per decade this despite the fact that the federal government lacks a general police power as a springboard now back in nineteen zero three champion vs aims quote to hold the congress as general police power would be to hold  accomplish objects not intrusted to the general government and to defeat the operation of the tenth amendment declaring that the powers not delegated to the united states by the constitution nor prohibited prohibited by it to the states are reserved to the states respectively or to the people the congress is continuous and acting on of new federal crimes has systematically overturn this principle securing a de facto federal police power under which virtually all criminal conduct can be fagged or federally regulated and many of these laws overlap with existing state laws and blur the lines between traditional federal and state jurisdiction part of this trend towards  criminalization is the growing expectation that congress is the arbiter of criminal conduct unfortunately congress has responded to this pressure with zeal often legislating in a vacuum with little regard for existing laws or the tenets of proper criminal statutes the result is a labyrinth of federal criminal laws scattered throughout many of the fifty titles of the us code the current code is riddled with laws that are outdated redundant or inconsistent with other provisions in the code is meant over fifty years since the criminal code was last revised our colleague mr sensenbrenner is co sponsoring legislation to simplify modernize the criminal code which would cut over one third of the existing criminal code eliminate competing or duplicative definitions and consolidate the criminal offenses all in the title eighteen such a rewrite will be determined this undertaking but one that would be invaluable to both practitioners and members of congress fortunately many of the new laws enacted by congress are not targeting what we consider to be criminal conduct such as homicide or bug away many of these laws impose criminal penalties often felony penalties for violations of federal regulations but there is a significant element missing from many of these provisions criminal intent s may not have thought much about the mens rea requirement since our law school days but there's a cornerstone of criminal law and it's eroding as regular regulatory crimes are being prosecuted under reduced or even nonexistent knowingly gauges in conduct that results in a permanent violation under the clean water act regardless of whether the polluter is cognizant of the requirements or even the existence of the permit clean water act has also been interpreted to allow a construction supervisor to be sentenced to six months imprisonment after one of his employees accidentally ruptured and or pop line with a backhoe and  land owner was convicted only calling water act for moving sand onto his property without a federal permit today we're going about two individuals with first hand in from experience with this phenomenon mr was sentenced to twenty one months in federal prison for illegally transporting chemicals to a storage facility a half mile from his home in idaho mr george norris who is joined today by his wife kathy  attorney general of the united states under presidents reagan and george h w bush and undersecretary general for the united nations during a public service career which spanned more than twenty five years as currently counsel with international law firm  nking member for giving me the opportunity to speak with you about this important topic i've served on both sides of the federal criminal aisle as a federal prosecutor for many years and currently as a defense attorney involved proceedings adverse to the department of justice i believe i have a balanced view before this subcommittee and hope i can provide some insight and suggest some ideas to deal with the current phenomenon over criminalization those  concerned about this subject share a common goal have criminal statutes that punish actual criminal acts and do not seek to criminalize conduct that is better dealt with by the seeking of regular regulatory and civil the criminal sanction is a unique one in american law and the stigma public condemnation and potential deprivation of liberty that go along with that sanction demand that it should be utilized only when specific mental states and behaviors are present make no mistake when individuals commit crimes they should be held responsible and punished accordingly the line has become blurred however on what constitutes a crime particularly in corporate criminals and this line needs to be redrawn require five enforcement reality is that the congress has effectively delegated some of its most important authority to regulate crime in this country to federal prosecutors who are given an immense amount of latitude and discretion to construe federal crimes and not always with the clearest motives or intention of striking example of this is the honest services mail and wire fraud statute justice scalia observed that the state of the law for honest services fraud was chaos and stated the practical reality of the statute as currently applied in a recent supreme court case and i'm quoting justice said without some coherent limiting principle to define what the intangible right of honest services whence it arrives and how it is violated this expansive phrase invites abuse by headline grabbing prosecutors in pursuit of local officials state legislators and corporate c e o s who engage in any manner of unappealing or ethically questionable conduct since one thousand nine corporations have routinely been held criminally liable by the act for the acts of its employees under the doctrine of respond that spirit in recent history one of the more significant cases is arthur andersen case in which this committee is no doubt aware in which a business entity received effectively a death sentence based on the acts of isolated employees over a limited period of time a political cartoon that was published after the supreme court reversed the company's conviction showed a man in a judicial ro standing by the tombstone of arthur andersen who simply sorry that apology didn't put the tens of thousands of partners in employees of that firm back to work simply cannot be repeated and reform is needed to make sure there are no future abuses of this sort what can be done to curb future first i have added advocated for many years that we adopted a true federal criminal code in place of the current hodgepodge of some forty four hundred fifty separate enactments with no coherent sense of organization there is a template in existence the model penal code that can act as a sensible start to an organized criminal code and which is for the basis for many efforts to establish state criminal codes of this country what is needed is a clear integrated compendium of the totality of the federal criminal law combining general provisions all serious forms of  offenses and closely related administrative provisions into an orderly structure which would be short of a true federal criminal code i suggested a commission should be constituted perhaps a connection with senator web national criminal justice commission act to review the federal criminal code collect all similar criminal offenses in a single chapter of the united states code consolidate overlapping provisions revise those with unclear or unstated mens rea or requirements and consider over criminalization this is not a new idea congress has tried in the past to reform the federal criminal code most notably the efforts of the brown commission hundred seventy one legislative initiatives based on that commission's work in which i participated and then assistant attorney general in the criminal division failed despite widespread recognition of their work i suggest that it is incumbent on the congress to make sense out of our laws to make sure that average ordinary citizens can be familiar with what conduct actually constitutes a crime in this country second congress needs to rein in the continuing proliferation of criminal regulatory offense regulatory agencies routinely promulgate rules that impose criminal penalties that are not in acted by congress in decriminalization of new regulatory provisions that become seemingly mechanical one estimate is that there are a staggering three hundred thousand criminal regulatory offenses created by without congressional review of which you will hear about today this tendency together with a lack of any congressional requirement that legislation passed through the judiciary committee those of you who are responsible for keeping an eye on the rationality of traditional criminal offenses has led to an evolution of a new and troublesome catalogue of criminal offenses congress should not delegate such an important function to in this area one solution that are renowned expert and former colleague from the department of justice ronald gaynor was with us here today as advocate is to an active general set you provide a good minister a procedures and sanctions for all regulatory breaches that would be accompanied by a general provision removing all criminal penalties from regulatory violations notwithstanding the language of the regulatory statutes except in two instance first exception when couples conduct involving significant harm to persons property interests and institutions designed to protect persons and property and so interest the traditional reach of the criminal law the second exception would permit criminal prosecution not for breach of the remaining regulatory provisions but for a pattern of intentional repeated breaches this relatively simple reform could provide a much sounder foundation for the american approach to regulatory crime than previously has existed third and finally congress should also reconsider whether it's time to address whether responded appear your should be the standard for holding companies criminally responsible for acts of its employees as this committee is certainly aware the department of justice has been troubled by this issue and has issued a succession of memoranda from deputies attorney general during the last decade addressing critical issues regarding charging corporations particularly regarding the protection of the attorney client privilege the current guidelines may not be sufficient because they continue to vest and then accept the amount of  discretion in federal prosecutors a law in short is needed to ensure uniformity in this critical area so that the guidelines of standards do not continue to change the rate of four times every ten years indeed if an employee was truly a rogue or acting in violation of corporate policies and procedures congress can protect a well intentioned and otherwise law abiding corporate by acting a lot of individual rather than the corporation responsible for the criminal securing unanimous house passage of the attorney client privilege act of two thousand and seven in november of that year the privilege is one that goes back in time and the preservation of that privilege is something about which i expressed concern for many years your recognition of the issue and your legislation to stop coercive waivers and overreaching to gain access to privileged communications is precisely the type of legislation to protect intellectually honest those acts that are not criminal should be countered with several or administrative penalties to ensure that crew true criminality retains its importance and value in the legal system thank you  markup without objection will be contenders read in open to the members at any point on may twenty first a subcommittee held a hearing on legislation that's been introduced in the hundred eleventh congress to address the disparities in federal sentencing for thank you mr chairman i appreciate the invitation to appear here today before i get to the subject of mens rea and criminal intent let me start off by explaining my general approach to the criminal law my analysis of these issues begins with three facts that i think it's important to keep in mind at all times times first the power wielded by police and prosecutors is truly a mess we have to remember that all it takes is one raid on a home or business one high profile arrest or a single indictment announced before the teak t v cameras on the courthouse steps in a person's life can be forever changed reputation gone job gone friends gone and that's before you even get the opportunity to go into court to mount a defense these things have already happened your life has already been altered second as attorney general  mentioned the term criminal carries a stigma the term implies that the culprit has done something that is blameworthy now that most definitely is usually the case with the term should not be twisted so as to apply in cases where there is no blame where the choice criminality should be a situation where there's a clear line between lawful conduct and unlawful conduct and the person crossed over that line knowing what he or she was doing third the constitution contains many provisions that restrict the application of the criminal law it restricts the power to search it restricts excessive fines it sets forth certain procedures about notification of charges sets forth procedures for jury trial speedy trial the right to confront witnesses and so forth these safeguards amount to very little if the government can create very expansive theories of criminal liability that essentially obliterate traditional legal defenses such as the ability to go into court to argue that you were doing something in good faith if we're serious about maintaining constitutional safeguards we have to keep a close eye on how the government creates and defines criminal offens now with that background in mind i want to briefly pinpoint the areas of our law where the problems of mens rea and criminal and and our especially acute first everybody here has heard of the old legal maxim that ignorance of the law is no excuse mr chairman with the shelves and shelves of law books that are and can be found in libraries across the country this doctrine no longer makes any sense even attorneys like us it's impossible for us to keep up with the law these days so it's an old doctrine that no longer makes any sense and the result of keeping this old doctrine on the law results in unjust prosecutions my written testimony highlights the case of one carlton wilson mr wilson purchased a firearm it was a perfectly lawful purchase but years later when he was in divorce proceedings a judge issued a restraining order and nobody informed mr wilson that he had a legal obligation once the restraining order was issued that he had to surrender his firearm the judge didn't tell him his it own attorney didn't tell him and the terms of the restraining order itself didn't say you had to turn in your firearm mr wilson got caught up in a federal indictment and is serving three years in a federal probe prison for violating a law that he had no reason to know about and the federal prosecutors just shrugged and said well ignorance of the law is no excuse it's time to discard this whole doctrine by requiring prosecutors to prove that regulatory violations like this were willful and again in my written testimony i show that this case against mr wilson was not just an aberration a case where one prosecutor exercised poor judgment there are many other cases like this and again that's in my written testimony another problem area concerns the area of the criminal statutes in the situations where a particular law is brought to our attention we still need to be able to understand the terms of that statute we should be able to find that bright line between the conduct that is lawful and the conduct that is unlawful in my written testimony and i do the committee to a situation where the e p a created a special hotline for the research resource conservation and recovery act they set up a special hotline to field questions because they were getting lots of inquiries from people they wanted to know how that law applied in different situations but there was a catch the e p a said that they could not guarantee that the information given over this hotline would be correct and prosecutors made it known that reliance on incorrect information would not be a defense in an enforcement action no congress should disavow situations like this where ordinary citizens are relying on the government for guidance on what conduct is lawful and unlawful another thing congress can do in this area is direct the courts to follow the rule of lenity rule of lenity you may recall basically says that when something a statute is ambiguous you give the benefit of the doubt to the defendant not to the government because you're growing mentioned we'll you know we're going back to law schools to review some of these concepts you might recall that in contracts when a contract to a provision was ambiguous you would resolve that against the person who drafted the contract so the rule of lenity is basically the same idea when a criminal law is in big us you give the benefit of the doubt to the citizen not to the prosecutors and the government congress should also revisit the most expansive theories of criminal liability that of prepped into our law under theories of strict liability and vicarious liability persons can be labeled criminals but the defendants are barred from bringing in the extenuating circumstances of their cases to bring these to the attention of juries that's because prosecutors and judges will make it clear even before the trial begins that facts such as extenuating circumstances are somebody acting in good faith these factors are irrelevant in a strict liability case now let me provide you with one example to show you how this can produce an injustice my written testimony highlights the case of one dane your kosky he is now serving a fifteen year mandatory minimum sentence and according to the reported decision in the case here are the circumstances of his crime he was re room where he was living and he found a bullet as he was pulling up the carpet he took the bullet and put it in a box on top of his dresser months later he got into a dispute with one of his with his ex girlfriend about some property that she said she had should not have taken so he led a police detective into his room to show that he didn't have the property that she was talking about but as the detective was walking around the room he discovered this bullet and suddenly this man your kosky found himself caught up in a federal indictment for possession of illegal ammunition he could not bring his innocent intentions or the extenuating circumstances of this case to the attention of the jury because it wouldn't make any difference if you're a felon he was you know he's served his time is coming back trying to reestablish himself into the community and under the law is very strict if you're a felon can possess illegal ammunition and he can bring the extenuating circumstances of this case to the to the attention of the jury they just said it was there was it was irrelevant mr chairman i have more examples and could go into and i go into more detail in my written testimony but let me quickly conclude by affirming what mr gohmert and what mr thornburgh said earlier the federal criminal code is presently a mess at a minimum i think congress should take at a minimum take the following steps discard the old rule that ignorance of the laws no excuse doesn't make any sense anymore second congress should establish the rule of lenity into our law right now the courts are applying this  sometimes there's a favorable decision where they're applying the rule of lenity but it's not applied uniformly in all federal criminal cases and that's something congress can change by enacting a law third congress can abolish these most expansive theories of criminal liability paperwork violation it's not just the so called criminals suffer it's the family as well on october the twenty eighth two thousand and three our home was raided by federal agents i was at work and one of my neighbors called and said what's going on at your house and what do you mean and she said well there's a guy out in the street any stopping by asking what what we five minutes of talking with him to get him to let me speak with my husband who was told to sit in the kitchen chair was not allowed to move out of it it went on for about four hours they ransacked our house we had no clue what this was about why they were there and when i ali talked to my husband who was sitting there and was frightened and he was confused and  that wanted to hybridize were kids and new kinds of and you know all orchids are covered by the convention on international trade in endangered species even though they're not endangered there they fall under that convention and that makes life working with the societies can really delicate because you never know when you're on track off track on the right page or off the right page and as we eventually found out george and our supplier from peru manwell that the federal government wanted to make an example of someone in the orchid community and they chose to work we're just sitting over there in a blue shirt we've been through this together all the time and i wanted him here with me  our lives have never been the same and they won't ever be the same we had to fly to miami because we weren't given a change of venue my understanding is that normally when there's a crime and it seemed in one place that they give you a change of venue to closer to where you live which would have saved us a lot of money in flying back and forth to miami it would have given us a chance to find an attorney in a place where we actually hired a lawyer and we spent a lot of money traveling back and forth the hearing most of the time we had for three or four days notice so all of our flight time was that full so you're reduced  and then it became apparent that we needed to find a more expert lawyer and we found one but unfortunately he was monumentally out of our ability  in prison and i got told that if i wanted him to be insurable after he got out of prison i had to pay his medicare premiums he was in prison so we had that on top of everything else he had to have some money in prison so i had to send him a little bit buy things at the commissary like paper and stamps and some food to but he could actually  and this was done on my salary honey mediation center you know it it's one thing to lose your life savings when you're forty but when you're sixty and sixty five it's really tough because you don't have any years to go back and rebuild so now we're kind of stuck with no money and a felon for a husband and there was a ton of grieving through all this for me and for our children and grandchildren the younger grandchildren were just told papa george was traveling and the older kids knew what was going on and they went through their own  we kept wondering about his treatment in prison we weren't getting normal treatment from his doctors here and he would tell me what was going on symptomatically and i would call his the doctor and suggest those things the doctor would say oh that's a good idea well about three or four months after george was released from prison the doctor was taken out in shackles because it turns out he wasn't a doctor job to do what i could for the kids and grandkids out of this georgian prison and by the time i got all that done there really a whole lot of time for anything else and now going on for looking over our shoulder waiting for the other shoe to drop wondering what will happen next there was some real concern to come and testify here about were we painting a bull's eye on is that there would there be retaliation again from the department of justice and we were assured that it probably wouldn't that the level of paranoia i would never thought  i'll do it very quickly i was raised in a county in a country that was why i grew up in a good part of dallas i didn't know anybody that ever been arrested or put in jail neither had and so there's no way there's no way to get there's no way to retrench i also want to tell you how much i appreciate the opportunity to talk here it's been a long time arkansas i worked on my invention in my mother's kharaj and it was my american dream and to my dream and hard work turned into a prison term for doing something that no one would dream would be a crime please excuse me if i stutter a bit but i have suffered that all my life but being here is more important to me and not stuttering i know i am and i try to be in an inventor and turn it on since i was a kid in high school i won the science errors at my high school that might help for me to school and high school every year and news but they were expensive so i was working on a new way to make a chemical called hoti i'm a hybrid that could be used to power fuel cells and that's much more safe t other ways of making the hydrogen that you need to run the bill self in two thousand ice hearted that company to protect my invention i spent all my time working on it but the cool or my american dream about inventing turned into a nightmare two black s u v s pushed my car off the road federal age by playing instead of a simple penalty for an innocent mistake which i at the time the government prosecuted me the prosecutors pushed me to plead guilty but i always used to plead guilty because i knew i was innocent but it didn't end there while i wasn't trail on the box label charge ripped open my storage tanks to clear everything inside them to be toxic waste and threw everything away spent almost a half a million dollars to twenty everything i'd worked on for almost two years nobody told me about what was happening when the or asked me what about the tanks and they just went ahead and did everything after i was acquitted by a jury on the on the label charges the government charges four storey was waste my what materials were extremely valuable and worth a lot of money why would i abandon materials i paid for them and intended to return to work on my invention and they weren't houses the times were sealed tight nothing ever leaked no person was ever put in harm's way there was no risk to the firemen so i pled not guilty again because i knew i wasn't guilty and by pled guilty i would be lying i had not abandoned my charles but the judge said that the government didn't have to prove that mine were to materials warehouse waste there was enough the p d p a test so no one could defend himself against  charges so i was convicted and i served eighteen months in federal prison now i'm in a halfway house and will be released in about in about a week but i will always be a felon i never want to be a felon unless the supreme court takes my case i will not regain my right to vote or serve on a jury to possibly help other innocent people and i lose in other rights i was working on fuel cells trying to improve the environment i am an american better and a law abiding citizen for percy knew my dream i wound up in prison prison my story proves that these things can happen to anyone there are too many laws that put ordinary well many americans risk of criminal prosecution a conviction and all saying comes to mind one man's trash is another man's treasure i had treasure on m and the e p a said it was trash and so i lost my treasure and that's why i am testifying today congress please protect our american treasure and our american freedom thank you again mr chairman thank you thank you chairman ranking member gober members of the committee thank you for having me here today i represent the american bar association at the request of tommy wells the president and in my written statement you'll see i describe along with the other members of the panel how we came to be where we are with two point three million americans confined to jail or prison on any given day one quarter of the earth's prison population in the land of the free and home of the brave  i was asked to talk about mandatory minimum sentences and how they contribute to over criminalization and actually over populating our jails and prisons so i want to do that but i also would like to say that i had the privilege of serving as deputy assistant attorney general and general thornburgh named to me as ex officio representative to united states sentencing commission and although it's not part of my testimony today i can say this it didn't matter whether you're republican or a democrat when he was attorney general these things if they come to his attention would never happen there was a time when people understood what serious crime was and what a pity prosecution was that should never be dishonored by the federal government it's heartbreaking to hear this  stories but all too true mandatory minimum sentences in their own way are heartbreaking why do we have them we have them because there was a time in the mid one nine hundred eighty s particular one thousand nine hundred six where members of congress believe that at least some federal judges were sentencing criminal defendants too lightly and that at the time there was no appellate review of sentencing there was nothing that could be done if the judge gave a defendant probation or a light sentence and so we ended up with the drug control act which gave us our first drug mandatory minimum sentences and the end result as i discovered when i was a sentencing commissioner was that all of the sentences that we prescribed were driven upward much higher than past practice because of having to deal with mandatory minimums that is in order to great offenses and treat more serious offenses with a higher punishment commission had to take into sentencing discretion away from judges and gives them to prosecutors who often are younger and have much less experience that's number one number two that has dramatically racially disparate impact on the system particularly with respect to the crack cocaine mandatory minimum which this committee is well aware of given the vote it just took on the bill that we heard about number three the sentencing commission in one thousand nine hundred one said when you have mandatory minimums it's like driving a car up to a cliff if you don't go over the your fine judges have discretion the moment your tire goes over you're down and the mandatory minimum kicks in and it's a sentence that may have absolutely no bearing with respect to culpability versus the person who's tires stop short it is arbitrary it produces sentences that are too long and how do i know that for this reason if a sentencing judge says two years five years ten years fifteen years the mandatory minimums we've heard about are not necessary in a case today if we judge didn't have these mandatory minimum and the judge gave a lower sentence united states could appeal we now have a system which has other defects that the committee might want to take up at another time but we have a system of controlled discretion the sentencing guidelines tell judges where they need to start now they're advisory no longer mandatory but they provide a starting point and judges are required to consider the guidelines and to calculate a guideline sentence before finally determining what the sentence would be we have appellate review at the behest of both the government and the defendant and that is no trial judge whether he or she is too severe or in the eyes of a congress too lenient the trial judges a law unto himself or herself any longer so we do not need mandatory minimum sentences they drive up the prison population in two ways and both of these ways are necessary first people go to prison who might not go and all that is a trial judge but for the mandatory minimum might conclude that someone could go to jail and probation could someone could be put on probation secondly the trial judge you might impose a sentence of a year of may have to impose a five year sentence and so the individual serves five times the sentence that the judge believes is appropriate mandatory minimum sentences may have been something that reasonable congressman would have thought were necessary at a time when there was no check when you digital discretion we have a check we have structure we have balance and still we have mandatory minimum sentences at a time that we don't they are not necessary to then for one reason or another which i'm sure congress men and women can identify quickly with gets criminalized on the federal side that presents serious problems in th system that we have a dual system that's quite delicate and important governmental would be very difficult i think to explain to the average citizen we put aside crimes involving real federal  international if we put them aside it would be very difficult i think to explain to the average citizen today whether we would ever initially set up a system that made the same court conduct criminal under two sets of  prohibitions in the same statute books which statute books next to each other particularly because those two prohibitions as do the state and duplicative federal statutes particular because they have serious consequences that are disparate one of them is that the federal statutes tend to be much more severe in terms of penalty which is why many cases are brought they  the cases into federal courts state courts they give a different jury pool than the state do they kick in different rules of evidence different all sorts of different consequences and they take the defendants out of the system and put them into federal jail underscore of course that the stupid cation doesn't mean either or it can be both that is you can be prosecuted under our double jeopardy interpretations for both of those compounding the sentences and the time that system the system however even though we went initially think that up that is grown more and more common under our present such work of accumulating federal number of people preferred today the large numbers of federal offenses that exist there are many of us who think it's not possible to count them there are so many of them the accumulation of them i think is well known to this comm has come about in just the last decade any crime legislation is popular i certainly don't need to suggest to the committee the pressures on the committee and on congress to vote that some conduct that isn't desirable should be criminalized and many people somehow make the leap from that that if it's not desirable should be criminalized that it also should be criminalized under federal law it's hard to vote against crime legislation i realize but the principled assessment of whether there is a federal need to in the statement and whether the activities which we can condemn very often ought to be made federal is a really serious question it's a serious question because i think there is a temptation to think that voting yes on a federal crime bill is in many ways cost free and i think is the  it's troubling in its own way because it kicks in lots of consequences there are cost consequences they end up in federal jail many defendants there are certain consequences in terms of the rights and privileges you would get in the process there are disparities in sentencing as you hear there also a major consequences to our federal state governmental system in the initial set up of the country looked to me like there were seventeen central crimes they were very site oriented in some respects but governmental federal function oriented that's no longer true so a lot of these cases that end up in federal court sound of the federal judges i  deciding them pushing other civil cases to the back or other truly federal interest cases as well i should close if i can by saying that  the task force i think is a den of fide a worthwhile notion in saying that in the important debate about how to curb crime it's critical that the crucial that the american justice system not be harmed in the process it's very important process in the in the end the ultimate safeguard for maintaining the constitutional system must be principle the principle of recognition by congress of the long range damage to real crime control and to the nation structure caused by inappropriate federalization so i add my voice to the list of the chairman then a five as a real need to pay attention to whether there really is some subjects criminal sanctions they were just terrible and not criminal would there be sufficient deterrent to people who might think of violating the regulatory regulatory rules i think the  suggestion that i referred to that made by mr gainer would address that in terms of separating those regulatory violations that were of sufficient gravity to justify a criminal penalty and i would remind the committee that that would encompass those that were posing a real threat to persons injury or other kinds of afflictions property interests and institutions designed to protect persons and property interests number one and secondly a regulatory violation would qualify for criminal prosecution if there were a pattern of repeated no breaches of the regulation in question otherwise i think when you when you  characteristics of a regulatory violation you're left with a regulatory violation and whether it be a deterrent capability by having so and be subject to a fine or a regular  administrative penalty you would not impose the direct county and type of hardship that's been described by the witnesses who appeared today thank you and you recommended the creation of a review panel or a commission to review the federal criminal code how feasible is this what happened the last time that was tried i'm a dreamer mr chairman i've been through this drill for now probably thirty years going back to my time in the criminal division and we got just that close with the brown commission legislation and the bill identified as s one for a number of reasons having very little to do with the merits it fell short i still look for someone with the courage and the tenacity to come out of this congress and tackle this important task because i think if we don't engage the problem of this rolling mass of statutes layered one on an other over a period of years we will eventually cause an erosion in the credibility of the criminal  altogether and again i would refer to the poignant tales that you've heard today from individuals who were but up in the system when you have duplications overlap when you have ill defined terms  when you have no need to reconcile individual criminal legislation with the overall goals for example of the judiciary committees in both houses who are schools an expert in those things then you get the current i can't think of appropriately strong words that character i'll be gentle and say mishmash of what we have in the criminal law today maybe i'm not realistic maybe that's not going to happen but we've faced up to these kinds of things i remember when i was a law student in pennsylvania we studied the uniform commercial code except we were remind was uniform only in pennsylvania now it is uniform throughout the united states and somebody had the wisdom of the two assay in the back in the american law institute which constituted for that to have a code that makes sense that doesn't promote the kind of disparity on the commercial side that we see on the criminal side so i think that it's a worthy cause for someone young enough and tough enough to take on and i observe in the leadership i hope i hope so i think it is genuine source of concern doesn't make headlines at the top of the six o'clock news news but for those of us who practice in the criminal courts it would it would be a tonic for practice and attract i think people more people in that area thank you and festus ellsberg i'm going to take you up on your invitation mr chairman i apologize for having to leave but i didn't i didn't take account of the fact that sex between a nineteen year old high school student and a fifteen year old high school student is the same code section that deals with a forty year old having sex with a thirteen year old what is wrong with the mandatory minimum being totally focused on the offense and in the case you do that you are the state you describe a judge ought to be able to consider the circumstances and whether or not there's grave abuse or not and similarly in a drug case we've got addicts who've distributed drugs serious problem in the states now state prosecutors have taken to drug treatment as an alternative seven times less expensive i should say one seventh of the cost of good programs work it can't be done in the federal system where the judge has to impose a mandatory minimum sentence and if i might add just one point in response to the question you asked my former attorney general and that is whether it can be done reform of the federal criminal code is one thing that we have today that didn't exist at the time of the brown commission didn't exist when this one was proposed or sort of as want as we call it and that is the sentencing commission has already graded federal offense the sentencing guidelines while there are problems with them the guidelines serve as a basically a formula to figure out how to reform the federal criminal code they've group defenses they say these are the offenses that are start with the guidelines not necessarily the penalties that are associated with them at the current time but start with them and i think you could get that done much more easily than thirty years ago and i will stay one thing one of the comments has been made is that we have the federal law it's not done a good job distinguishing between what should be a civil penalty and what should be a criminal penalty and it's something my first two years here when my party was in the majority didn't approve and had words with some of our leadership who were wanting to criminalize what should have been a civil penalty and it just seems like that we could do ourselves a great favor if we would make that distinction so that you don't have people understand it there are a number of federal agencies that may not have police but they want them they want the flexible ribbons they want the lights they want the guns they want the people down to the ground and it  certainly seems that something way out to avoid a march variance with f b i agents back in texas was a display of more professionalism than what we were hearing and i was concerned that perhaps it was a different agency that know nobody tell me that you've been asked that already i just didn't know i couldn't shooting but anyway so it creates special problems if you completely discard that rule because it was a reason for  how do we get around every defendant coming in and saying i don't know how it's supposed to write this girl thank you for asking the question because it's a common thing that comes up to say people will start feigning ignorance and we'll have all sorts of problems but we already have a very good model i mean i don't want start i mean i've already experienced that it's an ongoing fight about i've heard the complaint by prosecutors and other judges before that we can't discard the rule but i think we've got a very good model already it with our tax laws the tax laws are very complicated complicated for lay people to understand so we know we know some people want to evade taxes and we also know other people are trying to work their way through the tax code and do it honestly but they make lots of mistakes we've got that wilfulness requirement for our tax laws where basically the prosecutors have to prove that it was a willful violation in order for them to prove that the person you know is a real tax evader that needs to go to jail so the tax money is continuing to flow to washington tax evaders continue to go to jail and i think we should expand this model beyond our tax code which is very complicated for lay people lawyers and understand to all the other complicated rules we have on the books i think it's working in the tax code and i think that's strong evidence that it will work in other areas as well that the real culprits prosecutors will be able to gather evidence and send them to prison but the people who are trying to struggle and understand regulations they will not be swept up in federal having tried cases in federal court and in state court and having been a judge i can tell you preferred the requirements of the texas state judges in that we thirty two forty five which to you is on the numbers but has to do live evening or recognizing that disparities between crack cocaine is also even though those are certainly not offens should have been able to make the community argument under circumstances of his arrest and an ultimate prosecution so i am asserting my position on h r thirty two forty five by asking you questions that pertain to your particular dilemma ms norris what was the exact of sense that your husband was ultimately indicted for there was an indictment  i have to be honest with you there were seven counts and i do i merely came by the time we got through it it came down to a customs violation  as i understand it the final judgment was that he had falsified a customs document and he was bringing in the writ what he was bringing in it was here in forgive me was here storekeeper that had items or  but i didn't think i got that's even more so it was a document he received it had been written on by someone else mr everson likewise to frame what your be houser this way and you didn't dispose of it no let me move to press the salzburg what do you think of those two cases i think they illustrate about as well as you can illustrate the overreach of federal criminal law it is necessary to regulate customs forms but isn't it makes no sense to punish people criminally for a mistake and so what we're seeing is several factors that we just as of talked about the absence of a mentor a requirement in some of these that you have the basically the use of the criminal civil sanction would do just as well and one thing that you can't regulate and that is the common sense of prosecutors these cases should have been prosecuted if they didn't have to bring a criminal prosecution but every once in a while i mean if somebody decides they want to send a message to orchid growers i mean of all the things in this country we need to worry about we need to worry about the disparities between crack cocaine and powder cocaine where places i live nobody's running when i'm talking about send a message door to growers or send a message  to what seemed to be a harmless them in my time and let me just finish this point about you said i think the exact right thing for the wreckage where's the judgment and where's the common sense and i think the other point of it is  even though tomorrow someone may have a valid new bill for a valid criminal offense i don't think this hearing should be stifling that kind of cerebral thought but i believe what you the between civil and criminal we need to get a handle around it and i will end by saying this cowboy and i love cowboys approach to civilians with guns and blacked jackets and all  wire cutters in your saddlebags will get you in jail because the cattle industry did more to bob wire being cut off but i say that to my philosophy is we have too many federal crimes we start out piracy that was the number one but i think crime prosecuted in this country and now we have four thousand four hundred fifty with fifty more every year so many federal crimes that many of them are never prosecuted because they just  it just seems to me that we first have to have a way to look at those four thousand four hundred fifty crimes and started eliminate them or categorize or come up with a system that the bad guys need to lock them up throw the key away and these other federal judges you cannot make a bad judge be a good judge by regulating punishment you have to come up with a good judge that's what the senate hearings are all about and you get a bad judge yet to figure out how to get rid of but they need more discretion to do the right thing in punishment and not have to put somebody in jail for growing flowers or bringing a man just because the law makes that's not justice that's injustice miss norris in your husband's case if you have even been convicted out ahead and provide a community garden in the neighborhood and grow food for some people in the neighborhood you're familiar with some of those things i did when i was a judge on the same thing right now i want to well you know i just seems like that's what judges ought to have the discretion for doing if you ever end up in the criminals in the criminal justice system and i certainly think we ought to have a man's  and and it it's it's time i think that we recognise that judges are the enemy that that there is a sense for awhile that somehow congress was here and judges were there and actually turns out what everybody agrees on with what you say everybody i talk to and i cheer the kennedy commission i went to texas i talked to prosecutors there the state prosecutors all said the same thing people who commit serious crimes should do serious time but what we've learned is not everybody needs to get locked up re evaluate what we ought to do to folks that violate all these dastardly deeds and maybe civil penalties or certainly be something that we require and maybe there for to state court because under our theory the way this country set up states are