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THE CRIMES ON THE BOOKS AND 

COMMITTEE JURISDICTION 

HEARING 

BEFORE THE

OVER-CRIMINALIZATION TASK FORCE OF 2014 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

JULY 25, 2014 

Serial No. 113–102 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

OVER-CRIMINALIZATION TASK FORCE OF 2014 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

LOUIE GOHMERT, Texas, Vice-Chairman 

SPENCER BACHUS, Alabama 

RAU ́ L LABRADOR, Idaho 

GEORGE HOLDING, North Carolina 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

JERROLD NADLER, New York 

STEVE COHEN, Tennessee 

KAREN BASS, California 

HAKEEM JEFFRIES, New York 

CAROLINE LYNCH, Chief Counsel 
(III) 

C O N T E N T S 

JULY 25, 2014 

Page 

OPENING STATEMENTS 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Chairman, Over-Criminalization Task 

Force of 2014 ........................................................................................................ 1 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Ranking Member, Over-Criminalization Task 

Force of 2014 ........................................................................................................ 22 

WITNESSES 

John S. Baker, Jr., Ph.D., Visiting Professor, Georgetown Law School, Professor Emeritus, LSU Law School 

Oral Testimony ..................................................................................................... 26 

Prepared Statement ............................................................................................. 29 

Steven D. Benjamin, Immediate Past President of the National Association 

of Criminal Defense Lawyers (NACDL) 

Oral Testimony ..................................................................................................... 35 

Prepared Statement ............................................................................................. 37 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Chairman, OverCriminalization Task Force of 2014 ................................................................... 3 

Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Chairman, OverCriminalization Task Force of 2014 ................................................................... 24 

Prepared Statement of the Honorable Bob Goodlatte, a Representative in 

Congress from the State of Virginia, and Chairman, Committee on the 

Judiciary ............................................................................................................... 25 

(1) 

THE CRIMES ON THE BOOKS AND 

COMMITTEE JURISDICTION 

FRIDAY, JULY 25, 2014 

HOUSE OF REPRESENTATIVES

OVER-CRIMINALIZATION TASK FORCE OF 2014 

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Task Force met, pursuant to call, at 10:20 a.m., in room 

2237, Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Task Force) presiding. 

Present: Representatives Sensenbrenner, Bachus, Holding, Conyers, Scott, Johnson, and Jeffries. 

Staff Present: (Majority) Brian Northcutt, Counsel; Robert 

Parmiter, Counsel; Alicia Church, Clerk; (Minority) Ron LeGrand, 

Counsel; Veronica Chen, Counsel; and Veronica Eligan, Professional Staff Member. 

Mr. SENSENBRENNER. Committee on the Judiciary Over-Criminalization Task Force will be in order. We have to get this hearing 

in before the votes start between 11:30 and noon. 

Even though it is noticed for 10:30, I think the time for opening 

statements will burn up the time between now and 10:30. So we 

can get to the witnesses. 

I would like to welcome everyone to today’s hearing on the Judiciary Committee’s Over-criminalization Task Force. The tenth and 

final hearing will focus on the abundance of Federal criminal offenses on the books, and the role of the Judiciary Committee’s jurisdiction, or lack thereof, under House rules plays this issue. 

Over the past year, the Task Force has examined many important topics in this area, gained valuable perspective on the issues 

from a number of highly qualified witnesses, two of which rejoin us 

today for today’s hearing. 

I anticipate that they will be able to provide this body with 

meaningful insight into the subject of today’s hearing, and I appreciate their continued cooperation in the furtherance of the goals of 

the Task Force. 

Despite the fact that it is generally accepted that the Federal 

Government does not possess a general police power, recent studies 

have concluded that the number of Federal criminal offenses on the 

books has grown from less than 20, which were directly related to 

the operation of the Federal Government in the years following this 

Nation’s founding, to nearly 5,000 today, which cover many types 
2 

of conduct undoubtedly intended by the framers to be left to the individual States. 

At the current rate, the Congress passes an average of over 500 

new crimes every decade. This surge is highlighted by a particularly telling statistic. Nearly 50 percent of the Federal criminal 

provisions enacted since the Civil War have been enacted since 

1970. 

The sheer number of Federal crimes leads to a number of concerns, issues of notice and fairness where legal practitioners, not to 

mention the general public, have difficulty in determining if certain 

conduct violates Federal law and, if so, under which statute. 

The disorganization, decentralization and duplicative nature of 

the Federal collection of criminal laws needs to be addressed. I 

have introduced legislation to do just that in the Criminal Code 

Modernization and Simplification Act. 

This bill would cut more than a third of the existing Criminal 

Code, reorganize the code to make it more user friendly, then consolidate criminal offenses from other titles so that Title 18 includes 

all major criminal provisions. 

There are likely a number of reasons for this rapid expansion of 

Federal criminal law, including the fact that many criminal statutes are drafted hurriedly in response to pressure from the media 

or the public and, as a result, often duplicate offenses already on 

the books and omit critical elements, such as a valid mens rea or 

criminal intent. 

Additionally, under the current interpretation of the House 

Rules, it is possible and not uncommon for new criminal legislation 

to make its way to the House floor without ever receiving proper 

scrutiny from the Judiciary Committee. 

This Committee is comprised of lawmakers and professional staff 

with expertise in drafting criminal provisions and the ability to 

avoid redundancy through situational awareness of the entire body 

of Federal criminal law. 

As we move toward wrapping up the business of the Task Force, 

in addition to other potential recommendations, we should consider 

pursuing an amendment to the rules clarifying the jurisdiction of 

the Committee with respect not only to criminal law enforcement, 

but criminalization and criminal offense legislation as well. 

Again, I would like to thank our witnesses for appearing today 

and would also like to thank the Members of the Task Force for 

their service over the past year. In the coming months, I hope we 

can begin to come together to address many of the concerns with 

over-criminalization that have been identified. 

Before introducing Mr. Scott for his opening statement, I would 

like to ask unanimous consent to include for the record a memorandum dated July 21, 2014, from the Office of the House Parliamentarian, and a CRS report entitled ‘‘Subject: Updated Criminal 

Offenses Enacted From 2008-2013,’’ dated July 7, 2014, into the 

record. And without objection, it is so ordered. 

[The information referred to follows:] 
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Mr. SENSENBRENNER. And it is now my pleasure to introduce the 

gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Chairman, we created this Task Force in recognition of the 

need to address the explosive growth of the Federal prison population and the dramatic expansion of the U.S. Criminal Code. 

For 5 decades, Congress has increasingly addressed societal problems by adding a criminal provision to the Federal code. Too often 

we have done this in a knee-jerk fashion, charging ahead with the 

same failed tough-on-crime policy and addressing the crime of the 

day instead of legislating thoughtfully and with the benefit of evidence-based research. 

When it comes to criminal law, only those matters that cannot 

be handled by the States need to be addressed by the Federal Government. What valid purpose is served by creating crimes at the 

Federal level if they duplicate crimes being effectively enforced by 

the States? 

For example, why should there be a Federal carjacking statute? 

State and local law enforcement have investigated and prosecuted 

carjacking effectively for years, long before Congress made it a Federal crime. 

Two weeks ago, in testimony before this Task Force, Judge Irene 

Keeley reminded us of the following recommendations made by the 

Judicial Conference in 1995 regarding five types of criminal offenses it deemed appropriate for Federal jurisdiction: Offenses 

against the Federal Government or its inherent interest, criminal 

activity with substantial multistate or international aspects, criminal activity involving complex commercial or institutional enterprises most effectively prosecuted using Federal resources or expertise, serious high-level, widespread State or local corruption, and 

criminal cases raising highly sensitive issues. 

We have ignored these recommendations. Earlier this month the 

Congressional Research Service of the Library of Congress informed us that 403 criminal provisions were added to the U.S. 

Code between 2008 and 2013, for an average of 67 new crimes a 

year. 

Of those 403 new provisions, 39 were not even referred to the Judiciary Committee. Over the past several years, we have estimated 

that there were 4,500 Federal crimes. Now, the new estimate from 

CRS is approximately 5,000. 

In addition to the 5,000 crimes in the U.S. Code, there are approximately 300,000 Federal regulations that are enforced with 

criminal penalties. 

Several witnesses at our hearings have testified that many of the 

regulations lack an adequate criminal intent or mens rea requirement to protect those who do not intend to commit wrongful or 

criminal acts from prosecution. 

Witnesses have suggested the enactment of a default mens rea 

as well as legislating the rule of lenity for statutory construction 

as an appropriate fix for existing statutes and regulations. 

We have also heard concerns about Federal agencies’ promulgation of regulations that carry criminal sanctions. It is time for Congress to put an end to that practice, reclaim that authority and retain sole discretion in determining which actions are criminal and 
23 

what sanctions are appropriate when deprivation of one’s liberty is 

at stake. Regulations can still be enforced with civil penalties. But 

when criminal penalties are considered, Congress should be involved. 

The result of decades of criminalizing more and more activities 

has been the growth of the Federal prison population from about 

25,000 in 1980 to over 200,000 today, making the United States the 

world’s leader in incarceration, about seven times the international 

average. 

The Pew Center on The States estimates for any incarceration 

rate over 350 per 100,000, the crime reduction value begins to diminish because, at that point, you certainly have all the dangerous 

people locked up. 

We have also learned from the collateral consequences that more 

than 65 million Americans are now stigmatized by the criminal 

convictions, bombarded by over 45,000 collateral consequences of 

those convictions, making reentry and job prospects dim. 

In spite of this research that over 350 per 100,000 population 

yields diminishing returns and the Pew Research Center also said 

that anything over 500 per 100,000 is actually counterproductive, 

the United States leads the world at over 700 per 100,000. 

That is because unnecessarily locking up people wastes money 

that could be put to better use. Families are disrupted, making the 

next generation more likely to commit crimes, over 700 per 100,000 

counterproductive, and we lock up well over 700 per 100,000—500 

per 100,000 counterproductive. We lock up over 700. 

The testimony received during these hearings has consistently 

told us that longer sentences are not the answer. Yet, we continue 

to create more crimes, increase sentences and add more mandatory 

minimums. 

Mandatory minimums has specifically been studied extensively 

and have been shown to disrupt rational sentencing patterns, discriminate against minorities, waste the taxpayers’ money, do nothing to reduce crime, and often require judges to impose sentences 

that violate common sense. 

A ‘‘code’’ is defined as a systematic and comprehensive compilation of laws, rules, regulations that are consolidated and classified 

according to subject matter. 

Our Criminal Code is not a criminal code by that definition, as 

Federal criminal offenses have spread all over the 51 titles of the 

U.S. Code, making it virtually impossible for practitioners, not to 

mention an ordinary citizen, to make any sense out of it. 

It is time not only to move all criminal provisions into one title, 

Title 18, but also clean up and revise it as recommended by witnesses in previous Task Force hearings. 

We need to consider how to proceed, and we also need—how to 

proceed and whether or not this should be done by Congress itself 

or by an appointed commission. It is time that we consider evidence-based research and make wiser policies in our sentencing 

policy. 

We are wasting billions of dollars in crime policy that has been 

failing for the past 4 decades. It is time we look for more realistic 

and reasoned approach to the issue of incarceration, understanding 

that not every offense requires a long sentence of incarceration. 
24 

Mr. Chairman, while this is a final Task Force hearing, there is 

still much more to do, and I look forward to working with you in 

drafting a consensus report, presenting it to the full Committee 

and taking the necessary actions to improve our criminal justice 

system. 

Mr. SENSENBRENNER. Time of the gentleman has expired. 

Without objection, all Members’ opening statements will be 

placed in the record at this point. 

[The prepared statement of Mr. Sensenbrenner follows:] 

Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Chairman, OverCriminalization Task Force of 2014 

Good morning and I would like to welcome everyone to today’s hearing of the Judiciary Committee’s Over-Criminalization Task Force. This tenth and final hearing 

will focus on the abundance of federal criminal offenses on the books and the role 

that the Judiciary Committee’s jurisdiction, or lack thereof, under House Rules 

plays in this issue. 

Over the past year, the Task Force has examined many important topics in this 

area, and gained valuable perspective on the issues from a number of highly qualified witnesses, two of which rejoin us for today’s hearing. I anticipate that they will 

be able to provide this body with meaningful insight into the subject of today’s hearing and I appreciate their continued cooperation in furtherance of the goals of this 

Task Force. 

Despite the fact that it is generally accepted that the federal government does not 

possess a general police power, recent studies have concluded that the number of 

federal criminal offenses on the books has grown from less than 20, which were directly related to the operation of the federal government in the years following the 

nation’s founding, to nearly 5,000 today, which cover many types of conduct undoubtedly intended by the Framers to be left to the individual states. 

At the current rate, Congress passes an average of 500 new crimes every decade. 

This surge is highlighted by a particularly telling statistic: Nearly 50% of the federal criminal provisions enacted since the Civil War have been enacted since 1970. 

The sheer number of federal crimes leads to a number of concerns. Issues of notice 

and fairness abound where legal practitioners, not to mention regular citizens, have 

difficulty determining if certain conduct violates federal law, and, if so, under which 

statute. The disorganization, decentralization, and duplicative nature of the federal 

collection of criminal laws need to be addressed. 

I have introduced legislation to do just this in the Criminal Code Modernization 

and Simplification Act. This bill would cut more than one-third of the existing 

Criminal Code, reorganize the Code to make it more user-friendly, and consolidate 

criminal offenses from other titles so that Title 18 includes all major criminal provisions. 

There are likely a number of reasons for this rapid expansion of federal criminal 

law, including the fact that many criminal statutes are drafted hurriedly in response to pressure from the media or the public, and, as a result, often duplicate 

offenses already on the books, and omit critical elements such as a valid ‘‘mens rea’’ 

or criminal intent. 

Additionally, under the current interpretation of the House Rules, it is possible, 

and not uncommon, for new criminal legislation to make its way to the House floor 

without ever receiving proper scrutiny from the Judiciary Committee. The Judiciary 

Committee is comprised of lawmakers and professional staff with expertise in drafting criminal provisions and the ability to avoid redundancy through situational 

awareness of the entire body of federal criminal law. As we move toward wrapping 

up the business of the Task Force, in addition to other potential recommendations, 

we should consider pursuing an amendment to the rules clarifying the jurisdiction 

of the Committee with respect to not only criminal law enforcement, but criminalization and criminal offense legislation as well. 

Again, I would like to thank our witnesses for appearing today and would also 

like to thank the members of the Task Force for their service over the past year. 

In the coming months, I hope we can begin to come together to address many of 

the concerns with over-criminalization that have been identified. 

It is now my pleasure to recognize for his opening statement the Ranking Member 

of the Task Force, the gentleman from Virginia, Mr. Scott. 
25 

It is now my pleasure to recognize for his opening statement the Chairman of the 

Judiciary Committee, the gentleman from Virginia, Mr. Goodlatte. 

It is now my pleasure to recognize for his opening statement the Ranking Member 

of the Full Committee, the gentleman from Michigan, Mr. Conyers. 

Without objection, other Members’ opening statements will be made a part of the 

record. 

And without objection, the chair is authorized to declare a recess during votes on 

the House floor. 

[The prepared statement of Mr. Goodlatte follows:] 

Prepared Statement of the Honorable Bob Goodlatte, a Representative in 

Congress from the State of Virginia, and Chairman, Committee on the Judiciary 

Thank you Chairman Sensenbrenner. I am very pleased to be here today to hear 

again from our distinguished witnesses as we conclude the Task Force’s series of 

hearings on the issues surrounding Over-criminalization. 

Today we focus on a recurring theme from the past year, the problems associated 

with a bloated, disorganized and often redundant collection of federal criminal offenses. I hope to explore potential explanations for how we have gotten to this point, 

with particular emphasis on the interpretation of the House Rule regarding committee jurisdiction which often permits consideration and passage of legislation creating or modifying Federal criminal laws outside of oversight by the very lawmakers 

with such expertise. 

The Congressional Research Service recently provided this committee with an updated count of the federal crimes on the books, which brings the total to nearly 

5,000. Unfortunately, Congress continues to add to this number at a rate of roughly 

50 new crimes per year, and as my colleague from Virginia, Ranking Member Scott, 

is often quick to point out, the first rule of holes is, when you find yourself in one, 

stop digging. That certainly seems to apply here. 

There are widespread concerns with notice and fairness within this topic. 

Throughout its existence, this bi-partisan Task Force has endeavored to closely examine the problems posed by over-criminalization and over-federalization, and to 

identify potential solutions to combat the regrettable circumstances that inevitably 

arise from the tangled web of federal criminal provisions. Examples of similarly situated defendants convicted of the same conduct under different statutes with different penalties, or individuals convicted of offenses without proof of any level of 

criminal intent, have been detailed in prior hearings and are far too commonplace. 

The House Rules define the jurisdiction of the various committees, and the Judiciary Committee is given jurisdiction over, among other things, ‘‘the judiciary and judicial proceedings, civil and criminal,’’ and ‘‘criminal law enforcement.’’ Unfortunately, this language has been interpreted to exclude some forms of ‘‘indirect criminalization,’’ restricting Committee jurisdiction to only new criminal provisions or 

amendments to the penalties included in a criminal offense. This has resulted in 

many criminal offenses being enacted without being considered by lawmakers on the 

Judiciary Committee, which is the Committee best situated to provide valuable expertise in drafting and resolving potential conflicts with existing criminal law. 

A change in the House Rules to address this issue by clarifying the Committee’s 

jurisdiction over criminal matters would help us ‘‘stop digging’’ and begin remedying 

the many problems associated with the overabundance of federal criminal statutes. 

I would like to welcome our two witnesses back to the Task Force, and reiterate 

my appreciation for the perspectives they will provide today as we move toward addressing the issues raised during this series of hearings. I would also like to again 

express my gratitude to the members of the Task Force, including Chairman Sensenbrenner and Ranking Member Scott, for their dedication to the issues surrounding over-criminalization. I look forward to working closely with them moving 

forward. 

Mr. SENSENBRENNER. It is now my pleasure to introduce the witnesses. 

First is Dr. John S. Baker, Jr., who is the visiting professor at 

Georgetown Law School, a visiting fellow at Oriel College, University of Oxford, and Emeritus Professor of Law at the LSU Law 
26 

School. He also teaches short courses on the separation of powers 

for the Federalist Society with Supreme Court Justice Antonin 

Scalia. 

Dr. Baker previously worked as a Federal court clerk and an assistant district attorney in New Orleans and has served as a consultant to the U.S. Department of Justice, U.S. Senate Judiciary 

Subcommittee on Separation of Powers, the White House Office of 

Planning, USIA and USAID. 

He was a Fulbright scholar in the Philippines and a Fulbright 

specialist in Chile. Dr. Baker served as a law clerk in the Federal 

District Court and Assistant District Attorney in New Orleans before joining Louisiana State University in 1975. 

While a professor, he has been a consultant of the State Department and the Justice Department. He has served on the ABA Task 

Force, which issued the report ‘‘The Federalization of Crime.’’ 

He received his bachelor of arts degree from University of Dallas, 

his JD from the University of Michigan Law School, and his Ph.D. 

in political thought from the University of London. 

Mr. Steven D. Benjamin is the President of the National Association of Criminal Defense Lawyers. The NACDL is a professional 

bar association founded in 1958. Its members include private criminal defense lawyers, public defenders, active duty U.S. military, defense counsel, law professors, and judges committed to preserving 

fairness within America’s criminal justice system. He is in private 

practice at the Virginia firm of Benjamin & DesPortes. 

‘‘DesPortes’’? ‘‘DesPortes’’? 

Mr. BENJAMIN. ‘‘DesPortes.’’ 

Mr. SENSENBRENNER. He serves as special counsel to the Virginia 

Senate Courts of Justice Committee and is a member of the Virginia Board of Forensic Science and Virginia Indigent Defense 

Commission. He previously served as the President of the Virginia 

Association of Criminal Defense Lawyers. 

I would like to ask each of you to confine your remarks to 5 minutes. You know what the red, yellow and green lights mean. Without objection, your full written statements will be placed in the 

record. 

And, Dr. Baker, you are first. 

TESTIMONY OF JOHN S. BAKER, JR., Ph.D., VISITING PROFESSOR, GEORGETOWN LAW SCHOOL, PROFESSOR EMERITUS, LSU LAW SCHOOL 

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

Members of Congress. 

I have testified here twice before and I appreciate—— 

Mr. SENSENBRENNER. Turn the mic on. 

Mr. BAKER. I have testified here twice before, and I thank the 

Task Force for allowing me to come back. Actually, I am coming 

back on the issue that I started out on on my own, which was 

counting Federal crimes. 

And I have to concur with everything that I have heard about 

the problem of Federal courts. And I began with the numbers. And 

while numbers are not everything, they do tell a certain story. 
27 

So I want to do three things quickly: One, talk a little bit about 

what the numbers are; two, where are we going with the numbers; 

and, three, what is the significance of these numbers. 

When I testified on November 13th, I mentioned the tremendous 

number of Federal crimes and, really, the unknown number of Federal regulatory offenses. After that, this Task Force asked the Congressional Research Service to conduct a count from 2008 to 2013, 

which is where my last count left off. They came up with the number of 403 new Federal crimes. That is a not counting regulatory 

offenses. That is just from the U.S. Code. 

And it is important to say that the counts from CRS, my count 

and the Department of Justice counts have used fundamentally the 

same methodology, and that is important for consistency. 

What is significant—second point—about where we are going, it 

seems to me, is what this says about the average number of crimes 

and the total number of crimes. 

When I did the count in 2008, as of 2008, there were 4,450 

crimes at least. CRS has noted that we have an additional 403 

crimes. That brings us up at least to 4,853 crimes, almost 5,000 

crimes. It means that, essentially, Congress is passing 500 new 

crimes a decade. 

Now, in the ABA Task Force that I served on back in the 1990’s, 

the notation was that, since the Civil War, 40 percent of all Federal 

crimes since the Civil War had been passed since 1970, from 1970 

until about 1996. 

Well, when you add what has gone on since 1996, we are approaching 50 percent of all Federal crimes ever enacted in this 

country, enacted since 1970, and that was the beginning of the war 

on crime, which, you know, we haven’t been winning that war too 

well. 

What does this mean for the future? Well, the rate of crimes appears possibly to be increasing. When I did my count, it was 56.5 

crimes a year. CRS count shows 67-point-something per year. Now, 

that number may be skewed because, in 2008, Congress passed 195 

crimes. 

What is the significance of all this? Well, if you talk to an assistant U.S. attorney—and I have debated a number of former assistant U.S. attorneys—they will tell you that the numbers mean nothing. 

They don’t use all of these crimes, and they are right. In a certain sense, they don’t mean that much to the prosecutor or to the 

judges because there are only so many cases that you can bring in 

Federal court. 

But where they are really important is in law enforcement, that 

we have plenty of law enforcement agencies out there that do 

searches and seizures and arrest in cases that never actually get 

even an indictment, much less trial. 

Given the broad array of crimes, there is virtually nothing that 

you can’t get a basis for probable cause on, which is the basis for 

arrest, search and seizure. 

There is a lot of concern in this country, rightly, about privacy, 

but I think people ought to be focusing on the fact that surveillance 

is not just a matter of ‘‘privacy,’’ it is a matter of the police power. 
28 

The Federal Government, which the Supreme Court has stated 

twice in recent years, has no general police power. In reality, de 

facto, it has complete police power, and we are going to see it in 

the surveillance. 

Now, people have been focusing on NSA, but think about drones. 

There is nothing a drone can’t search, basically, because there is 

every possibility for coming up with the basis of it. 

And some of the Federal agencies will conduct raids that will 

never result in an indictment or, if it does result in an indictment, 

will not result on those crimes. 

It is easy to come up with a RICO charge and a money laundering charge and go out and seize somebody’s property. That is 

the reality of where the real power is. 

I think that this Task Force has done an amazing job of bipartisanship in coming together and identifying the problem. Now it is 

necessary for your colleagues in both houses to understand what 

the problem is. 

They are taking this tremendous power and dumping it in the 

executive branch with various agencies that, in reality, have their 

own agendas. I am not saying they are bad agendas, but they are 

agendas. And there is really lack of control over what is happening 

out there in the field. 

Thank you for allowing me to make this statement. 

Mr. SENSENBRENNER. Thank you, Dr. Baker. 

[The prepared statement of Mr. Baker follows:] 
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Mr. SENSENBRENNER. Mr. Benjamin. 

TESTIMONY OF STEVEN D. BENJAMIN, IMMEDIATE PAST 

PRESIDENT OF THE NATIONAL ASSOCIATION OF CRIMINAL 

DEFENSE LAWYERS (NACDL) 

Mr. BENJAMIN. Mr. Chairman and Members of the Task Force, 

my name is Steve Benjamin, and I am the immediate Past President of the National Association of Criminal Defense Lawyers, this 

country’s preeminent Bar Association advancing the goals of justice 

and due process for persons accused of crime. 

On behalf of NACDL, I commend the House Judiciary Committee 

for creating the Over-criminalization Task Force, and I congratulate the Task Force for its impressive work over the past year. 

I am especially grateful for the leadership and support of two 

members of my own congressional delegation, Judiciary Committee 

Chair Goodlatte and Task Force Ranking Member Scott, whose 

work on this critical issue demonstrates that the danger of overcriminalization transcends the traditional ideological divide. This 

problem is real and it affects us all. 

The sheer number of Federal offenses—4,800 at last count, with 

439 new enactments since 2008—competes only with our number 

of prisoners, a number greater than any nation on Earth as the 

most visible consequence of over-criminalization. But the consequences of this problem extend far beyond the number of those 

imprisoned or stigmatized. 

One such consequence is the difficulty of being a law-abiding citizen. Because criminal law is enforced by punishment, fairness and 

reason require adequate advanced notice of conduct that is considered criminal. 

Adequate notice of prohibited conduct permits people to conform 

their conduct to the law and, at the same time, justifies punishment when they cross a clearly drawn line. Notice is especially important in a legal system that presumes a knowledge of the law. 

Before punishing someone for breaking the law, we should at 

least ensure that the law is knowable. This is especially true where 

the conduct is not wrongful in itself and the offense requires no 

criminal intent. Criminal laws must be accessible not only to 

laypersons, but also to the lawyers whose job it is to identify those 

laws and advise their clients. 

The problem, however, is that the Federal statutory crimes in 

the 10,000 to 300,000 Federal regulations that can be enforced 

criminally are scattered throughout 51 titles of the code and 50 

chapters of the CFR. 

NACDL does not have a position on whether all criminal statutes 

should be organized into a single title of the code. Common sense 

would dictate that most criminal provisions should reside in a single title unless clear evidence exists that a particular criminal provision belongings elsewhere. 

Fair notice goes beyond being able to locate criminal statutes 

within the code. It includes clarity in drafting precise definition 

and specificity in scope. 

With rare exception, the government should not be permitted to 

punish a person without having to prove that she acted with a 

wrongful intent, and criminal law should be understandable. When 
36 

the average citizen cannot determine what constitutes unlawful activity in order to conform her conduct to the law, that is unfairness 

in its most basic form. 

Unfortunately, when legislating criminal offenses, Congress has 

failed to speak clearly and with specificity, has failed to determine 

the necessity of new criminal provisions, and has failed to assess 

whether targeted conduct is already prohibited or better addressed 

by State law. 

While the cause of these failures is not clear, the solutions are. 

Moving forward, Congress should approach new criminalization 

with caution and ensure that the drafting and review of all criminal statutes and regulations is done with deliberation, precision 

and by those with specialized expertise. 

Given the unique qualifications of the Judiciary Committee and 

their counsel, which alone possess a special competence and broad 

perspective required to properly draft and design criminal laws, 

this congressional evaluation should always include Judiciary Committee consideration prior to passage. 

This practice could be guaranteed by changing congressional 

rules to require every bill that would add or modify criminal offenses or penalties to be subject to automatic sequential referral to 

the relevant Judiciary Committee. 

The Members of this Committee are far better suited to take on 

this critical role and to encourage other Members to always seek 

Judiciary Committee review of any bills containing new or modified 

criminal offenses. 

Hopefully, such oversight would stem the tide of criminalization 

and result in clearer, more specific, understandable criminal offenses with meaningful criminal intent requirements and would reduce the number of times criminal law-making authority would be 

delegated to unelected regulators. 

These comments are limited to the issues I was invited to address. The problems of over-criminalization are pervasive, and the 

measures necessary to reform go much further than reorganization 

or Committee oversight. Further discussion, of course, is contained 

in my written testimony. 

I thank you for your bipartisan commitment to the task of ensuring that our Nation’s criminal laws are not themselves a threat to 

liberty. NACDL will continue to support and assist you however we 

can. 

Mr. SENSENBRENNER. Thank you very much, Mr. Benjamin. 

[The prepared statement of Mr. Benjamin follows:] 
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Mr. SENSENBRENNER. The Chair is going to reserve his questioning to the end of the questions, assuming we still have time before the bell rings. 

And the Chair at this time recognizes the gentleman from Alabama, Mr. Bachus. 

Mr. BACHUS. I thank the Chair. 

I was looking at Mr. Benjamin’s testimony—both your testimony, 

but I think we are to the point where we are ready to act, hopefully. We know the problem. It has been reinforced several times. 

We have gotten the message. And I think the key is what do we 

do. 

And on page 9 of your testimony, Mr. Benjamin, you suggest at 

least four things I hear, and I know Congressman Scott has mentioned one or two of these. 

One is by changing congressional rules to require every bill that 

would add or modify criminal offenses or penalties be subject to 

automatic referral to the relevant judicial Committee, you know, 

and I think that is very important because, as you say, this is the 

Committee with the expertise. 

Two: Enact a statutory law establishing a default criminal intent 

requirement to be read into any criminal offense that currently 

lacks one. 

Three—and it says this requirement should be protective enough 

to prevent unfair prosecutions and should apply retroactively to all 

or nearly all existing laws. And I actually know that is a radical 

idea, but I believe in that. 

And I think there ought to be something where you can go before 

a judge and present some evidence or before a board, particularly 

some of these environmental crimes. I could mention several cases 

of where people discovered hazardous waste on their property and 

reported it, but they couldn’t afford to dispose of it fast enough. 

And a lot of these cases, I talked to a former Congressman—Energy and Commerce was dealing with this—and he said we had a 

lot of these cases in the 1980’s and early 1990’s and we kept trying 

to do something, but we couldn’t figure out what to do. And maybe 

that is because it wasn’t judiciary. 

The next thing—and I am going to ask your reaction—on strict 

liability, your association urges strict liability not be imposed in a 

criminal law as a general matter. Where strict liability is deemed 

necessary, the body only employ it only after full deliberation and 

then only if explicit in the statute. I think that, you know, we 

ought to say, if it is not explicit in the statute, there is no strict 

liability. 

And the fourth one is that—I did not know this, but—and I will 

say this to the members of the panel. At the bottom of the page, 

he says, ‘‘Supreme Court has cautioned against the imposition of 

strict liability and criminal law and has stated that all but minor 

penalties may be constitutionally impermissible without any intent 

requirement.’’ 

You know, we have said several times in our deliberations—and 

witnesses have—that, without an intent requirement, you know, I 

can see a minor fine, but when you are talking about putting someone in jail for a year and a day, that is pretty scary. 
51 

But I would just say—I would ask both of you to give us five or 

six specific statutes that we can do or your associations can even, 

you know, draft some just as a model and we could look at them, 

and I think that would be particularly helpful. 

I really appreciate your testimony. And, Dr. Baker, you have 

been here before. 

This, to me, is such an important thing because I think we have 

seen travesties of justice. We have seen people with no criminal intent. And, if anything else, the government can use that power to 

force them to do things just with the threat. You know, they don’t 

have to get a conviction. 

And you could really—it could be used in a way that we see some 

countries around the world that use the judicial process simply to 

put people in jail that stand in their way of whatever their goal is. 

And I hate that, on certain cases, people with agendas have maybe 

done that here. That is a shame because that is not America. That 

is not what our constitutional forefathers envision. 

My time is up. 

Mr. SENSENBRENNER. Time of the gentleman has expired. 

The gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Dr. Baker, what problems could occur if we defer to States for 

prosecution of virtually all cases that do not have a bona fide Federal nexus? 

Mr. BAKER. Well, even today, in most cases, the overwhelming 

number of cases are still prosecuted at the State level. It is more 

or less on a selective basis that prosecutors pick cases. 

Sometimes there are conflicts between local law enforcement people in terms of where the jurisdiction is fighting over certain 

cases—high-profile cases. Other times, it’s cooperation based on 

money. 

When I was prosecuting in New Orleans, we had longer sentences than the Federal, if you can believe that. And so all of the 

Federal drug cases the Federal agents would steer into our courts 

because of the longer sentences. Some States, the drug people will 

steer the case still into State court if there is a tougher provision 

on search and seizure. 

So law enforcement people are very practical. And so to give a 

general answer to it, you would have to be specific place by place. 

I am not exactly sure what you are trying to—would it overwhelm 

the State? Is that what you are talking about? 

Mr. SCOTT. No. Just as a general matter, we ought to defer to 

the States. 

One of the previous witnesses said, in ascertaining—when you go 

through the list of things that you ought to consider, the differential in penalties was not on their list of things that were legitimate 

to consider. 

Mr. BAKER. Really? 

Mr. SCOTT. Do you agree with that? 

Mr. BAKER. No. 

Mr. SCOTT. That you can pick and choose your jurisdiction based 

on the—— 

Mr. BAKER. Absolutely. We did it. 

Mr. SCOTT. Well, yeah, you did it. 
52 

Mr. BAKER. Yeah. I mean, we did it. The question was—— 

Mr. SCOTT. And then we did it in Richmond, and people brag 

about the fact that Project Exile worked. 

Mr. BAKER. I wrote against—I have an article against Project 

Exile. I will show it to you. 

Mr. SCOTT. Good. Well, without pointing out that, in Richmond, 

the crime rate went down because it had Project Exile, but in other 

cities in Virginia that didn’t have Project Exile, the crime rate went 

down more. 

Mr. BAKER. Exactly. I point that out in my article. 

Mr. SCOTT. Mr. Benjamin, you mentioned a notice. How do you 

get noted—if you had mens rea, obviously, you had notice because 

you had criminal intent. 

How else would you get notice out there so the people know that 

they are committing a crime? 

Mr. BENJAMIN. Well, you make the laws accessible. Now, if someone wants to determine in advance whether their conduct—their 

proposed conduct is criminal, they have got to hire a lawyer to answer that question and then the lawyer has got to find the statute 

within the 51 titles of the code. 

It is nearly an impossible task. And that is why we always hedge 

our bets. Few lawyers are going to say you can do that. It is because the law permits such uncertainty. It is so ambiguously written that it is impossible to know even by lawyers whether proposed 

conduct is truly lawful or unlawful. 

Mr. SCOTT. Is that why the rule of lenity is so important? 

Mr. BENJAMIN. That is exactly why the rule of lenity is so important. 

Mr. SCOTT. Can you say a word about the overlapping crimes in 

State and Federal and what it does for the so-called trial penalty. 

Mr. BENJAMIN. I certainly can. 

The trial penalty is the penalty for going to trial, meaning that, 

if you—let me back up. Because I think it is a unique and cherished American value consistent with freedom and liberty, that if 

the government accuses us of a crime and threatens to take away 

our freedom, we have that right to stand up to the government and 

not only deny it, but make them prove it, to say, ‘‘Oh, yeah? Prove 

it.’’ 

But we have completely lost that right because, if we go to trial 

either because we want to make the government prove their allegation or we want to challenge the constitutionality of a dubious statute or because we are innocent, we can no longer do that because, 

if we lose our bid to challenge the government, then we face staggering mandatory minimum sentences that can be stacked by the 

prosecution to beat us into guilty pleas. That is not how our system 

was designed. 

Mr. SCOTT. Are there problems in consolidating all of our codes 

into Title 18 or would it be better to have them spell all around 

where the subject matter crime goes with the subject matter like 

the Agriculture Code? 

Mr. BAKER. Well, first of all, when the proposed Federal Criminal 

Code back in the 1980’s came before the Judiciary Committee, the 

real problem was, in organizing the code, people didn’t pay attention to all of the many provisions. In one sense, it was a code, but 
53 

in another sense the Federal Government should not have a code, 

because a code is a comprehensive statement of criminal law. 

And if you believe, as I do, constitutionally that Congress has 

only limited powers and has to justify it on particular enumerated 

powers, then the idea of a comprehensive Criminal Code is very 

difficult to create without, in effect, expanding Federal power. 

My main concern about a general code like that would—even 

with an attempt to limit Federal power, it would de facto end up 

expanding Federal power. 

Mr. SENSENBRENNER. The gentleman’s time is expired. 

The gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. 

I want to thank both of you gentlemen. 

And this is our tenth hearing, and both of you have been here 

before. So this is a good place and a good point to begin with, is: 

How do you see the cumulative effect and impressions and understanding that we have gleaned out of these ten hearings this year 

and last year? 

Dr. Baker, why don’t you start us off on that. 

Mr. BAKER. Well, if I compare back to Federal criminal trials 

that I sat back—through when I was a law clerk and Federal trials 

today, the biggest thing that strikes me is the imbalance of power 

and how the power has shifted so dramatically toward Federal law 

enforcement to the point where not everyone, but there is a certain 

arrogance that pervades the prosecutors. And it goes with the territory, unfortunately. When you give anybody too much power, they 

are going to use it. 

And I don’t mean that they are using it for what they perceive 

to be bad things. They believe that what they are doing is the right 

thing. Of course, when they then resign and become criminal defense attorneys, they get a different perspective and they realize, 

‘‘Well, maybe, maybe, we were a little too aggressive.’’ And I can 

tell you that I have been on panels with former AUSAs and they 

have said that, now that they are on the defense side. 

The reality is there are three perspectives: The prosecutor, the 

defense, and the judge or jury. And they are not the same perspectives. And there has to be a balance between the two sides, and I 

think at this point that the balance is too much in favor of Federal 

prosecution. 

Mr. CONYERS. But, still, State crimes are far more numerous 

than are Federal. 

Mr. BAKER. They do. But here is the difference: You know from 

Detroit—and I can tell you from New Orleans—people trying to 

prosecute and arrest, they are running around trying simply to 

deal with the violent crimes that they have to. Very few prosecutors in major cities have time to go looking for things. They can’t 

find what has already been done. 

That is not the case in Federal court. In Federal court, you convene the grand jury and you go out looking. You got the defendant, 

potential target, and then you figure out, ‘‘Well, what has this 

person’’‘‘What can we nail him on?’’ That is not the way local prosecutors work. 

Mr. CONYERS. Attorney Benjamin, would you weigh in on this 

discussion, please. 
54 

Mr. BENJAMIN. I agree absolutely with Dr. Baker, that the most 

striking facet of the current state of the criminal justice system 

and the biggest, most dramatic change when I first began 35 years 

ago to defend criminal cases is the overbalance of power. Federal 

criminal defense now is all about negotiating a resolution. 

Mr. BAKER. That is all it is. 

Mr. BENJAMIN. That is all it is. 

It is no longer about guilt or innocence. Guilt is presumed, at 

least by the prosecution, and they have the tools available to compel the guilty plea so that that is not even a question. It is all 

about snitching out, cooperating, doing whatever you have to to get 

the leniency—the fair treatment that you seek. 

Mr. CONYERS. So what, then, do we bring to our full Judiciary 

Committee in the House of Representatives in terms of these ten 

hearings that we have had this year and last year? I mean, what 

can we take? 

And I want to commend the Chairman and Ranking Member, 

Sensenbrenner and Scott, for having put this together as they 

have. But where do we go from here? 

Mr. BENJAMIN. I think the immediate thing is reform of the mens 

rea problem. The immediate band-aid that is necessary is a default 

rule of mens rea where none appear in criminal statutes and are 

a rule of construction that applies a mens rea to all—at least to all 

material elements. 

Mr. CONYERS. A single mens rea standard or—— 

Mr. BENJAMIN. No. No. Uniform mens rea standards—— 

Mr. CONYERS. Okay. 

Mr. BENJAMIN [continuing]. Clearly defined across the board. 

Mr. CONYERS. Uh-huh. 

And what would you add, Dr. Baker? 

Mr. BAKER. Well, I would agree with that. I have been involved 

a little bit in trying to draft that statute, and I can tell you it is 

not an easy statute to draft because of the way, first of all, the Federal crimes are drafted and how differently they are. 

I would add to those two things, which I endorse, clear definitions of what is a crime, what is a felony, what is a misdemeanor. 

And a way to deal with the strict liability is simply to say noncriminal offense so that—and this is in the model Penal Code, but 

not many States adopted it. I mentioned it in earlier testimony. 

You have a provision for noncriminal offenses and that strict liability is limited to those. So if you think they need to be prosecuted, fine, but the stigma of crime is not on there. 

Mr. SENSENBRENNER. Time of the gentleman has expired. 

Gentleman from Georgia, Mr. Johnson. 

Mr. JOHNSON. Yes. As I listened through—to the testimony and 

did a little reading, I was impressed with the fact that, Dr. Baker, 

in your paper, you cite statistics showing that, in 1983, it was estimated that there were 3,000 or so criminal offenses—— 

Mr. BAKER. Right. 

Mr. JOHNSON [continuing]. In the code and, in 1998, you cited 

DOJ figures of 3300, as of 1998. 

Mr. BAKER. Well, no. Those were two different studies, and it is 

noted in there. One was by DOJ, the first one. The other one in-
55 

volved the same person, but there were different methodologies 

used and that is why the different numbers. 

Mr. JOHNSON. I see. 

But that does not indicate that there was no growth in the number of offenses. 

Mr. BAKER. Oh, there was growth. But, actually—— 

Mr. JOHNSON. May or may not have been 300, but—— 

Mr. BAKER. No. It was more. It was more than that. 

Mr. JOHNSON. Well, okay. All right. Well—so that is a modest assessment, 3,300 as of 1998. That was 300 more than in 1983. And 

then between 1998 and 2008, that 10-year period saw a rise to 

4,450, according to your—— 

Mr. BAKER. The 1998 figure, which I explain in there, is not a 

reliable figure because it did not follow the methodology that—— 

Mr. JOHNSON. So you think it was higher? 

Mr. BAKER. It was much higher. 

Mr. JOHNSON. Okay. 

Mr. BAKER. The DOJ methodology, which I used and which has 

been by email told to me by the person who conducted it that I use 

the same methodology that DOJ did, we explained that methodology to CRS and CRS basically followed that. 

But what happened in the 1998, they did not break particular 

statutes down into the various crimes within one statute. They 

simply counted the statutes. 

Mr. JOHNSON. I see. Okay. 

So—and between 2008 and 2013, you cite an additional 403. 

Mr. BAKER. Well, that is a CRS report, and the skewed year is 

2008 with 195 crimes. 

Mr. JOHNSON. Well, it puts us, according to the reports, to close 

to 5,000 offenses. And it looks like from 1983 through 2008 was an 

explosion, also, in the number of human beings we have imprisoned—— 

Mr. BAKER. Right. 

Mr. JOHNSON [continuing]. In this country. 

And then, at the same time, we have had the growth of what I 

will say is the conservative movement in the country, which has 

called for less government, less taxes, which, when you put on top 

of that the fact that you are needing more prisons—more jail space 

and more prisons, you have seen a growth in the private prison—— 

Mr. BAKER. Right. 

Mr. JOHNSON [continuing]. Industry. 

—and, in fact, 1983, 3,000; 2013, close to 5,000. 

1984, it should be noted, is when the Corrections Corporation of 

America, which is the largest private prison for-profit corporation— 

that is the year that that was founded, 1984. 

And since that time, they have experienced exponential growth 

and—to the point where they, along with—there is another big one. 

I forget the name—Georgia—not Georgia—GPC or something like 

that. But those corporations are publicly held corporations selling 

stock on Wall Street. 

What connection do you see between the growth of the private 

prison industry and the number of—and the amount of contributions that those companies make to legislators, including on the 

Federal level, and the growth in the prison industry—the growth 
56 

in the prisons industry, the growth in lobbying, and the growth in 

statutes putting people in prison? What connection do you see? 

Mr. BAKER. Well, I can draw a connection between the growth 

and certain things. I can’t between all of them. I actually represented at one point a sheriff in Louisiana who built the largest 

public prison system, and the whole thing was funded by Federal 

dollars. He went in the business of taking in Federal prisoners because the Federal rate was much higher than the State rate. There 

is a definite connection in terms of the growth of prisons. 

But on the conservative side, especially in Texas and in Louisiana, they are understanding that this is bankrupting the States. 

And so now you have some conservatives flipping and calling for 

a reduction even in State criminal penalties and State prison sentences because they realize that the growth of it, the expense is 

unsustainable. 

Mr. JOHNSON. Well, I tell you—— 

Mr. SENSENBRENNER. Time of the gentleman—— 

Mr. JOHNSON. Mr. Chairman—— 

Mr. SENSENBRENNER [continuing]. Has expired. 

Mr. JOHNSON. Mr. Chairman, could I make just one last statement? 

I would imagine that we will now see a rise in lobbying costs 

that are incurred by the private prison industry. 

Thank you, Mr. Chairman. 

Mr. SENSENBRENNER. Okay. The gentleman from New York, Mr. 

Jeffries. 

Mr. JEFFRIES. Thank you, Mr. Chairman. 

And let me thank the witnesses for your presence here today and 

your continued contributions to the efforts of this panel. 

Attorney Benjamin, you mentioned something that was very 

troubling—and, Dr. Baker, you agreed with it—the notion that 

Federal criminal defense has simply become negotiation efforts toward resolution. 

Mr. BAKER. Right. 

Mr. JEFFRIES. And that just seems fundamentally inconsistent 

with the notions that have always served to undergird our criminal 

justice system, the presumption of innocence. 

If there is going to be a presumption of innocence, it seems to 

me it cannot be the case that, once someone is being investigated 

and/or is indicted by our government, that the only real option 

available to someone who, in theory, should be presumed innocent 

is to negotiate the most favorable resolution, which ultimately will 

likely result in some form of sanction and/or jail time. 

Mr. BAKER. Right. 

Mr. JEFFRIES. So the question becomes: How do we unpack this 

dynamic in a way that allows this Task Force, the House, this Congress, to make a meaningful impact? 

And I would suggest—and I would like to get the observations 

of both of you—that it seems to me that there has got to be some 

way to reign in the inappropriate exercise of prosecutorial decisionmaking. 

You referenced the term ‘‘arrogance’’ that exists perhaps amongst 

some prosecutors, and I believe the majority are operating in good 

faith, though I may not agree with the decisions that they make. 
57 

But who, as it currently exists right now, has the capacity to 

oversee prosecutorial behavior and/or decision-making? And what 

consequences are there when inappropriate public policy decisions 

are being made? 

Start with Attorney Benjamin, and we will go to Dr. Baker. 

Mr. BENJAMIN. Well, the power of oversight and the power to 

reign in Federal prosecutors resides in either DOJ and the Attorney General or the U.S. attorney for a given district. The reality, 

however, is that rarely will these individuals want to interfere with 

the career prosecutors who have been doing this all their lives and 

are on the line. 

And so the answer is to take a look at the tools that are being 

used to produce this result. And I think that the biggest problem 

is the existence and the expansion of the use of mandatory minimum sentences. That is what gives the unfathomable power to 

Federal prosecutors, because they can, in their charging decisions, 

threaten 10, 20, 30 lifetime mandatory sentences. 

That takes the judge completely out of it. If somebody is convicted, what we will say to our clients is, ‘‘Yes. Sure. I understand 

you are innocent. And maybe you have a triable case. But if you 

lose, you will get a life sentence.’’ 

Mr. JEFFRIES. Right. I appreciate that observation. 

Dr. Baker, I want you to respond. But, also, I want to add this 

observation: Currently, Federal prosecutors have absolute immunity, as I understand it. 

Mr. BAKER. As long as they are—well—— 

Mr. JEFFRIES. In the context of their—— 

Mr. BAKER. Prosecution—as long as they are not getting out of 

prosecution. Sometimes they get involved in investigation. 

Mr. JEFFRIES. Okay. In the context of the prosecution, they have 

got absolute immunity. Law enforcement has got qualified immunity, as I understand it. 

Is that something that we should explore? 

Mr. BAKER. I guess, as a former prosecutor, I liked absolute immunity when I had it. 

I haven’t given it enough thought. I think that there is a reason 

for immunity, whether it should be qualified and more like law enforcement. The assumption is that a prosecutor is under the control, to some extent, of a judge in a way that law enforcement is 

not. 

Mr. JEFFRIES. Right. That is the assumption. 

But I think the testimony that we have received is that that is 

no longer the case, that even Article III Federal judges to some degree have lost control. 

So I am trying to figure out—— 

Mr. BAKER. But the real responsibility is with the President and 

then the Attorney General. 

Mr. JEFFRIES. Right. 

Mr. BAKER. The political reality is that—I don’t care what party 

you are talking about—that it depends on the particular U.S. attorney and how he or she got appointed and whether they have got 

a Senator protecting them. That is really what it comes down to. 

Mr. JEFFRIES. One last observation. The problem that we confront is both to rectify the damage that has been done, but also fig-
58 

ure out how, moving forward, we can prevent a return to just the 

cycle of endless criminal statutes being added to the books. And it 

is often the case that elected officials react to the passions of the 

public. In fact, that is the kind of constitutional charge of the 

House of Representatives. 

Mr. BAKER. Right. 

Mr. JEFFRIES. But in the criminal context, when you respond to 

the passions of the public, particularly as it relates to a particularly heinous crime, that results in perhaps doing things that, in 

retrospect, aren’t in our best interest. 

And I would just encourage all of us, certainly those who are contributing to this effort, to think about that dynamic as we move forward. 

Mr. SENSENBRENNER. Thank you very much. The time of the gentleman has expired. 

Let me recognize myself for 5 minutes to wrap up, and this will 

be more of comments looking at the last year and what we have 

been able to discover. 

First of all, I want to thank the witnesses for appearing. 

The two authorizations of this Task Force I think have only 

scratched the surface of what needs to be done because, literally, 

the Congress and a lot of the agencies have been putting more and 

more layers on the onion and we are beginning to start to peel off 

the ones on the outside, and that just asks more questions. 

You know, looking at how we got to this and, I think, in order 

to stop this from getting worse, we do have to very vigorously pursue a change in House Rules. And some of the lapses that have allowed other Committees that really don’t know very much about 

the criminal law—to make criminal law is the fact that the Judiciary Committee has not been very vigorous in asserting its jurisdiction, and that has got to stop. 

The parliamentarians have always said that, once we lose jurisdiction, because we didn’t claim it, then it is much harder to get 

it back and they will just forget about us when they refer bills. So 

exchanges of letters for further legislation, I think, is necessary. 

We are going to need help in developing a default mens rea statute. ‘‘Default’’ means, when there is not a specific criminal intent 

in a statute, there will be one. If there is a specific criminal intent, 

the default statute would not apply. And at least you have to have 

a criminal intent as one of the elements in terms of obtaining an 

indictment or a conviction. 

Now, in order to get at the proliferation of criminal penalties— 

some of them are statutory; some of them are done administratively—I would like to see the Judiciary Committee draft and get 

passed and enacted into law a sunset provision of all administrative criminal penalties. It should be a fairly long sunset. 

And the Committee, I think, can then ask each agency to come 

in and justify which of those criminal penalties they wish to have 

continued on the statute books and why. And if they can’t justify 

that in order to get a reenactment through the Congress, then 

those administrative penalties would simply vanish and we 

wouldn’t have to worry about them anymore. 

Now, I think a way to start on the anti-duplication provisions of 

the code is to start scrubbing the bill that I have introduced in this 
59 

Congress and the two preceding Congresses, which was designed to 

reorganize the code and to at least put some sense in it so that people could look and see what activities were criminal in nature without having to go to a lawyer who can never give them a definitive 

answer because, no matter how hard the lawyer tries, he will never 

be able to find what statutes are involved in that. 

And I know that, in the few days that we have left in this Congress, none of this is going to be accomplished; however, I would 

hope that, as we prepare to start the next Congress, we will be able 

to in a bipartisan manner, which has certainly permeated this particular Task Force, pick up each of these areas to figure out what 

to do and to figure out what we can get enacted into law. 

And I think the American public—while they will not see an immediate change in how we approach criminal issues, that there will 

be something that will be long term that will deal with many of 

the results of our over-criminalization. 

So, again, I want to thank the witnesses. 

I want to thank the Members of this Task Force for putting in 

a lot of time and doing a lot of good work. Remember, we have got 

probably the first two layers off the onion, but there are many 

more layers that we have got to go. 

So, without objection, this Subcommittee hearing is adjourned. 

[Whereupon, at 11:20 a.m., the Subcommittee was adjourned.] 

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