[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
         
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               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:]
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 

    
    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.