearm to
    now most agents carrying firearms. What is the evolution of
    that? The evolution is a regulatory body becoming a police
    body. So, there, we could go down the list of all the acronyms
    that are now moving from a regulatory body to a policing
    agency.
        Mr. Tiffany. Ms. Tylek, are you saying in your testimony
    that slavery still exists in America?
        Ms. Tylek. Excuse me. Yes, slavery is actually still legal
    in America. It's not just knowing that it exists in practice,
    but, according to the Thirteenth Amendment, there's an
    exception clause that says, ``except as punishment for a
    crime,'' which means, by law, slavery is still allowed.
        Mr. Tiffany. Have you noticed, is there, in the work that
    you've done, is there a greater impact with this, call it,
    overcriminalization--is there a greater impact on men versus
    women?
        Ms. Tylek. For sure. Ninety-Two percent of the prison
    population is men. So, undoubtedly, there is an impact from
    incarceration specifically, and most of those arrested are also
    men. However, women are carrying in many ways the actual cost
    of incarceration, literally fiscally. Eighty-seven percent of
    the cost of, for example, phone calls, visits, and court fees
    are actually covered by women.
        Mr. Tiffany. Mr. Purtill, do you accept that this has had a
    greater impact on men than women with this overcriminalization?
        Mr. Purtill. I do think that this is the case, and I do
    think the prison population bears that out.
        Mr. Tiffany. Can you give a couple of examples or give me
    something briefly that causes you to say that other than the
    statistic 92 percent?
        Mr. Purtill. It would cause me to say that
    overcriminalization has had a greater impact on men than women?
        Mr. Tiffany. Yes.
        Mr. Purtill. Really, I would kind of lean in on--unless
    you're saying that there's a higher degree of criminality
    between one sex or the other, I would think that there is the
    prison population probably bears some of that out.
        Mr. Tiffany. Mr. McLaughlin, have any recent Supreme Court
    decisions over the last decade been helpful in this? If you
    believe there's overcriminalization, have there been any
    Supreme Court decisions that have been helpful in reining that
    in?
        Mr. McLaughlin. One case comes to mind, but keep in mind
    I'm an economist, not an attorney. I do recall--in fact, I
    jotted down the name of the cases, Yates v. The United States,
    where a crime created by the Sarbanes-Oxley Act was applied in
    the case of a fishing boat. The captain of the boat destroyed
    evidence of keeping a fish that was too small to keep, but he
    was prosecuted under the Sarbanes-Oxley Act.
        That comes to mind as an example of using a crime that was
    created for one situation, financial fraud, and apply it
    somewhere else.
        Mr. Tiffany. Do you recall, ultimately, what penalty was
    that he paid for that?
        Mr. McLaughlin. Well, ultimately, the Supreme Court
    overruled under a way the prosecution. So, I don't believe
    there actually was any penalty.
        Mr. Tiffany. How do we fix this problem?
        Mr. McLaughlin. I would advise active review of both
    regulations and statutes to, first, find the stuff that's
    obviously outdated, obviously doesn't fit modern society.
        Also, I think you can address more serious things. One
    example I would point to for review of old things that we no
    longer want is the Base Realignment and Closure Commission.
        Mr. Biggs. The gentleman's time has expired, but you may
    finish your answer.
        Mr. McLaughlin. That might be an example to point to.
        Mr. Biggs. I interrupted you. Please finish. Please
    recite--please restate what you were saying.
        Mr. McLaughlin. I was saying one example of government
    reform, where we looked back on things that we didn't want
    anymore and tried to figure out what could we get rid of, was
    the Base Realignment and Closure Commissions.
        Mr. Biggs. OK.
        Mr. McLaughlin. A similar approach might work here.
        Mr. Biggs. Thank you very much.
        Mr. Tiffany. I yield back, Mr. Chair.
        Mr. Biggs. Thank you, Mr. Tiffany.
        The Chair recognizes the Ranking Member from New York, Mr.
    Nadler.
        Mr. Nadler. Thank you, Mr. Chair.
        Ms. Tylek, you launched the Corrections Accountability
    Project at the Urban Justice Center. As I understand it, the
    goal was to eliminate the influence of commercial interests on
    the criminal justice system and those it touches. Could you
    explain the various ways in which the criminal justice system
    has been financially exploited?
        Ms. Tylek. Absolutely. Thank you.
        The Corrections Accountability Project is a predecessor to
    Worth Rises. I think one of the ways to think about it is the
    ways in which the prison industry is both working in tandem
    with the correctional system, but also at times exploiting the
    correctional system for its own gains.
        So, what we see is a massive industry that has been built,
    and oftentimes, sometimes in conflict with the correctional
    system. So, a correctional system that wants to provide care
    with correctional healthcare companies that are actually
    cutting costs dramatically and, in many ways, harming people
    significantly inside of prisons and jails. So, that's just one
    example.
        There is a really broad industry here that has leached its
    way onto our carceral system.
        Mr. Nadler. So, you believe that the prison industry has
    come to depend on stripping people of their liberty?
        Ms. Tylek. Absolutely. In fact, if you take the biggest
    example, right, the private prison operators that are actually
    publicly traded, they have minimum occupancy guarantees
    embedded in their contracts with agencies that are 80 percent,
    90 percent requiring all their beds, or 80-90 percent of their
    beds to be filled. So, there's no doubt that they have an
    interest in putting more people behind bars.
        Mr. Nadler. Do you believe the prison, the private prison
    industry should be abolished?
        Ms. Tylek. Absolutely. There is no world that we can have a
    just system where people are profiting off of putting people in
    prisons and jails. There's only two ways for a business to make
    money. My career before what I do today was on Wall Street and
    I worked at Goldman Sachs, the Morgan Stanleys, and the
    Citigroups of the world. There's two ways you make money. You
    either increase revenue, which for the prison industry means
    more bodies behind bars for longer, or you cut costs, expenses,
    which means, basically, worse quality in care.
        Mr. Nadler. How does the prison industry increase, work to
    increase the number of prisoners?
        Ms. Tylek. They lobby and they give campaign financing
    donations to those who are interested in tough-on-crime laws.
    They have done that extensively.
        Mr. Nadler. Now, thank you.
        Approximately 68 million Americans have a criminal record.
    We are aware of the direct costs of law enforcement, prison,
    and courts, as well as the cost of businesses and the economy.
    Can you discuss the cost to the individual of having a criminal
    record? How does it impact their quality of life and their
    ability to contribute to society and the overall economy?
        Ms. Tylek. So, there are all--45,000 collateral
    consequences to being incarcerated. These just having a
    criminal conviction generally--these collateral consequences
    can impact your ability to get housing or access public
    assistance. As was mentioned, it can impact your ability to get
    a professional license, which can hinder your future income.
        In fact, when people are incarcerated, their families
    immediately see a decline in income of 22 percent, and even
    when they come home, income is depressed by 15 percent after
    incarceration. What that does is hinder their ability to grow
    economically up the ladder, and not just for them, but also
    their families.
        Mr. Nadler. Is there a correlation between collateral
    consequences that hinder the reintegration into society of
    offenders and recidivism rates?
        Ms. Tylek. Absolutely. As I said earlier, there's no way to
    think about a world in which you're creating more crime,
    creating more collateral consequences, creating a situation
    when people have less economic opportunity, and expecting them
    to be able to exist in this society productively, right?
        At the end of the day, people will do what they need to do
    to make ends meet--to eat, to find a place to sleep, right? We
    are seeing these cases of people who have nowhere else to turn
    but sleeping on the street and those becoming criminalized
    behaviors.
        Mr. Nadler. Finally, what needs to be done to improve
    reentry outcomes?
        Ms. Tylek. We need to invest in community support. The
    reality is that prisons were not meant for care, and that if we
    really want to address the social ills that lead to criminal
    behavior, we need to provide support and fund that support in
    community.
        Mr. Nadler. Thank you.
        Last, you said there were 32,000 consequences?
        Ms. Tylek. Forty-five thousand.
        Mr. Nadler. How do you measure? Where do you get that
    statistic? Where is the number--
        Ms. Tylek. There's actually a data base, partially, where
    BJA is actually involved, where they have measured the number
    of collateral consequences across States. So, that's
    consequences at the Federal level, as well as consequences in
    every State, for having a criminal conviction.
        Mr. Nadler. So, there are 45,000 possible consequences to
    an individual?
        Ms. Tylek. Yes, to having a criminal conviction.
        Mr. Nadler. Thank you very much.
        I yield back, Mr. Chair.
        Mr. Biggs. The gentleman's time has expired.
        The Chair now recognizes the gentleman from South Carolina,
    Mr. Fry.
        Mr. Fry. Thank you, Mr. Chair. Thank you for having this
    hearing today.
        Mr. Tolman, in your testimony earlier you mentioned a few
    reasons why overcriminalization is a problem. You said that the
    average American commits three felonies a day without even
    knowing it. What are some of those examples?
        Mr. Tolman. Well, the crimes on the books right now there
    are many that are almost laughable. Federal crime to write a
    check for under a dollar, for example.
        I personally had a case in which a father and son were cold
    and didn't think they would make it out of the wilderness, and
    they cut up a park bench and burned it to stay warm and they
    were charged and put in jail.
        So, it's examples like that we could go through. Those
    would be the low-hanging easy fruit for Congress to get rid of
    many of those laws.
        Mr. Fry. My understanding is one of them is to sell malt
    liquor labeled as pre-war strength.
        Mr. Tolman. Yes.
        Mr. Fry. What is that about?
        Mr. Tolman. Yes. The liquor business is very, very serious.
    You can't label it. When they were regulating it very, very
    tightly then, there were issues with how they would be labeled
    to not falsely advertise the contents and you develop the
    bottled in bond laws, which required certain levels of alcohol.
    Those are still in the books.
        Mr. Fry. So, the good stuff was the pre-war stuff?
        Mr. Tolman. That's right.
        Mr. Fry. Just to be clear.
        You also spoke that the current DOJ is choosing to throw
    away the rule of law when they attack political enemies. Can
    you talk about that a little bit and give me some examples of
    how that's happening?
        Mr. Tolman. It is a more recent development. There's always
    been at times pressures. When I was a U.S. Attorney, I received
    a phone call from a Member of Congress to investigate his
    political opponent and I indicated that I would not and that if
    he had a claim that he should submit it to the FBI.
        I think there are good well-meaning individuals that try to
    make those good decisions. There's no question you cannot
    simultaneously proliferate the laws and expand the power of the
    prosecutor and at the same time expand immunity protection. You
    can't take away accountability and give them more power and not
    expect abuse to come as a result.
        Mr. Fry. Mr. Tolman, I think it's interesting prosecutor
    abuse happens. It's happened for years.
        You look in the case of politics, you look at Senator Ted
    Stevens, as an example several years ago. To me it seems to be
    much more in your face than it has ever been before. Would you
    agree with that?
        Mr. Tolman. I would agree with that.
        Mr. Fry. The prime example would probably be the
    prosecution of President Trump under Federal law and, quite
    frankly, under State law, too.
        Mr. Tolman. Well, you have a prosecution going on right now
    that individuals on both sides of the aisle have commented on
    the lack of evidence, the inapplicability of the law, the
    attempt to manipulate the facts to go after.
        Whether you like him or don't like President Trump it
    should be concerning that a prosecutor would be able to
    manipulate their way into the courtroom against a political
    opponent.
        Mr. Fry. Right. I'm going to switch gears on you again. You
    mentioned several examples--writing a check, the pre-war stuff,
    pre-war liquor. How can we or even Federal agencies start to
    rein in this growth, quite frankly, in the administrative side?
    How can we do that?
        Mr. Tolman. I think there are plenty of professors,
    advocates, groups, even, Right on Crime, the organization I'm
    with, or many of the other organizations here that would be
    willing to lend a hand to identify the criminal statutes and
    the criminal regulations that are outdated and could very
    easily be taken off the books and that process should begin and
    it should be maintained.
        So, you should continually be doing that as we move
    forward. Otherwise, we're just collecting, compiling, and
    bloating our Criminal Code.
        Mr. Fry. Thank you.
        Mr. McLaughlin, I want to turn to you. The expansion of our
    Federal criminal laws encroaching on areas traditionally
    governed by the States, creating constitutional tensions,
    redundancies in statutes.
        Prior to Congress I served in the General Assembly of South
    Carolina, and I want to make sure that Federal laws don't
    really over complicate efforts that are happening on the State
    and local level.
        Can you talk a little bit about how Federal regulations are
    affecting State economies and local businesses?
        Mr. McLaughlin. Yes, thank you. It's a subtle effect in the
    work that I've done. Generally speaking, there's not a single
    regulation that will put a business out of business, but it's
    the death by 10,000 cuts sort of effect or, in this case, over
    a million cuts.
        So, I found that as Federal regulation accumulates over
    time it slows down investments in new ideas and then it slows
    down innovation and that ultimately makes businesses suffer
    because they can't put out new products, can't employ more
    people.
        There's all sorts of consequences all the way down the
    line.
        Mr. Fry. So, death by a thousand cuts, the straw that broke
    the camel's back. These are the things that local businesses
    are facing every single day from the growth of the Federal
    regulatory overreach.
        Mr. McLaughlin. Absolutely.
        Mr. Biggs. The gentleman's time has expired.
        Mr. Fry. Thank you, Mr. Chair. I yield back.
        Mr. Biggs. The gentleman yields back. The Chair recognizes
    the gentleman from Georgia, Mr. Johnson.
        Mr. Johnson. Thank you, Mr. Chair.
        Mr. Purcell, the Mercatus Center was founded and is funded
    by the Koch Family Foundation. Isn't that correct?
        Mr. McLaughlin. Is that for me, sir?
        Mr. Johnson. Well, Mr. Purcell, you're with the Mercatus
    Institute also, correct?
        Mr. Purtill. No, sir.
        Mr. Johnson. Just you, Mr. McLaughlin?
        Mr. McLaughlin. I am with the Mercatus Center. Yes, sir.
        Mr. Johnson. You are familiar with the fact that the
    Mercatus Center was founded and funded by the Koch Family
    Foundation?
        Mr. McLaughlin. It was funded long before--excuse me,
    founded long before I was employed there. I'm not privy to the
    details of the founding. I'm not privy to the details of the
    funding.
        Mr. Johnson. So, you don't know anything about the Koch
    brothers then?
        Mr. McLaughlin. I probably know less than you, sir.
        Mr. Johnson. Gosh, you're really putting me on a pedestal
    there. You probably have superior knowledge. You're just being
    modest.
        Mr. Tolman, your organization Right on Crime is also Koch
    brothers funded. Isn't that correct?
        Mr. Tolman. We have a number of funders. So, one of--
        Mr. Johnson. The Koch brothers are one of them, correct?
        Mr. Tolman. One of them is also the Just Trust and--
        Mr. Johnson. Has actually funded you at the rate of about
    $5 million. Isn't that correct?
        Mr. Tolman. I don't have those numbers.
        Mr. Johnson. Then you come, and you make the case against
    Alvin Bragg for prosecuting Donald Trump and you also served as
    a pardon broker during the waning days of the Trump
    Administration when pardons were being dispensed as if they had
    been paid for, correct?
        Mr. Tolman. No, that's not correct.
        Mr. Johnson. About--
        Mr. Tolman. That's not correct. I am very, very proud--I
    was an attorney and I represented individuals who were
    deserving of clemency, and I represented many and wish that we
    would have been able to get many through. Clemency--those last
    days were not the way clemency should be run and I--
        Mr. Johnson. This is not about pardons. I don't want to get
    bogged down on pay to play. I do want to commend the Koch
    brothers for having an interest in criminal justice reform.
    They're to be commended for that. I wonder whether or not they
    are looking down the line about perhaps being more involved in
    the privatization of the prison industrial complex. We spend
    about $80 billion to incarcerate--$80 billion dollars annually
    to incarcerate 2.2 million people.
        Ms. Tylek, can you give us--I'm wondering whether or not
    Koch brothers is interested in criminal justice reform because
    at some point they see dollar signs about privatization of the
    criminal justice system just as they have supported the civil
    justice system privatization with forced arbitration.
        Can you comment on that for us, Ms. Tylek, please?
        Ms. Tylek. Sure. Well, I definitely don't want to ascribe
    intention to anyone I don't know and so I can't say for certain
    what their long-term plans are.
        What I can say is that it's not uncommon for people in this
    space to get into and invest in this industry with other long-
    term plans.
        There was a mention earlier of the school to prison
    pipeline. We actually recently found that there are people
    interested in the prison to nursing home pipeline and looking
    at ways to invest in correctional healthcare because they
    already own nursing homes on the outside.
        That said, I will give one nod and say that Americans for
    Prosperity, which is one of the Kochs' sorts of nonprofit
    organizations, does actually support the end to the prison
    telecom industry.
        Mr. Johnson. That industry, by the way, generates--gosh, I
    don't know how many--
        Ms. Tylek. It's $1.4 billion, just telecom.
        Mr. Johnson. The $1.4 billion, sipping off the backs of
    inmates' relatives who are seeking to communicate with their
    loved ones. How about how medical care and food for the inmates
    come into play in terms of privatization?
        Ms. Tylek. I think in our time I want to really
    specifically address healthcare because healthcare in prisons
    and jails right now is under attack. It has been completely in
    many cases privatized and one of the most egregious examples of
    bankruptcy fraud and some things happening currently is
    Corizon's bankruptcy.
        So, for those who aren't aware Corizon--
        Mr. Biggs. Time is expired but you may continue your
    answer.
        Ms. Tylek. I'll just say really quickly Corizon is a major
    correctional healthcare company that was saddled with over a
    billion dollars in lawsuits and settlements and they separated
    the company into two.
        Gave one half all the liabilities, the other half all the
    assets, and then they bankrupted the liabilities and all the
    families who lost their loved ones.
        Mr. Johnson. Kind of like the Sackler family.
        Mr. Biggs. The gentleman's time has expired.
        The Chair now recognizes the gentleman from Alabama, Mr.
    Moore.
        Mr. Moore. Thank you, Mr. Chair.
        Mr. Tolman, I have a friend who was an Assistant Attorney
    General in Alabama and he actually told me you can go in a
    Publix grocery store and lock the door and charge every single
    citizen in there with some kind of crime if you were looking to
    do so.
        So, how does the overwhelming expansion of the Federal
    criminal laws now affect ordinary citizens' ability to abide by
    the law?
        Mr. Tolman. When I when I was a U.S. Attorney, I used to
    tell people that--give me a person or a company and give me
    just anytime in their books, in their documents, or in their
    affairs, and I could find a crime that we could apply.
        That's how confident I was as a prosecutor that the
    expansion was so robust, and it is no coincidence we have one
    in three Americans with a criminal history, whether arrest or
    conviction, and those two are connected--inextricably connected
    with the expansion of our criminal laws and then the failure to
    rein in any prosecutorial abuse of it.
        Mr. Moore. I think Mr. Purtill hit on a point in his
    opening testimony about how we have got to have trust in the
    justice system within this country. That undermines our entire
    ability to be a Nation of laws.
        So, when I was doing our town halls in August 2021 the No.
    1 concern of the citizens that I spoke with was the
    weaponization of the government against them and, of course, we
    recently hired a bunch of IRS agents--I think 87,000 new IRS
    agents.
        Those are the kind of things to me that just send the wrong
    signal of what we need to be doing as a Nation. So, Dr.
    McLaughlin, I wanedt to talk a little bit about regulatory.
        I was a small business owner and it seemed like every day I
    was either doing--well, I can remember one day specifically I
    was dealing with the IRS, the DOT, and the EPA, just trying to
    run a small business.
        One of my favorite quotes is Ronald Reagan said,

            If it moves, tax it. If it keeps moving, regulate it. And if it
            stops moving, subsidize it . . . .

    So, Dr. McLaughlin, could you elaborate a little bit on the
    regulations and how that impacts small business and even our
    economy? I know you talked a little bit about it earlier.
        That's part of the thing we have not really talked a lot
    about today. We talked a little bit about criminal but
    certainly regulatory--the impact on the economy itself. Could
    you elaborate a little bit on it?
        Mr. McLaughlin. Absolutely. Thank you.
        My career has built up, first, a way of measuring how much
    regulation there is and how many crimes there are. Because we
    have these metrics we can measure it. We can see what the
    effects on small businesses, the economy overall.
        So, one study that I published a few years ago was looking
    at small businesses, in particular. They found that they get
    overwhelmed when there's a bunch of regulations created all at
    once and the thing I want to point out--this is not surprising,
    right.
        All businesses must deal with these costs. It's worse for
    small businesses than large businesses. Large businesses are
    able to absorb all those costs at once whereas small businesses
    founder.
        Mr. Moore. Yes. Certainly, like you said, the small
    business owner doesn't have all the attorneys. He didn't have
    the team of lobbyists, whatever the case may be, to try to work
    through that process.
        Mr. Purtill, I remember when I was first elected to
    Congress, I was sworn in 2021, and I was getting on an airplane
    all the time.
        It said Federal law requires that you wear a mask and I
    didn't remember voting on that. So, very often it seems like to
    me there's a lot of regulatory or a lot of things, supposedly
    law, that are put on the books by agencies, if you will.
        Could you elaborate a little bit on what that impact has on
    the American citizen itself? We can't keep up, obviously.
        Mr. Purtill. Right, and I think that's the real problem
    because it means that as a free people, we can't even know what
    the laws are so we can't even comply with them. So, it really
    undermines that trust and faith in the law.
        When you've got hundreds of thousands of regulations that
    are out there that carry a criminal penalty and, as Mr. Tolman
    pointed out, some of them are just kind of comical. Some of
    them are contradictory so that you can literally--no matter
    what you do you could be prosecuted for a crime because
    criminalized both sides of the behavior, so to speak.
        I think with the regulatory--I think a lot of this is,
    frankly, there's so much congressional authority has been
    delegated to the executive branch and independent agencies that
    it's a real challenge and I think better guidance on what they
    can do with that authority when Congress delegates it would be
    good and Congress pulling that authority back in more often
    would be very good as well.
        Mr. Moore. How does the faith and family or Faith and
    Freedom Coalition view the moral aspects of criminalizing
    trivial and inadvertent actions? How do you all view that?
        Mr. Purtill. Right. No, that's absolutely wrong. Criminal
    sanctions are one of the most powerful forms--one of the most
    incredible powers that we give to government.
        The fact that we can take life or liberty from someone and
    trivializing that harms the family, it harms our communities,
    it overburdens the taxpayers, and it's not necessary for public
    safety.
        Mr. Moore. Thank you, Mr. Chair. I yield back.
        Mr. Biggs. The gentleman yields.
        The Chair recognizes now the gentlelady from Pennsylvania,
    Ms. Dean.
        Ms. Dean. Thank you, Chair Biggs--thank you, Ranking Member
    Jackson Lee, for convening this hearing and I thank all of you
    for being here and sharing with us your expertise and your
    ideas.
        I wanted to focus on a particular area of criminalization
    or over criminalization and I'll relate it to an experience I
    had just recently the last few weeks.
        I met with the Secretary of Corrections for Pennsylvania.
    Her last name is Harry from our Department of Corrections. She
    shared that in the facility she oversees a staggering
    percentage of inmates struggle with addiction and mental health
    challenges.
        This is not new to any of you--I know that. Just by her
    round estimates--this is not perfect data--70 percent struggle
    with substance use or addiction and anywhere between 15-35
    percent mental illness--women and men.
        So, I raise that because it bears repeating. More than one
    in three people in our Federal prisons have a history of mental
    illness and probably two in three are struggling with some kind
    of an addiction.
        It's an important issue for me and my family. We have had
    folks who have struggled with addiction and are blessedly in
    recovery. Not everybody gets that. They are not incarcerated--
    not everybody gets that.
        So, Ms. Tylek, I'd like to start with the facts that you
    used in your written testimony. Every three seconds someone in
    the United States is arrested, most often for low-level
    infractions including drug offenses, and those arrested are
    disproportionately Black, Brown, and poor.
        Thanks for grounding us in that reality. We have to
    continually say that. It tells us there's something skewed
    about what's going on with our carceral system.
        What has your work taught you about the connection between
    addiction and incarceration? Specifically, what impact does
    incarceration have on somebody struggling with addiction?
        Ms. Tylek. Thank you. So, addiction--drugs are actually the
    No. 1 arrested crime in the entire country so of all those
    crimes that we're talking about drugs is the center of
    everything and that is in part because of the failed war on
    drugs that we have seen over all these years and the reality
    that there is no way to incarcerate our way out of drug
    addiction.
        Drug addiction does, in many cases, have the dual diagnosis
    of mental health where people are trying to self-medicate and
    so you can't really separate drug addiction from the issue of
    mental health in many cases and over the last--since the 1950s,
    1960s, we have completely deinstitutionalized all support for
    mental health, right, and so as a result we have 350,000 people
    who are incarcerated today with a serious mental illness, not
    just a history of mental illness.
        So, what we really need is we actually need a care approach
    to drug addiction. We need to be actually providing treatment
    and there is nothing about prisons--the way they are built, the
    way they are designed, the way they are financed, the way they
    are structured--that is meant to help deal with drug addiction.
        Those things need to happen in our community, and we need
    to be investing them through harm reduction and then, further,
    efforts to actually get people back to productivity.
        Ms. Dean. I completely agree with you, and we have to
    change the narrative on that.
        Mr. Tolman, drawing on your experience as a prosecutor, I'm
    sure you did work with many cases where the defendant suffered
    from addiction. I was reading something in your testimony on
    page 2.
        More and more individuals on both sides of the political
    aisle are recognizing that many of these low-level offenders
    are being given extremely long sentences in Federal prisons,
    sentences that too often do not match the gravity of the crimes
    committed.
        Take drug--I'm still quoting you--take drug offenses as an
    example. The Department of Justice is expected to use the
    hammer of mandatory minimum sentences to identify and take down
    kingpins at the high level and I'll end there by saying not an
    addict, a user, a small possession case.
        What do you see? Maybe from your own work in the criminal
    justice system what's the chances of a defendant's recovery
    when he or she--most often he--but he gets the hammer for a low
    level drug offense?
        Mr. Tolman. Well, thank you for the question. I think it's
    important--critically important that people understand that we
    are doing a disservice by lengthening the sentences on what is,
    in essence, low level drug cases and when I tell you that--I
    have a friend who was a prosecutor for 25 years.
        I asked him--Federal prosecutor--how many kingpins did you
    get in your 25 years. He said one, and yet he was applying
    mandatory minimums to low level distribution.
        Why? Because they can and the philosophy is that if you
    have the case, you're going to reward your prosecutors if
    they're being aggressive and they're prosecuting a lot of
    people. That's how they get pats on the back.
        So, that's the danger of over criminalization.
        Mr. Biggs. Your time has expired.
        Ms. Dean. The impact that has on the family of the
    incarcerated person and the future of the incarcerated person.
        Thank you. I yield back.
        Mr. Biggs. Thank you. The gentlelady yields back. The Chair
    recognizes now the gentlelady from Florida, Ms. Lee.
        Ms. Lee. Mr. Tolman, I'd like to go back to a concept that
    you raised earlier that I think is one of the really broad
    ideas we need to focus on here today and that is that the
    advent of over criminalization empowers rogue or politically
    motivated prosecutors to identify a person or target to
    prosecute rather than bringing criminal prosecutions based on
    community needs, community safety, or the principles
    necessarily of fairness and equity and you raised a particular
    example that I believe is instructive and that is DA Alvin
    Bragg.
        I'd like to return to him for just a moment. Mr. Tolman, it
    is correct, is it not, that the case that Mr. Bragg brought
    against President Trump is actually predicated on a set of
    misdemeanors for which the statute of limitation has run?
        Mr. Tolman. Yes, that is correct.
        Ms. Lee. Would you agree, Mr. Tolman, that in fact that
    case is a good example of over criminalization leading to
    selective or what appears to be entirely politically motivated
    prosecution?
        Mr. Tolman. When they have so many tools at their disposal
    and the ability to manipulate them, that is what over
    criminalization ultimately leads to is the use of the criminal
    code for something other than administration of fairness and
    justice.
        Ms. Lee. Mr. Purtill, I'd like to return to testimony that
    you gave in your opening statement that referred to criminal
    conduct that was not inherently blameworthy--rather, the
    criminalization of conduct that wouldn't inherently be
    identified as wrong or blameworthy, and I'd like to discuss the
    concept of mens rea.
        How do you think we could use or integrate the concept of
    mens rea to ensure that this type of conduct to which you refer
    is not criminalized?
        Mr. Purtill. Well, thank you for the question. The concept
    of mens rea is critical. I think it was Oliver Wendell Holmes
    who said even a dog knows the difference between being tripped
    over and being kicked.
        That guilty mind element is a necessary component to take
    away life or liberty from someone. So, I think one of the
    things that can be done is really taking a look.
        Where this shows up more often than not is in the
    regulatory realm where either Congress has given vague or an
    ambiguous term to an agency and the ability to criminalize
    behavior, or an agency is stretching beyond a little bit--maybe
    a little beyond what Congress had intended it to be able to do.
        I think there was a bill a number of years ago that would
    have simply--if there was no mens rea in a Federal statute or a
    Federal regulation it would insert a default mens rea
    requirement into the regulation of the statute and I think that
    this would be a huge step forward by Congress.
        Ms. Lee. Dr. McLaughlin, I'd like to go back to the
    testimony you gave earlier as well. You used as an analogy the
    Base Realignment and Closure Commissions as a concept on how we
    might come at identifying all these regulations and all these
    things that we need to take account of and address as Congress.
        Would you go into some more detail there about your
    thoughts on how we might identify all these regulatory agencies
    who have acted with such overreach and diminish the amount of
    these purported crimes that are out there?
        Mr. McLaughlin. Sure, the BRAC Commissions was an example
    of--they put together a blue-ribbon panel of experts to look at
    what can we get rid of, where we need to keep what's essential.
    That's just one approach.
        I think another approach that we have seen be very
    effective in finding someone to go back and identify
    regulations that could be cut because they aren't accomplishing
    their purpose but they're creating harm is regulatory budgeting
    and this is where you put the agencies themselves on the task
    of finding old regulations that they've written and that they
    can get rid of.
        You say if you want to make a new regulation, great, go do
    your job. If you're going to do that get rid of something
    that's on the books that's been there for 30 years that you
    think isn't effective anymore.
        Ms. Lee. Then you mentioned also that you particularly
    utilize data and research and analysis in your work and in
    identifying where these problems might exist. Are there ways in
    which you think Congress could use the same types of tools to
    assist us in our work?
        Mr. McLaughlin. Sure. One easy example here is the dates
    when statutes and regulations were made and looking if they've
    been updated, especially regulations.
        I can run a computer program through the code of Federal
    regulations and find when each regulation was last updated. If
    something hasn't been updated in 20-40 years maybe it's time to
    get rid of it or at least look at whether it's time to get rid
    of it.
        Ms. Lee. Thank you, Mr. Chair. I yield back.
        Mr. Biggs. The gentlelady yields back.
        The Chair now recognizes the distinguished Ranking Member
    from Texas, Ms. Jackson Lee, for her five minutes.
        Ms. Jackson Lee. Let me thank you very much, Mr. Chair.
        You must have some uncanny sense of rightness or timeliness
    to hold this hearing on a day, as I indicated, every part of
    America seems to be focused on student protests, which we
    haven't had in a while.
        I can recall my years of campus activity, in particular,
    when it was extremely, how should I say, exercised, if you
    will. It was extremely active and engaged and students had any
    myriad of activity to be engaged in the war.
        Of course, the Vietnam War was certainly one of great
    height. What we call the Black Power movement was an important
    element, the whole issue of discrimination against minority
    students in particular, in this instance African-American
    students.
        There was a long litany, and these were legitimate
    grievances that individuals had. I am particularly grateful--I
    don't know, Mr. Tolman, whether or not we will have a new
    litany of offenses by the time we get out of this hearing.
        I hope not. I hope that we will not design more grievances
    Ms. Tylek and others were--our college students to be charged
    with. This is a perfect, how shall I say it, scenario of
    freedom of speech, protests. I can't imagine what else and hope
    there is no other litany of things that these students might be
    engaged in.
        They have the right for their expressions to be heard and I
    want to, for one, indicate that I support the freedom of
    speech, the freedom of the right to associate. The First
    Amendment is a wide, vast amendment that many people have
    misused.
        So, in any event, the Chair has certainly picked a very
    timely moment for these cases and I hope that we will be
    handling them appropriately, which I think is going to be most
    important.
        Let me quickly then try to ask questions quickly and go to
    you, Ms. Tylek, and hope for quick answers because you
    graduated from Harvard, one of the Nation's renowned
    universities that are grappling quietly, I guess, with their
    engagement.
        You led the Nation's first successful campaign to make jail
    phone calls free. I remember that case. I was here in the
    Judiciary Committee. It was an unbelievable expression of free
    speech.
        You are right, women carry the heavy burden of carrying
    forward this whole idea of the cost of being incarcerated in
    many different ways. Travel, bus fares, all that was excessive.
        So, I have a very quick question. How much were inmates
    required to pay for phone calls at that time and what other
    ways do corporations make money? If you could just do that very
    quickly.
        I have a series--I see where I am on the clock--I have a
    series of questions that you just might give me a brief
    scenario because I've got a series of other questions for other
    witnesses.
        Ms. Tylek. Very quickly, at the time in New York it was 50
    cents for the first minute and five cents every minute after
    that. Throughout the country those calls can still run 25-50
    cents, and even 75 cents a minute and that labor is not just--
    that cost is not just physical, but it may be emotional labor.
        Ms. Jackson Lee. You could run up to--yes. You can run up
    to how much on that?
        Ms. Tylek. Today they still can run up to about 70-75 cents
    a minute in 2024.
        Ms. Jackson Lee. Would cost a hard-working, maybe hourly
    compensated person how much? What would they wind up--they're
    taking care of their children; they're taking care of their
    grandchildren.
        Ms. Tylek. We're talking about a few hundred dollars a
    month and for people who are incarcerated that are either
    making nothing or 9-15 cents an hour it can be hours' worth of
    labor before they can get a simple 15-minute call.
        Ms. Jackson Lee. So, what has been a hourly charge that our
    labor--what has been a meager offense may wind up bankrolling--
    not bankrolling, you may wind up breaking your account,
    literally.
        Ms. Tylek. Absolutely. One in three families are going into
    debt over the cost of a simple phone call in 2024.
        Ms. Jackson Lee. Which leads to why am I being slapped more
    than once on the incarceration for a very low-level crime, if
    you will. If you can say that.
        Ms. Tylek. Why is my family being slapped in that case.
        Ms. Jackson Lee. For sure.
        Let me go to Mr. Tolman. There are many overlapping
    statutes in the Federal criminal code. For example, there are
    more than two dozen different false statement statutes, Chapter
    47, Title 18, which is a famous title.
        There are also a number of fraud statutes and obstruction
    statutes. So, how could we reduce these of the statutes that
    overlap? I do want to just make a point.
        If you can answer that, I also want to say that my comments
    are not pointed to Mr. Bragg because it is in the judicial
    system and I'm going to allow the judicial system to work its
    will. I would like Mr. Tolman to be able to answer this
    question, please.
        Mr. Biggs. Yes, of course. The gentlelady's time has
    expired. Mr. Tolman, you may answer the question.
        Mr. Tolman. Thank you. There's no question that if we need
    to take current Federal statutes right now and we need to see
    the overlap. There are ways you can do that through programs
    that you can run.
        We absolutely, Congress should and advocacy groups should
    be looking very closely at the overlaps of these statutes
    because many of them can result in adding additional charges
    when you otherwise wouldn't, because as a prosecutor you wanted
    to make sure you had all the potential crimes at issue.
        So, then you get bloated indictments that have multiple and
    multiple counts in them when really they should be charged with
    what the heart of--or the essence of the crime is.
        Ms. Jackson Lee. Well, thank you very much. We want to do
    good in public service, not do bad and do ill.
        Thank you so very much. With that, I wish I had more time,
    but I thank the witnesses and I yield to you, Mr. Chair.
        Mr. Biggs. Thank you. The gentlelady yields back. So, I
    recognize myself for my questions.
        So, the first thing I want to just say is I appreciate the
    testimony. When I first got to Congress I thought we really
    need to do this, because in my law practice people said, ``why
    did you go into politics.'' I said, ``because most of my
    clients had been abused by just the regulations.''
        So, let's see here. I'm going to ask all of you this
    question before and I want you to think about it because I
    appreciate all of you have produced in your documents and in
    your testimony today some reform movement that you think we
    should do.
        I want each one of you to give us the lowest-hanging fruit
    because that's always the easiest for Congress to do. As I like
    to say, I'm willing to do--it was the least I can do. I'm
    always happy to do the least I can do.
        So, that's kind of the Congress' attitude on this. We want
    to do that. So, I'm going to ask each of you to do that. In
    speaking to that, I also want us to focus on really what
    Congress can do because we have actually been derelict in our
    duty, in my opinion, and that's the problem and we need now to
    be active.
        I know that--you don't need--don't say the mens rea thing
    because we all agree on the mens rea thing. OK. So, we all--I
    need something else besides the mens rea issue, OK?
        So, Ms. Tylek, you had about 20 different reforms that you
    put in yours. So, if you can just give me your top one--your
    No. 1--that would be good.
        Ms. Tylek. I don't know if it's the lowest-hanging fruit,
    but I do think ending the exception of the Thirteenth Amendment
    is a critical step for our country and in the 250th Year
    Anniversary that's coming I would say that.
        Mr. Biggs. OK. You're right. That may not be the lowest-
    hanging fruit.
        [Laughter.]
        Ms. Tylek. OK. Make phone calls free in Federal prisons
    permanently. You already did it in the CARES Act. We can just
    make it a permanent policy.
        Mr. Biggs. OK. That may be the lowest-hanging fruit, but
    I'll take a look at your other proposal there. Thank you, Ms.
    Tylek.
        Mr. Tolman?
        Mr. Tolman. Thank you, Mr. Chair.
        I would very strongly urge--you've obviously talked about
    mens rea. Everybody understands that. That passage alone would
    be the largest band-aid until you could deregulate.
        So, I would then say deregulation and if you do have
    President Trump put in place if you're going to pass a
    regulation you've got to get rid of two, and whatever you think
    about it that was really good governance, and the Congress
    forcing the agencies to do that would probably be the most
    important thing they could do immediately.
        Mr. Biggs. Thank you.
        Dr. McLaughlin?
        Mr. McLaughlin. I agree with Mr. Tolman. Changing the
    incentives of regulatory agencies to review their own
    regulations--the old ones--to identify a duplication or a
    contradiction, and you could accomplish that through a
    regulatory budget such as the one in two-alpha (phonetic) or
    other means as well. I think that's the lowest-hanging fruit.
    Make agencies review their own rules and get rid of ones that
    aren't effective.
        Mr. Biggs. Thank you. Thank you, Doctor.
        Mr. Purtill?
        Mr. Purtill. I would associate myself with those so I will
    take a slightly different tack. I think there are a couple of
    bills before Congress right now that might really be
    interesting that do things to ameliorate for folks who are
    already incarcerated or reentering back into society some of
    the burdens that we have talked about here today.
        The first would be the Federal Prison Oversight Act, which
    came out of the Oversight Committee, I think maybe unanimously
    but overwhelmingly for sure bipartisan support.
        I think there's also a bill called the Safer Supervision
    Act which would help--before this Committee which would help
    incentivize moving folks who are compliant--who have served
    their term and are compliant with their terms of their release
    into society more quickly so we can focus on the more dangerous
    folks still within the system.
        The other would be the Clean Slate Act, which we
    mentioned--we were talking about the collateral--the host of
    collateral consequences that we have, that for lower-level
    offenders who have committed nonviolent crimes you would seal
    their record after they commit there--after they complete their
    sentence and complete their supervision without committing new
    crimes.
        You'd seal their records so that it'd be easier for them to
    get housed, to get licensure, to get a job, and things like
    that and reenter back into community.
        Once again, removing them out of the criminal justice
    system so that we can refocus our criminal justice system on
    the most dangerous. Really, I'd love to see something done with
    clearance rates which are really quite low.
        Mr. Biggs. Thank you. I'll just say that a couple things
    that I've thought of--I appreciate your suggestion that some of
    these things need to move to civil penalties, and I couldn't
    help but think of the Ranking Member's discussion of the
    explosion in Texas City--is that where it was? Texas City.
        There was no reason, quite frankly, in my mind for the Feds
    to get involved. You could have prosecuted the Execs who had
    overt violations of safety regs for manslaughter at least and
    you could also have facilitated civil rewards, which is
    actually really what you've needed when people are maimed or
    killed, in my opinion.
        So, that's one thing. The other one is maybe--and I'm
    really reticent to believe that bureaucratic institutions are
    going to give up their power base. I really don't think that's
    where they want to go.
        So, maybe Congress needs to every time--take a really good
    look at the rulemaking process because that's how these things
    occur. Second, maybe Congress, like we do with
    constitutionality, you have to put something on a bill that
    it's constitutional.
        You have to go in and say maybe whether you intend or don't
    intend for there to be some kind of criminal punishment
    involved with it as well. Just another thing for Congress to
    do.
        Anyway, I appreciate all the testimony. A lot to come out
    of this. I think this is actually a very complex issue that has
    some simple solutions in part before you that we need to take
    those first steps.
        So, I appreciate all your testimony today. Thank you, and
    with that, we are adjourned.
        [Whereupon, at 11:52 a.m., the Subcommittee was adjourned.]

        All materials submitted for the record by Members of the
    Sub-
    committee on Crime and Federal Government Surveillance can
    be found at: https://docs.house.gov/Committee/Calendar/ByEvent.
    aspx?EventID=117202.