[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
REINING IN OVERCRIMINALIZATION: ASSESSING THE PROBLEM, PROPOSING
SOLUTIONS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 28, 2010
__________
Serial No. 111-151
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee STEVE KING, Iowa
HENRY C. ``HANK'' JOHNSON, Jr., TRENT FRANKS, Arizona
Georgia LOUIE GOHMERT, Texas
PEDRO PIERLUISI, Puerto Rico JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois TED POE, Texas
JUDY CHU, California JASON CHAFFETZ, Utah
TED DEUTCH, Florida TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DANIEL MAFFEI, New York
JARED POLIS, Colorado
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
PEDRO PIERLUISI, Puerto Rico LOUIE GOHMERT, Texas
JERROLD NADLER, New York TED POE, Texas
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee TOM ROONEY, Florida
ANTHONY D. WEINER, New York
MIKE QUIGLEY, Illinois
TED DEUTCH, Florida
Bobby Vassar, Chief Counsel
Caroline Lynch, Minority Counsel
C O N T E N T S
----------
SEPTEMBER 28, 2010
Page
OPENING STATEMENTS
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Chairman, Subcommittee
on Crime, Terrorism, and Homeland Security..................... 1
The Honorable Louie Gohmert, a Representative in Congress from
the State of Texas, and Ranking Member, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 3
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Chairman, Committee on the
Judiciary...................................................... 5
The Honorable Ted Poe, a Representative in Congress from the
State of Texas, and Member, Subcommittee on Crime, Terrorism,
and Homeland Security.......................................... 8
WITNESSES
Mr. Jim E. Lavine, President, National Association of Criminal
Defense Lawyers, Washington, DC
Oral Testimony................................................. 11
Prepared Statement............................................. 14
Mr. Robert ``Bobby'' Unser, Personal Impact Witness, Albuquerque,
NM
Oral Testimony................................................. 21
Prepared Statement............................................. 25
Mr. Abner Schoenwetter, Personal Impact Witness, Pinecrest, FL
Oral Testimony................................................. 35
Prepared Statement............................................. 38
Mr. Brian W. Walsh, Senior Legal Research Fellow, The Heritage
Foundation, Washington, DC
Oral Testimony................................................. 46
Prepared Statement............................................. 49
Mr. Stephen F. Smith, Professor of Law, University of Notre Dame
Law School, Notre Dame, IN
Oral Testimony................................................. 62
Prepared Statement............................................. 64
Ms. Ellen S. Podgor, LeRoy Highbaugh, Senior Research Chair and
Professor of Law, Stetson University College of Law, Gulfport,
FL
Oral Testimony................................................. 86
Prepared Statement............................................. 88
Mr. Andrew Weissmann, Partner, Jenner & Block, LLP, New York, NY
Oral Testimony................................................. 95
Prepared Statement............................................. 98
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
Chairman, Committee on the Judiciary........................... 6
APPENDIX
Material Submitted for the Hearing Record........................ 115
REINING IN OVERCRIMINALIZATION: ASSESSING THE PROBLEM, PROPOSING
SOLUTIONS
----------
TUESDAY, SEPTEMBER 28, 2010
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 3:03 p.m., in
room 2141, Rayburn House Office Building, Honorable Robert C.
``Bobby'' Scott (Chairman of the Subcommittee) presiding.
Present: Representatives Scott, Conyers, Gohmert, and Poe.
Staff Present: (Majority) Bobby Vassar, Subcommittee Chief
Counsel; Ron LeGrand, Counsel; Veronica Eligan, Professional
Staff Member; and (Minority) Caroline Lynch, Counsel.
Mr. Scott. The Subcommittee will now come to order.
I am pleased to welcome you today to today's hearing before
the Subcommittee on Crime, Terrorism, and Homeland Security.
Today's topic is Reining in Overcriminalization: Assessing the
Problem, Proposing Solutions.
Last year, on July 22, the Subcommittee conducted a hearing
titled Over-Criminalization of Conduct/Over-Federalization of
Criminal Law. That hearing occurred as a result of a series of
conversations that Ranking Member Gohmert and I had with former
Attorney General Ed Meese and a coalition of organizations,
including the Washington Legal Foundation, the National
Association of Criminal Defense Lawyers, the Heritage
Foundation, the ACLU, the American Bar Association, the
Federalist Society, and others. They came to Congress to seek a
hearing to discuss the practice and process of enacting Federal
criminal law; and they came out of concern for what they, and
many others, viewed as an astounding rate of growth of the
Federal criminal code.
Testimony from last year's hearing served as a disturbing
illustration of the harm that can and does result from the
enactment of poorly conceived legislation. A year later, they
still question the wisdom of continuing the expansion of the
criminal code without first taking time to consider and review
the process by which Federal crime legislation is enacted.
But more than the rate of the Federal criminal code's
growth, these concerned citizens and groups remain alarmed
about the deterioration that has occurred in the standards of
what constitutes a criminal offense. There is great concern
about the overreach and perceived lack of specificity in
criminal law standards, i.e. the vagueness and the
disappearance of the common law requirement of mens rea, or
guilty mind.
Today's hearing is supported by a similarly broad group of
organizations, and we will continue our examination of the
issue with a discussion of a draft of their own legislative
proposal and review of the findings of a joint study by the
National Association of Criminal Defense Lawyers and the
Heritage Foundation entitled ``Without Intent, How Congress Is
Eroding the Criminal Intent Requirement in Federal Law.''
The legislative proposal is notable not only for its
content but also for the fact that such seemingly odd political
bedfellows can come together on this common ground issue. The
Without Intent report is a remarkable nonpartisan study that
raises important questions about the proper role of the Federal
criminal code and also documents problems that I cited at last
year's hearing: vagueness in criminal law standards and the
disturbing disappearance of the common law requirement of mens
rea.
As all of you by now are familiar with my position on crime
policy generally, I have been in office for 30 years, and I
have learned that when it comes to crime policy you generally
have a choice. You can prosecute and incarcerate people for so-
called crimes, or you can utilize available civil remedies to
handle minor infractions. You can do the things that research
and evidence have proven will reduce crime and enact
legislation that provides clear and fair notice of what
constitutes criminal acts, or we can play politics as usual
with the emotionally charged sound bites and slogans that sound
good but prove not to be sound policy.
These kinds of things include mandatory minimum sentencing;
three strikes and you're out; and after that didn't work, two
strikes and you're out; life without parole; abolish parole; or
if it rhymes it's even better, if you do the adult crime, you
do the adult time. None of those have been shown to reduce the
crime rate; and, in fact, the adult crime and time slogan, all
of the studies have shown that if you codify that sound bite
you will actually increase the crime rate.
We can see the impact of the unfair and vague legislation
at the hands of overzealous prosecutors when we look at the
prison population. We now have on a daily basis over 2.3
million people locked up in our Nation's prisons, a 500 percent
increase over the last 30 years. The Pew Foundation has
estimated that any incarceration rate over 500 per hundred
thousand is actually counterproductive. This massive increase
in the number of Americans incarcerated has very little
documented positive effect on public safety, while it
contributes significantly to family disruption and other
problems in many American communities. In fact, we incarcerate
now at such a high rate that it is actually contributing to
crime.
We must continue to work on legislation to bring some
common sense to enacting Federal criminal law in sentencing. We
must put an end to the notion that we need to prosecute every
individual for every perceived offense and incarcerate every
defendant for the longest possible time. We now lock up not 500
per hundred thousand but over 700 per hundred thousand in the
United States, seven times the world average. And now, as we'll
hear today, we continue to lock up people for offenses that
should not even require incarceration.
So the problem has been identified, the challenge is clear,
and our purpose today is to hear from experts, practitioners,
and those who have been personally impacted by vague and unfair
laws about what Congress can do to enact criminal legislation
that is fair, provides notice, and is truly necessary. Congress
already knows how to play politics, but we need do things that
will actually reduce crime in a fair way.
It is now my pleasure to recognize the esteemed Ranking
Member of the Subcommittee, my colleague from Texas's First
Congressional District, the Honorable Louie Gohmert, Ranking
Member of the Subcommittee.
Mr. Gohmert. Thank you, Chairman Scott. Thank you for
calling this hearing today. This obviously is the second
hearing we have had in the Subcommittee on overcriminalization,
and that is a topic of particular importance to me.
I also want to welcome the witnesses here today and thank
you for your tireless work and dedication to this issue.
Organizations including the Heritage Foundation, the National
Association of Criminal Defense Lawyers, the ACLU, Cato
Institute, American Bar Association and others have joined
together to address overcriminalization and overfederalization.
Now, Chairman Scott and I have differing views on the
approach to true crimes. In Texas, when you had judges like
Judge Ted Poe and Louie Gohmert on the district bench and we
were locking up increasing numbers of people for violent crime,
we saw our crime rate go down all through that period. So I
know in some places maybe it's just you got the right law
enforcement. I'm not sure. But I know we incarcerated in higher
numbers those that were committing violent crimes, and the
crime rates did go down.
But what we're talking about in this hearing today are
things that should not be offenses, things that shouldn't carry
criminal sentences as a result of an activity, particularly
when there is no mens rea, there is no intent--and from
something as minor as failing to stick a sticker on a package
with an airplane and a line through it when you have already
checked the box that indicates by ground only.
But our witnesses have spent so much time studying this
issue and preparing recommendations to Congress; and I hope my
colleague, Chairman Scott, and I and others on this
Subcommittee will be able to get our colleagues to move forward
with many of the proposals that you have made for us.
I would also like to take a moment to welcome two of our
witnesses here today, Bobby Unser and Abbie Schoenwetter, who
have experienced firsthand the consequences of
overcriminalization. Mr. Unser was convicted of operating a
motorized vehicle inside a national wilderness area after
becoming disoriented during a blizzard that nearly cost him his
life. Mr. Schoenwetter was just recently released from over 8
years in prison for purchasing lobster tails not in violation
of U.S. regulations but in violation of Honduran regulations, a
charge even the Honduran Government disputed.
The evolution of the Internet and 24-hour news cycles has
in some respects blurred the lines between State and Federal
law. American communities may suffer an increase in gang
activity, car theft, or sexual assault and call upon their
representatives in Washington to respond, though these are
normally local crimes. Unfortunately, many in Congress are
eager to respond to the urgings of their constituents, often
without due regard for the proper elements of a criminal
statute or other existing Federal and State laws. The result is
a labyrinth of Federal criminal laws scattered throughout many
of the 50 titles of the U.S. Code, and much of this occurs
despite the fact that the Federal Government lacks a general
police power.
To be sure, there are areas of legitimate jurisdiction
within which Congress can and should prohibit criminal conduct.
Congress has authority to regulate crime in the special
maritime and territorial jurisdiction, crime occurring on
Federal lands, and crime within interstate or foreign commerce.
Today, there are an estimated 4,500 or so Federal crimes on the
books and still many more regulations and rules that, if not
abided by, result in criminal penalties, including
incarceration. However, many of these laws impose criminal
penalties, often felony penalties, for violations of Federal
regulations.
As a former prosecutor and judge, I support the common law
tenet that ignorance of the law is not a defense, and this
tenet rings true for crimes which are categorized as malum in
se, are they just wrong of their own. We expect members of
civilized society to know it is wrong to commit murder or
burglary or engage in an act of terrorism, regardless of what
the law says, but today Americans must contend with literally
thousands of obscure and cumbersome Federal regulations. And,
as our witnesses today can attest, a simple misreading of a
regulation or ignorance of a regulation can land a person in
prison.
Our witnesses today will note that a great number of these
regulations lack an important element, criminal intent. But an
even more fundamental issue is raised by such regulations, and
that is whether the prohibited conduct is even criminal in the
first place. Should the importation of certain goods such as
lobsters or orchids in violation of Federal or even U.S.
regulation be met with criminal sanctions or should it instead
be met with civil penalties? Should only habitual violations be
criminalized or only such violations that result in personal or
property damage? And perhaps most important, shouldn't most, if
not all, Federal crimes include at least some form of intent to
do wrong? Once these important policy considerations are
answered, then we can turn to properly constructing the
elements of criminality.
The growth in criminal regulations has produced a side
effect, so to speak, that is equally disconcerting, an
increasing number of Federal agencies empowered to investigate
these so-called criminal activities. We are all used to hearing
about the investigations by the FBI, DEA, or Customs agents.
But what about investigations by the National Marine Fisheries
Service within the National Oceanic and Atmospheric
Administration or an EPA SWAT team that runs someone off the
road, throws them to the ground because he failed to put a
sticker on a package?
This agency of the National Marine Fisheries Service is the
agency that uncovered the Honduran regulations that Mr.
Schoenwetter is alleged to have violated. I say ``alleged'',
even though he has done time in prison. That still is an issue.
People also may be surprised to learn that the Food and
Drug Administration has an Office of Criminal Investigations or
that Medicare fraud is hunted down by agents within the Health
and Human Services Office of Inspector General.
I mean no disrespect to the men and women of these offices.
I only cite them as a means to highlight my concern and why I
appreciate Chairman Bobby Scott calling this hearing, that
concern being that along with broad, sweeping criminal
regulations comes a host of investigative agencies eager to
enforce them and we've seen over and over overly eager at times
to enforce them.
There's a well-known saying that a prosecutor would rather
let 100 criminals go free than to send one innocent person to
jail, but I am concerned that criminal regulations and poorly
drafted laws may be responsible for sending more than just one
innocent person to prison.
I do look forward to hearing from our witnesses and
appreciate your helping us bring attention to this issue so
that we can convince people on both sides of the aisle. Because
people on both sides of the aisle are responsible. Trying to
show America that we know how to fix these things, we will slap
a prison sentence on it when it's not fixing it, it's in fact
creating even more issues of faith in our Federal Government.
We need to get back to those issues that are within the
constitutional mandate for Congress to take care of, not allow
regulators to pass regulations that become criminal laws to get
people put in jail.
I look forward to hearing your testimony and yield back my
time. Thank you.
Mr. Scott. Thank you.
We have been joined by the distinguished Chairman of the
full Committee, the gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Chairman Scott, and the two judges
that are here with us, former prosecutors, also. I am delighted
to be with you. I think this is an important hearing, and I am
glad that you have enough witnesses to help us prove the point.
Seven, that's a pretty good number to start us off.
My emphasis on this subject is more directed to the way
that we are using the drug war to incarcerate people in the
United States. We have now over 2 million people imprisoned,
which makes us the number one incarcerator of its people in the
world. Sixty-eight percent of the people arrested are tested
positive for drugs. So what we need are drug courts that
provide diversion and treatment rather than mandatory
sentences, which this Committee has worked on for so many
years.
My concern is that there may be a tendency of my beloved
Administration to propose to spend even more money on law
enforcement than on treating the drug problem as a crisis. So
it's in that sense that I hope some of these seven witnesses
will enlarge upon this point that I make in my opening
statement, and I will put the rest of my statement in the
record.
Thank you very much.
[The prepared statement of Mr. Conyers follows:]
__________
Mr. Scott. Thank you, Mr. Chairman.
I understand that Judge Poe has a statement.
Mr. Poe. Thank you, Mr. Chairman. Thank you for holding
this hearing and Judge Gohmert for putting this hearing
together again today.
I welcome all the witnesses. Good to see Jim Lavine here
today, a long-time practicing lawyer, excellent lawyer in
Texas. Twenty-two years on the criminal bench in Texas.
You know, in Texas almost everything's a crime, and almost
all of them are felonies. Years ago, we operated under the
penal code of 1925, which really hammered folks. You know, you
leave your wire cutters in your saddle bags and you are off to
the penitentiary. A marijuana cigarette could get you life in
the penitentiary of the State of Texas. And numerous crimes
like that. And, finally, the State got together and decided
some things ought to be felonies, some ought to be
misdemeanors, and some shouldn't be crimes at all.
I say that to say that we are in the Federal system now,
where the general jurisdiction and philosophy for criminal
conduct was to be done in State courts. The States were to
decide how they wanted to punish folks, either making something
a crime or not, and the Federal Government was to take other
roles.
We've come a long way since the piracy laws and the
kidnapping laws and the bank robbery laws, and now we have
4,450 Federal crimes, and, once again, we are in the situation
where everything's a Federal crime. And I think that it's time
that we deal with this and make some realistic decisions and
also prioritize what the role of the Federal Government is in
labeling things a crime and even reconsider this whole concept
of the sentencing guidelines, which tend to be I think
arbitrary in many cases. So we need to make the decisions what
should be Federal crimes, what should be handled by local and
State authorities, and even reduce or change to some type of
civil sanctions. I agree with my friend Judge Gohmert on those
issues.
We have many compelling cases before us. I just want to
mention one Federal case that happened recently that is worthy
of mention.
In Iowa, there was a kosher slaughterhouse operated by
Sholom Rubashkin, and he was sentenced to 27 years in the
Federal penitentiary for some financial crimes. He was
investigated for immigration violations, charged with 9,311
charges. Over 9,250 of those charges were dismissed, and he
still went to the penitentiary for 27 years because he violated
that law, that sacred law that's the Packers and Stockyard Act
for not paying cattle suppliers within 24 hours of delivery of
the cattle--dastardly deed--and got him 27 summers in the
Federal penitentiary. He was prosecuted even though all cattle
suppliers were paid in full, and the latest was just paid 11
days late. But that was a felony, and it is a felony still. He
is the only person I know of prosecuted under this act that was
passed in 1921.
So this is an example of I think really an abusive law.
Probably our slaughterhouse operators, if there are any left in
the country, don't even know this law exists, but they better
pay those bills on time.
I'm not going to get into all the complexities of his case,
but his sentence was considered excessive by a lot of people. I
am one of them. And it was even 2 years longer than the
prosecutors asked for. So the Federal judge really was upset
about not paying those bills on time. And his account--no, I am
not justifying any of the conduct, but financial crimes don't
seem to be related to the situation which he was originally
charged for, which was immigration allegations. So he is at 51
years of age, and he is doing, in essence, a life prison
sentence in the Federal penitentiary. We probably need that
space for somebody that's just really an outlaw.
But, once again, example after example of Federal cases,
Federal prosecution where maybe the system needs to look again
at these 4,500 crimes under the Federal system and then make
sure that when we have somebody that needs to go to the
penitentiary they go to the penitentiary. I do believe it does
deter criminal conduct, especially violent conduct. But we need
the space for these folks, as opposed to the folks that don't
pay their slaughterhouse bills on time.
With that, I yield back. Thank you, Mr. Chairman.
Mr. Scott. Thank you.
We have several distinguished witnesses today to help us
consider the issues.
The first witness is Jim Lavine, president of the National
Association of Criminal Defense Lawyers, based in Washington,
D.C. He is a former prosecutor in both Texas and Illinois. He
is the recipient of the prestigious award from the NACDL given
annually to criminal dense lawyers who personally and
professionally exemplify the goals and values of the
association and the legal profession.
Our second witness is Bobby Unser, a retired race car
driver. But he is here not to talk about his racing exploits.
In 1996, as we've heard, he and a friend were snowmobiling
along the Colorado-New Mexico border, trapped in a blizzard.
They dug for shelter and abandoned their snowmobiles, while
suffering frostbite, dehydration, and exhaustion. After their
rescue, the Forest Service rangers returned days later to
recover the vehicles, and he was find $75 for snowmobiling in a
wilderness area. He refused to sign; and, following a 2-day
bench trial, he was convicted of a one-count misdemeanor.
Our next witness, Abner Schoenwetter, is another victim of
overcriminalization. In November, 2000, a Federal jury found
him, a hard-working seafood dealer with no prior criminal
history, and his codefendants, guilty of multiple violations of
the Lacey Act, all premised on violations of a disputed
Honduran law regarding importation of fish or wildlife.
Interestingly, the Honduran Embassy filed an amicus brief
stating that the law was null and void. He served 7 years in
prison for shipping lobsters that were under regulation size
and transported in plastic bags instead of cardboard boxes. He
will be under supervised release for the next 3 years.
During my opening statement at last year's hearing on this
issue, I referenced this case; and, at the time, he and his
codefendants were still incarcerated. And I said Congress must
understand that we are making law-abiding Americans vulnerable
of losing their freedom, their livelihood, their lives when we
enact laws that are vague and fail to clearly communicate the
illegality and criminality of proscribed acts. He is here with
us today and will tell us about his experiences.
After he testifies, Brian Walsh is a senior legal research
fellow at the Heritage Foundation's Center for Legal and
Judicial Studies. He directs Heritage's projects on countering
the abuse of criminal law and criminal process. Prior to
joining the Heritage Foundation, he was with the litigation
team at Kirkland & Ellis and a law clerk to Judge Bowman of the
U.S. Court of Appeals for the 8th Circuit.
Our next witness would be Stephen Smith, professor of law
at Notre Dame School of Law. Prior to teaching, he served with
the Supreme Court and Appellate Practice Group of Sidley &
Austin in Washington, D.C. He also served as an associate
majority counsel to a 1996 House of Representatives select
committee investigating U.S. involvement in Iranian arms
transfers to Bosnia.
The witness after that will be Professor Ellen Podgor, who
is the LeRoy Highbaugh Senior Research Chair and professor of
law at Stetson University. A former deputy prosecutor and
criminal defense attorney, she teaches in areas of white-collar
crime, criminal law, and international criminal law. She
presently serves on the board of directors of the International
Society for Reform of Criminal Law.
Our next witness is Andrew Weissmann, who is co-chair of
the white-collar defense and investigations practice at Jenner
& Block in New York City. He joined the firm after serving as
the director of the Enron Task Force, where he oversaw the
prosecution of more than 30 individuals in connection with that
company's collapse.
Now, all of the witnesses' written statements will be
entered into the record in their entirety. I would ask each
witness to summarize his or her testimony in 5 minutes or less.
And to help stay with the time, there is a timing device in
front of you which will start green, will turn to yellow when
there is 1 minute left, and red when the 5 minutes have
expired.
Mr. Lavine.
TESTIMONY OF JIM E. LAVINE, PRESIDENT, NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS, WASHINGTON, DC
Mr. Lavine. Chairman Scott, Ranking Member Gohmert,
Committee Members, my name is Jim Lavine, and I am the
president of the National Association of Criminal Defense
Lawyers. I am also a practicing criminal defense attorney in
Houston, Texas, and I was formerly a prosecutor, having the
privilege of practicing before Judge Poe during the time in his
prior life when he was a judge in Houston. I appreciate the
opportunity to testify today on behalf of NACDL and all of my
colleagues in the criminal defense community.
No one, including the government, can state how many
criminal offenses exist in the Federal code or in the Federal
regulations. It is impossible for practitioners who specialize
in this area to know all of the conduct that is criminalized.
How then is the citizen to protect against unjust prosecution
and punishment for making honest mistakes or engaging in
conduct they had no reason to know was illegal?
Duplicative statutes, federalization of conduct
traditionally belonging to the States, criminalization of
regular business activity or social conduct and interactions,
this is overcriminalization. When any of these elements is
combined with poor legislative drafting, inadequate mens rea
requirements, or unfettered prosecutorial discretion, the
result is inevitably the victimization of more law-abiding
citizens.
While I am here today to speak about overcriminalization,
Representative Conyers, NACDL would welcome the opportunity to
return at another time and discuss the issue of problem-solving
courts; and we have published in our report and discussed the
issue in drug courts and diversion in particular, in answer to
your earlier question in your opening remarks.
On July 22, in 2009, this Subcommittee came together under
the bipartisan leadership of Representatives Bobby Scott and
Louie Gohmert to learn about our Nation's addiction to
overcriminalizing conduct and over-Federalizing crime.
Supported by a broad coalition of organizations ranging from
the right to the left, last summer's hearing received attention
from national media and ignited the overcriminalization reform
movement. NACDL and the Heritage Foundation dedicated
themselves to analyzing the legislative process for enacting
criminal laws and produced a groundbreaking nonpartisan joint
report entitled ``Without Intent, How Congress Is Eroding the
Criminal Intent Requirement in Federal Law.'' So basic is this
issue that the Nation's practicing criminal defense bar has
collaborated with a conservative think tank to produce the
Without Intent report.
Just 1 month after its release, over 300 articles from news
organizations spread coast to coast were written about the
report. The press had taken notice of this unlikely coalition,
the American people's growing concern over the current
overexpansiveness of Federal criminal laws and the broad
bipartisan support for reform.
The interest extends beyond the press. NACDL has received
requests for copies of the report from members of every branch
of government.
But another side of this problem has received even more
attention by Members of this Chamber and the national media
alike, the personal side, or as we refer to it, the face of
overcriminalization. Presenting the face of overcriminalization
is critical to raising public awareness of this problem. For
this reason, I will spend the remainder of my testimony doing
just that.
During last summer's hearing, Members of this Subcommittee
heard the heart-wrenching tales of two victims of
overcriminalization, Krister Evertson and George Norris. From
this testimony we learned how an unwarranted prosecution can
destroy the lives of productive, law-abiding citizens and
community members.
Sadly, their stories are not unique. Consider the case of
Georgia Thompson, which is described in more detail in my
written testimony. Georgia was charged and convicted of
violating 18 USC 1346, commonly known as the honest services
fraud statute, for conscientiously doing her job and doing it
well. Upon hearing oral argument, the Seventh Circuit panel of
judges found this prosecution so ill-conceived that it
immediately reversed her conviction and ordered her released
without delay.
The honest services statute did receive a measure of
comeuppance in the Supreme Court this past term but not before
its carnage was visited upon untold numbers of victims of
overcriminalization. You may ask yourself, how could this
happen? An innocent, hardworking civil servant ends up spending
4 months in prison just for doing her job.
Georgia Thompson is the face of overcriminalization. Her
story is evidence of the harm caused when Congress fails to
draft statutes clearly and with adequate mens rea protection,
when prosecutors stretch already broad statutes to reach
everyday conduct never intended to be criminalized, and when
judges inconsistently apply rules of interpretation.
The honest services fraud statute responsible for
victimizing countless law-abiding individuals is the poster
child for this problem. The failure of Congress to define
criminal conduct in a clear and specific manner allows, and
quite possibly encourages, prosecutors to charge all sorts of
innocent conduct, from errors in judgment to behavior that is
the slightest bit unsavory. Rather than enact a specific,
precise criminal statute, Congress instead relies on
prosecutorial discretion to shape the contours of criminal
offenses. The story of Georgia Thompson as well as Krister
Evertson and George Norris demonstrate that such reliance is
misplaced.
Today you will hear from two more victims, Abner
Schoenwetter and Bobby Unser. Abner spent nearly 6 years in
prison for shipping lobster tails in plastic bags rather than
cardboard boxes, in violation of a Honduran law that was deemed
null and void by the Honduran Government. Bobby Unser got lost
in a blizzard while snowmobiling and spent almost 2 days
trekking through snow in search of aid. After this near-death
experience, Bobby was prosecuted for unknowingly entering
protected land with his snowmobile. The fact that he got lost
in a blizzard was no defense in the eyes of the government.
The cost of overcriminalization does not stop with the
personal freedom of its direct victims. In my over 25 years as
a criminal defense attorney, I have seen families shattered,
careers ruined, businesses fail, thousands of innocent workers
become unemployed, and entire communities devastated, all done
at the taxpayers' expense. This dangerous trend needs to end.
The Without Intent report offers five basic good government
reforms that, if implemented, will potentially stop haphazard
Federal criminalization. The remainder of the panel will
discuss these reforms further, but it is important to note that
they have received broad support from a coalition of
organizations ranging from the right to the left. This is not
an ideological or political issue but rather a serious and
fundamental aspect of good governance. Indeed, all political
parties share a responsibility to ensure that criminal laws are
properly circumscribed.
The problems of overcriminalization are very real, deal
with very real people in the very real world of courtrooms
across this country. NACDL is confident that today's hearing
will heighten awareness of overcriminalization and inspire
future action. We welcome this hearing and urge the
Subcommittee to support rules and legislation embodying these
reforms.
Thank you.
[The prepared statement of Mr. Lavine follows:]
Prepared Statement of Jim E. Lavine
__________
Mr. Scott. Thank you.
Mr. Unser.
TESTIMONY OF ROBERT ``BOBBY'' UNSER,
PERSONAL IMPACT WITNESS, ALBUQUERQUE, NM
Mr. Unser. Thank you, Chairman Scott and Ranking Member
Gohmert and the rest of the Members of the Committee for
inviting me here to tell my story about what often happens to
honest men and women because of bad criminal laws.
The bad law in my case said that I was a criminal if I
wandered into a national wilderness that was off limits to
motorized vehicles when a friend and I were lost in a blizzard.
It didn't matter that we never intended to enter the
wilderness. It didn't matter that the wilderness was not
marked. It didn't matter that we didn't even know that there
was a wilderness there.
I could have been imprisoned for up to 6 months for this
law. Maybe I should be grateful that I wasn't sent to jail, and
I guess I am. But someone else in the same situation might have
ended up in prison. I am here to help make sure that does not
happen again, hopefully.
Just before Christmas in 1997, my friend and I, Robert
Gayton, planned to go to a snowmobile ride up in what's called
the Jarosa Peak area near my ranch in Chama, New Mexico. That's
on the edge of Colorado and New Mexico. It's all in just the
State line in between, all the same mountains. The area was
known as a snowmobiling location that was perfectly legal to
snowmobile there.
Robert and I headed out around noon and rode for about an
hour, until we reached the bowl above the tree line that was
terrific for snowmobiling. It was exposed and a very high
altitude, at about 11,000 feet. Our trouble started about an
hour later, when a severe ground blizzard suddenly kicked up.
In a ground blizzard, the wind is blowing so hard that all the
snow around you creates what is called a whiteout.
That day the wind was blowing about 60 to 70 miles an hour,
and at times we couldn't see any more than 2 or 3 feet in front
of us, just like being in a closet. Almost immediately, we went
from playing around to trying to get out of there and find
shelter from the blizzard.
Less than 30 minutes after the blizzard started and the
visibility went down to zero, Robert rode a snowmobile into an
embankment and got stuck, which was a blessing in disguise. The
good Lord took care of that one. We tried for a few minutes to
get it moving, but I realized that it was unlikely that we
could get it unstuck. And, being abandoned, the snowmobile was
good. It was a blessing.
So I put Robert on behind me. I couldn't look back and try
to guide him out of the mountains is what the deal was. Robert
got on the back of my snowmobile. We started off again. At its
best, the visibility was about 20 feet. That's less than from
here to you.
And now we had another problem. I had a brand new
snowmobile, and it kept breaking down. Brand new meaning very
first trip ever on it. And I am a pretty good mechanic. And
under normal circumstances I could have fixed it and kept it
running maybe. But I couldn't get it up and running, and it was
getting darker and darker. Starting to get dark, which happens
at 5 o'clock in that time of the year. We made the decision to
abandon it and attempted to get down the mountain to shelter on
foot.
If we stayed in the high, exposed terrain above the tree
line, we were going to die. There was not going to be any
question about that. And it was going to be that night. So we
had to get down somewhere low enough that there would be trees
so that we could build a snow cave. These are the things that I
know because I was raised in the mountains.
We trudged through the snow in complete darkness, feeling
our way down the mountain like two blind men. After a few hours
of wandering--remember, no flashlights, no lights of any sort,
no moon, nothing to walk by--we trudged through the snow in
complete darkness, feeling our way down the mountain like two
blind men. After a few hours of wandering, we finally found an
area below the tree line where we could build a snow cave. We
spent the night in that snow cave. It sheltered us from the
wind, but, remember, it's going to get down around 30 below
zero up there, plus or minus a little bit. It's not going to be
warm, by any means. Snow cave's the only way to make it.
We didn't sleep all night, needless to say. The snow cave,
just for a minute, had to be--we built it under a tree, a big
Ponderosa pine tree, where the snow gets on the branches, lays
the branches down. And I built the cave around the tree a
little bit circular. And the branches made the roof of the
cave. And then we pitched snow up on top of that in order to
make the snow cave. Had to do it in the darkness, also.
The next morning we had no idea--no clear idea where we had
come from and no idea where to go. So what had happened there
is the blowing snow--I went out the next morning--we tried--I
would have backtracked to the snowmobile because it was full of
gas. Gasoline is safety in the mountains, because you can light
a fire real easy. But I can't see our tracks because it's all
filled back in with snow.
The judge didn't want to listen to this.
All the next day, we trudged through the snow that was
never any shallower than our hips. I was very nauseated. And
after a short while, I began vomiting repeatedly. Soon after, I
started coughing up blood. I was in bad shape. Incidentally, I
was only 2 weeks out of a back operation. I was back to
Indianapolis, Indiana, got my back overhauled. And maybe I
shouldn't have been snowmobiling. But under normal
circumstances I could have done it.
So we were so cold and near the end of our strength that we
did not stop to sleep for the end of the second day. We kept
struggling on through that night. We were operating on auto
pilot, exhausted, hungry, and suffering from dehydration and
hypothermia and frostbite.
Before dawn, we found our oasis, an open barn that had a
working space heater and a phone. Brand new barn somebody had
built clear down at the bottom over another range of mountains.
And there was a phone in there, believe it or not. Good Lord
took care of me again. I called my brother, and then I ended up
spending weeks in bed recovering from my experience. But with
the help of my friends, family, and doctor, I was able to
survive. It was a terrible memory. But all that really matters
is that we both made it back alive.
After regaining my strength and returning to business, I
started thinking about finding my lost snowmobile. It wasn't
important before that because it was way up in the mountains
somewhere. I planned to contact the Forest Service, because
they have employees who work out in the field almost daily and
know the area. So I reached out to them.
We at first had a short first meeting with a Forest Service
employee--this was in Albuquerque--and he told me that he would
see what he could do to help. He knew, but didn't tell me, that
the Forest Service had started a criminal investigation against
me. I didn't know this at all. So I came down. It was really
the next afternoon. I really thought that they were there to
assist me, and I had no idea that they were basically Forest
Service police, because they never showed me a badge or any
credentials.
I met with them by myself and had a conference room and
talked right after lunch until after 5 o'clock. I think it was
around 5:30 that day. I told them everything, where we started,
where we rode, where the ground blizzard started, and where I
thought we spent the first night. Had to just guess at it
because I didn't know. They asked me to guess where we might
have been. I gave them several good guesses but made it clear
that I didn't know exactly where I was because of the
conditions.
After we had talked for several hours, one of the Forest
Service agents--meaning a lady--reached under the table, opened
her briefcase, and pulled something out. It was an official
form document they had already filled out and saying they were
going to charge me with a Federal crime. They claimed I had
entered the national wilderness area in my snowmobile, which of
course they had no way of knowing. We were only guessing at
everything. So when I found out that they were going to
prosecute me for driving my snowmobile into the wilderness
area, I told them flat out there was no way I was going to
admit to committing a crime--I certainly wasn't going to sign a
ticket either--if you can even call it a crime in the first
place. I was facing up to 6 months in prison and a $5,000 fine,
and I had no other option but to fight the charges.
I fought the case all the way up to the Supreme Court of
the United States but ended up on the short end of the stick
because of the nature of the law itself. It seems that because
the law was what's called strict liability the government
hardly had to prove anything at all. Under strict liability
laws, the government doesn't need to show that the defendant,
me, intended to do something wrongful, something illegal, or
even know that he was violating the law.
That doesn't seem like the American justice system to me.
Why should I, who nearly died in the ground blizzard, have to
show there was no true need for me to enter the wilderness?
Didn't even know I was there. If someone with my ability to
fight this case could have made so little headway against the
government, then most people charged under bad laws like this
will be truly hard pressed to defend themselves.
The long and short of it is that what happened to me was
totally wrong. It should not have happened to me. It should not
happen to anyone else in the United States. Laws should not be
written so that the government can prosecute us for things we
have no idea that's illegal or wrong.
Given how bad the situation currently is, I ask Congress to
make the changes that this bipartisan group of organizations is
recommending. Real criminals, those who intentionally commit
robberies, burglaries, and violent crimes, should be properly
punished. No doubt about that. No one disputes it. But
Americans who are working to do the right thing and stay out of
trouble should not be caught up in these traps of
overcriminalization.
I would like to answer any questions that you might have. I
have a lot to say.
[The prepared statement of Mr. Unser follows:]
Prepared Statement of Robert ``Bobby'' Unser
__________
[Charges against Mr. Unser:]
__________
Mr. Scott. Thank you.
Mr. Schoenwetter.
TESTIMONY OF ABNER SCHOENWETTER,
PERSONAL IMPACT WITNESS, PINECREST, FL
Mr. Schoenwetter. How does that sound?
Good afternoon. Thank you, Chairman Scott and Ranking
Member Gohmert, for holding this hearing on
overcriminalization.
I didn't know anything about overcriminalization until an
unjust Federal prosecution almost destroyed me and my family.
But I'm not here to get sympathy. I'm here to make sure other
Americans don't have to go through the same destructive ordeal
that we have been through.
I am now a convicted felon and just spent 6 years in
Federal prison because I was a seafood importer and agreed to
purchase a typical shipment of lobster. They were packaged in
plastic bags, like all of the other shipments we had purchased
in the previous 12 years. But the U.S. Government said the
lobster should have been in cardboard boxes because an obscure
Honduran regulation said so. That ended up being the reason I
was sentenced to over 8 years in Federal prison. It may sound
crazy, but it's true.
I grew up in Brooklyn and learned very early the value of
hard work and staying on the right side of the law. Crime was
all around you, so you either got caught up in it or you
learned to do what was right, follow the law and stay out of
trouble. I had good parents and a strong desire to make
something better of myself, so I chose to stay out of trouble.
But none of this could have prevented me from becoming a
Federal criminal.
I started a small seafood import company in 1986. It was my
little piece of the American dream. My nightmare started in
early 1999, when my long-time partner, Bob Blandford, and I
agreed to buy a load of Caribbean spiny lobsters from David
Henson McNab, a Honduran fisherman and business associate.
The shipment was no different than any of the other
hundreds of deals we had done over the years with David. What
was different was that the ship was seized in port in Bayou La
Batre, Alabama, by the National Marine Fishery Service, that's
NMFS, a Federal agency.
Bob and I didn't know the reason for the seizure at the
time. Our products had been subjected to FDA and Customs
regulations, inspections, and random testing for 12 years; and
we had never had any trouble at all. We purchased mostly from
David McNab because he delivered the highest quality product on
time and was always professional. We never even dealt in the
lower-quality lobster that was often sold into the secondary
market.
We eventually learned that the government seized the
lobster for supposedly being in violation of Honduran fishing
regulations. Keep in mind that we had never seen the lobster
before the day it was seized at port. We had no reason to
believe that there was anything wrong with it.
The government soon told us that they were only trying to
make a civil case against David. But that was not true. We soon
found out that we were being charged with smuggling and
conspiracy based upon violations of Honduran fishing
regulations that applied to us under a Federal law known as the
Lacey Act.
The first regulation was the one about cardboard boxes.
According to our prosecutors, the second regulation supposedly
required that all lobsters caught and sold be at least 5\1/2\
inches in length. The third regulation supposedly prohibited
possessing any egg-bearing lobsters. If found guilty, I faced
hundreds of thousands of dollars in fines and decades in
prison.
When I look back on it now, my biggest mistake was
exercising my Sixth Amendment right to trial. I had done
nothing wrong. I never intended to violate any law. None of us
had ever heard of the Honduran regulations. Beyond that, the
Honduran Government certified to the U.S. Government that all
three regulations were invalid and unenforceable. But none of
this mattered in our case.
First, armed agents from the FBI, IRS, NMFS searched my
house in Pinecrest, Florida. They forced their way in around 7
in the morning, herding my wife, my mother-in-law, and my
daughter into the living room in their nightclothes and
ordering them to sit and be quiet. Needless to say, we were all
frightened to death.
Not long after this, another group of Federal agents came
to my house at 6 in the morning to arrest me. I was not home,
but they, too, had their guns out. I was not a dangerous
person. Importing lobsters has nothing to do with violence. And
when they finally asked me to surrender, I did so voluntarily.
Fighting the unjust charges proved impossible. It all
boiled down to a complex relationship between the Honduran
regulations and American law. The issue was so complicated in
fact that the judge was forced to hold separate hearings to
determine the validity and meaning of the Honduran rules.
Our lawyers presented plenty of evidence showing that the
regulations were invalid, including a letter from the Attorney
General of Honduras. None of this evidence mattered to the
court, however. Despite the absurdity of the law itself, the
jury found me guilty of both conspiracy and importation
contrary to law, and the judge later sentenced me to 97 months
in prison. It took me 5 years to pursue my trial and appeal,
and I am still under 3 years of supervised release. All in all,
this will be a 14-year ordeal for me and my family, and I will
always be a convicted felon.
Up until this point, I had been convinced that the justice
system would sort out the whole mess. False hope, as it turned
out. It's tough to say whether prison is tougher on the inmate
or the inmate's family. In my case, prison certainly ground me
down. It made me a far less trusting person and triggered a
range of personal health problems that I am dealing with to
this day. It also cost me my reputation, my livelihood, and my
ability to vote. The toll on my family, however, was perhaps
even more immense.
Last month, on August 27, 2010, I completed the last 5
months of my 6 years and 3 months of confinement. I struggle
daily with how to readjust to life after prison and often find
myself reflecting how to start my life over. But I owe it to my
family and to others who may be targeted to tell my story. I am
by no means a lawyer or expert in criminal justice policy, but,
like most Americans, I think I have a good gut sense of what is
right and what is wrong.
The law should draw clear, understandable lines between
what is legal and what is criminal. When there are so many
thousands of criminal laws on the books, none of us can be
certain how our actions will be characterized or
mischaracterized by the government. The law needs to be
simplified, made clearer, and written in a way that gives
average Americans an understanding of what they can and cannot
do.
Simple changes such as these would go a long way toward
protecting innocent people from unfair prosecution and unjust
prison sentences. Such changes might be too late to benefit my
family, but my sincere hope is that they help protect other
Americans from the devastating effects of overcriminalization.
Thank you for letting me speak, sir.
Mr. Scott. Thank you.
[The prepared statement of Mr. Schoenwetter follows:]
Prepared Statement of Abner Schoenwetter
__________
TESTIMONY OF BRIAN W. WALSH, SENIOR LEGAL RESEARCH FELLOW, THE
HERITAGE FOUNDATION, WASHINGTON, DC
Mr. Walsh. Good afternoon. Thank you, Chairman Conyers,
Chairman Scott, and Ranking Member Gohmert and other Members of
the Committee, first for holding this hearing on
overcriminalization problems and solutions, and also for
inviting me to testify.
My name is Brian Walsh, and as Chairman Scott said, I
direct Heritage's projects on countering the abuse of criminal
law and the criminal process, particularly at the Federal
level. My work focuses on overcriminalization.
The problems of overcriminalization have been well
documented academically and even statistically. But the real
toll cannot adequately be captured by scholarship or numbers,
no matter how skillful.
The approximately 4,500 criminal offenses in the U.S. Code,
and tens of thousands in the Code of Federal Regulations, have
proliferated beyond all reason and comprehension. Surely when
neither the Justice Department nor Congress' own Research
Service can even count the number of crimes in Federal law, the
average person has no hope of knowing all he must do to avoid
becoming a Federal criminal.
The damage this does to the American criminal justice
system is incalculable. It used to be a grave statement to say
that someone was ``making a Federal case'' out of something.
Today, although the penalties for a Federal case are severe and
frequently harsh, the underlying conduct punished is often
laughable: Six months in Federal prison for (possibly)
wandering into a national wilderness area when you are lost
with a friend in a blizzard and fighting for your lives; 2
years in prison for ``abandoning'' materials that you have paid
to properly store in \3/8\-inch-thick stainless steel drums; 2
years in prison for having a small percentage of inaccuracies
in your books and records for a home-based business; 8 years in
Federal prison for agreeing to purchase a typical shipment of
lobsters that you have no reason to believe violates any law,
and indeed does not.
All of these sentences and the underlying prosecutions make
a mockery of the word ``justice'' in ``Federal criminal justice
system.'' They consume scarce and valuable legal enforcement
resources that could be spent investigating and prosecuting
real criminals or in hearing legitimate civil and criminal
cases. By imposing criminal punishment where there is no
connection to any rational conception of moral wrongdoing, they
severely undermine the public's confidence in and respect for
criminal justice as a whole.
My written testimony, which I have submitted for the
record, focuses on the report that you mentioned, Mr. Chairman,
published jointly by the Heritage Foundation and the National
Association of Criminal Defense Lawyers. I respectfully request
that ``Without Intent, How Congress Is Eroding the Criminal
Intent Requirement in Federal Law'' would be submitted to the
record.
Mr. Scott. It will, without objection.
Mr. Walsh. Thank you.
In short, however, in the report we found that
approximately 60 percent of nonviolent, nondrug criminal
offenses considered in a single Congress, the 109th, had mens
rea or criminal-intent requirements that are wholly inadequate
to protect from criminal punishment Americans who had no
intention to commit a crime and no idea that their conduct was
illegal or even wrongful. The percentage was approximately the
same whether we looked at offenses that were introduced,
passed, or enacted. In other words, these are flawed laws with
inadequate criminal-intent requirements that fail to protect
innocent persons like Mr. Unser and Mr. Schoenwetter.
We also found that over 50 percent of these 446 criminal
offenses were not given oversight by the Judiciary Committees
that have the express jurisdiction over and most expertise
regarding criminal law and justice.
The one bright spot comes from your Committee, and that is
that bills that are marked up or reported out by this Committee
are statistically more likely to have criminal-intent
requirements that protect innocent persons.
The ``Without Intent'' report was not limited to
identifying the problems and causes of Federal criminalization.
The study was conducted in the context of concerted efforts by
the broad range of organizations in or working with the
overcriminalization coalition to educate Congress on these
problems and develop effective, practical solutions. These
organizations have met with increasing frequency in the past 2
years with Members of Congress and their staffs, leading
academics and legal practitioners, and with one another, to
develop principled, nonpartisan reform proposals.
The ``Without Intent'' report borrowed heavily from the
coalition's efforts and selected the five reforms that are best
suited to redress the problems on which the study focused.
Several members of the coalition have begun initial crafting
and vetting of legislative language to begin discussing with
Members of Congress. The hope is that Members will adopt some
of the ideas in the draft language for their own reform bills,
and the current expectation is that bills consistent with such
reforms will have bipartisan support.
Briefly, the five reforms addressed by ``Without Intent''
are:
Enacting default rules of interpretation ensuring that mens
rea requirements are adequate to protect against unjust
conviction, much like the Model Penal Code already has.
Codifying the rule of lenity which grants defendants the
benefit of the doubt when Congress fails to legislate clearly,
and this reform is, of course, consistent with our American
system's presumption of innocence for the defendant and also
the burden of proof that it places on the government to prove
every element of the crime beyond a reasonable doubt.
The next reform is to require adequate Judiciary Committee
oversight over every bill proposing criminal offenses or
penalties.
The next is to provide detailed written justification for
and analysis of all new Federal criminalization.
And finally, it is to redouble efforts to draft every
Federal criminal offense clearly and precisely.
These five reforms would substantially increase the
strength of the protections against unjust conviction that
Congress includes in criminal offenses and prevent further
proliferation of Federal criminal law. Americans are entitled
to no less attention to and no less protection of their most
basic liberties.
The organizations that have been listed today as being in
support of this hearing by no means see eye to eye on many
important issues, but they have put their disagreements aside
to establish common ground on the issue of overcriminalization
and to develop a common framework for addressing its root
causes. This is because there is no disagreement that Federal
criminal law is seriously broken, and getting worse almost
every week Congress is in session.
In an age of often intense and bitter partisanship, this
surprising collaboration speaks volumes. It expresses the good
faith of those who share overlapping conceptions of a
fundamental goal: to make the criminal justice system as good
as it can be and as good as Americans rightly expect it to be.
The organizations have differing ideas about how to get to
that place, but the broad support for today's hearing is a sign
of the similarly broad support for returning Federal criminal
law to its proper foundations in the fundamental principles of
justice.
At the end of the day, the most severe toll levied by
overcriminalization is human. Racing legend Bobby Unser will be
known for life, not only for his remarkable accomplishments,
but also for his Federal criminal conviction. Krister Evertson
is currently unable to care for or even visit his 82-year old
mother in Alaska because he is on probation and living in a
ramshackle aluminum trailer on the lot of an Idaho construction
company. Abbie Schoenwetter and his family must now labor to
overcome the unjustified and unneccesary impact of
overcriminalization on their health, finances, and emotional
well-being.
All of these human tragedies came about because an unjust
law was written and placed into the hands of an unreasonable
government official. These stories testify most eloquently to
the irrational injustices of overcriminalization.
These victims and unknown victims like them around the
country who have not yet had their stories told, comprise the
thousands of human reasons why stopping and reversing the trend
of overcriminalization fully merits this Committee's
consideration.
Thank you again for inviting me to testify, and thank you
for your principled, bipartisan stance against these
injustices.
[The prepared statement of Mr. Walsh follows:]
Prepared Statement of Brian W. Walsh*
---------------------------------------------------------------------------
*See Appendix, page 116, for an amended version of this statement.
__________
Mr. Scott. Professor Smith.
TESTIMONY OF STEPHEN F. SMITH, PROFESSOR OF LAW, UNIVERSITY OF
NOTRE DAME LAW SCHOOL, NOTRE DAME, IN
Mr. McDonald. Thank you, Chairman Scott, Chairman Conyers,
and Judge Gohmert. It is a pleasure to be here to talk about
this topic, and I commend all of you for your interest in it.
I want to address you from an academic perspective about
the problem of overcriminalization. And, yes, I think it is a
serious problem. So I wanted to talk about this from an
academic perspective. I think there are two aspects to
overcriminalization that it is important to focus on.
One is the usual one that we tend to focus on, which is the
quantitative issue. The idea there is that we have too many
criminal laws, certainly at the Federal level, and those
criminal laws are entirely too broad in scope. There are too
many infractions that are punishable as crimes. And that is
what I call the quantitative aspect of overcriminalization.
There are also, I think, important qualitative aspects. And
there the complaint isn't so much about the number of the
crimes and the scope of the crimes, but just at how poorly
conceived the criminal code is; how inadequately defined crimes
are in terms of the conduct, or actus reas elements; the state
of mind, or mens rea elements; the paucity of defenses that are
necessary, and similar problems.
And in my scholarship, I talk about both of these. I tend
to focus less on the quantitative aspects and more on the
qualitative aspects. And to be clear, I want to make sure that
you don't think that I don't agree with the idea that there are
too many crimes, that crimes are too broad. I totally agree. I
think the Federal Criminal Code would work a lot better, we
would have a lot more fairness in our country. We would be a
lot more effective at counterterrorism, for example, and
securing our borders if Federal prosecutors focused on those
issues of truly national concerns and stop playing district
attorney, and if FBI agents stop playing beat cop. Leave these
to the State court systems, these street crimes and violent
crimes, to save the resources of the Federal Government for
where they are truly needed--immigration, where that is a
function of the Federal Government; those kinds of things. I
think a narrower criminal code at the Federal level that
focused the Federal enforcers on those things would be an
enormous benefit to our great Republic.
The problem I have is I don't want to stick all of my bets
on the Congress radically reducing the size of the criminal
code. It would be great if it happened. Lots of things would be
great if they happened. It would be great if I won the lottery.
I don't think that is going to happen either. I don't play it,
so how can I win it?
But I don't know that that is terribly realistic. So I have
tended to focus my scholarship on the qualitative problems
associated with overcriminalization. Can we fix the criminal
code so that it more accurately defines crimes? Can we have
more realistic punishments, as Chairman Conyers recognized? I
think that is an underappreciated part of this problem, so I am
glad the Chairman brought that up.
I think overpunishment is something that we need to be
concerned about, and that ties directly into
overcriminalization, because Federal prosecutors take these
broad crimes and they enforce them, and they enforce them
because they carry such high penalties, they enforce them
because they often have mandatory minimums that ensure jail
sentence.
And when we move these offenders from the State court
system where drug courts are there, where they are exploring
alternative punishments, when we move them from the flexible
policies in the State court system into the Federal court
system where we have a very rigid, one-size-fits-all approach--
punishment, more punishment and even more punishment--I think
that is a fundamental mistake. We are giving prosecutors
incentives to bring these cases into the Federal system with
all the attendant problems that causes--and we saw that in the
Armstrong case with the crack, 100-to-1 crack cocaine rule
which the Congress rightly repealed earlier this year. Enormous
racial disparities in the prison population attributable to
this arbitrary and unnecessarily harsh rule about the sentences
for crack cocaine.
So I think the quantitative aspects are important, and that
is where I tend to focus.
I do want to make a broader point so we don't get lost in
the weeds, as professors are wont to do. And I think all of
this fundamentally comes back to the role of moral
blameworthiness in the country. These horror stories that we
have heard today about overcriminalization are heartbreaking
because a fundamental principle or a criminal law is that
punishment requires moral blameworthiness, that nobody should
be subject to conviction and punishment for a crime unless they
committed a blameworthy act, unless they had reason to know
their conduct was immoral or illegal.
And you can see from these examples that we heard today
that our criminal law at the Federal level does not do that,
that punishment is often imposed without blameworthiness and in
excess of blameworthiness. The idea of overpunishment as well.
Crimes are not defined adequately. The mens rea
requirements in particular in Federal criminal law are woefully
insufficient. That is a real problem for a criminal law that is
supposed to be limited to punishing blameworthy acts, because
it is the guilty-mind requirement that really ensures that
people won't be punished unless they had knowledge that they
were committing a wrong, either a legal wrong or moral wrong.
There are a lot more aspects to this problem; I address
them in my lengthy statement. I will stop there, and, again, I
will be happy to answer your questions.
[The prepared statement of Mr. Smith follows:]
Prepared Statement of Stephen F. Smith
__________
Mr. Scott. Professor Smith, we didn't repeal the crack and
powder disparity. We adjusted it. We improved it. We didn't
quite repeal it. We still have a little more work to do.
Professor Podgor.
TESTIMONY OF ELLEN S. PODGOR, LeROY HIGHBAUGH, SENIOR RESEARCH
CHAIR AND PROFESSOR OF LAW, STETSON UNIVERSITY COLLEGE OF LAW,
GULFPORT, FL
Ms. Podgor. Thank you, Chairman Conyers, thank you Chairman
Scott, Ranking Member Gohmert, for allowing me the opportunity
to speak to you about this important topic of
overcriminalization.
My name is Ellen Podgor, and I am a professor of law at
Stetson University College of Law. I practiced law as both a
prosecutor, a deputy prosecutor, and on the defense side, and I
am now a professor of law, altogether stretching a period in
excess of 30 years.
I have been teaching and authoring books and articles on
the subjects of criminal law, white-color crime, and legal
ethics for many years, and I feel that my background allows me
to offer you a balanced perspective on overcriminalization
issues that are being addressed by this Committee.
Clearly we are all opposed to crime. The goal to eradicate
its existence is of the utmost importance. Laws that punish
individuals when they commit crimes serve the important goals
of deterring future criminality and isolating those who may
present harm to society, and, as Representative Conyers points
out, educating those who need the education.
But efforts toward achieving these goals are hampered by
the reality that in some cases criminality is not clearly
defined, and society is not properly notified of what conduct
is prohibited by law. If we were speaking about murder, rape,
robbery, or arson, or other common law--malem in se--types of
crimes, we wouldn't be having this conversation.
We all know these crimes are wrong and that such conduct
will result in harsh punishment. The problem arises with
respect to malum prohibitum crimes; crimes enacted by Congress
that have enormous breadth; crimes that often do not require
that the accused acted with criminal intent; and in many cases,
crimes that are scattered throughout the 50 titles of the
Federal Code.
Overcriminalization is a twofold problem, and I agree with
Professor Smith in that regard, the number of statutes and the
breadth of the statutes. You have my written remarks that
elaborate on how overcriminalization increases prosecutorial
discretion and judicial creativity, all at the expense of the
legislative function.
It is important that legislatures not assign their
lawmaking function to the other branches.
I will speak briefly today about three solutions that I
believe can assist you with solving this problem.
With over 4,450 Federal criminal statutes, with thousands
more regulatory provisions that allow for criminal punishment,
and with these numbers continually growing, something needs to
be done.
First, there needs to be reform of the legislative drafting
process. I recommend instituting reporting requirements,
ascertaining whether there truly is a need for the new
legislation, and whether constitutional authority was intended
to cover that conduct. It would offer safeguards to haphazard
legislative drafting and agency-focused initiatives. It also
avoids federalism problems that may plague the law when
eventually reaching court review.
Overcriminalization places financial stress on limited
resources, and so there needs to be ample consideration of the
costs of enacting new legislation and the resources that are
available for implementation.
A final component of reforming the legislative drafting
process is to require reflection on the overcriminalization
problem on an annual basis. This can best be accomplished
through data collection of new criminal statutes that are
passed to examine how they are used. New statutes that are
continually used in tandem with existing laws are suspect as to
whether they are truly needed to remedy a gap in the law.
The second solution I recommend is to strengthen the mens
rea terms in statutes and to provide a default mens rea for the
situations when it might be unclear. It is important that
Federal statutes provide a clear statement of mens rea, that
the accused knew his or her conduct was illegal. The American
Law Institute's Model Penal Code has a default mens rea, and
the Federal Criminal Code should exceed what is required in the
Model Penal Code as it criminalizes malem prohibitum conduct
that is not always nefarious or presumptively considered
illegal. Having a specific mens rea terminology in statutes and
a default mens rea as a safety net may still leave gaps needing
interpretation.
So the third solution I would recommend is to codify the
rule of lenity. The rule of lenity requires ambiguous criminal
laws to be interpreted in favor of the defendants subjected to
them. As Chief Justice Marshall in 1820 noted, it is the
legislature, not the court, which is to define a crime and
ordain its punishment.
Some States have moved in this direction; my own State,
Florida, for example. Overcriminalization is a flaw of our
criminal justice process that needs a remedy. I do understand
that it is difficult to change the existing mentality of
addressing immediate problems with criminalization. The
solutions recommended here take an important step in restoring
the importance of the legislative role. The cycle of
recriminalizing conduct every time an event occurs needs to
stop.
Thank you very, very much for this opportunity today.
[The prepared statement of Ms. Podgor follows:]
Prepared Statement of Ellen S. Podgor
__________
Mr. Scott. Mr. Weisman.
TESTIMONY OF ANDREW WEISSMANN, PARTNER,
JENNER & BLOCK, LLP, NEW YORK, NY
Mr. Weissmann. Good afternoon. The perspective that I would
like to share with you this afternoon is as a former member of
law enforcement.
The proposals in the ``Without Intent'' report would bring
much-needed clarity, in my view, to the criminal law. You have
heard today from various panelists about how the proposals
would benefit the public and not just putative defendants. A
question can arise to what potential downsides are of these
proposed reforms to law enforcement.
As a dedicated Federal prosecutor for up to 15 years, I can
tell you that these proposals would have no drawbacks for law
enforcement. Indeed, in my view, they would serve to benefit
it. Let me give you two examples.
First, requiring criminal bills to state clearly the mens
rea requirement would serve to assist prosecutors in guiding
their decisions as to who to investigate and who to charge; it
would benefit the courts in knowing how to charge a jury; and,
benefit of course, defendants in being held accountable only
for conduct that clearly violates the law.
One example I can give you is the prosecution of Big Five
accounting firm Arthur Andersen in which I served as the lead
attorney for the government. The Federal district judge was
faced with an obstruction statute that required the defendant
to act intentionally and ``corruptly.'' The definition of the
latter, however, was not spelled out in the statute, unless the
court followed precedent that the Supreme Court only years
later determined to be erroneous. The Supreme Court itself
grappled with the term ``corruptly'' and what it meant.
The Federal Criminalization Reporting Statement advocated
by the Heritage Foundation and the NACDL could have led to a
much more just outcome. Instead of a company facing indictment
for a crime whose elements were not in retrospect crystal
clear, the government and grand jury would have been able to
determine prior to indictment whether the conduct violated the
terms of the statute. Further, if the grand jury went forward
and voted an indictment, the company would have been able to
defend itself at the trial based on the clear requirements of
the criminal statute, and not have to wait two levels of
appeal, which, in a corporate setting, can render any relief
Pyrrhic. Indeed by the time the Supreme Court ruled in the
Andersen case, the organization was basically out of business.
Thus, in answering whether the proposed reforms and regrets
here today are wise, I submit one would need only imagine the
answers of the prosecution, the defense, and the court in the
Andersen case to the question whether they would have preferred
that Congress specified clearly the intent standard in the
obstruction statute. In short, lack of clarity in the criminal
law can have real and dire consequences which are antithetical
to the very goals of the justice system.
There is a second way in which proposed reforms would be
beneficial. The rush to enact a criminal statute to address
perceived criminal problems can be illusory. The issue is often
not the absence of criminal statutes on the books, but of
investigation and enforcement. Often the conduct at issue
already runs afoul of existing criminal law. In such
situations, enacting a new criminal statute is not only
redundant, it can be counterproductive, since it focuses our
time and attention on a measure that actually will not serve to
reduce the risk of recidivism.
For instance, in the immediate aftermath of high-profile
national crises such as the corporate scandals, the meltdown on
Wall Street that we've recently seen, or illegal immigration,
there is a natural desire to take action that will reduce the
risk of recidivism. Such actions often include the passage of
additional criminal statutes. And while those statutes can be
useful and sometimes extremely well crafted, in the heat of the
moment they can be ill-advised, redundant, and vague.
For instance, in the white-collar context, hearings last
year in the Senate addressed a bill that would have
simultaneously created a uniform fiduciary duty on all
financial institutions to their clients and criminalized
breaches of that duty. But there already were abundant tools
available to Federal prosecutors to prosecute such conduct.
As has been noted by various panelists, the United States
Code contains numerous provisions that would criminalize such
conduct; for instance, the mail and wire fraud statutes. To win
a conviction, the prosecutor need only show the defendant used
the mails or wires as a part of a scheme to defraud. Any e-mail
could suffice.
Here an anecdote may be illustrative. When I was a
prosecutor switching from organized crime prosecutions in New
York City to prosecuting fraud on Wall Street, I sought advice
from a senior white-collar prosecutor about the intricacies of
the securities laws. His advice: Get to know the mail and wire
fraud statutes really well. Everything else is gravy.
In conclusion, I would note that the line separating
criminal conduct from all other is society's starkest boundary
between right and wrong. It should be reserved for actions
taken intentionally. The goal of reserving the criminal law
today as truly deserving of the highest punishment of our
society would be greatly served by enacting the proposals put
forward to you by the Heritage Foundation and the NACDL.
Thank you.
[The prepared statement of Mr. Weissman follows:]
Prepared Statement of Andrew Weissmann
__________
Mr. Scott. I want to thank all of our witnesses for the
testimony. This is extremely helpful.
I will now recognize myself for questions for 5 minutes and
will start with Ms. Podgor.
Without taking an hour to do it, as you usually do as a
professor, can you just give us a description of why malem in
se and malum prohibitum would require a mens rea requirement?
Ms. Podgor. It all comes back to punishment. If we want
people to actually know why they are being punished so that
they don't commit the crimes, then it is very important that
they know that they are committing the crime. And I think the
witnesses who testified today are the perfect example of just
that.
Whether it is malem prohibitum or malem in se, there needs
to be a mens rea. The basic difference is that with malem in se
crimes there usually is that mens rea. It is there.
In the malem prohibitum crimes, the ones that are passed by
the legislature, we don't find that mens rea, and people just
don't know that it is wrong. And if they don't know it is
wrong, then even if we punish them, it is not going to serve
that goal if it is not known. So if we want to succeed in
stopping criminality, then we have to put the mens rea in so
that people won't commit the crimes.
Mr. Scott. You mentioned the rule of lenity. With the
presumption of innocence, why isn't the rule of lenity
automatic?
Ms. Podgor. The presumption of innocence goes to the
factual decision in the case. The rule of lenity goes to the
interpretation of the law. And when you have two constitutional
possible interpretations of the law, the court is faced with
the decision of which one they should go with. The rule of
lenity allows them to go with the one that would be more
persuasive for the defendant. And so it is different than just
a presumption of innocence, which would be looking at the facts
itself.
Mr. Scott. But when you add guilt beyond a reasonable doubt
to that, why wouldn't the court be required to pick the one
most favorable to the defendant?
Ms. Podgor. Reasonable doubt only goes to whether the
person has committed the crime itself from a factual stance: Do
they have sufficient evidence of that particular crime? But if
we don't know what the crime is, then the problem becomes: Have
they committed it or not? Even if there is, we can't even get
to the question of reasonable doubt. The reasonable doubt
question would really be our second question after we
determined what the law is.
Mr. Scott. Mr. Walsh, can you talk a little bit about the
problem of allowing regulators to create crime without going
through the normal legislative process when regulators can
decide what is a crime and what is not?
Mr. Walsh. Certainly. One of the things coming from the
report that we found when we were doing our study was that a
large percentage or significant percentage of crimes that were
passed by the legislature actually authorized the agencies to
create even more crimes. There wasn't necessarily a limitation
on how the agency had to do it. In other words, there wasn't a
requirement of whether there would be criminal intent or what
the scope of the conduct was that would be prohibited. So there
is no telling, when Congress creates those types of crimes, how
many additional crimes end up being created by that.
Which is one of the reasons why Professor John Coffey from
Colombia has reported an estimate that up to 300,000
regulations may be enforced by criminal penalties.
So the issue becomes, of course, that if something is
important enough to send a person to prison, it really should
be the people's elected representatives to make that decision
and not delegating it to unelected agency officials; I don't
mean to say that in a demeaning way, but the bureaucrats in the
executive branch. It really should be a decision made by those
who are elected by the people.
So there is a separation of powers issue as well I think
that is implicated there and that it is the job of the Congress
to make a decision about what the law should be.
And especially in the area of criminal law, in particular
when somebody's deepest rights and liberty are at stake, that
is something that really implicates some constitutional issues
about whether the agency in the executive branch should be
making those decisions.
Mr. Scott. These are very important regulations, and we
expect them to be for people to conform with the regulations.
How do you enforce those regulations if you do not have the
criminal code?
Mr. Walsh. You can absolutely do it if you have a
meaningful criminal intent or mens rea requirement, because in
that instance the individual is on notice based on something,
whatever it might be. Maybe it is a person who is in a highly
regulated industry and has been informed or knows of the
standard industry practices, or there is actual evidence that
the person is on notice that this is what the regulation is.
But apart from that, one of the ways to punish it is, in
the first instance, civilly. So the first time that somebody
violated one of these regulatory offenses and if there is no
evidence of mens rea or criminal intent, then a civil
punishment is appropriate in that context and would really
fulfill the requirements of justice.
On a second offense, then you could actually say the
person--especially if it is the same person with the same
offense--they have been put on notice, and maybe subsequent
offenses could be punished using criminal offenses and
penalties.
Mr. Scott. Thank you.
Judge Gohmert.
Mr. Gohmert. Thank you for all of your wonderful
observations. Very helpful.
I have just been looking at some of these statutes that we
are talking about, and it causes me great chagrin to note some
of the laws. Like Mr. Unser, in your situation, apparently
since we have passed a law that says the Forest Service can
promulgate regulations and if you violate one of those, the law
inserted the words ``or such rules and regulations shall be
punished by a fine not more than $500 in prison, not more than
6 months.'' It is the insertion of ``or such rules and
regulations'' that apparently caught you, because there is a
provision that the Department of Interior, some part thereof,
says that possessing in a national forest wilderness,
possessing or using a motor vehicle, motorboat, or motorized
equipment is a crime. And also such terribly heinous activity
as possessing or using a bicycle in a wilderness would get you
the same 6 months. So be careful where you ride your bike.
Unbelievable.
And I appreciate the comments that perhaps we ought to be
restricting the threat of prison to those things we actually
take up and actually come before the Judiciary.
Mr. Walsh, you indicated we have a better percentage of
cases in which laws we pass actually included mens rea
requirement or criminal intent. So hopefully that would be one
area in which we can work.
But I wanted to follow up with a couple of other questions,
too.
Mr. Schoenwetter, after the Attorney General of Honduras
submitted his letter saying they didn't think that you had
violated Honduran law, what was the prosecutor's response? Did
you see or hear what the position of the prosecutor was?
Mr. Schowenwetter. We had a witness against us, a Liliana
Paz, who was a mid-level official who had testified that we did
violate Honduran regulations. They were in effect. And the
position of the prosecutors was that the Government of Honduras
was changing their opinion of the case. In other words, they
changed their position, not so much the prosecutors, but in the
11th Circuit, they inferred that in a place like Honduras,
government officials could be paid off in order to change their
position on different ideas. So they just disregarded that.
I would also like to say that we also had a letter from the
President of Honduras to our President, asking not for myself
but McNab, my co-defendant, who had some--he was well known in
Honduras. The President wrote a letter on his behalf, asking
for the President of the United States to intervene in this,
and that was ignored also.
Mr. Gohmert. Apparently the law which created the net that
caught you, this saws it is unlawful for any person--and it
goes through import, export, transport, sell or receive--fish
or wildlife taken or transported, sold in violation of any law
or regulation of any State or in violation of any foreign law.
You know, there was a time when most of us, and it sounds
like all of the reasonable minds here would say--and in talking
to Chairman Scott, we are just shocked, because our feeling is,
what prosecutor would take a case like this? You know, if you
told us a couple years ago no prosecutor in his right mind
would take these cases, well, maybe that is right. But maybe we
got a lot of prosecutors who are not in their right mind
because they are taking these cases. We are just shocked.
I know, Professor Smith, from your comment, surely as a
professor, if someone had come up and given you these
hypotheticals, you would have said, No, I know enough
prosecutors; no good prosecutor would take a case like that.
But apparently there are a lot of prosecutors perhaps that
aren't good that are taking them.
I appreciate the Chairman's indulgence.
But Mr. Unser, I wanted to ask you a clarification. Were
there any markers that marked where you went into the
wilderness area, to your knowledge?
Mr. Unser. There were absolutely 1,000 percent none.
Completely none. Excuse me, a frog in my throat. Charlie Bird--
--
Mr. Gohmert. Did that come from the wilderness area? You
have the right to remain silent.
Mr. Unser. But he made a fool out of himself in the court
himself by not understanding where the wilderness area was,
what he was issuing me a ticket for.
In other words, when you talk about that Jurosa area,
thousands of people snowmobile up there. Nobody gets a ticket.
It is legal. He thought the wilderness area went clear out to
there. He didn't even know that people had been snowmobiling in
that area. But the wilderness area was in fact a long way west
of there, and that came right out in the court.
It is in the court records now, that nobody can hide. It
was just like a jury-rigged deal. He could lie as much as he
wanted to lie, and the judge would accept it as much as he
wanted to accept it. It is that simple.
Mr. Gohmert. If you just watch TV, you know that normally
when there is a law enforcement person who is going to ask you
about something and they suspect that you have committed a
crime, you get read your rights. Did anybody at any time before
you were being charged or told you you were being charged
advise you that you had a right to remain silent and not tell
them where your snowmobile was that they suspected that you had
violated the wilderness area?.
Mr. Unser. Not only did they not do that--I have airplanes
also. I have a special airplane that would do high-altitude and
slow flight. I described to millions of people--in fact, it had
to be hundreds of millions of people all over the world--those
articles that I let out way before the court date went all over
to every noncommunist country on this Earth. At least that is
what it was rumored to be. And I described where I left my
snowmobile as an example.
That snowmobile, it showed up 1 week before the trial, 1
week. That is in June, the summer. There is no snow. They
finally showed up, theoretically had found my snowmobile in
trees. The snowmobile was under trees. So I couldn't see it
from my airplane, because Charlie Bird, the government cop, had
had it moved. In other words, I sent pictures to----
Mr. Gohmert. Somebody had moved it.
Mr. Unser. Because why would I describe it being out in the
open, when I don't know that I have committed any crimes? So I
would have no reason to lie or tell a story. But it shows up 1
week before the trial. But they didn't give us a picture or
even let us see that. And mens rea or warning----
Mr. Gohmert. Did you give him his warnings that he had his
right to remain silent after it was found? I don't mean to be
facetious about something that is so serious, where people have
lost their freedoms because of overzealousness, but if I could
have one more moment of indulgence.
Professor Smith and Professor Weissmann, you both addressed
the rule of lenity. Why do you think in these cases there is
hostility toward not having an ambiguity afforded in the
direction of the defendant? Do you have any explanation?
Mr. Smith. Sure. I think there are a couple of things. One,
there are some tough-on-crime judges who just would prefer
criminals go to jail, and they don't want an interpretive rule
that makes it hard for them to send criminals to jail. I think
that is one part of it.
I think another part of it is the lack of judicial
humility. They think they can make the decisions necessary.
Most judges think they can decide reasonably, certainly as
reasonably as this body, and, in their view, probably more
reasonably, what should and shouldn't be a crime. So they roll
up their sleeves and put on their thinking caps and they take
these ambiguous statutes and they misconstrue them and make the
case come out right.
Now, it is important to remember that unlike when this
Congress--when a Congress or legislature passes crimes, it is
acting in advance of a legislative act. Courts are acting
retrospectively. The conduct has happened, and they are
deciding whether that past conduct should be a crime.
So they look at that conduct, and, you know, if it is a bad
person, however one might describe that, they want to make the
case come out right, which is to send that person to jail. And
I don't know--and that is just an unprincipled approach to
this. They are basically making crimes, which is fundamentally
at odds with our system.
The legislature and only the legislature is supposed to
declare crimes, and yet when courts take these ambiguous
statutes in violation of the rule of lenity and expand them,
they are declaring criminal acts that the Congress hasn't
specifically made a crime.
I think they are also overriding legislative judgments
about penalties as well. These are things that should be
reserved for the legislature and not the other branches.
And Judge Gohmert, you brought up the issue of
prosecutorial discretion. I think most prosecutors are
professionals, but I think it is dangerous. You know the phrase
``absolute power corrupts absolutely.'' Well, that is what
overcriminalization fundamentally is about. It is about giving
prosecutors, the executive branch, absolute power.
And it is not just the executive branch, it is each and
every prosecutor. The hundreds of prosecutors across this
country all have absolute power in their own areas. So any
prosecutor with an ounce of sense, maybe even a half an ounce,
would not have charged Mr. Unser with this offense, but he was
still charged and convicted.
And these two examples here are examples of how
prosecutorial discretion fails. And I think it is important for
the Congress to realize it fails quite a lot.
The presumption of innocence I think has turned on its
head. It is a legal construct. It didn't apply to prosecutors.
Prosecutors, I think, decide, Well, Mr. Schowenwetter must have
been up to no good, we can get him on this. And so what if we
can't get him on this? We know he is up to no good.
It is that kind of speculation that drives prosecutorial
decisions. And that is why I think it is so important that the
crimes fully define the blameworthiness of the act, including
the state of mind that is required, because then they are being
forced to prove their suspicions in court. They are being
forced to prove moral blameworthiness.
So if they were required to show that Mr. Schoenwetter knew
he was breaking Honduran law, he would have been acquitted. But
I think because that wasn't an element of the crime with which
he was charged, they can say, Well, we think you knew, and if
you didn't know you should have known. And so what if the
President and the Attorney General of that country say it is
not a crime? We know it is.
It is that fundamental hubris that happens when you give
prosecutors absolute power.
In Mr. Unser's case it is even a more basic issue. There is
a key fact necessary to the blameworthiness of his act, that he
is in a Federal wilderness area. The crime doesn't even require
him to have that factual knowledge. No wonder these horror
stories happen.
It is dangerous when you give any official, no matter how
well intentioned, absolute power. That is what
overcriminalization does. And I think it is high time for
Congress to assert itself, its supremacy in this area, and to
require courts to help counteract instead of facilitate
overcriminalization.
Ms. Podgor. I have nothing to add to that.
Mr. Scott. Thank you.
Mr. Conyers.
Mr. Conyers. Thank you, Chairman Scott, and your Ranking
Member, who have done a good job on this Committee. We have
covered so many subject areas over the years coming out of the
Crime Committee.
I would like to ask this question of whether or not we
should begin to put together some sort of place to house all of
the Unser, Schoenwetter, cases in America. I mean, we have got
two here. But can you imagine how many there might be if this
Committee--not to invite for hearings, because we have become
an inferior court of our own--but what about a place to capture
this information that would serve as a reservoir for our five
other experts that are here to begin to get a larger picture of
this?
It seems to me that we have two cases. If you give me--
well, I guess we would be talking about the next session of
Congress now, because we are almost out by next week, it is
predicted. But there ought to be a place where people can
communicate any problems of this nature, and they would go into
a specific place.
The problem is that right now Members of Congress get
letters about these kinds of cases, the Unser case, the
Schoenwetter case, but they are individual cases in their
congressional district. I suppose Senators get the same thing
in their State.
So what if we were to put these into, say, the Crime
Committee, or another body designated by the Crime Committee,
so that there would be a repository in the American legal
system of what has happened, to give us a clearer picture; and
we wouldn't have to hold an almost infinite number of hearings,
hearing special cases of other peopling that are so aggrieved.
And can I invite our distinguished witnesses--Brian Walsh,
do you want to take a crack at that please, sir?
Mr. Walsh. I think it is a terrific idea. I can't say it is
quite to the level or to the extent that you have suggested
yet, but there have been some efforts that we have undertaken
in collaboration with others. I know that NACDL, for example,
collects these types of cases. And also we have an
Overcriminalized.com Web site where we have begun to publish
these stories.
So it is an opportunity for us to have a sort of central
place. People will e-mail us on a fairly regular basis, and not
all of the stories have been published yet, but we would
certainly be interested in pursuing that.
One of the other features that we developed with NACDL was
an e-mail list notification of new bills going through Congress
that actually have these types of provisions in them; and
people can subscribe to that, the Legislative Update Alert. But
we are working to try to do exactly what you are suggesting.
And we would be delighted to help the Committee to help develop
that even further.
Professor Smith also encouraged me to mention ``One Nation
Under Arrest'' which is a book we published that has some of
these stories in them, about a couple dozen.
Mr. Weissman. I agree with that. Oversight is an important
function of this body, as you know, and that is fundamentally
what you are talking about, oversight of how the executive
branch is handling these cases. So I think that is important to
do.
But I do want to caution, you have been focusing on these
esoteric, highly technical crimes. It is easy to do that. And
you get a lot of fair notice problems that is fairly serious
there. But the problem of overcriminalization exists even with
real crimes. I think this goes back to something Judge Gohmert
mentioned. Even real crimes that we all would agree are
heinous, immoral acts, you still have poor crime definitions
causing problems there.
For example, the Federal child pornography statute. It
requires, as passed by Congress, you have to know you are
receiving something and you have to know that the thing you are
receiving is a visual depiction. That is all Congress said
about the mens rea requirements. What don't you have to know?
What matters? You don't have to know that it is sexually
explicit. You don't have to know that it is minors engaging in
sex. Congress did not require mens rea. Those are the things
that you need to know. Those are the facts that are essential
to say it is blameworthiness.
And the Supreme Court construed that statute and they read
in a mens rea requirement, so they fixed that problem. But the
fact is it was a problem.
The fact, also going back to prosecutorial discretion, is
the Justice Department argued in that case, the excitement
video case, Oh, you don't have to know it is sexually explicit
conduct involving minors. As long as you know it is a video,
that is enough. I mean, that is insane.
But the point is simply to illustrate, again, the
limitations of prosecutorial discretion and also to see that
even when we are talking about real crimes, malem in se real
crimes, crimes that should be punished, there, too, you have
problems with crime definition.
So it is not just the technical regulatory offenses, it is
all crimes. That is how deep and corrosive the problem of
overcriminalization is.
Mr. Conyers. You are quite right that merely collecting
these without making that kind of analysis would be overlooking
a very huge part of the problem.
What about the president of the Defense Lawyers
Association? How does this strike you, sir.
Mr. Lavine. Certainly we are in the process, working with
Heritage Foundation and others, to try to collect the anecdotal
evidence to support the reforms that we are asking Congress to
enact. And part of that deals with the two separate issues, as
Professor Smith discussed. One is the overcriminalization issue
itself and the requirement that statutes are particularly
described with the conduct that the citizen should know is
wrong, both the act itself and the mental state that goes along
with it. That is what we have been talking about foe the last
couple of hours and weeks with this report.
The other issue is overfederalization, if I may be so bold,
as a perspective from a practicing lawyer who has been trying
cases for over 36 years, 11 years as a prosecutor, 25 years as
a defense lawyer. The reality is prosecutors don't often use
the appropriate discretion, and when they don't, judges are not
acting independently. Which is why we are suggesting the rule
of lenity, and where you need to put this in perspective.
Judge Gohmert is a State court judge in east Texas where it
was his--Judge Poe, it was the same thing. Nobody would say
that these judges were not independent. But in some Federal
circuits, the reality is otherwise. The judges rubber-stamp
what prosecutors do.
So in the context of what we are attempting to do is to
collect these anecdotal stories to eventually being able to
present them to you, so that you can see not just the construct
that we are talking about here, that we have really been using
the ``Without Intent'' report to give you the basics of the
109th Congress and how that was a snapshot of things that were
wrong in that context.
Obviously the problem is much larger than that. And when
you see it here, you assume that judges would exercise
discretion in Mr. Schoenwetter's case, and you assume
prosecutors would exercise discretion in Mr. Unser's case, but
the fact is they didn't.
And in the Georgia Thompson case we spoke about earlier,
they didn't. And the reason they didn't is manifold. Maybe the
local politics, maybe the regulatory agency is looking to
justify its budget for that year and has to have so many
scalps. Maybe that regulatory agency, I suspect in the Unser
case, was pushing the local prosecutor and the judge did not
have the independence--we might call it something else, might
not be public--to say that this is wrong. There has to be a
mental state and intentional construct to it. There has to be a
conscious objective or desire to engage in conduct that is
against the law.
So to answer your question shortly, yes, we will do
everything we can to attempt to collect these and find maybe
perhaps a way to get them to you in a repository that would
help you to expand some of the issues we talked about here
today.
Mr. Conyers. Thank you so much.
Just close on this, Chairman Scott, and Judge Gohmert. I
still think that the drug problem--am I right that we put a
trillion dollars in fighting the so-called drug war over the
last decades? We are not sure how much money we spent.
We are not sure how much money we spent. But the whole idea
is that we have put an enormous amount of Federal money into
this. States have also put an enormous amount of money, and yet
the treatment of this offense as a health problem is minimized.
Many people are imprisoned with a health problem which is only
aggravated, certainly while they are there, and maybe even
worse when they get out. And it overlooks a sort of more
commonsense approach.
So the last thing that I think makes this a good idea is
that, more than anything else, we educate the American people;
the citizens themselves begin to understand the kind of
problems that we have taken up here today with all of you
experts.
And so I thank you very much for the time, and I hope that
we can continue this discussion after this hearing.
Mr. Scott. Thank you.
I just have one final question for Mr. Walsh.
You have presented Subcommittee staff with draft
legislation as to what we should be doing about reform. Can you
describe that legislation to us?
Mr. Walsh. The draft is based on the recommendation in the
``Without Intent'' report that basically would require Congress
to analyze what it is that it is doing each time it
criminalizes. So for any new or modified criminal offense or
penalty that went through Congress, the recommendation would be
in that legislation that there would have to be a report
generated before there was floor debate on the criminal
penalties.
There is already so much criminalization that it makes
sense that if there is going to be any new criminalization,
Congress should have to describe what is the problem we are
trying to solve here, with specificity. How is the mens rea
requirement supposed to work? What about existing Federal and
State law? How does that overlap with the new law that is being
proposed?
In addition, how does this impact the federalism
implications? What are the implications for that, that both Mr.
Lavine and Professor Smith have and others mentioned, during
this panel? So that list of requirements would basically help
Congress really to stop, look, and focus on the work that it is
doing in criminalization, decide whether this is really needed?
Is there really a motivating factor, or could this act already
be charged?
Many times the crimes that we hear about that result in new
criminalization are in fact already charged. One of the great
examples of this is the carjacking offenses that ended up being
Federal crimes, and yet those specific crimes that were used
were a horrible tragic crime, but the perpetrators were both
sentenced to life sentences in Maryland under State law. So
there was already existing law; there wasn't a need for Federal
law in this case.
So explaining what it is that Congress is doing. And in
addition, the recommendation of NACDL and the Heritage
Foundation that is embodied in that legislation would be that
the agencies would have to describe all their new
criminalization. Right now, there is so much of it that it is
hard to really get a handle on when the agencies propose rules
that have criminal penalties or offenses in them.
In addition, whenever these agencies make a referral to the
Justice Department for prosecution, what is the criminal
offense in statutory code that they are saying justifies this
criminal referral? What is the regulation in the Code of
Federal Regulations that justifies it? That basically puts them
on notice and also puts Congress on notice of how these new
laws and these new regulations are being used.
So that is the general gist of it. We think that there are
some really good points in it that would be useful to the
Committee for its consideration as it is considering
legislation.
Mr. Scott. Thank you.
I had a conversation with somebody earlier today and we
mentioned carjacking. And if you are the victim of carjacking,
you do not call the FBI, you call the local police.
Mr. Walsh. That is right.
Mr. Scott. Judge Gohmert.
Mr. Gohmert. Thank you, Chairman.
Looking at this--and of course, Mr. Walsh, the book you put
together, ``One Nation Under Arrest,'' really eye-opening. And
I mentioned before, it makes Kafka's novels look tame compared
to what we have done to people, all the uncertainty.
I look at a law like this that has so grievously, adversely
affected Mr. Schoenwetter. When you include language in a law
that says ``in violation of any law or regulation of any State
or in violation of any foreign law,'' we just embraced every
foreign law in every country? I know this was passed before I
ever got to Congress, but I bet there is language in some that
have been passed more recently that include broad language like
that, but we have no business embracing all foreign laws.
And I would tend to think that one of the solutions, from
hearing our panelists, the testimony, is that I am not sure
that we should have any law that is punishable by incarceration
that is not made a law by the legislative body. Leaving that to
regulators that are unelected, some of them are unappointed--
they are certainly unconfirmed, they are just unaccountable--
out there passing regulations as they see fit, heck, they may
have even come up with the regulation that says you can't park
a snowmobile under a tree for all we know. But if it is serious
enough to take away someone's freedom, then it ought to be
serious enough to come before Congress.
And then, of course, the criminal intent issue, to require
that where there is no mention that there has to be some
criminal intent. These statutes that captured the acts of Mr.
Schoenwetter and Mr. Unser, there appears to be a knowing
requirement--not knowing of any violation, but knowing that you
are on a snowmobile or knowing that you are purchasing
lobsters, and I am not sure how much sense that made. I would
have thought perhaps that lobsters would be safer and cleaner
in a plastic bag instead of cardboard. Who knew? But anyway, it
just seems like if it is important enough to take away
somebody's freedom, it ought to come from the legislative
branch.
Chairman Conyers, I know that you and Chairman Scott have
both made a great deal of effort over the last 3\1/2\ years to
do oversight, but there is just so much to do. I think you did
better, perhaps, than we did my first couple of years here, but
I appreciate your efforts in that regard. But we can see there
is just so much area that needs oversight. We better clean up
the laws so that it is not quite so broad in the areas of
abuse, so that there is not as much discretion as Professor
Smith points out has created some of the problems.
But I appreciate former Attorney General Ed Meese's efforts
in trying to push this and bringing this to the forefront. And
regardless, you never know how politics is, whether Democrats
or Republicans are in the majority after this, it doesn't
matter, this is so serious. We are talking about people's
freedom and the way it adversely affects people's faith in
their government, or lack thereof. We have got to get this
cleaned up. Thank you very much for helping us bring this to
the front.
Mr. Schoenwetter. Chairman Scott, can I make a remark in
regard to something Judge Gohmert said?
Mr. Scott. Yes.
Mr. Schoenwetter. You talk about the Lacey Act. What
happened with us was--and this is to the best of my
recollection--the Lacey Act was rewritten. The original Lacey
Act said ``any foreign law or regulation.'' The rewriting of it
said ``any foreign law.'' So we objected on the grounds that we
were accused of violating regulations. It was semantics, of
course. But the judge found that it was the intent of Congress
to add ``regulations'' into that; that they just forgot to do
it.
So actually, I think I spent--I was sentenced to 8 years in
prison because Congress intended to put in ``regulations'' but
decided it just was understood.
Mr. Gohmert. So when I talked in terms of us allowing
Federal unelected, unaccountable bureaucrats to make
regulations that capture people, heaven knows how those
regulator-makers in other countries were doing that. It sounds
like in Honduras they certainly disagreed with our government's
approach to their own laws. So I appreciate that point.
Thanks, Chairman.
Mr. Schoenwetter. Thank you, Judge Gohmert.
Mr. Scott. I just have one last question for Professor
Podgor.
Would one short bill be sufficient to create a default of
mens rea?
Ms. Podgor. I think so. It is one provision within the
Model Penal Code, so I see no reason why it couldn't be
accomplished with one short bill.
Mr. Scott. I thank all of our witnesses for your testimony.
Without objection, the joint report ``Without Intent, How
Congress Is Eroding the Criminal Intent Requirement in Federal
Law'' by the Heritage Foundation and National Association of
Criminal Defense Lawyers will be included in the record.
The memo, ``Enacting Principled, Nonpartisan Criminal-Law
Reform, A Memo to President-elect Obama'' by Brian Walsh will
also be included in the record.
The hearing record will remain open for 1 week for
submission of additional materials. We may have written
questions for you. If you would respond to them, if they are
sent to you, as promptly as possible so your answers can be
made part of the record.
Without objection, the Subcommittee stands adjourned. Thank
you very much.
[Whereupon, at 5:06 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record