DEFINING THE PROBLEM AND SCOPE OF

OVER-CRIMINALIZATION AND
OVER-FEDERALIZATION

HEARING
BEFORE THE

OVER-CRIMINALIZATION TASK FORCE OF 2013

OF THE

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION

JUNE 14, 2013

Serial No. 11344

Printed for the use of the Committee on the Judiciary

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COMMITTEE ON THE JUDICIARY

BOB GOODLATTE,
F. JAMES SENSENBRENNER, JR.,
Wisconsin
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVE CHABOT, Ohio
SPENCER BACHUS, Alabama
DARRELL E. ISSA, California
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
JIM JORDAN, Ohio
TED POE, Texas
JASON CHAFFETZ, Utah
TOM MARINO, Pennsylvania
TREY GOWDY, South Carolina
MARK AMODEI, Nevada
L LABRADOR, Idaho
RAU
BLAKE FARENTHOLD, Texas
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri

Virginia, Chairman
JOHN CONYERS, JR., Michigan
JERROLD NADLER, New York
ROBERT C. BOBBY SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
STEVE COHEN, Tennessee
HENRY C. HANK JOHNSON, JR.,
Georgia
PEDRO R. PIERLUISI, Puerto Rico
JUDY CHU, California
TED DEUTCH, Florida
LUIS V. GUTIERREZ, Illinois
KAREN BASS, California
CEDRIC RICHMOND, Louisiana
SUZAN DelBENE, Washington
JOE GARCIA, Florida
HAKEEM JEFFRIES, New York

SHELLEY HUSBAND, Chief of Staff & General Counsel

PERRY APELBAUM, Minority Staff Director & Chief Counsel

OVER-CRIMINALIZATION TASK FORCE

OF

2013

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman

LOUIE GOHMERT, Texas, Vice-Chairman
SPENCER BACHUS, Alabama
ROBERT C. BOBBY SCOTT, Virginia
L LABRADOR, Idaho
RAU
JERROLD NADLER, New York
GEORGE HOLDING, North Carolina
STEVE COHEN, Tennessee
KAREN BASS, California
HAKEEM JEFFRIES, New York
CAROLINE LYNCH, Chief Counsel
BOBBY VASSAR, Minority Counsel

(II)

CONTENTS
JUNE 14, 2013
Page

OPENING STATEMENTS
The Honorable F. James Sensenbrenner, Jr., a Representative in Congress
from the State of Wisconsin, and Chairman, Over-Criminalization Task
Force of 2013 ........................................................................................................
The Honorable Robert C. Bobby Scott, a Representative in Congress from
the State of Virginia, and Ranking Member, Over-Criminalization Task
Force of 2013 ........................................................................................................
The Honorable Bob Goodlatte, a Representative in Congress from the State
of Virginia, and Chairman, Committee on the Judiciary .................................

1
2
4

WITNESSES
The Honorable George J. Terwilliger, III, Morgan, Lewis & Bockius LLP
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................
William N. Shepherd, American Bar Association (ABA)
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................
John G. Malcolm, The Heritage Foundation
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................
Steven D. Benjamin, National Association of Criminal Defense Lawyers
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................

7
10
21
23
29
31
47
49

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary ...................................................................................................
Prepared Statement of the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Member, Over-Criminalization Task
Force of 2013 ........................................................................................................

5
76

OFFICIAL HEARING RECORD

MATERIAL SUBMITTED

FOR THE

HEARING RECORD

BUT NOT

REPRINTED

Booklet entitled USA vs YOU, the Flood of Criminal Laws Threatening Your Liberty, by The Heritage Foundation, submitted by John G. Malcolm, The Heritage
Foundation.

(III)

DEFINING THE PROBLEM AND SCOPE OF

OVER-CRIMINALIZATION AND
OVER-FEDERALIZATION
FRIDAY, JUNE 14, 2013

HOUSE

OF

REPRESENTATIVES

OVER-CRIMINALIZATION TASK FORCE

COMMITTEE

ON THE

OF

2013

JUDICIARY

Washington, DC.
The Subcommittee met, pursuant to call, at 9 a.m., in room 2237,
Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Task Force) presiding.
Present: Representatives Sensenbrenner, Goodlatte, Bachus, Labrador, Holding, Scott, Conyers, Cohen, Bass, Jeffries, and Jackson
Lee.
Staff Present: (Majority) Robert Parmiter, Counsel; Alicia
Church, Clerk; and (Minority) Ron LeGrand, Counsel.
Mr. SENSENBRENNER. I would like to welcome everyone to the
first hearing of the Judiciary Committees Over-Criminalization
Task Force. This is the first in a series of hearings the Task Force
will hold on the growing problem of over-criminalization and overfederalization. The Crime Subcommittee had hearings in both the
111th and 112th Congresses to resurrect important policy discussions that have been dormant for over 2 decades about the breadth
and scope of the Federal criminal law. Our work continues today.
The objective of todays hearing is to define the scope of the overcriminalization problem. That in and of itself is a complex and
challenging task. At present, the United States Code contains approximately 4,500 Federal crimes, as well as innumerable regulations and rules, many of which carry severe fines and jail time for
violations, and there is no indication that Congress is slowing
down.
Indeed, over the past three decades, Congress has created an average of 500 new crimes per decade, and the Administrative Office
of the U.S. Courts estimate that over 80,000 defendants are sentenced in Federal courts annually. Many of the crimes on the books
are antiquated or redundant, some are poorly drafted, and some
have not been used in the last 30 years. Moreover, many of the regulatory crimes in the code lack any mens rea, the attempt to commit a crime. That means that an American citizen may not only be
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2
unaware that he is committing a crime, but he may be held strictly
liable for his conduct.
In the 109th Congress, 203 bills were proposed containing some
446 nonviolent crimes. It is hard to imagine that there still remain
nearly 500 types of legitimate criminal conduct that Congress has
failed to properly prohibit. Accordingly, the Task Force will examine the types of conduct Congress has criminalized to assess several important issues. Should the conduct be criminal? If so, to
what extent should it be punished? Is the offense properly written
to distinguish criminal from lawful conduct?
The need for reform becomes particularly apparent when you
read the stories of well-meaning Americans whose lives have been
turned upside down when they run afoul of an obscure Federal
statute, rule or regulation. In Virginia, a little girl saved a woodpecker from the family cat and was fined $535 because under the
Federal Migratory Bird Act it is a crime to take or transport a
woodpecker. In Texas, a 66-year-old retiree had his home raided by
a SWAT team and spent almost 2 years in prison because he didnt
have the proper paperwork for some of his prized orchids, all of
which were legally imported. The judge who sentenced him to prison said sometimes life hands us lemons. But the source of the sourness was the government. This Task Force is an overdue effort to
address this problem.
We will focus on reforms to streamline our criminal code, reviewing Federal laws in Title 18 to modernize our criminal code and addressing codification of crimes outside of Title 18 that have not
gone through the Judiciary Committee. We will examine the extent
of the problem and make recommendations to the full Committee
on how to effectively address these issues.
I look forward to working with my Task Force colleagues on this
bipartisan effort. And it is now my pleasure to recognize for his
opening statement the Ranking Member of the Task Force, the
gentleman from Virginia, Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman.
Todays hearing about over-criminalization of conduct and overfederalization of criminal law comes after a series of conversations
and hearings that have taken place over the last two Congresses.
Members of the Crime Subcommittee have met with a coalition of
organizations, some of whose leaders are with us today.
These and other organizations have come to Congress to seek
consideration and review of the practice and process of enacting
Federal criminal law, and they have come out of a concern for what
they and many others view as an explosive rate of growth of the
Federal criminal code. They also have questions about the wisdom
of continued expansion of the criminal code without first taking
time to consider and review the process by which crime legislation
is enacted.
Their concern is valid. The U.S. Criminal Code has dramatically
increased in size and scope since it was last recodified about 50
years ago. There are an estimated 4,500 Federal crimes in the code
today, and according to a study by the Federalist Society, the number of Federal offenses increased by about 30 percent between 1980
and 2004. We are averaging almost one new crime a week over the
past few decades.

3
In the top 4,500 provisions of the Federal criminal code, there
are an estimated 300,000 or more Federal regulations that can be
enforced with criminal penalties. Far too many of these criminal offenses and regulations lack the adequate criminal intent or mens
rea requirement to protect the innocent. Some offenses have no intent requirement at all.
A historic and groundbreaking joint study and report released by
the National Association of Criminal Defense Lawyers and the
2010 Heritage Foundation report Without Intent took a look at
the Federal legislative process for non violent criminal offenses introduced in the 109th Congress. That is 2005, 2006.
The study revealed that offenses with inadequate criminal intent
requirements were present throughout all stages of the legislative
process. Over 57 percent of the offenses introduced and 64 percent
of those actually enacted into law contained inadequate criminal
intent requirements, putting the innocent at risk of criminal prosecution. The study also commented on poor legislative craftsmanship, citing legislation as being vague, far-reaching, and having inadequate mens rea requirements.
The consequence of this will lead to unjust prosecutions, convictions, and punishments, so I look forward to hearing todays witnesses suggestions regarding methods of improving legislative
draftsmanship.
In requirements primarily a matter of State and local law over
the past 40 years, Congress has increasingly federalized crimes already covered by State law. Not surprising, this dual Federal/State
prosecution authority not only creates tensions between the government entities, but also places an individual in an extremely negative and precarious position of being forced with prosecution either
at the Federal or State level. The bottom line is that an individuals fate has often hinged on not the actual offense, but the authority to prosecute them. It will be the challenge of this Task
Force to explore and resolve the impact of over-federalization in the
area of other crimes, including but not limited to such crimes as
carjacking and drug offenses.
An unforeseen consequence of over-criminalization and over-federalization has been over-incarceration, with the explosion in
growth in the U.S. prison population. The number of Federal prisoners in 1980 was 25,000, but it is over 200,000 today, and it is
this number, when added to those incarcerated in state and local
jails and prisons, has resulted in the United States now being the
largest incarcerator in terms of both the total number incarcerated
and the rate of incarceration.
In the last 30 years, we have gone from an average daily jail and
prison incarceration level of about 500,000 to over 2 million, with
an average incarceration rate of over 750 per 100,000 residents, a
rate about seven times the international average. China, by contrast, with three times as many people, has a total incarceration
level of 1.5 million with a rate of about 117 per 100,000. And we
look to minorities, it is even worse. The average lockup rate for African Americans is around 2,200; 10 States the rate is almost
4,000.
That is particularly egregious because of a report from the Pew
Center on the States. They did research and found that any incar-

4
ceration rate over 350 per 100,000 gives diminishing returns, and
at 500 per 100,000 actually becomes counterproductive, meaning
that it actually generates more crime than it stops by messing up
so many families, wasting so much money on prisons, having so
many people in the area with criminal records.
The work of this Task Force begins today, and it will involve
identifying improvements in the Federal criminal code that we can
all agree on. This work is extremely important and must be done
correctly and effectively. It will require a major commitment of
time and attention and must involve participants and input not
only from Members of both parties of the House and Senate, but
also from a diverse gathering of interested parties, including organizations in the over-criminalization working groups and others.
We will need the help of criminal law researchers, Federal law
enforcement community, representatives of the judiciary, including
the U.S. Sentencing Commission, and the Administrative Offices of
the Courts, and other interested organizations and professionals.
So I look forward to working with my colleagues on the Task Force
and look forward to our witnesses today, particularly attorney Benjamin, who is one of my constituents.
Thank you very much.
Mr. SENSENBRENNER. Thank you.
The gentlemans time has expired.
The Chair recognizes the Chair of the full Committee, gentleman
from Virginia, Mr. Goodlatte.
Mr. GOODLATTE. Thank you, Chairman Sensenbrenner. I am very
happy to be here today at the introductory hearing for this bipartisan Over-Criminalization Task Force. Todays hearing will afford
members of the Task Force the opportunity to hear from a distinguished panel of outside experts who have been studying this issue
very closely for a number of years.
The number of Federal crimes has exploded in recent decades,
bringing the number to approximately 4,500. According to a study
by the Federalist Society, the number of Federal criminal offenses
grew by 30 percent between 1980 and 2004. Congress added 452
new Federal criminal offenses between just 2000 and 2007 alone,
which averages 56.5 new crimes per year. This pace is simply
unsustainable.
Perhaps more concerning than the sheer number of offenses is
how Congress has written many of these new crimes. The recent
growth of the Federal code in all areas of life has brought with it
an ever-increasing labyrinth of Federal regulations, many of which
also impose criminal penalties without a showing of mens rea or
criminal intent.
A troubling example of this is what happened to three-time Indy
500 winner Bobby Unser. When snowmobiling near his home, an
unexpected snowstorm forced Unser and a friend to seek refuge in
a barn. While trying to escape the storm, they unwittingly went
into a national forest wilderness area. They spent 2 days and
nights in sub-zero weather eating snow to slake their thirst before
being rescued.
Following his safe return home, Unser then contacted the Forest
Service to help retrieve his snowmobile. For his trouble, he was
later convicted of unlawful operation of a snowmobile within a na-

5
tional forest wilderness area, which carried a maximum penalty of
6 months in prison and a $5,000 fine. I am confident Congress
never intended to subject someone in Unsers situation to criminal
liability. However, stories like this have become all too typical.
I look forward to hearing from our witnesses today and in the
coming months about the scope of over-criminalization and overfederalization and what steps this Task Force and the Judiciary
Committee can take to address the issue. Concern for this issue is
bipartisan and requires bipartisan perspectives. I commend all of
my colleagues here today for your work on the Task Force, and I
yield back the balance of my time.
Mr. SENSENBRENNER. The gentleman from Michigan, Mr. Conyers, the Ranking Member of the full Committee, is recognized for
his opening statement.
Mr. CONYERS. Mr. Chairman, everybody has said already what
I was going to say again, so I will submit my statement for the
record and salute the Task Force, congratulate the witnesses for
joining us, and yield back the balance of my time.
Mr. SENSENBRENNER. Without objection, the gentleman from
Michigans statement will be included in the report. And without
objections, all Members opening statements will be included in the
record at this point.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary
Unfortunately, Congress has increasingly resorted to criminalizing actions as the
solution to various problems over the past several decades.
There are now about 4,500 federal criminal laws. And, there are about 300,000
federal regulations that impose federal criminal penalties, many of which lack any
mens rea requirement.
The breadth and scope of these laws is astounding and definitely in need of repair.
So as the Task Force undertakes its analysis of this problem of over-criminalization, there are several issues it should consider.
To begin with, the Task Force should understand the real consequences of exponentially increasing the number of criminal laws and regulations.
By inadvertently creating a patchwork of confusing, outdated, and duplicative
laws, Congress has also created the related problems of overcriminalization and
overincarceration.
For example:
An estimated 65 million Americans have been tarnished with a criminal
record, according to one of our witnesses today.
The number of individuals currently incarcerated in our Nation exceeds 2.3
million, which is roughly 1 out of every 99 adults.
And, the United States now leads the world in the rate of incarceration. Our
incarceration rate is 7 times the international average. Indeed, some innercity neighborhoods have an incarceration rate that is 40 times the international average.
Another focus of the Task Force should be on identifying creative and effective
solutions, such as comprehensive, evidence-based prevention and intervention programs for children and families at risk of coming into the criminal justice system.
Such programs have been proven to not only to brake the cradle-to-prison cycle,
but also greatly reduces criminal justice and social welfare costs to taxpayers.

6
For instance, the Youth PROMISE Act, authored by my colleague Rep. Robert C.
Bobby Scott, is an excellent step in that direction.
This legislation would mobilize community leaders ranging from law enforcement
officials to educators to health and mental health agencies to social service providers.
Another solution would be to revise our criminal laws to limit the severity of punishment for low-level offenses such as possession or use of drugs and to consider alternatives to mandatory minimums.
Research has shown that strong community supervision programs for lower-risk,
non-violent offenders can cut recidivism by as much as 30 percent.
Mandatory sentences, long sentences for non-violent first offenses, and laws mandating increased penalties for repeat offenders lead to overincarceration.
One of the most pernicious aspects of mandatory minimums is that it deprives
judges, the entities who have the greatest knowledge of the facts and law, of discretion and the ability to assess a particular persons culpability.
Finally, the Task Force should ensure that all of our criminal laws and penalties,
be it statutory or regulatory, comply with the U.S. Constitutions due process mandate.
When good people are accused of violating laws that are vague or lack adequate
mens rea, however, fundamental constitutional principles of fairness and due process are undermined.
I am particularly concerned that some criminal laws impose strict liability standards and that some regulations lack any mens rea requirements.
Accordingly, I look very much forward to hearing the views of our witnesses
today.

Mr. SENSENBRENNER. The Chair will now introduce the four witnesses.
The first witness is the Honorable George Terwilliger, III. He is
a partner in Morgan, Lewis litigation practice and co-chair of the
White Collar Litigation and Government Investigations Practice. In
this capacity, Mr. Terwilliger provides counsel in litigation, internal investigations, and enforcement proceedings. He has served as
a U.S. presidential appointee in two Administrations. He was appointed U.S. attorney by President Ronald Reagan and served as
deputy attorney general and acting attorney general in the George
H.W. Bush administration. Most recently, Mr. Terwilliger was a
partner in the white-collar practice of another international law
firm. He received his bachelors degree from Seton Hall University
and his law degree from the Antioch School of Law.
John Malcolm is the Rule of Law Programs policy director and
the Ed Gilbertson and Sherry Lindberg senior legal fellow in the
Edwin Meese III Center for Judicial Studies of the Heritage Foundation. In this capacity, he writes and speaks on a variety of lawrelated topics. Previously, he served as an assistant U.S. attorney
in Atlanta, then as an associate independent counsel in Washington, D.C.
Mr. Malcolm then went on to serve as a deputy assistant attorney general in the Criminal Division of the Department of Justice.
He was an executive vice president and director of the worldwide
anti-piracy operations for the Motion Picture Association of America and went on to serve on the faculty of Pepperdine School of Law
as a distinguished practitioner in residence. Mr. Malcolm was most
recently the general counsel at the U.S. Commission on International Religious Freedom. He is a graduate of Columbia and
Harvard Law School.

7
William N. Shepherd is testifying in his capacity as a member
of the American Bar Association. He is a partner at Holland &
Knight. In this capacity, he represents individuals and corporations
in the State and Federal Government investigations and grand jury
investigations. Previously, he served as a prosecutor in Miami and
then as the statewide prosecutor of Florida. He is chair of the
American Bar Associations Criminal Justice Section, a member of
its Global Anti-Corruption Task Force and a former division director of its White Collar Crime Division. He received both his undergraduate and law degrees from Georgetown.
Steven Benjamin is president of the National Association of
Criminal Defense Lawyers, which is a professional bar association
founded in 1958. Its members include private criminal defense lawyers, public defenders, Active Duty U.S. military defense counsel,
law professors and judges committed to preserving fairness within
Americas criminal justice system. He is in private practice at the
Virginia firm of Benjaminand is it DesPortes or DesPort?
Mr. BENJAMIN. DesPortes.
Mr. SENSENBRENNER. DesPortes. Okay. He served as special
counsel to the Virginia Senate Courts of Justice, or Judiciary Committee, and is a member of the Virginia Board of Forensic Science
and the Virginia Indigent Defense Commission. He previously
served as president of the Virginia Association of Criminal Defense
Lawyers.
So we will now proceed under the 5-minute rule. We are facing
a very long series of votes this morning and we dont know when
it will start, so I will ask each of you to try and wrap it up in
5minutes. And you all know about the green, yellow and red lights.
Without objection, all of your full statements will be included in the
record at the point with your verbal testimony.
And, Mr. Terwilliger, you are first.
TESTIMONY OF THE HONORABLE GEORGE J. TERWILLIGER,
III, MORGAN, LEWIS & BOCKIUS LLP

Mr. TERWILLIGER. Thank you, Mr. Chairman and Ranking Member Scott, Chairman Goodlatte and Ranking Member Mr. Conyers,
and members of the Task Force, for having me here today and inviting me to join with you in discussing the subject of over-criminalization and over-federalization.
Mr. SENSENBRENNER. Is your mike on, Mr. Terwilliger?
Mr. TERWILLIGER. Yes, sir.
Mr. SENSENBRENNER. Okay.
Mr. TERWILLIGER. I believe that the work of this Task Force has
taken on even greater importance than it had when the Task Force
was originally initiated. Recent events have vividly brought home
to many Americans an understanding that their most fundamental
liberties are at risk due to the overpowering and overburdening
reach of the Federal Government establishment.
I am not referring to the recently reported NSA counterterrorism
programs where I recognize the unfortunate need for these programs due to the significant terrorist threat our people face at
home and abroad. Rather, it is something far more insidious and
uncontrollable than NSA programs that impinge on Americans liberties today. The recent events concerning the reprehensible and

8
possibly thuggish conduct of the IRS is but one stark example of
a Federal Government that reaches far too deeply and intrusively
into the daily lives and choices of ordinary Americans.
We have lost sight of the fact, in my view, that the purpose of
our Constitution is not so much to establish a government as to ensure that the government that we must have is never permitted to
take any more of our personal liberties from us than is absolutely
necessary. We are on a path that is taking us from a system of ordered liberty through the rule of law to one of liberty that is only
as extensive as government fiats allow.
And what freedoms are in peril? They range from the most fundamental of personal choices to others that standing alone may
mean less, but considered collectively illustrate that the certain
surrendering of personal liberty continues.
Consider: The freedom of each individual to retain the fruits of
his or her labor and decide how, when, and for what to use those
funds. Instead, we have a system of taxation that takes more and
more from a few to distribute to many. That should not be, at least
on the present scale, a choice that is made by government.
Liberty is further threatened because one of the results of massive and often wasted runaway Federal spending is that the government is starved for the funds to do the things that are its core
functions and responsibilities, most especially those related to national defense and public safety, but also including those needed to
foster expansions of economic freedom that produces prosperity.
The Federal leviathan even reaches into our daily life so far as
to dictate to us when we awake in the morning, what kind of light
bulbs may illuminate our bathroom, and how much water can flow
through our showerhead. This would be humorous if not such a sad
commentary on what we have allowed to evolve.
Over-criminalization is part of this larger picture. Thus, efforts
by Congress to get its arms around these issues, such as through
this Task Force, are a most significant step forward. My prepared
statement traces the origins and developments of the use of Federal criminal law and addresses how we have strayed from its fundamental purpose. But I believe the fundamental takeaway is this:
We have lost sight of the proper use of Federal criminal law as a
carefully applied tool to protect the means and instrumentalities of
commerce, a goal in harmony with the principles of federalism and
the Framers intent.
I would like to leave you today with one simple idea that I think
could be a significant step forward: We could assure ourselves that
no person or business is ever convicted of a criminal offense unless
a jury has determined that he, she, or it acted with criminal intent,
and I believe this could be accomplished by writing an overriding
provision of law that requires as an element of any offense where
a showing of intent is not expressly required that it be proven beyond a reasonable doubt that the defendant acted with a bad purpose; that is, with the intent to disobey or disregard a requirement
of law. This could eliminate any question as to strict criminal liability offenses being actionable and would reintroduce to Federal
criminal law the fundamental and venerated principle that a criminal offense must include proof of intent to do a bad act.

9
Again, I thank the Chair and the Ranking Member of the Task
Force for taking on this important work and will be pleased to answer any questions or to discuss these issues with Members or staff
anytime.
[The prepared statement of Mr. Terwilliger follows:]

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Mr. SENSENBRENNER. Thank you, Mr. Terwilliger.
Mr. Shepherd.
TESTIMONY OF WILLIAM N. SHEPHERD,
AMERICAN BAR ASSOCIATION (ABA)

Mr. SHEPHERD. Thank you very much, sir. Mr. Chairman, Ranking Member, it is a pleasure to be here on behalf of the American
Bar Association. I serve as chair of the American Bar Associations
20,000-member Criminal Justice Section, a group that is made up
of both prosecutors and defense lawyers, judges and academics,
who, like you in this bipartisan setting, often find themselves
Mr. SENSENBRENNER. Is the light on?
Mr. SHEPHERD. I believe it is on. Oh, there we go. Thank you
very much, sir.
Who find ourselves, as you do, addressing these issues in a bipartisan fashion. We, from our diverse professional backgrounds, come
to the same conclusions that you do: There are too many criminal
laws, the enforcement of many of these laws becomes confused, and
because of the overburdening number of laws and the strain that
puts on our system, priorities, which we might all agree on,
oftentime get sidetracked because of fiscal realities.
My own practice background is that I spent 12 years as a State
court prosecutor trying cases in courthouses in Miami and throughout the State of Florida. For the last 4 years of that service I had
the opportunity to serve as Floridas statewide prosecutor and at
which point I spent a fair amount of time in our legislative processes in our State legislatures. One of the issues that became apparent to us as a security threat was the growing problem of gangs
in the State of Florida. We worked with legislative leaders to address some of the issues and craft new laws that would help give
law enforcement tools they might better use to protect the citizens
of our State.
As that debate went on, one of the main issues became, well, Mr.
Shepherd, if we pass some of these, it will have a significant prison
bed impact. Well, yes, that was the goal, to have a prison bed impact as it related to serious gang violence and gang offenders. But,
Mr. Shepherd, you dont understand, we have a large influx of new
inmates who are traffic offenders, not trafficking, traffic, driving offenses. And I am not trying to minimize the importance of those,
but I think it illustrated the point that as new penalties get added
on to new statutes, perhaps without thinking about the long-term
impact, some of those decisions have an impact on what we would
prioritize.
If we are going to build prisons, certainly we would build them
to protect our communities from violent gang offenders, and if our
own fiscal realities have been dictated by something else, I think
that is a prime example, on a broader spectrum, of some of the
same issues that States are facing as you are trying to discuss
these issues today.
The American Bar Association has long been in favor of policies
that would bring sensible reforms to some of the legislative issues,
one that I will talk about as it relates to an individual case that
I was involved in recently. In drafting an amicus brief on behalf
of my colleague here at the National Association of Criminal De-

22
fense Lawyers, involved a commercial fisherman in Tampa who
was prosecuted under a crime drafted by this Congress, but my
guess would be that Congress had no idea that a post-Enron antidocument-shredding statute would be used to convict a man of destroying three red grouper.
A 4-day Federal court trial resulted in his conviction for the destruction of this evidence that he had been sent by the Fish and
Game Commission to take to the port. When they came back to the
port 3 days later to reinspect the fish, the original count of 72 reflected there were now only 69 fish on the port. That case is now
before the Court of Appeals in the 11th Circuit.
And I am not here to argue the case, but what I am here to say
is that the laws that you draft get applied by real people and impact real lives in ways that you may have no idea would be the ultimate goal and the ultimate use as it impacts those individual people. If laws are important enough such that individual men should
spend time in Federal prison, those laws should be drafted by you,
the people in this Congress, instead of delegated to career people
who work in agencies, who are not elected officials like yourself,
people who have a narrow focus and perhaps dont have a broader
perspective that you carry with you when you come from your constituents.
So, in concluding, I would just say that if it is important enough
to send a man to Federal prison, it is important enough for this
Congress to vote on it, and I think that that is an overarching issue
that you can all address in this, and I compliment you for your
work in this area. Thank you.
[The prepared statement of Mr. Shepherd follows:]

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Mr. SENSENBRENNER. Thank you very much.
Mr. Malcolm.
TESTIMONY OF JOHN G. MALCOLM,
THE HERITAGE FOUNDATION

Mr. MALCOLM. Mr. Chairman, Members of Congress, thank you

for providing me the opportunity to speak to you about over-criminalization, a term used to describe the overuse and misuse of
criminal law in todays society. In my capacity as the Rule of Law
Programs policy director at the Heritage Foundation, I host regular
meetings of an Overcriminalization Working Group consisting of
several organizations from across the political spectrum. These organizations dont agree on very many issues but they do agree on
this: Over-criminalization is a serious and growing problem and
needs to be remedied.
I have also spent much of my career as a prosecutor and a criminal defense attorney, so I speak to you as someone as experience
on both sides of the courtroom. For most of our Nations history,
all of the crimes, and there werent very many of them, were
malum in se offenses; that is, they prohibited conduct that was
widely recognized as morally blameworthy. Today, however, buried
within the 51 titles of the United States Code and the far more voluminous Code of Federal Regulations, there are approximately
4,500 criminal statutes and another 300,000 or more criminal regulations, and scores more are created every year.
Many of these laws, unfortunately, contribute to the over-criminalization problem. Many Federal criminal laws duplicate other
existing Federal and State criminal laws. Some Federal laws increase the penalties for certain crimes without any demonstrated
need, adding to the taxpayers burden. Most of these new laws,
usually in the form of regulations, are malum prohibitum offenses,
which are crimes only because Congress or some regulator has said
that they are, not because they are inherently blameworthy. Unlike
malum in se offenses which prohibit morally indefensible conduct,
regulations actually allow conduct, but they circumscribe when,
where, how, how often, and by whom certain conduct can be done,
often in ways that are very hard for the nonexperts to understand.
When criminal penalties are attached to violations of obscure
regulations, over-criminalization problems often ensue. But there is
an even bigger problem. Today, many criminal laws lack an adequate or any mens rea requirement, meaning that a prosecutor
doesnt even have to prove that the accused knew that he was violating the law in order to convict him. Many of these so-called offenses are so arcane or incomprehensible that a reasonable person
wouldnt have any idea that what he was doing was a crime.
And there are other problems, too. If somebody wanted to find
out whether his proposed conduct was illegal, there is no convenient, easily accessible place that he could go to in order to find a
complete list of Federal crimes. Moreover, the criminal code today
is so vast and complex that the judges and lawyers have a lot of
trouble discerning what is legal and what is illegal. What hope do
ordinary citizens have?
It is inevitable that many morally blameless individuals will end
up committing acts that turn out to be crimes and some of them

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will end up in prison. The Heritage Foundation just came out with
a booklet entitled USA vs You that provides the stories of just a
few unfortunate people who got cauht up in the web of over-criminalization, and there are more such stories on our Web site. When
we divorce legal guilt from moral blame-worthiness and place excessive reliance on criminal law to address social problems rather
than the administrative or civil justice systems, problems occur.
When morally blameless people unwittingly commit acts that turn
out to be crimes and are prosecuted for those offenses, the publics
respect for the fairness and integrity of our criminal justice system
is diminished, which is something that should concern everyone.
There are a number of proposals that I would encourage you to
consider, such as passing a default mens rea provision for crimes
in which no mens rea has been provided and passing a law requiring the government to identify every Federal crime and to post it
in a manner that is easily accessible to the public at no charge. I
look forward to future hearings in which these and other proposals
are discussed in greater detail. And with that, I would be happy
to answer any questions you might have.
[The prepared statement of Mr. Malcolm follows:]

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Mr. SENSENBRENNER. Thank you very much.
Mr. Benjamin.
TESTIMONY OF STEVEN D. BENJAMIN,
NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

Mr. BENJAMIN. Thank you, Mr. Chairman and Ranking Member

Scott. My name is Steve Benjamin, and I am the president of the
National Association of Criminal Defense Lawyers, and on behalf
of NACDL, I commend the House Judiciary Committee for establishing this Over-Criminalization Task Force.
As a practitioner from the Commonwealth of Virginia, I am personally grateful for the leadership and support of two Members
from my own congressional delegation, Judiciary Committee Chair
Goodlatte and Task Force Ranking Member Scott, whose work on
this critical issue demonstrates that the danger of over-criminalization transcends the traditional ideological divide.
The problem you confront is not abstract or theoretical. Overcriminalization directly impacts commerce, free enterprise, and innovation. But it is not just a problem with white-collar implications. It encompasses policies and practices that affect every person
in society, and in my written testimony I have provided numerous
examples. The fact is we have become addicted to the use of criminal law as a blunt instrument to control social and economic behavior. As a result of over-criminalization, the United States has more
prisoners than any Nation on Earth, and an estimated 65 million
Americans are now stigmatized by a criminal conviction and the
collateral consequences that increasingly result.
This is not because we are a country of lawbreakers or criminals.
It is because we use the Federal criminal law for regulatory purposes far beyond the traditional purpose, exercised historically at
the State level, of deterring and punishing criminal conduct.
A fundamental question before this Task Force is whether the
body of Federal crimes should continue to expand, and to answer
this question requires acknowledgement that where Congress has
created new crimes, it has done so poorly and without regard for
whether those new crimes reach conduct that represents genuinely
bad behavior. Congress often fails to speak clearly and with the
necessary specificity when legislating criminal offenses, instead enacting overly expansive and poorly defined criminal laws, which
lack clear requirements of criminal intent. With rare exception, the
government should not be allowed to punish a person without having to prove he acted with wrongful intent. When the average citizen cannot determine what constitutes unlawful activity in order
to conform her conduct to the law, that is unfairness in its most
basic form.
Further, Congress often delegates its criminal lawmaking authority to executive branch agencies and officials. Regulatory agencies are empowered to unilaterally enact massive criminal provisions with little oversight. As a result, the legislative branch has
ceded the ability to limit the weighty economic, social, and individual costs of the entire criminal justice system. Poorly written
laws and weak intent standards have jeopardized the fundamental
protection of a trial. Unlimited discretion over charging decisions
combined with mandatory minimum sentences and high sentencing

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guidelines afford prosecutors the power to deter the accused from
asserting their innocence or attesting new laws before a jury of
their peers. Rarely will the right to trial justify the risk of a harsh
sentence if a more favorable plea agreement can be struck.
Lastly, overly broad laws combined with weak intent requirements allow the criminal law to be improperly used to pursue what
otherwise would be resolved by civil claims or penalty. Both government and corporate entities resort to the threat of criminal
sanction to extract civil judgments and forfeitures, eliminate competitors, and improperly control behavior.
Of special concern to NACDL is the fact that the governments
expenditure on Federal law enforcement significantly outpaces its
spending on the defense function. It is inexcusable that during this
50th anniversary of Gideon v. Wainwright and the right to counsel
our indigent defense system is in crisis. That crisis has long afflicted the States, but now budget cuts imperil the Federal indigent
defense system even as resources for the prosecutorial function flow
unabated. This imbalance imperils the integrity of the criminal justice system.
To conclude, we encourage this Task Force to consider the passage of a law that would apply a criminal intent requirement by
default to laws that lack one. And while the enactment of criminal
penalties does have a certain allure, the true and tremendous cost
of doing so means that an assessment of impact should be a condition of enactment.
The position of NACDL and its purpose in testifying here today
is clear: The criminal defense lawyers of this Nation value and seek
a criminal justice policy for America that ensures fairness, due
process, and the equal protection of the law while providing compassion for the victims and witnesses of crime, the protection of the
innocent, and the just punishment of the guilty. We are inspired
by your bipartisan efforts and will support and assist you however
we can.
[The prepared statement of Mr. Benjamin follows:]

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Mr. SENSENBRENNER. I would like to thank each of the witnesses
for very excellent testimony. I think that all of the members of the
Task Force agree with all of you and amongst ourselves. This is a
vast undertaking, and we are operating under somewhat of a time
limit because the life of task forces are supposed to be 6 months,
but I would guess that when we get toward the end of the Congress, we are going to ask for a reupping on this, because this is
not going to get done in 6 months.
The staff has asked the Congressional Research Service to update the calculation of criminal offenses in the Federal code, which
was last undertaken in 2008. CRS initial response to our request
was that they lack the manpower and resources to accomplish this
task. And I think this confirms the point that all of us have been
making on this issue and demonstrates the breadth of over-criminalization.
The Task Force staff is going to meet with CRS to figure out how
to resolve this problem so that at least we can see what we are
doing and where the problems are so that we can get a dragnet
pun intendedof the criminal laws, both in the code, as well as in
Federal regulations.
Now, that being said, I would like to ask each of the witnesses
to give us your priorities, just a phrase, since I have got a limited
amount of time, on where we ought to start on this, whether it
should be over-criminalization versus over-federalization, mens rea,
section 1811, administrative criminal penalties, and the like.
And, Mr. Terwilliger, I guess you are first and we will go down
the panel.
Mr. TERWILLIGER. Thank you, Mr. Chairman. And recognizing
the brevity of time, I would be happy to expand on this later, but
I think there should be two priorities. One, because it is of great
importance in terms of both the reality and the perception of the
fundamental fairness of the Federal criminal justice system, is to
address the intent issue, which each witness here has raised in one
form or another. Nobody should be convicted of a crime that doesnt
have the intent to do something that the law forbids and ought to
have an opportunity to test whether that intent is there in an adversarial proceeding.
Mr. SENSENBRENNER. Okay. I have got a limited amount of time,
so
Mr. TERWILLIGER. The second priority, just one phrase, is on the
overregulation, because it is stifling economic expansion and development to American corporations.
Mr. SENSENBRENNER. Okay. Mens rea and overregulation.
Mr. Shepherd.
Mr. SHEPHERD. And I would agree that mens rea is number one,
and number two, overregulation, but the way I would phrase it is
we have taken Chevron deference where the courts encourage us
to look at the expert regulators and expanded that to Chevron
prosecution, and I think that is really the fundamental problem
here. But mens rea is number one and Chevron prosecution is number two.
Mr. SENSENBRENNER. Mr. Malcolm.
Mr. MALCOLM. Yeah, I would certainly default. Mens rea would
be my top priority. I would echo what Mr. Terwilliger and Mr.

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Shepherd have said. You know, I think that is a good list. You
know, my general belief is that if it is something that is important
enough that somebody could go to jail, it is something you ought
to vote on and not have a regulator implement.
Mr. SENSENBRENNER. I would agree with that.
Mr. Benjamin.
Mr. BENJAMIN. Well, what they said. Mens rea and overbreadth,
I would add.
Mr. SENSENBRENNER. Okay. Thank you very much. I yield back
the balance of my time.
Gentleman from Virginia, Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman.
Let me follow through on that because everybody has talked
about enforcing regulations with the criminal code. What about
regulations that involve serious safety and health regulations, violation of those, shouldnt they be criminal, if you have people who
are putting workers, for example, in life or death situations?
Mr. Terwilliger.
Mr. TERWILLIGER. I suppose there could be a reservation for the
most egregious kind of conduct of that nature, but in general, Mr.
Scott, that slippery slope is how we got here, respectfully. And I
think there are more than adequate civil remedies to actually affect
the way businesses, for example, behave.
Something on the notion of intentional conduct that, for example,
recklessly disregards a known standard of safety that puts a worker in danger, that might be a reservation for a criminal offense, but
we have gone way beyond that standard at this point, in my view.
Mr. SCOTT. Well, we are talking about getting rid of all of them
and some of them we might want to reserve for the reasons you
have articulated.
Mr. TERWILLIGER. Yes, sir.
Mr. SCOTT. If you didnt know about the regulation, would you
put your workers in danger of life and safety without a mens rea?
Mr. TERWILLIGER. Well, that comes back to the intent issue, and
that is why my formulation would be proof of intent would require
a showing of a purposeful disobeying or disregarding a law. We
have the notion of turning a blind eye to the requirements of the
law, consciously avoiding, knowing what the law requires. If it is
within someones responsibility to know what the law requires and
they dont undertake to at least minimally understand what that
requirement is, that may be enough to support a conviction, assuming those other elements are present.
Mr. SCOTT. Mr. Malcolm, you want to comment on that?
Mr. MALCOLM. Yeah, I do, Mr. Scott. If Congress blesses a regulation prohibiting this sort of conduct and notice is provided to affected parties, then it is fine to make it a crime. If the conduct is
clearly blameworthy and intent is proven, there is nothing wrong
with making this a crime. However, if that is not the case, there
is no reason why, even if a harmful result occurs, that such conduct
cannot be addressed effectively, indeed harshly, by both the civil
justice system and the administrative system. That way the harm
can be remedied, general deterrence message can be sent out, and
you are not branding somebody as criminal.

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Mr. SCOTT. Well, was reckless disregard of life and safety
enough?
Mr. MALCOLM. Well, reckless disregard is an intent standard,
and under the realm of intent standard
Mr. SCOTT. And what about disregard if it is within your responsibility to know and you just didnt bother to find out what the regulations were?
Mr. MALCOLM. Well, generally, if it is a highly regulated industry, the government ought to do a better job about letting those industries know what is prohibited, but if it is reckless disregard of
a known danger, then generally there is nothing wrong with criminalizing that, and Congress has done so and blessed that on a
number of occasions.
Mr. SCOTT. Somebody want to comment on when it should be a
Federal criminal law rather than a State? Most of the Federal
criminal code just overlaps State laws. I mentioned carjacking.
Why should that be a Federal law and why should we leave most
of this stuff to the States?
Mr. SHEPHERD. I would be glad to address that, sir. My own
background, as I told you, is as a State prosecutor. Most of the
cases that we prosecuted, whether they were individual defendants
or racketeering cases against large groups of violent gangs or large
white-collar crime cases, could have easily been filed in Federal
court. I agree, there is a large duplication of that.
Oftentimes there is a balancing between prosecutors and law enforcement to figure out where do we have more leverage against
the defendant. Do we have a better sentencing structure for this
particular crime in State court or Federal court? Are there evidentiary rules in State decisions that support the prosecution in
this versus the other? So that is how the leverage developed.
Mr. SCOTT. So, Mr. Benjamin, what does that do to a defendant,
having to both look at both Federal and State, and why should we
have the overlap?
Mr. BENJAMIN. Well, the practical effect is that it makes his legal
fee unattainable, just nobody can afford private counsel because
the consequences are so severe and far reaching. That is a very
real practical effect. But one of the benefits to deferring to the
States is that that is one of the benefits of federalism, permitting
each of the 50 States to decide for its own what conduct within that
State should be criminal and what penalties should attach. That is
one of reasons for our federalist structure.
Mr. SCOTT. Thank you.
Mr. SENSENBRENNER. Gentlemans time has expired.
The gentleman from North Carolina, Mr. Holding.
Mr. HOLDING. Thank you.
I am sure we all appreciate the distinction and abilities of our
panelists today, especially my friend Mr. Terwilliger. It is always
a pleasure.
Mr. TERWILLIGER. Nice to see you, sir.
Mr. HOLDING. Yesterday, Director Mueller testified before the
Committee and talked about the priorities of the FBI, and he noted
with sequestration and declining budget and budget cuts that you
have to really sharpen up what your priorities are, and as a criteria you have to prioritize things where Federal law enforcement

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brings something extra to the table, something unique about Federal law enforcement, that is why we should devote FBI resources
to enforcement.
So, Mr. Terwilliger, what areas of current Federal law now,
criminal law, do you think that Federal resources ought to be devoted to, if you had to prioritize?
Mr. TERWILLIGER. I think clearly the threat of terrorism, both
now more homegrown perhaps as we saw in Boston and what happened in London, has to remain a top priority for Federal law enforcement. And it is a good example of where what might be, Mr.
Scott, a street crime, setting off an improvised explosive device, deserves and needs the Federal resources to treat it.
Beyond that, I think the leveraging of Federal resources, which
certain Federal laws are important to permitting through the Task
Force approach to things like street crime and gangs and other organized criminal activity, including drugs, which we dont talk
much about anymore, which arespan regions, States, or
multistate in nature or transnational in nature, I think those
things are important.
And then third, only the Federal Government, perhaps with the
exception of a couple of States, has shown the wherewithal to address what I think is one of the most fundamental duties of the
Federal Government, and that is to keep our marketplaces free and
honest, because a dishonest market is not a free one. So keeping
the means and instrumentalities of commerce free from fraud
should also be a priority.
Mr. HOLDING. Mr. Shepherd, you want to chime in on this?
Mr. SHEPHERD. Well, the only thing I would add to that, sir, is
that as the FBI has rightly shifted their work into the terrorism
area and other areas of national importance, State law enforcement
and local law enforcement has had to step in and up their involvement in cases where they might have been able to get help from
the local FBI field office and they dont now because those agents
are doing other things. So there is a trickle-down effect, but I think
it is an appropriate use of resources and the way it should be structured. We dont need to see an FBI agent at every liquor store robbery scene. Sheriff should handle that.
Mr. HOLDING. Mr. Malcolm.
Mr. MALCOLM. Yeah, if it is something transnational in nature
or if the Federal Government has some unique knowledge or expertise, it would an appropriate use of Federal resources. The problem
is, is that these days it is so easy to use the instrumentality of the
phones, the mail that take you interstate that essentially all State
crimes, except for the most local of crimes, become Federal crimes,
and then you have problems of the spreading of resources and also
a problem of accountability. The public doesnt know whether, if
something isnt getting done, whether it is the Federal Governments fault or the State governments fault, and there is no need
for that.
Mr. HOLDING. Mr. Benjamin.
Mr. BENJAMIN. To terrorism and international criminal activity,
I would add political corruption and the denial of civil rights.
Mr. HOLDING. Often there is, you know, something that will raise
a Federal priority in a particular State is the disparity between

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sentences that you can get in State court versus Federal court, and
perhaps that is something that we can address in a further question. But I yield back.
Mr. SENSENBRENNER. Thank you.
The gentleman from Michigan, Mr. Conyers.
Mr. CONYERS. Thank you.
Attorney Benjamin, your testimony noted that almost 68 million
Americans have a criminal record, and we talked about the direct
costs of law enforcement presence in courts as well as to businesses
and the economy. But can you discuss what the criminal record
means for the average American? How does that impact their quality of life and their ability to contribute to society and the overall
economy, and how does it affect the system itself with that many
people walking around with records?
Mr. BENJAMIN. Thank you, Congressman. The effect of the problem we discussed today is that we have deepened the divide between us. In a country that values equality, we have deepened the
divide between our people and we have created a caste system populated by third-class citizens who are marked by the stigma of conviction and bear a lifetime of the consequences that flow from their
conviction, even after they have served their time.
This is a country that once valued the right of redemption. It
used to be said that once you had erred, which of course is human,
and paid your debt to society, you were then free, you were redeemed to pursue life as a free citizen. But that is no longer the
case. Now, after you have paid your debt, you are marked for the
rest of your life with consequences such as where you can live,
where you can work, whether you can pick your children up from
school. That is not what this country was ever meant to be about.
Mr. CONYERS. Let me ask Bill Shepherd, one aspect of over-criminalization is over-federalization and how the Federal Government
frequently intrudes on matters that should be left to the States. Is
there anything that we can think about doing to minimize this? Do
you have any examples that we might turn around here this morning?
Mr. SHEPHERD. Well, I think, sir, that the American Bar Association has been working with Congress for decades on this issue. In
1998 we came out with a report that involved Attorney General
Meese on the over-federalization of crimes. We talked about some
of those statistics earlier this morning. I think there is a natural
reaction when something bad happens that we want to say we are
taking action, exactly, and we are here to protect you.
But part of the way the Federal Government can say we are here
to protect you is to encourage the local State officials, who already
have carjacking, as you said, sir, on the books, to further enforce
their carjacking statute, to give them resources they might need.
If the FBI lab needs to be helpful in tracing the gun, then we use
the FBI lab or the ATF, but perhaps we dont need a new Federal
statute.
And I realize it is difficult, in a position where your constituents
demand action, to say, for example, well, I dont think we should
have a Federal carjacking statute. That ends up on a mailer in my
mailbox come election cycle. I understand that is a difficult posi-

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tion, and that is part of the reality, whether it is at the State level
or the Federal level or the county level.
But I think the point that you raise and where law enforcement
can help is to say, no, smart justice here doesnt mean more statutes. Your Member of Congress is right, we dont need a new statute, and on behalf of the sheriffs and the local prosecutors, we
think the laws are on the books, we maybe need funding to enforce
them, but we dont need more laws.
And I think coalitions like the one you see here offer some of that
help and support for lawmakers when they need those issues addressed and to have people who are experts in that substantive
field help explain to the constituents why it is important that we
have the laws on the books we have and not increased to add new
ones.
Mr. CONYERS. So we ought to use this phrase a little less often:
There ought to be a law.
Mr. SHEPHERD. Agreed.
Mr. CONYERS. I yield back.
Mr. SENSENBRENNER. Thank you.
The gentleman from Alabama, Mr. Bachus.
Mr. BACHUS. Thank you.
I have talked to Federal judges, I have talked to State judges,
I have talked to criminal defense attorneys, and I have actually
talked to people who have been caught in this dragnet that you describe. And no one defends the status quo. I mean, it is amazing
how we said we all agree. I can tell you horror stories of things
that have happened to some of my constituents that you just think
this cant be true.
One of the things is, if you buy a piece of property and there is
hazardous materials on it. I actually know of a man who bought
a business, found hazardous materials, and went to the EPA and
said, this is what I found, but because he didnt dispose of it in as
short a time as they wanted, he was charged with maintaining hazardous materials, and he served a prison term because he said, I
am not going to plead to something I didnt do.
And the cost. The cost of disposing. He kept saying, I cant get
anybody to tell me who will take this, and they want this much.
I dont have the financial ability to dispose of it. He even offered
the government, I will turn over title to the land to you.
He is a convicted felon. And I can tell you that that causes disrespect for the law. I mean, the next person is going to say, I am
not going to look, see what is on the back of this property. It is
even hard to sell property now if there is any suspicion that there
might be something. So this stuff is not being disposed of because
no one will buy it.
So, intent, I mean, Al Unser. I mean, I know of a public official
who accepted a pair of shoes from a business that did work with
the county, a national company, and then she thought, well, I am
not sure I should have done that.
So she asked an attorney in her home town and he said, well,
why dont you just give them to charity or send them back? So she
donated them to a charity. She just gave them to them within 3
weeks, a pair of shoes. Four or 5 years later she was being questioned by grand jury about did she accept any benefits or some-

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thing for a certain contract and she said no. Now, she didnt, but
she had accepted these shoes.
So later on she said, you know, we need to tell them about these
shoes. So she told them. Well, the U.S. Attorney wanted to get a
plea, so said, I will give you 6 months suspended sentence or we
will try this case, and offered 3 years. Her attorney said, you know,
so she pled. Now she has a record.
Let me move on to another thing and get your comments. I have
been told by friends of mine, judges and attorneys, that some offenses for drug cases, if you go to the Jefferson County courthouse
or Shelby County courthouse, in Shelby County it is diverted, you
go into a diversion program for one offense. Jefferson County you
will serve maybeI mean, you will get a year-and-a-day sentence
max. Probably serve 30 days, 60 days. If it is the same thing and
you go to Federal court, it can be 10 years. So it just depends on
where you are arrested.
And the third thingand I will let you comment on any of
thesewe arent rehabbing people with this foolishness. I mean,
the end result is things are much worse. You know, somebody
serves a sentence, they get out, they cant get a job. We dont train
them. They end up back in the system.
So any comments you all have to say, I mean. But this thing
about the difference, I mean, and getting 10 years in the Federal
system and serving 8 or 9, and getting a year in a State court and
maybe serving 6 months, or getting a diversion program in another
county.
Mr. SENSENBRENNER. The gentlemans time has expired.
Mr. BACHUS. Could they respond briefly?
Mr. SENSENBRENNER. Well, I said at the beginning of the hearing
that because we are voting, I want to get to the other members of
the Task Force before the bell rings.
The gentleman from New York, Mr. Jeffries.
Mr. JEFFRIES. Thank you, Mr. Chair. And thank you Representative Scott for your tremendous leadership on this issue, and to the
distinguished panelists that we have here before us.
Seems to me that there are three issues that we should look to
tackle as it relates to dealing with the problem of over-criminalization, and I would like to get your thoughts on those three different
segments.
The first is just the general problem of too many crimes within
the Federal code and perhaps those crimes being too punitive in
nature in terms of the sentencing. That is sort of broad over-criminalization.
The second problem that you seem to have touched upon is the
overly broad exercise of prosecutorial discretion.
And then the third problem seems to be the lack of adequate
counsel on the back end to make sure that when a citizen finds
themselves in criminal jeopardy as a result of the first two problems, over-criminalization and overly broad exercise of prosecutorial discretion, there is an opportunity to actually provide an adequate defense consistent with the Sixth Amendment of the United
States Constitution and the Founders intent.
So if we can start with the first issue, and I will direct this to
Mr. Shepherd. On the intent issue, there is sort of a sliding scale

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of severity. There is intentional willful intent of course. There is
reckless disregard, commonly referred to also as depraved indifference in some instances. Then there is criminal negligence. And I
am interested in getting your comments on when, if ever, is it appropriate to have a criminal negligence intent standard built into
the law.
Mr. SHEPHERD. I think that is going to be a rare case where a
criminal negligence standard is appropriate. I think that is what
the tort laws are for. That is what the civil court system is for. And
that it is the rare case where a standard like that is appropriate.
That is not to say that there arent some where it is appropriate.
And I think that the Ranking Member was trying to flesh that out
in his question. But I think that is the rare case. I would be glad
to talk about some of your other issues or come back to that.
Mr. JEFFRIES. Okay. Let me ask Mr. Benjamin with respect to
sort overly broad exercise of prosecutorial discretion, what are
some of the things that we on the Task Force can look at attempt
to rein that in?
Mr. BENJAMIN. I dont know that you can rein in the exercise of
overly broad prosecutorial discretion. Instead you should recognize
the powerful force that the prosecutorial function has become in
our criminal justice system. That will always be the case, I am
afraid. We have very many excellent prosecutors who will prosecute
appropriately, but we will always have some who in their zeal
might be excessive.
The answer rests with your third point. See, there will always
being problems within the criminal justice system. There will always be penalties that are too harsh, conduct that shouldnt be
criminalized. The safety net is the defense function. We are the
safety net, the final protector of our citizens who were either unjustly accused or overly accused. And that is why it is so important
and so vital that we have sufficient resources to do our job.
Mr. TERWILLIGER. Mr. Jeffries, if I may, maybe we finally found
something we can have a little bit of disagreement about here
today. Not Mr. Benjamins last point, but his former point.
I think that the Task Force is very fortunate to have, for example, a former prosecutor with distinguished service such as Mr.
Holding as a member, because if we look at these series of cases
that the examples that have been given here, in every one of those
I think, at least on a prima facie basis, some prosecutor made a
very bad decision to pursue a case. And I think looking at how and
why that occurs is a legitimate area of inquiry here.
And I think the answer, having been both an assistant U.S. attorney and a U.S. attorney myself, is a lack of adequate supervision, of not having supervisors, including United States attorneys, as Mr. Holding did I can tell you from personal experience,
who is willing to question the judgment of assistants.
Mr. JEFFRIES. I appreciate that observation. If I could just say
in my remaining time, Mr. Malcolm, I am encouraged by the diverse ideological group that you at the Heritage Foundation have
assembled. And one of the things that I would be interested in taking a look at is the notion of the cost to our economy as it relates
to lost human capital and lost economic productivity.
Mr. MALCOLM. We could certainly look into that, Congressman.

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Very quickly, if I could just add a quick point on prosecutorial
discretion, one problem is we are a government of laws and not
men, and what we should have are clear laws so the prosecutors
are not left to themselves through regressive interpretations to determine what is legal and illegal. Prosecutors are people of very
high integrity, but they are not disinterested people in this process.
They get a lot of kudos for bringing charges and rarely get kudos
for declining to prosecute.
Mr. SENSENBRENNER. The gentlemans time has expired.
The gentleman from Idaho, Mr. Labrador.
Mr. LABRADOR. Thank you, Mr. Chairman. Thank you for convening this hearing. I think this is a very important hearing. I was
actually a criminal defense attorney, so I am a conservative Republican criminal defense attorney and former immigration lawyer as
well, which makes me an anomaly in many ways.
But I just wonder, Mr. Bachus didnt have an opportunity to
have you answer the questions. I saw a couple of people raising
their hands that they wanted to comment on his comments. I dont
know if anybody wants to do that.
Mr. TERWILLIGER. I really did try to address what I wanted to
say, but thank you for the opportunity in terms of the importance
of the exercise of prosecutorial discretion in the scheme of things.
Mr. LABRADOR. And he also raised another issue that I wanted
to raise as well. We havent discussed it here, but as we think
about over-criminalization, what about the sentencing guidelines?
Do you think that is something that we should be discussing here
in this Committee? Do you think this is something that is leading
to the problems that we are having of so many people being in prison? What are your comments on that?
Mr. TERWILLIGER. If I may, I lived through the era of indeterminate sentencing where actual sentences were determined by a parole commission behind closed doors, versus the system that we
graduated to with the guidelines where sentences were determined
by judges in open court and those were actually the sentences to
be imposed. Unfortunately, what has happened, I think, with the
evolution of the jurisprudence on the sentencing guidelines in a
nutshell is that we are sort of somewhere between those two now.
We still dont have a parole commission, but since the guidelines
are largely just for guidance, the disparity in sentencing has grown
again.
In some waysand I dont mean this certainly as to any Members herebut Congress has in essence delegated its authority to
set sentences to the Sentencing Commission. And therefore at least
as part of legitimate oversight of that operation of government it
seems to me to be a very legitimate subject matter for this Task
Force to examine.
Mr. LABRADOR. Does anybody else have any comments on that?
Mr. SHEPHERD. Well, I would echo that and add to part of what
Mr. Bachus was saying, which is that you get different charges and
different sentences in different parts of your home State. Those are
driven by the local communitys outrage by particular crimes and
also, frankly, by their workflow. Larger metropolitan areas often
have lower sentencing for sort of quote/unquote regular, crimes

74
because they need to move them through so they can focus on the
murders and the rapes and the more serious victim crimes.
But the sentencing guidelines bring some level playing field to
that and help defendants know and help lawyers advise their clients, here is what is going to happen to you, here is what could
happen to you in that range. So there is an important role for it.
But the guidelines, as Mr. Benjamin said, also drive a lot of guilty
pleas because people know that if I am convicted, I am facing X
number of years, and the prosecutor has offered me probation or
offered me something that is going to give me that. So I am not
going to fight it. And that is where you get administrative codes
and laws that never really get hashed out in the courts because
people dont go to trial.
Mr. LABRADOR. And that is one of my concerns. I think it was
actually Justice Scalia who said that we should have more trials,
not less trials, that you have too many people pleading. And I think
that is a consequence of having these amazing sentences where you
go to your client and you tell them, well, your option is to go to
trial and if we lose you are going to go to prison for 20 years. They
are always going to choose the option of pleading to something.
Mr. Benjamin, to you have any comments on that?
Mr. BENJAMIN. I do. You know, once we prized the fact that we
lived in a country where we were free of the fear of unjust criminal
accusation, you know, but we have arrived at the point where we
have got to, any one of us, fear that the pursuit of happiness might
be a crime even though we do nothing wrong and have no criminal
intent. And so that is a problem for us.
Mr. LABRADOR. To reclaim my time, I am about to run out of
time. My main concern when it comes to criminal law is many
times when I was in the State legislature I had a bunch of prosecutors come in and say, well, we need to change the law because it
is too difficult to prosecute this case. And I always said, good. You
are taking peoples liberty away. If you are going to take peoples
liberty away it should be difficult for the State or the Feds to take
their liberty away.
Mr. BENJAMIN. It is called the trial penalty.
Mr. SENSENBRENNER. The gentlemans time has expired.
The gentlewoman from California, Ms. Bass.
Ms. BASS. Thank you very much, Mr. Chairman, Ranking Member, one, for convening this Task Force, and I am very happy to be
on it. And I am really encouraged by the diversity of the groups
that have come together around looking at over-criminalization.
I wanted to know if the panelistsI have three areas I wanted
to cover rather quickly, and one is I wanted to know if you could
comment about mandatory minimums and the, frankly, the need
from my perspective to change them. We had a town hall meeting
in my district last weekend and I was honored that Representative
Scott came out, and we had over 200 people there talking about
their concerns, many families talking about their family members
that were incarcerated. So that is one issue I wanted you to comment on it.
And then I wanted your comments around the changing marijuana laws and what your thoughts are. I mean, California
changed the law. A number of States are. And then we have all of

75
these folks that are incarcerated for very petty marijuana crimes.
And I wanted to know your thoughts on that.
And I really appreciated Mr. Benjamin talking about how we did
once have a society that, if you did the time, you paid your debt
to society, you were then able to be incorporated back. So one of
the things that has happened in my State, and I imagine it has in
many other States, is that we have passed all of these laws now
banning people from working. So we had one case in California
where in the State prison we had a program to train you to be a
barber, but then we banned you from having a barbering license.
So we were able to change that. But I imagine if we had 52 examples of that in California, there probably are examples all around
the country, and I am hoping that is something this Task Force can
examine.
Mr. TERWILLIGER. Maam, I will just address your question about
mandatory minimums. Historically the Congress prescribed the
penalty in the early days of Federal criminal law and said, if you
do X, you get Y. And that is its prerogative to so prescribe that
penalty. So it is within the prerogatives of Congress to prescribe
mandatory minimum penalties as part of its lawmaking authority.
I do think mandatory minimums can be effective. They can be effective as deterrents. They can also be effective at removing the
most dangerous of dangerous people from the street. They can also
be highly ineffective if applied in circumstances where, frankly, the
reason for them is far more political than it is substantive in terms
of actually reducing crime.
Ms. BASS. Okay.
Mr. SHEPHERD. The American Bar Association has, as far as I
am aware, never been in favor of mandatory minimums and has
spoken against them as an organization. So that is my answer as
it relates to that. But I would like to answer your question as it
relates to collateral consequences and reentry issues.
Many States have the same problem you did in California with
the barber license and the department of corrections training people for that. The collateral consequences that individual defendants
face, frankly, I think your researchers who are trying to research
the number of crimes might also have difficulty researching the
number of collateral consequences.
I know that because the American Bar Association, with support
from the Justice Department and from Congress and other groups
that have been helping us, has started a project with a Web site
called the National Inventory of Collateral Consequences, which
will be a tool that judges, lawyers advising their clients, individual
defendants, can look up and say, if I plead guilty to this, what are
all the various business regulatory, housing impacts, student loan
impacts, all those sorts of things so that they can really make a
decision that is going to be based on knowing the universe of
issues. And we have already accomplished quite a bit in that regard and have over half the States, I believe, up on that Web site
and progress continues.
Ms. BASS. Thank you.
Mr. MALCOLM. I would say with respect to mandatory minimums, I would echo what Mr. Terwilliger said. The Congress can
certainly do them and in appropriate cases they have their place.

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I do think perhaps the pendulum has swung too far and that there
are too many of them and some of them are too draconian. I would
say this: In these very, very tough budgetary times, the budgetary
pie for the Bureau of Prisons is not growing, and all of those dollars being put into prisons is less money for enforcement and other
social services. So given that fiscal reality, I think it is incredibly
important that Congress focus on, one, making sure that only the
right people go to prison, and two, that they are there for the appropriate amount of time and no longer.
Mr. BENJAMIN. As time expires, I will note that NACDL during
this past year has held hearings using a Task Force on the Restoration of Rights across the country and we will soon be publishing the results of this very extensive and thorough study.
Mr. SENSENBRENNER. The gentlewomans time has expired.
The gentleman from Tennessee, Mr. Cohen.
Mr. COHEN. Thank you, Mr. Chair. I have got a statement to
enter into the record.
Mr. SENSENBRENNER. Without objection.
[The prepared statement of Mr. Cohen follows:]
Prepared Statement of the Honorable Steve Cohen, a Representative in
Congress from the State of Tennessee, and Member, Over-Criminalization
Task Force of 2013
Mr. Chairman, I want to thank you for establishing this task force on over-criminalization. Its a critical issue and one I hope we can find some common ground
on.
Short of capital punishment, there is no more serious act this government can
take than to deprive someone of their liberty. Its something we should do in only
the most serious and limited of circumstances, and after the greatest care and due
process. Unfortunately, the criminal code has grown into a behemoth and our prisons are swelled with people who pose no danger to society.
There are some obvious questions we should look atwhether we have too many
crimes, whether the mens rea required for them is appropriate, and whether the
sentences are proportionate. In particular, I hope well look at mandatory minimums
and the damage they have caused. Mr. Scott has important legislation to provide
judges with safety valves to reduce these sentences where appropriate and I hope
well look at that.
I would note that the proposed agenda for our Task Force includes a special emphasis on regulatory crimes. While its a topic worthy of exploring, I hope that we
wont turn this into a larger discussion on the value of regulation and the regulatory
stateI get more than my share of that in the Regulatory Reform, Commercial and
Antitrust Law Subcommittee and our attention would be better served on other the
topics I described.
But in the months ahead, I hope well also take a more expansive look at the
problem of over-criminalization. I especially hope well take a look at our federal
drug policy, particularly with respect to marijuana, which is really a microcosm of
the whole problem. Weve taken an activity with no victim and minimal riskscertainly far fewer risks than with alcoholand made it into a crime. In the process,
weve made criminals out of millions of people with no increase in public safety.
Fortunately, the American public is changing their attitudes towards marijuana
and a recent Pew Research poll found that 52% of people support legalization.
Theyre waking up to the fact that 40 years of the War on Drugs has proven to be
a failure. Not only are we throwing away the lives of millions of people, but were
also wasting precious resources through our vast prison industrial complex.
With sequestration in effect and a difficult budget environment, its a good time
for us to look at the fiscal and economic impact of our criminal policies. We also
have to consider how criminal laws have been enforced, and the staggering racial
disparities that have resulted. Just last week, the ACLU issued an alarming report
on the racial disparities in marijuana arrests and found that Blacks were nearly
four times more likely to be arrested than Whites. In Shelby County, Tennessee,
which I represent, 83.2% of people arrested for marijuana possession were Black,

77
far higher than their percentage of the population at large. These statistics argue
for a deep examination of how our criminal laws are enforced.
In addition, no discussion of the criminal code is complete without considering the
consequences of conviction for those crimes. In our society, even a conviction for a
minor, non-violent offense can effectively be a life sentence because the stigma of
your conviction will follow you around for the rest of your life. In the case of marijuana, you practically have a scarlet M pasted across your chest. Employment, education, and housing opportunitiesthe very things necessary to start freshcan all
be denied on the basis of a conviction. Not only is this cruel, but its self-defeating.
We should consider expungement laws and other measures to mitigate these consequences and give people a second chance.
Finally, I hope we can consider the Presidents pardon power and the issue of executive clemency. While this is an executive function, we should be working with
the Department of Justice to facilitate the review of candidates worthy of compassionate release.
I recognize that many of the issues Ive discussed this morning, like drug policy,
primarily occur at the state and local level but there is much we can do at the federal level. For one thing, we can and should serve as a model for the states.
We also need to determine whether our funding policies are inadvertently encouraging over-criminalization. For example, I have heard many concerns that the
Byrne/JAG program encourages states and localities to arrest people for low-level
offenses so that their statistics will increase and they will, in turn, earn more federal funding so that the cycle can continue. I hope we can look at this issue as well.
As you can see, this Task Force can remain very busy if we address all the issues
before us. But if we do our job right, we have the opportunity to create a more just
society and I look forward to the work we will produce.

Mr. COHEN. Thank you.

I want to follow up on Ms. Bass questions concerning marijuana.
I think that is one of the biggest problems this country has. And
the problem is not marijuana; it is the enforcement of the marijuana laws and the number of people who have been incarcerated.
That is the biggest problem.
Has the Bar Association, Mr. Shepherd taken a position? I
thought they might have on medical marijuana, but has it taken
any position on incarceration for possession of marijuana?
Mr. SHEPHERD. Sir, I dont know the specific answer to your
question about possession charges and prison time for
Mr. COHEN. How about medical marijuana?
Mr. SHEPHERD. I know that there is a matter before the House
of Delegates that will be addressed in August that deals with some
of those issues.
Mr. COHEN. Do you of any position they have taken in the past
where they have said that medical marijuana laws should be approved?
Mr. SHEPHERD. I personally dont.
Mr. COHEN. Over at some cocktail party where people were juggling some alcohol, they didnt talk about that sometime?
Mr. SHEPHERD. Perhaps I wasnt invited to that event.
Mr. COHEN. Mr. Benjamin, what are your thoughts on that
issue?
Mr. BENJAMIN. I have just been advised that we in fact oppose
the criminalization of personal use of marijuana and certainly the
medical treatment that uses marijuana. We oppose the criminalization of the use of marijuana. That is correct.
Mr. COHEN. But wouldnt that take business away from you?
Wouldnt you lose clients? What a noble thing. That is unique.

78
Mr. BENJAMIN. We are just that noble in fact. It is true, it is
true. What we want is a just and fair criminal justice system over
everything else. There will always be work for us. Never fear.
Mr. COHEN. I value being on this commission because I think it
is so important. I think other than the death penalty, there is nothing more serious the Federal Government could do than take somebodys liberty. And it should be, in my opinionand I am far from
a member of the tea partybut it seems like the tea party should
grasp this issue, because it is taking liberty and individual rights
and it is using Federal resources financially in the hundreds of millions of dollars to incarcerate, to prosecute, and then later to lose
the productivity of those people because they cant get jobs, they
cant public housing, they cant get scholarships, et cetera. This is
a tea party issue; they just havent picked up on it yet. They need
to smell the tea.
Mr. SENSENBRENNER. Will the gentleman yield?
Mr. COHEN. If I doesnt reduce my time, yes, sir.
Mr. SENSENBRENNER. I will ask unanimous consent that his previous comments about the tea party be expunged from the record
so he will have more credibility when he goes and approaches them
on the subject.
Mr. COHEN. Whatever.
The concern I have gotI am happy to be on the Committee, but
I read that the Brown Commission got nowhere and they did so
much work in the 1960s. My beliefand without taking on my
President too muchis that the main way that we can deal with
this is through pardons, by the pardon power of the President,
which he has not used. There is still an 18-1 disparity in crack and
cocaine punishments. It used to be a 100-1.
Mr. Benjamin, do you think the President would be correct in
using his power to, not necessarily pardon, but commute the sentences of those people who were sentenced to jail in Federal prison
and are still in Federal prison for serving at somewhere between
18 and 100 ratios, where if they had had the laws that Congress
has passed and therefore they become what we believe is correct
and right public policy, that he will be using his power correctly
to get those folks out of the Federal system?
Mr. BENJAMIN. Well, that certainly makes sense to me. But I
have got to note that the exercise of the pardon power is also an
exercise of a political function and hence it is not something that
we can should rely upon to correct injustices and imbalances within
our criminal justice system.
Mr. COHEN. I agree with you, but if I was one of those people
in jail I wouldnt worry about that and I wouldnt wait for us to
pass the laws to change it. The President can do it now. And there
are so many other laws, unjust sentences that he could take care
of by commuting sentences, and he needs to do it. There are people
rotting away in jail and causing us a lot of expense that dont need
to be there, and that is it just needless.
As far as mandatory minimums, I think Mr. Terwilliger said he
liked them. Sometimes it is a deterrent. Do you think if there is
a mandatory minimum for drug sales, that you take one person
and put them in jail, that there is not another person, like a
sharks tooth right there to take over? After 40, 50 years of the

79
drug war, we havent seen any reduction in people dealing because
the other dealer was put in prison.
Mr. TERWILLIGER. I wasntat least in terms of what I think,
what I personally think, Mr. Cohen, would be the appropriate use
of mandatory minimumsthinking of drug offenses. I was thinking
of violent offenders, people who have shown a propensity to commit
violence over and over again.
Mr. COHEN. Thank you, sir.
And thank you, Mr. Chairman.
Mr. SENSENBRENNER. The gentlemans time has expired.
Before closing the hearing, during my opening statement I did
make a comment about the Congressional Research Service being
overworked and not having enough staff to tell us what criminal
laws are on the books. And we are not going to take that kind of
no for an answer.
The Task Force staff will be meeting with CRS next week and
also outside experts to see if there is a path forward in this important endeavor so at least we know the extent of the criminal law,
whether it is in the 51 titles of the U.S. Code or whether it is somewhere buried in the Code of Federal Regulations. We are not going
to be able to do a complete job in this task without having this information, and we are going to get the information, no matter how
long it takes.
So with that happy note, without objection, the Committee
stands adjourned.
[Whereupon, at 10:25 a.m., the Task Force was adjourned.]