[House Hearing, 111 Congress]
[From the U.S. Government Printing Office]




                               BEFORE THE

                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES


                             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

58-476 PDF                WASHINGTON : 2010
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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
  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
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California

            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

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

                      Bobby Vassar, Chief Counsel

                    Caroline Lynch, Minority Counsel

                            C O N T E N T S


                           SEPTEMBER 28, 2010


                           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


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, 
  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, 
  Oral Testimony.................................................    86
  Prepared Statement.............................................    88
Mr. Andrew Weissmann, Partner, Jenner & Block, LLP, New York, NY
  Oral Testimony.................................................    95
  Prepared Statement.............................................    98


Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Chairman, Committee on the Judiciary...........................     6


Material Submitted for the Hearing Record........................   115



                      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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Mr. Lavine.


    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 
    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 
    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 
    Thank you.
    [The prepared statement of Mr. Lavine follows:]
                  Prepared Statement of Jim E. Lavine


    Mr. Scott. Thank you.
    Mr. Unser.


    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 
    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 
    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 
    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 
    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.


    Mr. Schoenwetter. How does that sound?
    Good afternoon. Thank you, Chairman Scott and Ranking 
Member Gohmert, for holding this hearing on 
    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 
    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 
    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 
    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



    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 
    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'' 
    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 
    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 
    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 
    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 
    Thank you again for inviting me to testify, and thank you 
for your principled, bipartisan stance against these 
    [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.


    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 
    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.

                          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 
    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 
    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 
    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.

               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 
    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 
    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 
    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 
    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. 
    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, 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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


               Material Submitted for the Hearing Record