[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
OVERREACH: AN EXAMINATION OF FEDERAL STATUTORY AND REGULATORY CRIMES
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME AND FEDERAL GOVERNMENT SURVEILLANCE
OF THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
TUESDAY, APRIL 30, 2024
__________
Serial No. 118-72
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
55-574 WASHINGTON : 2024
COMMITTEE ON THE JUDICIARY
JIM JORDAN, Ohio, Chair
DARRELL ISSA, California JERROLD NADLER, New York, Ranking
MATT GAETZ, Florida Member
ANDY BIGGS, Arizona ZOE LOFGREN, California
TOM McCLINTOCK, California SHEILA JACKSON LEE, Texas
TOM TIFFANY, Wisconsin STEVE COHEN, Tennessee
THOMAS MASSIE, Kentucky HENRY C. ``HANK'' JOHNSON, Jr.,
CHIP ROY, Texas Georgia
DAN BISHOP, North Carolina ADAM SCHIFF, California
VICTORIA SPARTZ, Indiana ERIC SWALWELL, California
SCOTT FITZGERALD, Wisconsin TED LIEU, California
CLIFF BENTZ, Oregon PRAMILA JAYAPAL, Washington
BEN CLINE, Virginia J. LUIS CORREA, California
KELLY ARMSTRONG, North Dakota MARY GAY SCANLON, Pennsylvania
LANCE GOODEN, Texas JOE NEGUSE, Colorado
JEFF VAN DREW, New Jersey LUCY McBATH, Georgia
TROY NEHLS, Texas MADELEINE DEAN, Pennsylvania
BARRY MOORE, Alabama VERONICA ESCOBAR, Texas
KEVIN KILEY, California DEBORAH ROSS, North Carolina
HARRIET HAGEMAN, Wyoming CORI BUSH, Missouri
NATHANIEL MORAN, Texas GLENN IVEY, Maryland
LAUREL LEE, Florida BECCA BALINT, Vermont
WESLEY HUNT, Texas
RUSSELL FRY, South Carolina
Vacancy
------
SUBCOMMITTEE ON CRIME AND FEDERAL
GOVERNMENT SURVEILLANCE
ANDY BIGGS, Arizona, Chair
MATT GAETZ, Florida SHEILA JACKSON LEE, Texas, Ranking
TOM TIFFANY, Wisconsin Member
TROY NEHLS, Texas LUCY McBATH, Georgia
BARRY MOORE, Alabama MADELEINE DEAN, Pennsylvania
KEVIN KILEY, California CORI BUSH, Missouri
LAUREL LEE, Florida STEVE COHEN, Tennessee
RUSSELL FRY, South Carolina HENRY C. ``HANK'' JOHNSON, Jr.,
Georgia
CHRISTOPHER HIXON, Majority Staff Director
AARON HILLER, Minority Staff Director & Chief of Staff
C O N T E N T S
----------
Tuesday, April 30, 2024
OPENING STATEMENTS
Page
The Honorable Andy Biggs, Chair of the Subcommittee on Crime and
Federal Government Surveillance from the State of Arizona...... 1
The Honorable Sheila Jackson Lee, Ranking Member of the
Subcommittee on Crime and Federal Government Surveillance from
the State of Texas............................................. 4
The Honorable Jerrold Nadler, Chair of the Committee on the
Judiciary from the State of New York........................... 5
WITNESSES
Patrick Purtill, Director of Legislative Affairs, Faith and
Freedom Coalition
Oral Testimony................................................. 8
Prepared Testimony............................................. 10
Patrick A. McLaughlin, Senior Research Fellow, Director of Policy
Analytics, Mercatus Center, George Mason University
Oral Testimony................................................. 13
Prepared Testimony............................................. 15
Bianca Tylek, Executive Director, Worth Rises
Oral Testimony................................................. 18
Prepared Testimony............................................. 21
Brett Tolman, Executive Director, Right on Crime
Oral Testimony................................................. 30
Prepared Testimony............................................. 32
LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING
All materials submitted for the record by the Subcommittee on
Crime and Federal Government Surveillance are listed below..... 53
A statement from Michael P. Heiskell, President, National
Association of Criminal Defense Lawyers (NACDL), Apr. 30, 2024,
submitted by the Honorable Jerrold Nadler, Chair of the
Committee on the Judiciary from the State of New York, for the
record
OVERREACH: AN EXAMINATION OF FEDERAL STATUTORY AND REGULATORY CRIMES
----------
Tuesday, April 30, 2024
House of Representatives
Subcommittee on Crime and Federal Government Surveillance
Committee on the Judiciary
Washington, DC
The Subcommittee met, pursuant to notice, at 10:14 a.m., in
Room 2141, Rayburn House Office Building, the Hon. Andy Biggs
[Chair of the Subcommittee] presiding.
Members present: Representatives Biggs, Jordan, Tiffany,
Moore, Lee, Fry, Jackson Lee, Nadler, Dean, and Johnson.
Mr. Biggs. Thank you. The Subcommittee on Crime and
Government Surveillance will come to order. Without objection,
the Chair is authorized to declare a recess at any time. We
will begin today's hearing with the gentleman from Wisconsin
leading us in the Pledge of Allegiance, Mr. Tiffany.
All. I pledge allegiance to the Flag of the United States
of America, and to the Republic for which it stands, one
Nation, under God, indivisible, with liberty and justice for
all.
Mr. Biggs. We welcome everyone to today's hearing on
Federal statutory and regulatory crimes. I will now recognize
myself for an opening statement.
I thank the Members who are here this morning. I thank our
witnesses who are here, and I thank those in the gallery both
here and on video. Today's hearing is titled ``Overreach: An
Examination of Federal Statutory and Regulatory Crimes.'' We
could have just as easily called it Oversight of Congress
because in many respects Congress has created a problem that we
are here to discuss today. The problem is the number of Federal
and regulatory crimes has escalated out of control to the point
that law-abiding Americans, unknowingly, commit several crimes
every day.
According to one study, the average American commits three
felonies per day which does not take into account the
overwhelming number of misdemeanors or civil violations. In
some instances, the laws are so obscure and vague that even law
enforcement and Federal agencies are unaware that they exist.
The United States Code is estimated to contain more than 5,000
crimes today. Just a decade ago, some scholars estimated that
they were approximately 4,500 crimes and the fact that these
numbers are just estimates underscores the severity of the
problem.
According to a study by the Federalist Society, the number
of Federal criminal offenses increased by 30 percent between
1980-2004. There were 452 new Federal criminal offenses enacted
between 2000-2007, averaging 56.5 new crimes per year and over
the past three decades Congress has been averaging 500 new
crimes per decade. It is ironic, quite frankly, that tomorrow
we are going to be considering more crimes in this Committee,
the entire Committee of the Judiciary. We will be considering
more potential crimes. Keep in mind the estimated 5,000
criminal laws are not all neatly found in Title 18. They are
scattered around the other 49 titles as well. The fact that
this is only an estimate means that no one knows exactly how
many Federal laws subject U.S. citizens to criminal sanction.
That includes Congress, the Department of Justice, and other
Federal agencies responsible for enforcing those laws, yet
alone your ordinary American.
How did we get here? After all, our Founding Fathers first
enumerated Federal crimes in the Crimes Act of 1790. That act
enumerated 23 Federal crimes and established the punishments
for those crimes. Among other crimes, the Crimes Act of 1790
established Federal crimes for treason, piracy, and
counterfeiting. While the legislation did establish some crimes
against the person, such as murder; and crimes against
property, such as larceny, the Federal jurisdiction of those
crimes was limited to Federal property and territories.
Over the past century, Congress has lost its way. Instead
of methodically and deliberatively crafting a common-sense
criminal code, Congress acted in a knee-jerk reaction to every
minor and major crisis. In doing so, Congress believed that
there always had to be a Federal response to every headline and
breaking news story. In fact, it was even--sometimes I get off
script, sorry about that. If you think about it, if you look in
the 1950s, you will see that there was a popular radio show.
There was a popular newspaper article that said, ``There Ought
To Be a Law.'' So, if you got the Reader's Digest, when I was a
kid and you looked at it, every month or two there was some
outrageous conduct, and the response was there ought to be a
law. Of course, Congress responded and made many laws, some of
them criminal in nature.
One academic has aptly noted it was the State of bank
robberies by John Dillinger in the 1930's that provoked passage
of the Federal bank robbery statute. The kidnapping of the
Lindbergh baby, about the same time, caused passage of the
Federal statute on kidnapping. The assassination of President
Kennedy in the early 1960s prompted the statute on Presidential
assassination, and the killing of Senator Robert Kennedy in the
late 1960s that resulted in the passage of a statute finally
making it a Federal crime to kill a Member of Congress.
More recently, we saw the enactment of Sarbanes-Oxley in
response to the Enron scandal. All of us on this dais have
witnessed this phenomenon among our colleagues. Some have
termed this the accumulation approach to offenses whereby
Congress has simply accumulated new offenses for 200 years or
so with little examination or reformulation of existing
offenses which has resulted in serious overlaps in coverage and
irrationalities among offense penalties which create new
possibilities for disparity and treatment of a double
punishment for the same harm or evil. This leads to
absurdities. For example, the Code of Federal Regulations makes
it a Federal crime to try to sell a quarantined zebra while it
is still in quarantine. In another example, 16 U.S.C. 703 and
50 CFR Section 20.91(a) make it a Federal crime to offer to buy
swan feathers for use in making a woman's hat.
According to one scholar, the proliferation of crimes makes
it extraordinarily difficult to ferret out the law applicable
to a particular factual situation. It also creates unfairness
within Federal law which provides Federal prosecutors with a
near limitless menu to pursue criminal defendants. When
Congress isn't creating new criminal code provisions, it is
passing laws that allow unelected bureaucrats to write
regulations that carry civil and criminal penalties. What we
all too often forget is that many of the problems we seek to
solve are actually State and local issues.
Under the Federal system, the U.S. Supreme Court has
observed that,
States possess primary authority for defining and enforcing
their criminal law.
Also,
Our national government is one of delegated powers alone. Under
our Federal system, the administration of criminal justice
rests with the States except as Congress acting within the
scope of those delegated powers has created offenses against
the United States.
Congress has not relented and continues to add Federal crimes
to our Federal code. Congress can and should restrain from
over-legislating on issues that should be left to State and
local governments.
This hearing is an opportunity to examine potential
legislation introduced in past Congresses to restrict Federal
agencies' ability to criminalize conduct that a reasonable
person would consider lawful.
We have wonderful, excellent, expert witnesses today and I
have read every one of your testimoneys that you have
submitted. I think it is so important. I look forward to
hearing what you have to say today. One of you has said,
``every criminal record comes with a host of consequences that
we rarely think about,'' and I am talking about the results of
the overabundance of criminal offenses, but also with what
happens to those who are charged and even convicted. These
collateral consequences are legal and regulatory restrictions
that limit or prohibit people convicted of crimes from
accessing employment, business, occupational licensing,
housing, voting, education, and other opportunities.
Another view has said,
The sheer quantity of Federal regulations on the books today
would require about three years to read if reading was your
full-time job.
Another view said, and you quoted James Madison. I appreciated
this from Federalist 62,
It will be of little avail to the people if the laws be so
voluminous that they cannot be read or so incoherent that they
cannot be understood.
The Congressional Research Service, the Justice Department, and
the ABA have all tried and failed to count the Federal criminal
laws, but we believe there may be around 4,000 existing Federal
criminal laws, but even this massive number is dwarfed by
incredibly high estimates that Americans are subjected to about
300,000 Federal regulatory offenses.
Also, the note that prosecutions, even politically inspired
ones, are protected under the veil of legitimacy because of the
overabundance of the criminal laws that we--that Congress keeps
putting into place. Another pointed out that 50 percent of laws
related to nonviolent and nondrug offenses lacked a mens rea
requirement which is perhaps one of the easiest solutions we
could put into effect immediately is a mens rea requirement.
I look forward to hearing from each of our witnesses and
with that, I yield back and recognize the distinguished Ranking
Member, Ms. Jackson Lee, for her opening statement.
Ms. Jackson Lee. Good morning, Mr. Chair. It is a pleasure
to be with you this morning. This is more than a unique moment
in history. We are having a hearing on the over-proliferation
of the potential impossibility of over-Federalization of laws.
We have both responsibility to keep this Nation safe and the
responsibility to ensure that laws have common sense and that
the common sense is used effectively to ensure that we have
good governance. I think that is what we all want to see and
hear. So, I am delighted to open with you the hearing on
``Overreach: An Examination of Federal Statutory and Regulatory
Crimes,'' this morning on April 30th.
We could not open these hearings without taking special
note of the conditions of this Nation, around the world, when
Americans youth are speaking out in loud voices asking for
guidance and help and assistance in trying to seek direction so
that some of the oldest laws that are grounded in our
Constitution, those rights are adhered to and respected. That
is the respect for people's differences and the respect for
people's words and as well, the respect for people's feelings.
We cannot have a Nation of laws for which I believe is our
greatest strength without understanding the passion for both
our laws and the land that we love. We pledge allegiance to the
flag. Thank you so very much, Mr. Chair, for that, because it
gives us the grounding of this hearing.
So, thank you, Chair Biggs, for convening this hearing to
discuss the very real problem of overcriminalization. In more
than a decade, the overcriminalization of Federal criminal law
has been identified as a significant issue in our justice
system. In 2014, the Congressional Research Service identified
435 offenses having criminal penalties that were created
between 2008-2013. That means Congress created nearly 90 new
criminal offenses each year during that five-year period. This
trend of expanding the scope of Federal crime statutes has
resulted in an excess of ambiguous and broadly defined offenses
leading to confusion among citizens and even legal
professionals. The potential for individuals to unknowingly
commit a crime due to the complexity and sheer volume of
Federal laws only undermines the principles of justice and
fairness, but also erodes public trust in the legal system.
Additionally, the proliferation of Federal criminal laws
has led to instances where individuals, particularly in
marginalized communities, are unfairly targeted, prosecuted,
and incarcerated for minor offenses that do not warrant such
harsh punishment. This not only perpetuates social
inequalities, but also strains an already overburdened prison
system. It is crucial for Congress to reexamine and streamline
the Federal criminal statutes to ensure that these laws are
proportionate, clear, serve the Federal interest and promote
the interests of justice and fairness. By focusing on
meaningful and necessary criminal legislation, we can prevent
further overcriminalization and safeguard the integrity of our
legal system.
Since the number of existing Federal regulations has
mushroomed to more than roughly 300,000, we should also
consider whether the criminalization of conduct that could be
better addressed through civil means necessarily burdens the
criminal justice system. However, we must also recognize the
importance of these regulations that they are sometimes
criminalized for good reason and that the criminal penalties
often exists within a system that begins with administrative
and civil tools that promote compliance and correction.
Let us not forget that the purpose of prosecuting,
punishing, and deterring future bad actors is to protect us
from the harms contemplated by the Clean Air Act, the Clean
Water Act, the Federal Food, Drug, and Cosmetics Act, and the
Occupational Safety and Health Act. For instance, following an
explosion at British Petroleum's Texas City refinery that
killed 15 workers and injured another 180, BP pled guilty to
knowing the violations of the Clean Air Act for its actions
that led to the explosion and paid a $50 million criminal fine,
the largest ever at the time under the CAA. An examination of
the company's safety records showed that Texas City was not an
isolated occurrence as the corporate culture had come to
prioritize revenue over safety and maintenance.
We have to learn, I believe, to match the punishment with
the crime, of course, but we must also learn to understand the
volume of criminalization and overcriminalization and we must
learn to work through the crisis of overcriminalization. I look
forward to hearing from our very astute witnesses today and
engaging in what I hope will be a productive conversation.
With that, Mr. Chair, I would like to reserve, but I will
reserve and yield at the same time.
Mr. Biggs. The gentlelady yields back. I understand that
the Ranking Member is arriving.
Ms. Jackson Lee. We are checking, yes.
Mr. Biggs. We will pause for just a moment. The Chair
recognizes the Ranking Member of the Full Committee, Mr.
Nadler, for his opening statement.
Mr. Nadler. Thank you, Mr. Chair, for convening this
important hearing. Roughly a decade ago, we learned through
this Committee's bipartisan Overcriminalization Task Force, of
which I was a Member, that there are simply too many Federal
criminal laws on the books, that the reach is often too broad,
and that too many individuals are jailed for far too long
because of them.
For too long, Congress, under both parties, has created new
offenses or extended existing laws in response to a national
crisis, daily headlines, or highly publicized tragedies, often
Federalizing crimes traditionally prosecuted by the States,
without inquiring as to whether the Federal Government should
be involved at all. Instead of playing politics and trying to
prove who is toughest on crime, we should be doing more to
prevent crime before it even happens. For instance, we could
address substance abuse and mental health disorders, end the
school-to-prison pipeline, cutoff the iron pipeline that
funnels guns into major cities like New York and Philadelphia,
or provide real solutions to the unhoused. Nonetheless, I am
pleased that we have the opportunity to tackle the important
subject of overcriminalization today which as long as it
recognizes the major contributing factor to both mass
incarceration and overpolicing in America. Let's be clear. This
hearing should not be about Donald Trump or about the January
6th rioters. The courts will decide whether they were properly
charged. Nor should it serve as a platform to undermine the
Federal regulations that keep us, our constituents, and our
communities safe.
While overcriminalization in the regulatory context is
certainly cause for concern, we should remember that
regulations ensure that we breathe clean air, drink clean
water, consume safe food and medicines, and that our loved ones
work in safe environments. This hearing should be about
countless individuals, mostly Black, Brown, and poor, who for
decades have borne the brunt of the overuse and abuse of
criminal law in the Federal system. As the number of Federal
criminal statutes has ballooned, overcriminalization has had
wide-ranging negative impact on individuals who are at a social
or economic disadvantage, whether by exploiting already
existing disparities and access to legal resources, by leading
to the increased surveillance and targeting of minority
communities by law enforcement, or by driving mass
incarceration. The Department of Justice, and particularly the
Bureau of Prisons, continues to grapple with the cost of
overcriminalization and mass incarceration, both fiscally and
with respect to other resources such as manpower. That is why
Congress should be working together to craft legislation that
ensures that the resources of Federal agencies, Federal law
enforcement, and Federal courts are used most effectively and
not wasted on the enforcement of crimes that are better handled
by the States.
If we are to have a real discussion about the problems
associated with overcriminalization and solutions, we must
first recognize the many forms that overcriminalization takes
in the Federal criminal justice system. It occurs most
frequently through Federalizing crimes traditionally reserved
for the states, adopting duplicative and overlapping statutes,
enacting vague or broad criminal statutes and enacting criminal
statutes that fail to set meaningful mens rea standards.
Whether Republican or Democrat, we should all agree that the
resulting broad expansion of Federal criminal law undermines
any efforts to provide just and proportionate punishment for
criminal conduct and lessens the legitimacy of the criminal
justice system overall.
It is vitally important that we rein in the growth of the
Federal criminal code and ask whether all the laws on the books
are truly necessary and whether they are accomplishing what
should be their ultimate goal, the protection of the public
safety. I look forward to hearing from our witnesses and before
I yield back the balance of my time, I ask unanimous consent to
enter into the record a written statement from Michael P.
Heiskell, President of the National Association of Criminal
Defense, an organization that has worked for more than a decade
on the issue of overcriminalization.
Mr. Biggs. Without objection.
Mr. Nadler. Now, I yield back the balance of my time.
Mr. Biggs. The gentleman yields back. I appreciate that.
Without objection, all other opening statements will be
included in the record and now it is now my pleasure to
introduce today's witnesses.
We have Patrick Purtill, who serves as the Director of
Legislative Affairs at Faith and Freedom Coalition and is the
Charles Evans Hughes Lecturer in Politics at Colgate
University. Previously, he practiced law advising corporations
on formation, transactions, corporate governance, and
compliance issues. In the George W. Bush Administration, he
spent three years as Special Assistant to Deputy Attorney
General, where he served on the Serious and Violent Offender
Reentry Initiative Working Group. We thank you for being with
us today, Mr. Purtill.
Dr. Patrick McLaughlin. Dr. McLaughlin is Director of
Policy and Analytics and a Senior Research Fellow at the
Mercatus Center at George Mason University. His research
focuses primarily on regulations and the regulatory process.
Dr. McLaughlin has authored more than a dozen peer-reviewed
studies on topics such as regulatory economics, administrative
law, industrial organization, and international trade. Thank
you for being with us, Doctor.
Mr. Brett Tolman. Mr. Tolman is the founder of the Tolman
Group, a public policy law firm that works to hold Federal,
State, and local governments accountable and advance
transparency. He previously served as the United States
Attorney for the District of Utah, and has testified before
Congress multiple times on criminal justice issues including
the First Step Act. Thank you, Mr. Tolman for being here.
Ms. Bianca Tylek. Did I say that right? OK, thank you. Ms.
Tylek is the founder and Executive Director of Worth Rises, a
nonprofit organization that advocates for reform in the
criminal justice system. She has previously worked at the
Brennan Center for Justice and the ACLU and co-founded College
Way, the program that worked to prepare students in Rikers
Island to pursue higher education on their release. Thank you
for being with us, Ms. Tylek.
We welcome all our witnesses, and we will begin by swearing
you in. If you would each, please rise and raise your right
hand?
Do you swear or affirm under penalty of perjury that the
testimony you are about to give is true and correct to the best
of your knowledge, information, and belief so help you God?
Let the record reflect that each of the witnesses has
answered in the affirmative. You may be seated. Please know
that your written testimony will be entered into the record in
its entirety. Accordingly, we ask that you summary your
testimony in five minutes and if you get close, I will probably
tap like this a little bit, not trying to break your flow, but
just trying to let you know that you are near the end of your
time. I mean your time for testimony. You might have all the
time in the world. I don't know, but I just want to make clear
of that.
So, with that, Mr. Purtill, you may proceed.
STATEMENT OF PATRICK PURTILL
Mr. Purtill. Very good. Mr. Chair, Madam Ranking Member,
the Members of the Committee, thank you for the opportunity to
speak to you today on the topic of overcriminalization, its
impact on our criminal justice system, and its impact on the
rule of law. I commend the Committee for examining this
important, but often overlooked issue.
The power to punish is the greatest domestic power that the
Government has the ability to take life, liberty, and property.
As Government continues to grow exponentially, the number of
acts and beliefs that it prohibits has continued to grow as
well. The overcriminalization, the proliferation of laws is
often--they are often in vague or ambiguous terms. They expand
the scope of criminal behavior beyond reasonable limits. This
proliferation has resulted in a regime of statutes that
criminalize conduct previously considered innocuous or
noncriminal. Consequently, individuals, including those with no
intent to break the law, find themselves ensnared in a complex
web of statutes and regulations that are difficult, if not
possible, to navigate.
It is illuminating to remember that at common law, there
were only nine major felonies: Murder, robbery, arson, rape,
for example, and various misdemeanors. Our Constitution itself
only specified three felonies within the body of the document
although, as the Chair pointed out, one of the first acts of
Congress was to create another 23, I believe it was, certainly
a number that was comprehensible. Today, we have got more than
5,000 Federal crimes and there are so many rules and
regulations with criminal consequence that no one is able to
count them. A complete and systematic effort to count stops
somewhere at--just North of 300,000 including the Federal
regulations.
This is one of the chief reasons that one in three
Americans today has a criminal record of some sort and that
many Americans, frankly, have lost faith and trust in the
impartiality of the justice system and in the equal application
of our laws. It can't be overstated how dangerous this loss of
faith and trust in the justice system is for a democratic
republic.
So, why is this important? I think that overcriminalization
is important for several key reasons. First, is that it enables
the proliferation of criminal laws tilts the playing field too
far in favor of the prosecutor. It has effectively undermined
the Sixth Amendment right to a jury trial. According to the
American Bar Association, 98 percent of criminal cases in
Federal court end with a plea and there is substantial evidence
that innocent people are coerced into guilty pleas because of
the power that the prosecutors have over them.
Now, I should pause for a moment to say I think prosecutors
are trying to do a good job. They are an integral part of our
system in protecting public safety, so I don't mean this to be
an overt attack on them. I think that this is the nature of the
problem when you have these many criminal statutes. You are
going to have this happen. Too many laws make overcharging or
charge stacking one of the most common tools used by Federal
prosecutors which is why trials have become essentially just
rare artifacts. Overcharging can be used not only to force a
plea deal, but it can also if you do decide to exercise your
Sixth Amendment and go to trial, overcharging also can
influence the jury into thinking that well, there are so many
charges, one of these must be accurate. So, you can see
situations where defendants are acquitted on a number of
charges, but sometimes juries feel like they have to come back
with a guilty charge on something just because there were so
many charges to begin with.
So many criminal laws make it impossible for an ordinary
citizen or probably anyone for that matter, as you noted that
it would take three years to simply read through all the
criminal statutes and regulations on the books today, but that
means that ordinary citizens can't actually know what the law
is. The legal maxim used to be that ignorance of the law is no
excuse and this made sense when we had nine felonies at common
law. Those felonies were inherently blameworthy. Everyone
understands that murder is wrong. You don't need to know that
someone passed a statute criminalizing murder to know that it
is wrong. They were inherently blameworthy offenses, but if a
free citizen cannot be certain that they are in compliance with
the law, the problem is with the overly complicated legal
regime. It is not with the citizenry. It is because we are
criminalizing actions and beliefs that are not inherently
blameworthy.
When you add this to the way that we go about charging now
and indicting, a New York Judge, Sol Wachtler, famously
observed years ago that if a District Attorney wanted, a Grand
Jury would indict a ham sandwich. The simple truth is that the
mass of Federal criminal laws and regulations makes this easier
and makes every American a potential criminal. Rather than
seeing a crime and then investigating to find the perpetrator,
the staggering labyrinth of criminal statutes and regulations
means you can identify an individual for prosecution and dig
until you find some rule that they have violated.
Mr. Biggs. You are over your time limit.
Mr. Purtill. I am sorry. I will stop there, but the only
other thing I would say if you did mention this comes with a
host of collateral consequences and I think that the real
danger in why I think it is important what you are doing here
today is the real danger is it undermines the public confidence
in the fair application of the law. That is truly a dangerous
situation to be in. So, I commend you for having this hearing.
[The prepared statement of Mr. Purtill follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Biggs. Thank you, Mr. Purtill. Now, I recognize Dr.
McLaughlin for your five minutes.
STATEMENT OF PATRICK McLAUGHLIN
Mr. McLaughlin. Thank you.
Chair Biggs, Ranking Member Nader, and Ranking Member
Jackson Lee, the Members of the Committee, I'm Patrick
McLaughlin, a Senior Research Fellow at the Mercatus Center at
George Mason University, and Mercatus Center is a nonprofit,
nonpartisan research center dedicated to bridging the gap
between academic ideas and real-world problems. Thanks again
for inviting me here to testify today.
For more than a decade, I have specialized in using
computer algorithms to quantify various aspects of accumulated
laws and regulations. I learned early on in my career that it
would be impossible for any human to read the entirety of
Federal laws and regulations. So, I devised computational
solutions instead.
Some of my work on regulatory accumulation has demonstrated
how the buildup of rules over time significantly slows economic
growth, but I have also studied the accumulation of crimes, as
defined in the U.S. Code. On that topic, I have three main
points today.
First, there has been a significant increase in the number
of Federal criminal statutes and regulations over the past
three decades.
Second, the expansion of Federal criminal laws over the
past few decades has been linked to an increase in Federal
incarceration rates.
Third, the haphazard expansion of Federal crimes may
duplicate State laws or existing Federal laws, resulting in
redundant crimes.
A few years ago, I worked on a project that used some of
these advanced computer algorithms to create an inventory of
criminal laws within the U.S. Code. Using a carefully
cultivated set of search terms, such as the phrases
``imprisoned for not more than'' or ``shall be guilty of,'' we
were able to estimate not only how many crimes Congress has
written into the U.S. Code as of 2019, but also how that number
has changed over time.
Our work revealed a significant increase in the number of
Federal criminal statutes over the past three decades. We
estimated that 3,825 Federal crimes were on the books as of
1994. By the year 2019, that number had increased by more than
a third to 5,199.
Interestingly, more than half of the total growth in that
entire 22-year period that we studied occurred between 1994-
1996. This matched our expectations, because a tough-on-crime
agenda played a significant part in politics in the 1980s
through the mid-1990s.
I recently ran the same algorithm on the Code of Federal
Regulations to estimate the crimes that are defined in Federal
regulations. I estimate that an additional 2,157-2,876 crimes
are defined in similar ways as in the U.S. Code within the Code
of Federal Regulations as of 2023.
Now, the number 300,000 has also been used in this hearing,
and I will just point out that I'm using the same algorithms to
look for these search terms that we devised by looking through
the statutes and applying it to the CFR, to the regulations.
So, my number is probably on the floor, probably not the
ceiling. Anyway, that means the total number of crimes defined
across Federal laws, including both statutes and regulations,
likely falls at least in the 7,000-8,000 range.
Now, a longstanding criticism of the haphazard expansion of
Federal crimes is that new Federal criminal laws may duplicate
State laws or existing Federal laws in a patchwork of redundant
crimes. This duplication has a number of downsides.
It erodes principles of federalism by having Federal
authorities police conduct that has been traditionally viewed
as better left to State and local governments.
This duplication also dilutes political accountability
because the public is not able to discern who has primary
authority for addressing a particular crime or whom to blame if
a crime is not addressed.
Finally, duplicative Federal crimes give prosecutors wide
latitude to charge different people committing the same
offenses with different crimes--opening the door for bias to
factor into charging decisions.
The U.S. has the highest incarceration rate of any country
in the world, and that rate seems obviously linked to the
number of crimes defined in law. The number of Federal prison
inmates alone has risen by 500 percent since 1980. Any action
by Congress to reduce the number of duplicative or otherwise
undesirable crimes could only serve the reduce that
incarceration rate.
The accumulation of laws and regulations, and the crimes
that are defined within them, should not be assumed to be
harmless. The U.S. needs legislative reforms to simplify
Federal laws and regulations, period. Such reforms could
involve reducing the number of Federal crimes, clarifying the
language of statutes, and considering decriminalization or the
use of civil penalties for certain offenses to alleviate the
burden on the criminal justice system.
Reforms like these are crucial to ensuring that laws are
fair, just, and proportionate to the behaviors they aim to
regulate, safeguarding against the negative consequences of
overcriminalization.
Thank you again for inviting me here today to discuss this
important topic.
[The prepared statement of Mr. McLaughlin follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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.