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AGENCY PERSPECTIVES 

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 11, 2014 

Serial No. 113–101 

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 11, 2014 

Page 

WITNESSES 

The Honorable Timothy J. Heaphy, United States Attorney, Western District 

of Virginia, United States Department of Justice 

Oral Testimony ..................................................................................................... 4 

Prepared Statement ............................................................................................. 6 

The Honorable Irene Keeley, United States District Judge, Judicial Conference of the United States 

Oral Testimony ..................................................................................................... 22 

Prepared Statement ............................................................................................. 25 

The Honorable Patti B. Saris, Chair, United States Sentencing Commission 

Oral Testimony ..................................................................................................... 45 

Prepared Statement ............................................................................................. 47 

David E. Patton, Executive Director, Federal Defenders of New York, Eastern 

and Southern Districts of New York 

Oral Testimony ..................................................................................................... 65 

Prepared Statement ............................................................................................. 67 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Bob Goodlatte, a Representative in 

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

Judiciary ............................................................................................................... 3 

Material submitted by the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Ranking Member, OverCriminalization Task Force of 2014 ................................................................... 90 

(1) 

AGENCY PERSPECTIVES 

FRIDAY, JULY 11, 2014 

HOUSE OF REPRESENTATIVES

OVER-CRIMINALIZATION TASK FORCE OF 2014 

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Task Force met, pursuant to call, at 9:06 a.m., in room 2237, 

Rayburn Office Building, the Honorable Spencer Bachus presiding. 

Present: Representatives Bachus, Goodlatte, Conyers, Scott, and 

Jeffries. 

Staff Present: (Majority) Robert Parmiter, Counsel; Alicia 

Church, Clerk; (Minority) Ron LeGrand, Counsel; and Vanessa 

Chen, Counsel. 

Mr. BACHUS. Good morning. The Over-Criminalization Task 

Force hearing will come to order. 

Without objection, the Chair is authorized to declare recess of the 

Task Force at any time. 

We welcome our witnesses here today. And at this time, I will 

turn to the Chair of the full Committee, Mr. Goodlatte, to introduce 

our first witness, Mr. Heaphy. 

Mr. GOODLATTE. Mr. Chairman, thank you very much for holding 

this hearing, and thank you for allowing me the honor of introducing my United States Attorney, who has represented us well in 

the Western District of Virginia for the past several years. He is 

someone who is very interested in not only the enforcement of the 

law, but in criminal law and public policy. So I am delighted to 

have him here today to testify. 

Tim, welcome. 

Mr. BACHUS. Thank you. Our other witnesses, we have the Honorable Irene M. Keeley from West Virginia. She is from Clarksburg, 

West Virginia, a U.S. District Judge. She received her undergraduate degree from the College of Notre Dame of Maryland in 

Baltimore, and her master’s degree from West Virginia University, 

who will be playing the University of Alabama in its first game. 

Before attending law school, she was employed as a secondary 

education teacher. She received her juris doctorate from West Virginia University College of Law. 

We welcome you, Judge. 

From 1980 to 1992, she practiced law with the firm Steptoe & 

Johnson. 

Was that here in Washington? 
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Judge KEELEY. It was in the original office in West Virginia. 

Mr. BACHUS. Okay, so they originally are a West Virginia firm. 

Okay, thank you. 

She was appointed a Judge in the United States District Court 

for the Northern District of West Virginia by President George 

H.W. Bush in 1992. She served as Chief Judge of the Northern District from March 2001 to March 2008. 

Currently, she serves as chair of the Criminal Law Committee at 

the Judicial Conference of the United States. 

We welcome you. 

Our next witness is the Honorable Patti Saris, who is no stranger to this Committee. 

We welcome you back. 

She has served as the chair of the United States Sentencing 

Commission since December 2010. Judge Saris has served as 

United States District Judge for the District of Massachusetts since 

1994, having been nominated to the Federal bench by President 

Clinton. 

Prior to her appointment to the District Court, Judge Saris 

served as an Associate Judge for the Massachusetts Superior 

Court. Previously, Judge Saris served as a Federal Magistrate 

Judge for the United States District Court for the District of Massachusetts. 

Judge Saris served as staff counsel to the United States Senate 

Committee on the Judiciary. She also served as a law clerk to the 

late Justice Robert Braucher of the Massachusetts Supreme Judicial Court. She then became an attorney in the Civil Division of the 

Justice Department and held the position of Chief of the Civil Division in the Office of United States Attorney from Massachusetts. 

Judge Saris received her B.A. from Radcliffe College and her J.D. 

from Harvard Law School. She is the sister-in-law of Jim Segal, 

who many of you know, whose office was right down the hall for 

several years and served as Chief of Staff for Chairman Frank. 

Mr. GOODLATTE. Mr. Chairman, if I might? 

Mr. BACHUS. The Chairman is recognized. 

Mr. GOODLATTE. I just want to say that I shortchanged my 

United States Attorney, and I never want to do that, by leaving out 

his credentials. 

He is a graduate of the University of Virginia and the University 

of Virginia School of Law. And upon graduation from law school, 

he served as a law clerk to the Honorable John A. Terry in the District of Columbia Court of Appeals. He subsequently spent 2 years 

as a litigation associate at Morrison Foerster in San Francisco. 

In addition to practicing law, he has taught several classes as a 

lecturer at the University of Virginia School of Law, and he has 

also lectured frequently at the U.S. Department of Justice’s National Advocacy Center in Columbia, South Carolina. 

Prior to becoming a United States Attorney, he served 12 years 

as an Assistant United States Attorney, both in the West District 

of Virginia and the District of Columbia, and he has prosecuted a 

broad spectrum of criminal matters. 

Thank you, Mr. Chairman. 

Mr. BACHUS. Thank you, Mr. Chairman. 
3 

Well, we have at least two Virginia grads. Our last witness is 

Mr. David Patton. He has been executive director and attorney in 

chief of the Federal Defenders of New York since July 2011. Mr. 

Patton, from 2002 to 2008, worked at the Federal Defenders as a 

trial attorney in the Manhattan office. During that time, he also 

served as adjunct professor at New York University School of Law. 

In 2008, Mr. Patton taught as an assistant professor at the University of Alabama. And from 2010 to 2011, he was a visiting associate professor of law at Stanford Law School. 

He currently teaches professional responsibility in criminal law 

and is an adjunct professor of law at NYU. 

Mr. Patton clerked for the Honorable Claude Hilton of the 

United States District Court for the Eastern District of Virginia. 

He is a graduate of University of Virginia School of Law. 

We welcome you to the Committee. 

We are expecting our first and only votes of the day at 10:15, so 

without objection, Members’ opening statements will be made a 

part of the record. 

[The information referred to 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 Bachus. I am very pleased to be here today to hear from 

representatives of our major Federal criminal justice agencies. Today’s panel will 

offer their perspectives on the various topics covered in the Task Force’s yearlong 

series of hearings on issues related to over-criminalization. 

While past hearings have examined over-criminalization from more of an academic point of view, today’s hearing is designed to fill in the blanks by eliciting the 

practical, working knowledge of the agencies at the heart of the nation’s Federal 

criminal justice system. The Justice Department, the Judicial Conference of the U.S. 

Courts, the U.S. Sentencing Commission, and the Federal Public Defenders are 

uniquely situated to provide valuable insight into the over-criminalization concerns 

examined by this Task Force. I look forward to hearing their perspective on all the 

issues faced by this Task Force in the past year, including criminal intent, regulatory crime, the need for criminal code reform, over-federalization, and many others. 

Concerns with fundamental fairness abound in the area of over-criminalization. 

During 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 in order to prevent the regrettable circumstances that inevitably 

arise from the tangled web of Federal criminal provisions. Examples of individuals 

convicted of offenses despite no proof of any level of criminal intent, have been detailed in prior hearings and are far too commonplace. 

Additionally, Iam very supportive of taking responsible legislative action to ensure 

that offenders who have served their debt to society are given the opportunity to 

become productive citizens and avoid returning to a life of crime. This result serves 

multiple purposes, including enhancing public safety, alleviating overcrowding in 

Federal prisons, and saving taxpayer dollars. 

It is my hope that the members of today’s panel can share their thoughts on these 

issues as well others the Task Force has considered. I believe that with their input, 

it may be possible to begin resolving many of the problems we have examined during the previous eight hearings on the over-criminalization issue. 

Again, I thank our distinguished witnesses for appearing today and look forward 

to their testimony. I would also like to reiterate my continued appreciation for the 

work of my colleagues on the issues before this Task Force, and I yield back the 

balance of my time. 

Mr. BACHUS. Mr. Heaphy, you are recognized for your opening 

statement. 
4 

Does that suit everybody? No objections? 

TESTIMONY OF THE HONORABLE TIMOTHY J. HEAPHY, 

UNITED STATES ATTORNEY, WESTERN DISTRICT OF VIRGINIA, UNITED STATES DEPARTMENT OF JUSTICE 

Mr. HEAPHY. Thank you very much for inviting the Department 

of Justice today, and thank you, Congressman Goodlatte, for that 

very nice introduction. We very much appreciate the opportunity to 

appear at today’s hearing. 

Last August, in remarks at the annual meeting of the American 

Bar Association’s House of Delegates, my boss, the Attorney General of the United States, spoke of his desire to forge a more just 

society and to reform and strengthen America’s criminal justice 

system. He said it is our duty to identify those areas we can improve in order to better advance the cause of justice for all Americans. 

On behalf of the Attorney General, I want to thank the Members 

of this Task Force for your pursuit of the goal of reform. Your work 

has contributed and will continue to contribute significantly to the 

discussion of potential improvements to make our system more fair 

and efficient. 

The department has an interest in all of the issues that this 

Task Force has explored. In our written testimony, we address 

issues regarding so-called regulatory crimes, the possible uniform 

mens rea standard for Federal crimes, and criminal code reform, 

issues which have been a major focus of the Task Force. 

I look forward to answering questions on those issues and other 

topics today. But in this opening statement, we would like to use 

my very limited time to focus on the crucial and urgent need to improve Federal sentencing and correctional policies. 

As the Task Force has recognized, our crime reduction strategies 

have included, over the last 20 years, a greatly expanded use of the 

criminal sanction. Incarceration rates in this country have skyrocketed. Our Nation now has the greatest number of prisoners of 

any country in the world, nearly one in every 100 adults in America is in prison or jail, a rate that is five to 10 times higher than 

rates in Western Europe and other democracies. 

Such extensive use of prison is expensive and unsustainable. 

Currently, our State and Federal Governments spend about $74 

billion a year on incarceration. At the Department of Justice, 

spending on prisons in detention now amounts to almost a third of 

our overall operating budget, compared to only about a quarter in 

2000. 

As a result, prison spending has increasingly displaced other crucial justice and public safety investments, including resources for 

investigation, prosecution, prevention, intervention and assistance 

to State and local law enforcement agencies. 

In response to the increasing percentage of our resources devoted 

to incarceration, the Attorney General has launched a Smart on 

Crime initiative that began in August of last year. 

Smart on Crime requires all Federal prosecutors, the men and 

women with whom I work every day, to ensure that we are devoting our enforcement resources to the most deserving of the Federal 

criminal charge. 
5 

Smart on Crime also augments our support for State and local 

law enforcement as well as our funding and other support of prevention and reentry programs. 

The goal is to maintain our ability to fulfill our core enforcement 

function while also pursuing other priorities in a comprehensive 

approach to community safety. 

One important component of Smart on Crime is the department’s 

support for reform of sentencing practices for low-level drug offenders. Of the 217,000 people in BOP custody today, nearly half are 

serving time for drug-related offenses. 

The department is committed to modifying charging and sentencing policies for these offenses, both to help control Federal prison spending and to ensure that people convicted of certain lowlevel, nonviolent Federal drug crimes will face sentences appropriate to their individual conduct. 

To most effectively address that issue, however, congressional action is necessary. We strongly urge this Task Force and the full 

Committee to take up sentencing reform legislation this year. 

The department strongly supports the legislation introduced by 

Congressman Scott and Labrador, the Smarter Sentencing Act. By 

modestly reducing statutory penalties for certain nonviolent drug 

offenders, the bill could allow billions of dollars to be reallocated 

to other critical public safety priorities while enhancing the effectiveness of our Federal sentencing system. 

The kinds of reforms the department supports have already proven successful at the State level. State leaders, Republicans and 

Democrats, have begun to transform sentencing and corrections 

policy across the country. Changes in State laws and justice priorities have demonstrated that it is possible to spend less money on 

incarceration without sacrificing public safety. 

In fact, many of these States have seen a drop in recidivism since 

they enacted sentencing reform legislation. 

So by controlling prison spending, shifting away from an overreliance on incarceration, we can focus our limited resources on the 

most important law enforcement priorities, such as violence prevention and protection of vulnerable populations. 

The department has committed to an approach that is not only 

more efficient and more effective at deterring crime and reducing 

recidivism, but also more consistent with our Nation’s commitment 

to treating all Americans as equal under the law. 

We cannot achieve these critical goals without the support of 

Congress. We urge you to seize this opportunity to make our criminal justice system fair and keep the American people safe. 

Thank you. 

[The prepared statement of Mr. Heaphy follows:] 
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Mr. BACHUS. At this time, I will recognize Judge Keeley for her 

opening statement. 

TESTIMONY OF THE HONORABLE IRENE KEELEY, UNITED 

STATES DISTRICT JUDGE, JUDICIAL CONFERENCE OF THE 

UNITED STATES 

Judge KEELEY. Thank you, Chairman Bachus and Ranking Member Scott and distinguished Members of the Task Force for inviting 

me to testify today. It is an honor to appear before you and alongside such distinguished witnesses, especially my good friend and 

colleague, Chief Judge Saris. 

I testify today on behalf of the Judicial Conference of the United 

States, the policymaking body for the Federal Judiciary. The conference’s Committee on Criminal Law that I chair oversees the 

Federal probation and pretrial services system, and reviews legislation and other issues relating to the administration of criminal law. 

My committee has watched this Task Force’s progress with keen 

interest. The Judicial Conference has submitted letters for the 

record at past hearings, and I thank you for accommodating us 

with regard to that. 

I offer for your consideration today several strategies to address 

the pressing problem of over-criminalization in the Federal system. 

Each of these points—curbing over-federalization, reforming mandatory minimum sentences, and amending the guidelines—are discussed at length in my written testimony. 

At the outset, however, I do wish to emphasize that major criminal justice reforms currently under consideration, frontend and 

backend sentencing reform legislation, executive clemency, and reforms to the sentencing guidelines, will increase the Federal Judiciary’s workload. 

Congress must provide the courts, which currently are operating 

at 1997 staffing levels, with adequate resources to shoulder those 

additional burdens. The failure to do so will result in further delays 

for your constituents and ultimately could have public safety consequences. 

For nearly a century, the Federal Judiciary has expressed concern about the federalization of crime. The conference encourages 

Congress to conserve the Federal courts as distinctive judicial 

forum of limited jurisdiction in our system of federalism. It is the 

conference’s long-standing position that Federal prosecution should 

be limited to charges that cannot or should not be prosecuted in 

State courts. 

To this end, the conference has identified five types of crimes 

that are appropriate for Federal prosecution: first, offenses against 

the Federal Government or its inherent interests; second, criminal 

activity with substantial multistate or international aspects; third, 

criminal activity involving complex commercial or institutional enterprises most effectively prosecuted using Federal resources or expertise; fourth, serious high-level or widespread State or local government corruption; and fifth, criminal cases raising highly sensitive local issues. 

The conference also recommends that Congress review existing 

Federal criminal statutes with the goal of eliminating provisions 
23 

that no longer serve an essential Federal purpose, an idea that I 

know has been discussed at past hearings of this Task Force. 

Another pressing problem related to the issue of over-criminalization is the burgeoning population of the correctional system, 

caused in part by the proliferation of crimes carrying a mandatory 

minimum sentence. 

Mandatory minimums, in the opinion of the conference, are 

wasteful of taxpayer dollars by unnecessarily increasing correctional costs, which are borne both by the Bureau of Prisons and by 

the probation and pretrial services system, which is within the Judiciary. 

For 60 years, the Judicial Conference has consistently and vigorously opposed mandatory minimum sentences. Mandatory minimums are incompatible with guideline sentencing, a point on which 

Judge Saris may expand. 

In the absence of mandatory minimums, judges would not have 

unfettered discretion in sentencing. The sentencing guidelines that 

have been carefully developed with the benefit of the Sentencing 

Commission’s congressionally endorsed expertise would remain 

fully in force. Departures or variances from the guidelines would be 

reviewable on appeal for reasonableness. 

Mandatory minimums also cause disproportionality in sentencing 

by treating similarly offenders who actually may pose very different risks to society. The Judicial Conference endorses amending 

Section 924(c) to preclude the stacking of counts and to clarify that 

additional penalties only apply when one or more convictions have 

become final prior to the commission of the next offense. 

The conference has already shared draft legislation in this regard 

with Congress, which I would be pleased to resubmit to this Task 

Force. 

One example of the significant cost of stacking is the case of 

Weldon Angelos, a first-time nonviolent offender whose 55-year 

sentence resulted from stacking mandatory minimums. 

I would urge your Task Force to consider whether taxpayers are 

truly well-served by spending $1.4 million or more to incarcerate 

Mr. Angelos for 55 years. 

Thus, the Judicial Conference has agreed to seek legislation, 

such as the Safety Valve Act of 2013. The Judicial Conference also 

supports the policies contained in the Smarter Sentencing Act of 

2013, legislation that I know several Members of this Task Force 

have cosponsored. 

The third major public policy initiative that the Judicial Conference supports relating to over-criminalization is the Sentencing 

Commission’s April 2014 decision to amend the guidelines to lower 

the base offense levels in the drug quantity table across drug types. 

The commission is currently considering whether to make this decision retroactive. 

The Judicial Conference endorses these reforms on principles of 

fairness, nevertheless recognizing that they will impose costs upon 

the Judiciary. Retroactivity, in particular, would cause a dramatic 

influx of offenders out of prison and into the probation system. 

Inadequate resources or preparation for this event would imperil 

public safety. The Judicial Conference, therefore, endorses retroactivity only if release of the first wave of prisoners is delayed by 
24 

6 months in order to give the probation system time to prepare for 

the first wave of new supervisees and if the commission coordinates 

a national training program among all of the affected agencies. 

Thank you for inviting me to testify today and for considering 

the conference’s views on curbing over-federalization, reforming 

mandatory minimum sentences, and amending the sentencing 

guidelines. I look forward to answering your questions. 

[The prepared statement of Ms. Keeley follows:] 
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Mr. BACHUS. Thank you, Judge Keeley. 

At this time, we will hear from Judge Saris. 

TESTIMONY OF THE HONORABLE PATTI B. SARIS, CHAIR, 

UNITED STATES SENTENCING COMMISSION 

Judge SARIS. Good morning to everyone. Chairman Bachus, 

Ranking Member Scott, distinguished Members of the Task Force, 

thank you so much for providing me with the opportunity to testify 

on behalf of the United States Sentencing Commission. We are so 

pleased that the House Judiciary Committee has set up this OverCriminalization Task Force. I have been waiting for this hearing, 

and I am thrilled that we are all here with such a distinguished 

panel. 

The commission identified reducing cost of incarceration and 

overcapacity as a priority for the amendment cycle this year and 

last year. In doing so, the commission is carrying out its statutory 

duty, and I quote the statute, ‘‘We are required to ensure that the 

sentencing guidelines minimize the likelihood that the Federal 

prison population will exceed the capacity of the Federal prisons.’’ 

While State prison populations have begun to decline slightly due 

to reforms, the Federal prison population has grown by about a 

third in the past decade and exceeds capacity by 32 percent overall 

and by 52 percent in high-security facilities. Drug offenders make 

up a third of the offenders sentenced federally every year, and a 

majority of the prisoners serving in the Federal Bureau of Prisons. 

So they are extremely important to the size and nature of the Federal prison population. 

Can you hear me better now? Usually, hearing me is not a problem. [Laughter.] 

The commission set out to determine ways to address the crisis 

in the Federal prison budget and population that are fair and appropriate. We sought out the perspectives of law enforcement to be 

sure that any proposed changes will be consistent with the goal of 

promoting public safety. 

The commission found in its 2011 review of mandatory minimum 

penalties that certain mandatory minimum provisions apply too 

broadly, are set too high, or both. And as a result, certain mandatory minimums penalties are applied inconsistently from district to 

district, and even within districts. 

We also found that 23 percent of all drug offenders were couriers 

who are usually low-level, and nearly half of these were charged 

with offenses carrying mandatory minimum sentences. 

The category of drug offenders most often subject to mandatory 

minimum penalties—that is, who didn’t receive any kind of relief 

from mandatory minimums like the safety valve—were street-level 

dealers who are many steps below high-level suppliers and leaders 

of drug organizations. 

We are concerned, too, about the differences in how mandatory 

minimum penalties apply and relief is granted in different racial 

and demographic groups. 

Mandatory minimums have contributed to the growth in Federal 

prison populations. The numbers tell the story. The number of offenders in Federal custody who are subject to a mandatory min-
46 

imum penalty at sentencing increased from 29,603 in 1995 to 

75,000 in 2010, a 155 percent increase. 

So the bipartisan, seven-member commission has accordingly 

unanimously recommended that Congress reduce statutory mandatory minimum penalties for drug trafficking; that the provisions of 

the Fair Sentencing Act of 2010 should be made retroactive; and 

that Congress should consider expanding the safety valve that is 

allowing sentences below mandatory minimum penalties for nonviolent, low-level drug offenders to offenders with slightly greater 

criminal histories than currently permitted. 

The commission also this year unanimously approved an amendment to the guidelines to reduce by two levels the base offense levels assigned to most drug trafficking offenders based on drug quantity. Why? The guidelines were originally set slightly above the 

mandatory minimum penalties, so that even those offenders with 

no enhancements and minimal criminal history would benefit from 

pleading guilty and otherwise cooperating. 

Congress subsequently created the safety valve, which gives lowlevel offenders a much greater benefit for cooperating. So setting 

the guidelines above the mandatory minimum is no longer necessary for that purpose. 

Indeed, after a similar reduction for crack offenders in 2007, the 

rates at which the crack cocaine defendants pled guilty and cooperated with authorities remained stable. 

In addition, at the time the original guideline levels were set, the 

guidelines only had one enhancement for a gun, but now it has 14 

enhancements for specific conduct, which reduces somewhat the 

need to rely so heavily on drug quantity in setting guideline levels. 

We were encouraged. We recently did a recidivism study of those 

offenders who sentences were reduced following the 2007 two-level 

reduction for crack offenders. After 5 years, there was no statistically significant difference in recidivism rates between those offenders and other ones who were released the previous year after 

serving their full sentences. This study indicated that a modest reduction in drug sentences may not lead to any increase in recidivism. 

The amendment we approved this spring, if it goes into effect on 

November 1, is an important but modest—and I underline ‘‘modest’’—first step to addressing prison costs and crowding consistent 

with the law on public safety. 

But more comprehensive change needs to come from Congress. 

The commission has been encouraged to see the bipartisan legislation introduced here in the House and in the Senate that is consistent with the recommendations we have made. We hope to see 

further progress toward enacting legislation in this area, and stand 

ready to work with you and others in Congress. 

So thank you very much, and I am sorry I if I spoke too quickly. 

I am the bane of my court reporter. So, thank you. 

[The prepared statement of Ms. Saris follows:] 
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Mr. BACHUS. Thank you. 

Mr. Patton, look forward to your testimony. 

TESTIMONY OF DAVID E. PATTON, EXECUTIVE DIRECTOR, 

FEDERAL DEFENDERS OF NEW YORK, EASTERN AND SOUTHERN DISTRICTS OF NEW YORK 

Mr. PATTON. Thank you, Mr. Chairman. Thank you, Members. It 

is truly an honor for me to be here. 

Mr. Chairman, as you said, I am the Federal public defender in 

New York City. 

It is good to see you, Representative Jeffries. 

Together with my defender colleagues from around the country 

and court-appointed attorneys who are assigned to cases, we collectively represent all those accused of Federal crimes who are too 

poor to afford a lawyer. Nationwide, that means we represent over 

80 percent of all defendants in the Federal criminal justice system. 

And I can tell you that we are grateful to this Committee for 

holding these hearings on a very important topic of over-criminalization. 

When I think of the term ‘‘over-criminalization,’’ I think of a 

quote by the late Harvard Law Professor William Stuntz who 

wrote, ‘‘Legal condemnation is a necessary but terrible thing, to be 

used sparingly, not promiscuously.’’ 

As I think this Committee knows, the Federal criminal justice 

system has become remarkably promiscuous by any measure, 

whether it is by the size of the Federal Criminal Code, which has 

doubled since 1970; whether it is the sheer number of people arrested and prosecuted for Federal offenses, which has tripled since 

1980; or, most significantly, if measured by the number of people 

the Federal Government imprisons. 

The Federal prison population has increased by 1,000 percent 

since 1980. And in the past 10 years, it has increased at a rate 

three times the rate of State prison populations, and this is at the 

time of historically low crime rates. So it is not an increase in 

crime that is driving the increase in incarceration. 

So what is driving it? Two things in the Federal criminal justice 

system: one, a vast increase in the number of Federal prosecutions 

of basic, routine crimes that were once solely the province of State 

and local law enforcement; and two, vast increases in the severity 

of Federal sentences, largely driven by mandatory minimums that 

prevent sentencing judges from imposing what would otherwise be 

reasonable, common-sense appropriate levels of punishment. 

You have already heard a great deal about the human toll this 

state of affairs has taken and the fiscal toll it has taken. I would 

like to focus in my brief time on the toll it is taking on the very 

structure of the Federal criminal justice system. 

What do I mean by that? I will summarize it with one number: 

2.7—2.7 is the percentage of Federal criminal defendants who go 

to trial. 

Thirty years ago, the trial rate was five times that number. It 

is a state of affairs that caused the Supreme Court just 2 years ago 

to state that criminal justice today is, for the most part, a system 

of pleas, not a system of trials. 
66 

This vanishing trial rate poses a serious threat to the quality of 

justice in Federal courts. Why is that? Well, first, we have to ask, 

why are they disappearing? And the answer is straightforward: 

The disappearing trial rates correspond precisely with the enormous increase in power we have given prosecutors via severe and 

mandatory sentencing regimes. 

Prosecutors have always had enormous discretion in charging, 

but they now have full control over many cases from start to finish. 

And they control whether to charge a mandatory minimum or not. 

It is entirely at their discretion. And that power is used largely to 

create a spread in the sentence that someone will receive if they 

plead guilty versus if they go to trial. And that spread can be enormous, orders of magnitude, 10, 20, 30 years or more. 

Why is that a problem? It is a problem because juries are fundamental to our criminal justice system. They are the most direct 

way that ordinary citizens can check government overreach. They 

are vital to a constitutional democracy like ours. And they also 

happen to be the best way we know in the history of the world at 

transparently and accountably getting at the truth of various matters. 

Juries teach us that sometimes government agents make mistakes. Sometimes witnesses make stakes mistakes. Sometimes witnesses lie. And those truths get lost in a system where only 2.7 

percent of defendants can go to trial, because they can’t risk the 

decades of additional time they might face if they go to trial, not 

based on the severity of the offense, but purely based on their exercise of that trial right. 

It is a system that our Founders would surely find unrecognizable. It is a system that does great damage to our constitutional 

values. 

I see that my time is up, and I look forward to answering your 

questions. Thank you, Mr. Chairman. 

[The prepared statement of Mr. Patton follows:] 
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Mr. BACHUS. Thank you very much. 

At this time, we are going to have questions from Members. I am 

going to go directly to Mr. Scott, and I will reserve my questions, 

if there is enough time. 

Mr. SCOTT. Thank you, Mr. Chairman. 

I wanted to thank all the witnesses for their testimony and ask 

Judge Keeley, on mandatory minimums, I want to thank the Judicial Conference for their opposition to mandatory minimums. They 

have been studied. They violate common sense. They discriminate 

against minorities. They waste taxpayer money and frequently require judges to impose sentences that violate common sense. 

Now, if we eliminate mandatory minimums, not just in the 

Smarter Sentencing Act but in the Safety Valve Act that would 

allow judges to sentence below the mandatory minimum when the 

sentence violates common sense, would the departure from the sentencing guidelines be an appealable issue? 

Judge KEELEY. Yes, as I noted in my comments, whether it is a 

departure specified under the guidelines or variance pursuant to 

the 3553(a) factors of the Sentencing Reform Act, it is reviewable 

on appeal for reasonableness, so no judge has unfettered discretion 

in that area. 

Mr. SCOTT. Thank you. 

Judge Saris, on the retroactivity, you mentioned the fact that 

those who got retroactive benefit last time recidivated at a rate statistically insignificant. In fact, is was actually a little lower than 

those who did not, is that right? 

Judge SARIS. Yes, it was. 

Mr. SCOTT. Are there any statutory barriers that we need to look 

at that slow up the work of the Sentencing Commission? 

Judge SARIS. That slow up our work? No. I mean, if I had a wish 

list, I could probably go through them. 

But I think right now, we are a bipartisan commission working 

at the crossroads. I think we feel as if we have worked well with 

Congress. We feel as if we have our hearings. At this point there 

are no statutory barriers to doing what we want. 

There are certain things that we would love, but the commission 

at this point feels as if we are able to work very well on the whole 

area of recommending changes to the Congress, as well as doing 

our own work with respect to the guidelines. 

Mr. SCOTT. Thank you. 

Mr. Heaphy, are you prepared to discuss prison issues? 

Mr. HEAPHY. Yes, I think so. 

Mr. SCOTT. Okay, can you tell me some prison programs that 

help reduce recidivism? 

Mr. HEAPHY. The Bureau of Prisons has created a reentry coordinator position in every Federal prison. Director Samuels has an assistant director who focuses exclusively on reentry programs. 

It is imperative that we spend time for people, men and women 

who are incarcerated, to develop skills so that when they get out, 

they can be productive. In our view, the vast majority of them want 

very much to make choices that are productive and not criminal, 

but they need assistance. 

And there are programs from anger management to substance 

abuse counseling to job skills, educational programs from GED on 
78 

up to college classes. We are working very hard in Virginia, actually, to get some of the online content providers like Liberty University to provide content to the prisoners in the Virginia system. 

There is a great bipartisan movement across the country to provide more of these very tangible services to those who are incarcerated, to help reduce recidivism when they get out. 

Mr. SCOTT. Have those programs been studied to ascertain 

whether they are effective? 

Mr. HEAPHY. Those studies really are ongoing because a lot of 

those programs are new. Anecdotally, we have lots of evidence that 

they absolutely work. 

And the Second Chance Act, which I think you pioneered, has 

been hugely successful. And we would urge that it continue to be 

fully funded. 

Mr. SCOTT. What about employment programs like Unicor? 

Mr. HEAPHY. Unicor also provides tangible skills to those incarcerated. That translates to job opportunities when they get out. If 

Unicor also provides a bonding opportunity or certification for those 

incarcerated, then those are very portable skills that are used on 

the outside. 

Mr. SCOTT. That pays for itself, is that right? 

Mr. HEAPHY. Absolutely, it does. 

Mr. SCOTT. And the recidivism rate for those who have had the 

opportunity to get into Unicor, how does that compare to the general recidivism rate? 

Mr. HEAPHY. I can’t give you a specific figure, but absolutely 

lower, Congressman. 

And it makes common sense that when you have a skill, and you 

can get a job, then you are less likely to make a criminal choice. 

Mr. SCOTT. And the opportunity to get into Unicor, as I understand it, is a great management tool? 

Mr. HEAPHY. It is. It enforces discipline within an institution, 

and people who are involved in prison programs generally have a 

lot fewer disciplinary actions when they are incarcerated. 

Mr. SCOTT. Can any of the panelists discuss the need to get a 

mens rea requirement before we prosecute people? 

Mr. HEAPHY. The vast majority of criminal statutes do include a 

specific mens rea standard. There are some, however, that do not. 

The department believes that there is a role for the very careful 

use of some strict liability offenses where there are highly regulated industries that impact health and safety or environmental 

protection. There are occasions when we believe statutes that provide for strict liability are appropriate. They just have to be very 

judiciously used. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. BACHUS. Now the Ranking Member and the former Chairman of the full Committee, Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. I welcome the contributions of the witnesses. 

I can’t emphasize too much how important this Task Force is in 

the Judiciary Committee, and I am so glad that this discussion is 

taking place. 

Judge Saris, the commission’s own impact analysis demonstrates 

that 70 percent of the 51,000 inmates eligible for the ‘‘drugs minus 
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two’’ amendment are of color, Black or Hispanic. Would you agree 

that denying retroactivity would disproportionately impact minorities who have already been prosecuted and sentenced at disproportionate rates? 

Judge SARIS. Let me start off by saying we haven’t made our decision yet. We vote next week, actually, next Friday. I am back in 

D.C., 1 o’clock, we vote. So we have not yet made a decision on 

retroactivity. 

We have, however, held extensive hearings, had innumerable letters from everyone from law enforcement to the courts to people 

from the various stakeholders groups, religious groups, prisoners. 

We have heard from everyone. And we will be making that decision 

next week. 

What I will say is that mandatory minimum penalties and our 

drug sentencing scheme overall have had a particularly significant 

impact on racial and ethnic minority communities, and that more 

than 70 percent of offenders subject to mandatory minimums are 

minorities, Black and Hispanic. 

One of the reasons for that is, especially Black offenders, they 

have qualified for the safety valve less, so that the mandatory 

minimums have disproportionately affected minority populations. 

Mr. CONYERS. Thank you so much. 

Could I ask for the opinions of Judge Keeley and David Patton 

on the same issue, please? Thank you. 

Judge KEELEY. Thank you, Ranking Member Conyers. I wanted 

to remind everyone that our committee, the Criminal Law Committee, did have authority from the Judicial Conference to make a 

decision regarding retroactivity. And at our June meeting of the 

Criminal Law Committee, we voted by a large majority in favor of 

making the ‘‘drugs minus two’’ amendment retroactive. 

Mr. CONYERS. Thank you. 

Mr. Patton, would you comment on this, if you choose? 

Mr. PATTON. I think it is safe to say defenders would strongly encourage the commission and Congress to make any ameliorative 

changes retroactive. 

It really does not serve the interest of justice for the amount of 

time somebody serves to just depend on the fortuity of when the 

law goes into place. If it is an unjust sentence, it is unjust for those 

people serving the time now, in addition to people who will be sentenced tomorrow. 

And it would, I think, greatly help to ameliorate some of the racial disparities, the significant racial disparities, that we see in the 

system. 

Mr. CONYERS. Thank you. 

My last question is directed to Judge Saris, Judge Keeley, and 

Mr. Patton, and here it is. Congress intended mandatory minimums to be imposed against drug kingpins, but as we found out, 

it is often low-level offenders, often people of color, who receive it. 

Does this comport with your experience? 

Judge SARIS. I am just going to jump in, because Congress asked 

us a few years ago to do a study on exactly this issue, and we 

issued our report in 2011. And at least as of that time, we studied 

it, and in fact the mandatory minimums, as we said, apply very 
80 

broadly, not just to serious and major drug offenders, but they are 

also applying to street-level dealers, couriers, and mules. 

Now many of those get safety valve relief, but they are being hit 

at very high levels with convictions of statutes carrying mandatory 

minimums, and particularly the street-level dealers are, in the end, 

subject to them. 

Mr. CONYERS. Thank you. 

Can I finish, Mr. Chairman, by asking Judge Keeley to weigh in 

on this, please? 

Judge KEELEY. As you know, I speak for the conference, and the 

conference for 60 years has opposed mandatory minimums. One of 

the basic reasons we have opposed it is because of the 

disproportionality in sentencing that results by treating similarly 

offenders who actually may pose very different risks to society. 

And so to the extent that the statistics demonstrate that that 

disproportionality affects the African-American and the Hispanic 

community in a more disparate fashion, that is a result of the fact 

that mandatory minimums are viewing an offender who isn’t similar in a very similar way, instead of individually, which is the way 

sentencing ought to result. 

Mr. CONYERS. David Patton, would you give us your opinion? 

Mr. PATTON. Absolutely. To your initial point about the fact that 

mandatory minimums sweep in people that they were not originally intended for, I think that the evidence is in. That is absolutely the case. 

Congress intended for mandatory minimums to apply to managers and organizers of large-scale drug organizations, and instead, 

they have swept in much lower level offenders. 

Mr. CONYERS. Thank you all very much. 

Thank you, Mr. Chairman. 

Mr. BACHUS. Thank you. 

At this time, I recognize the gentleman from New York, Mr. 

Jeffries. 

Mr. JEFFRIES. Thank you, Mr. Chairman. 

Let me first just thank the distinguished panel for your presence 

here today, and, of course, your tremendous service to our country. 

Let me start with Mr. Patton. 

It seems to me that there are four primary actors in the criminal 

justice system. You have the prosecution, the defense, the presiding 

judge, and the jury. But if you have a trial participation rate—I believe the number was 2.7 percent—it seems to me that the course 

of the criminal prosecution, as you point out in your testimony, is 

largely determined by only one of those four actors, the prosecution, to the exclusion of the other four contemplated to bring about 

a just result in our constitutional system. Meaning the presiding 

judge, largely excluded. Certainly, the jury, largely excluded. The 

opportunity to mount a meaningful defense, largely excluded. 

So the system is out of balance, in my view, I think it is fair to 

say. 

What would be your recommendations in terms of how to restore 

some balance to the system in a manner that allows for meaningful 

engagement and participation by all of the actors in a criminal justice system, so that we can have a better shot of reaching the most 

just result? 
81 

Mr. PATTON. I think the Committee is probably growing tired of 

hearing it, but the answer is straightforward in one respect, and 

that is to ameliorate and eliminate mandatory minimums. 

Prosecutors have always had a great deal of authority, and they 

always will, in the charging process. But when they control the 

backend of the process as well, that is an unhealthy state of affairs. 

And I want to be clear, I am not suggesting—I think most prosecutors like most Americans are trying to do the right thing, most 

of the time. But we are a Nation of laws, not of men. We are very 

wary, historically, and with good reason, of investing too much 

power in nontransparent decision-making. And that is what happens in the plea bargaining process. 

When a judge imposes a sentence, it is on the record. There is 

a transcript. It can be appealed. Others can review it. Congress can 

look at the reasoning and decide whether or not changes need to 

be made. 

But charging decisions about whether or not to stack multiple 

924(c)s or file an 851 that exponentially increased somebody’s sentences, those are done not transparently and not accountably. 

Mr. JEFFRIES. Well, thank you. Let me pick up on that point with 

Mr. Heaphy. 

Thank you for your service and your testimony, and the progressive positions that are being articulated. But I want follow up on 

this point in terms of prosecutorial incentives to move forward. 

Notwithstanding the direction I think appropriately that has 

been given by the Attorney General, in the context of a U.S. Attorney receiving a performance evaluation, a line attorney, is it normal practice that that performance evaluation is based in part on 

their conviction rate? 

Mr. HEAPHY. No, absolutely not. 

Mr. JEFFRIES. How is prosecutorial advancement determined? 

Mr. HEAPHY. It depends on the individual, but it is about judgment. It is about fairness. It is about compliance with our discovery, and obligations, and our legal requirement to provide what 

is material and exculpatory to the defense. 

I have never, in my 20 years as a Federal prosecutor, been asked 

about a conviction rate. I don’t even know what it is, and I don’t 

keep track of that for the lawyers in our office. 

Our paramount objective is to do justice, and we evaluate our 

people on their consistency with the pursuit of that goal. 

Mr. JEFFRIES. So how do you measure judgment and discretion, 

and the ability to do justice, consistent with what a prosecutor’s ultimate obligation is? 

Mr. HEAPHY. It is hard to do that empirically or statistically. I 

don’t think justice is always reflected in a conviction rate or in a 

number of cases handled. It is really a product of a case-by-case 

evaluation of whether or not someone is fair, has an innate sense 

of justice, and is achieving outcomes that in the view of the management of the office are fair and are just, and that is what our 

people are trying to do every day. 

Mr. JEFFRIES. So some have articulated a concern based on performance evaluations being largely measured by conviction rate 

and/or enhanced length of sentencing. I am pleased to hear, at 
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least from your perspective from what you sit in your capacity, that 

is not your view. Hopefully, that is the case across the country. 

The other side of the coin is the notion of what are the disincentives for prosecutorial misconduct? Can you cite instances where 

examples of bad judgment, perhaps even judgment that crosses the 

legal boundary into potentially unlawful conduct, has actually been 

sanctioned in a way that every other American citizen has to face 

consequences in the context of the criminal justice system when 

they make a grievous error? 

Mr. HEAPHY. In the Federal system, we have the Office of Professional Responsibility that very closely monitors, receives complaints, and then investigates allegations of professional misconduct. State bars do the same thing. 

There is a doctrine of sovereign immunity, that actors, whether 

they are law enforcement or prosecutors, in good faith attempting 

to their job, if they make decisions that are later view to be unwise, 

are protected with immunity. 

But there are tremendous checks and balances internal within 

our department to ensure that our lawyers, our junior lawyers on 

up to senior decision-makers, are playing by the rules and are 

doing what is right. 

Mr. JEFFRIES. I think my time has expired, so I yield back. 

Thank you. 

Mr. BACHUS. Thank you. 

Let me first go to our U.S. Attorney. You mentioned environmental crimes, where there may not be need to be a mens rea. 

We have had testimony before this Committee, and I personally 

know of two businessmen in my district that were convicted in the 

1980’s of violation of environmental statutes. 

I have actually looked at the statutes and none of them are actually criminal statutes. By regulation, it was made a crime, and the 

regulation basically said the storing of toxic materials. 

In both of those cases, what happened, and I will just give you 

one example, a gentleman who was a Vietnam War veteran, a businessman, bought a piece of property, which had been a business, 

an ongoing business. He found on that site some barrels, and he 

reported it to the EPA that he had found these barrels. He was told 

that he needed to dispose of them. 

He then contacted them back and said it was going to cost over 

$1 million. He started disposing of them, but they gave him a deadline, and he didn’t meet that deadline. 

Here was an individual who bought a piece of property, not 

knowing there are chemicals stored on it, notified the agency, started disposing of them. But it was hard to get people to take these 

chemicals. That is a very expensive process. 

And then going with Mr. Patton, what he is saying, his testimony 

on page 7, I can actually see in a lot of cases where the U.S. Attorney’s Office for the Environmental Protection Agency, they have all 

the resources. He is faced with a situation of hiring an attorney. 

He actually was indicted. 

He is offered a year and a day to serve 60 days. He is told that 

if he doesn’t accept that, that he could get 10 years. He spent over 

$100,000 in the 1980’s on attorneys. 
83 

And what Mr. Patton said, he can go to court. He can roll the 

dice. He can pay his attorneys money he doesn’t have, borrowed 

money. 

But he chooses to take a plea. He is obviously very bitter about 

this, because he thinks he has done everything. 

And he says to me, ‘‘Everybody says, well, why didn’t you go to 

trial?’’ Of course, he’s saying, ‘‘I can’t. I can’t risk this. I have young 

children.’’ He has a criminal record. He can’t vote. That is how I 

found out about one of the situations. I don’t think many people 

knew. 

Mens rea to me, and you mentioned environmental, so that triggered it. Shouldn’t there be some intent? I mean, is intent to violate the law, even after you notify an agency of something that you 

didn’t cause? 

Does anybody have any comment on that? And I have been told, 

I actually talk to people up here on various Committees and the 

Judiciary Committee, former staffers, they said, oh, there were a 

slew of these convictions back in the 1980’s. There were literally 

thousands of these cases. 

Mr. HEAPHY. Congressman, I appreciate the question. 

I would not want someone 20 years from now to second-guess 

every charging decision. But that said, if that case, just on the facts 

as you described and nothing more, came to me today, that would 

not be a Federal criminal case. 

Mr. BACHUS. Now it is not. I think it has changed. They do not, 

as a matter of policy, prosecute right now. 

Mr. HEAPHY. But let’s assume that instead of it being an individual, sole practitioner, or someone that has a piece of property, 

found the barrels, that it is a company who routinely deals with 

hazardous waste, has sophisticated professionals who are aware of 

the regulations, perhaps are warned that you must dispose, or you 

will face a legal consequence, and they affirmatively choose not to, 

knowingly do not, then that probably should be a crime. 

And this gets down to prosecutorial discretion. The reality that 

we are dealing with, Congressman, is I don’t have enough people, 

we don’t have agents, we don’t have enough prosecutors, to deal 

with the 100 statutes, the guns, the drugs, the fraud, the child exploitation, that we face every day, because we have so many people 

in prison and our budgets are so stretched. 

So in a case like an environmental regulation of someone not appropriately disposing of a barrel of waste, to be honest, that is 

anomalous and peripheral matter that I am even less likely to 

reach now, because I can’t get my core work done. 

It is only if we really look hard at sentencing reform that we increase the amount of resources available for us to get our core work 

done, that we are really going to be sustain the system going forward. 

Mr. BACHUS. Anybody else have any comment on it? 

My time has expired. 

Mr. Scott? 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Chairman, I don’t know if we usually introduce guests in the 

audience, but a group of Sixth Mount Zion Baptist Temple children 

just arrived. 
84 

Could they stand, so we know where they are? 

Thank you. They are touring the Capitol and wanted to see what 

a congressional hearing looks like. 

Mr. BACHUS. So what church? 

Mr. SCOTT. Sixth Mount Zion Baptist Temple church. 

Mr. BACHUS. Where are they located? 

Mr. SCOTT. Hampton, Virginia. 

Mr. BACHUS. Oh, okay. That is your district, isn’t it? [Laughter.] 

You have an outstanding Congressman. [Laughter.] 

Thank you very much. 

Mr. SCOTT. Thank you. 

I wanted to follow-up on the questions to Mr. Heaphy. 

You suggested that, perhaps, strict liability may not be appropriate if health and safety is not a factor. Even if it is a factor, we 

have willful disregard to get past the strict liability, and we have 

civil fines. 

What rational basis would there be even on health and safety 

where the people just didn’t know? It is no deterrent effect, if you 

didn’t know. 

Mr. HEAPHY. Congressman, I think there is a greatly enhanced 

deterrent effect, if there is a criminal sanction. When you are talking about people who work in highly regulated industries like food 

and drugs, and the protection of public health and safety, then it 

is a policy choice that Congress has made to force those people to 

know the rules. And if they do not know the rules, then there is 

a criminal sanction. 

We had a recent case involving Jensen Farms. This was a business that produced fresh fruit, and they had cantaloupes that were 

insufficiently washed and they had listeria bacteria on the cantaloupe. Those cantaloupes got into the stream of commerce of 20 or 

30 States and ultimately were tied to 33 deaths because of the ingestion of that listeria. 

There is no evidence that the two proprietors or the two owners 

of the business, the Jensens, intentionally sent tainted cantaloupe. 

But because they are operating a business that directly has that 

kind of impact on the health, the strict liability misdemeanor of 

being responsible for ensuring that that did not happen was employed by the department. 

Mr. SCOTT. You mentioned misdemeanor. That was not a felony? 

Mr. HEAPHY. It was not a felony. It was a misdemeanor. 

Mr. SCOTT. And civil fines were insufficient? 

Mr. HEAPHY. The judgment of the prosecutor in that case is that 

if it is a business problem that can be ameliorated by writing a 

check and resolving a civil case, it is insufficient deterrence. That 

is a policy determination that Congress made, and we, frankly, 

agree with it. 

Criminal sanction has a greater attention-getting deterrent effect 

with corporate entities. 

Mr. SCOTT. But all of this would be limited to situations where 

health and safety are involved? 

Mr. HEAPHY. Generally, strict liability offenses—the BP oil spill, 

for example. There is no one who intentionally injected oil into the 

Gulf of Mexico, but it was of such magnitude that a responsible 

corporate officer could be held responsible, as could the company. 
85 

Generally, those crimes in that area are highly regulated industries with sophisticated actors who would have to make it their 

business to know the rules and ensure that people are protected. 

Mr. SCOTT. Highly regulated is an important factor because they 

know about the highly regulated nature of the business they are 

in. 

Mr. HEAPHY. Congress has decided that we will put the onus on 

them. Essentially, the public, the person eating the cantaloupe, he 

can’t really protect himself. That is why as a policy matter, the 

onus is on the company that distributes that to ensure health and 

safety is protected. 

Mr. SCOTT. Thank you. 

Judge Keeley, you mentioned State offenses should not be tried 

in Federal court. Should we repeal the statutes or rely on the discretion of the prosecutors to reduce the number of State offenses 

that are tried in Federal court? 

Judge KEELEY. I think the response of the conference would be 

that we have always urged Congress to do reasonable review of 

statutes to see if they are still effective, if there is still a need for 

them. 

So, in those circumstances, it would make sense to review those 

statutes. It would, of course, be within the discretion of Congress 

to determine whether the statutes should remain in place or be repealed. 

Mr. SCOTT. Is the decision to try something in Federal court reasonable if there is a differential in punishment? Should that be a 

factor in ascertaining whether or not the Federal Government 

ought to prosecute? 

Judge KEELEY. Certainly, it is not within the conference’s prerogative to say what crimes should be prosecuted in Federal court for 

a particular reason, but we would say that among the factors that 

we have recommended to Congress to review, that would not be one 

of them. 

Mr. SCOTT. Thank you. 

Thank you, Mr. Chairman. 

Mr. BACHUS. Back to me, I guess. 

Let me pursue again just some of the line I was hearing, and I 

know that when people read laws, they say, ‘‘Well, Congress intended this.’’ Many times, Congress didn’t intend. 

You read a statute that says you shall not store hazardous waste. 

When that statute was passed, I don’t think Members of Congress 

realized they were saying that if you buy a piece of property and 

discover toxic waste on it, or stored chemicals in barrels, or you 

buy a building and there are some chemicals stored in that building in an ongoing business, and you almost immediately report 

that, and you find out what it is and you report it, and the cost 

is several times even more than what you bought the piece of property for. 

I am back to this gentleman, because this is a real example. He 

actually said to the EPA, you can just have the property. But he 

said, can you just take the property? 

I am not sure that Congress ever intended, and it may be a misdemeanor, but a civil fine or forfeiture of a property or something 

of that nature. 
86 

Do each of you agree that maybe there should just be a tighter 

general statute on mens rea? I will just start with you. 

Mr. HEAPHY. No, candidly, Congressman Bachus. No matter 

what we do, the system depends upon the individual discretion of 

decision-makers. And if you came to my office on behalf of that client who had the barrel of hazardous waste, again, I cannot imagine 

why I would bring that case. 

Mr. BACHUS. Oh, I agree. 

Mr. HEAPHY. It just does not make sense without more facts. 

But to apply a uniform mens rea standard, without a careful review, case-by-case, statute-by-statute, in our view, it would be wildly overinclusive, because there may be cases, rare cases, with more 

sophisticated actors, more persistent conduct, where a responsible 

corporate officer should be held accountable as a matter of policy. 

And Congress really, again, has passed these statutes in the area 

of health and safety, so, again, Congress needs to be explicit, obviously, when drafting statutes. Generally, they are. 

Judges try hard to interpret them, and apply certain standards 

to their interpretation. But a blanket standard that would apply 

universally we think would be overinclusive. 

Mr. BACHUS. Judge Keeley? 

Judge KEELEY. Mr. Bachus, as you know, I am appearing here 

today as a conference witness, and I can only speak on issues on 

which the conference has taken a position, and it has not taken a 

position on the mens rea question. 

Mr. BACHUS. Judge Saris? 

Judge SARIS. As you know, the commission focuses on penalties, 

not on the elements of a crime, so we have not taken a position 

there either. 

Mr. BACHUS. Okay. 

Mr. PATTON. And I am sure that it won’t come as a surprise to 

you, Mr. Chairman, that most of our clients are not facing regulatory misdemeanors. [Laughter.] 

Mr. BACHUS. I am sitting here asking these questions and kind 

of the elephant in the room is this is maybe a half of 1 percent of 

all cases. We are not dealing with the 99.5 percent here. 

I read on page 7 of your testimony, I saw this last night, and I 

am thinking this is Custer’s last stand almost, but you say my office of the Federal defenders of New York represents indigent defendants in the Southern and Eastern Districts of New York. Those 

two Federal districts cover all of New York City, five counties north 

of the city, and Long Island. 

You have 39 lawyers. For those same two districts, there are 300 

Federal prosecutors—39 to 300. 

Now, of course, my first question is, I read that and I didn’t read 

the next sentence, of ‘‘Well, a lot of them hire attorneys.’’ But you 

have even considered that and you say, even after that, you represent over a third of those defendants. So over one third of them 

don’t. And there is still an 8-to-1 ratio of prosecutors to defense attorneys. 

Now, there is no way that you can try all of those cases. 

Mr. PATTON. And, I would say, Mr. Chairman, that that really 

understates the resource imbalance, because that doesn’t take into 

account all of the Federal and local law enforcement agencies, and 
87 

all of the resources they bring to bear. And cases require more and 

more time and energy these days. 

Mr. BACHUS. DNA. So 90 percent of your budget is for salaries, 

so you have 10 percent. I wouldn’t think that you could pay for 

many DNA tests. 

Mr. PATTON. Well, we can. I don’t want to overstate it. I think 

that the Judicial Conference works with us to help us with our 

funding. 

But it is out of whack. It is thoroughly out of balance with the 

resources on the other side of the aisle. 

Even a routine case today, not even a complicated case, will often 

involve cell phones or computers that need to be examined. The 

government will make claims based on cell site data or metadata 

on a computer. 

These are things that require experts, that require diligence and 

time and energy to investigate. And we are, certainly, outgunned 

in that regard. 

Mr. HEAPHY. Could I jump in on that? The people who are with 

me are probably going to be upset that I am jumping in on any 

question, but I have to, very quickly. 

The Federal public defender, very talented lawyers, only represent in every district a percentage of all of the indigent criminal 

defendants. If a defendant cannot afford counsel of his or our 

choice, then they are appointed a lawyer who has to be constitutionally effective. It could be the Federal public defender. It could 

be a private lawyer who is on a list from which a judge selects. 

But we agree. The department strongly supports adequate funding of indigence defense. It is important for the system to work effectively that the resources are relatively balanced, that if a defendant needs a DNA expert or wants to bring a witness in from 

some other place, that he be able to do that, and that if he is indigent, that the court pays for that. 

The Attorney General has consistently spoken of the need for 

adequate funding for indigent defense. I as a trial lawyer, I know 

that I am frankly in a better position if my opponent on the defense side is an effective advocate. I think juries want to see a fair 

fight. And that is fair. That is the way the system should work. 

So we agree with David that indigent defense, Federal public defenders, and the Criminal Justice Act-appointed lawyers need to be 

well-resourced. 

Mr. BACHUS. And I guess you mentioned you were a trial lawyer. 

I was a trial lawyer and you know if you have the resources, it is 

a tremendous advantage. 

I have actually sued the railroad, and I represented the railroads, and I appreciate the difference in resources. [Laughter.] 

Mr. HEAPHY. You ought to go into environmental defense too. 

There is a future there. 

Mr. BACHUS. My people, you are talking about your people, my 

people want me to ask this question. How would a requirement 

that a person, we are talking about cases where there doesn’t seem 

to be any overt act or intention to violate, how would a requirement that the person actually acted willfully, did something, not 

just failed to do something—but I guess the food case you were 

talking about was a failure—but acted willfully to prevent prosecu-
88 

tion of these types of egregious cases that I have described. And 

their characterization is ‘‘egregious.’’ 

Mr. HEAPHY. The cases in which we have charged a person or 

company for doing something that was not willful, are extremely 

rare. 

Let me just emphasize again, they are a very, very small percentage of the overall number. 

But again, there are instances where Congress has made a policy 

judgment, and we agree that it is important as a matter of strict 

liability to hold someone accountable because they should have 

known the rules. 

The biggest example of strict liability offense in American justice 

is drunk driving. You don’t necessarily have to hurt anyone. But 

if you make a decision to get behind the wheel while intoxicated, 

you are strictly liable even if you cause no harm. 

And again, that is because drunk driving—— 

Mr. BACHUS. Of course, that is a willful act, getting behind the 

wheel. 

Mr. HEAPHY. That is true. But it doesn’t necessarily have to 

cause injury. 

And I guess what we believe is that there are times when holding a company or an individual responsible, even if they weren’t 

willful, they didn’t take steps to prevent an injury, those rare instances we believe ought to be an arrow in our quiver to use in an 

appropriate case. 

Mr. BACHUS. Of course, your case on food, there were deaths. 

Mr. HEAPHY. There were, yes. 

Mr. BACHUS. That was sort of different. In this case, it was toxic 

chemicals that had been stored there, and only just continued to 

be stored there. But there was actually an affirmative act of reporting. ‘‘I have something here. What do I need to do?’’ 

Mr. HEAPHY. We had a case in our district years ago involving 

a pharmaceutical firm that was marketing a pain-killing medication, OxyContin, affirmatively hiding evidence of its addictiveness. 

And in that case, my predecessor in this job had three individual 

executives of that company plead guilty because they were responsible corporate officers who should have been aware that the marketing was deceptive. And they pled guilty to those misdemeanors. 

Mr. BACHUS. And I understand, they acted willfully. They concealed, or they were warned. They were cautioned. I understand. 

Do you have any final comments? 

Mr. SCOTT. Yes, Mr. Chairman. Willful blindness is prosecutable 

under a mens rea requirement. The problem is when people honestly did not know if it violated some arcane regulation and end up 

in criminal court. 

I don’t think there is any limitation on civil fines in that situation. But getting into a criminal prosecution is one of concern. 

When you are dealing with health and safety, I guess you can have 

different standards. 

But at some point, you have to know you were actually committing a crime. 
89 

*The material from the Urban Institute, ‘‘Stemming the Tide: Strategies to Reduce the 

Growth and Cut the Cost of the Federal Prison System,’’ is not reprinted in this hearing record 

but is on file with the Subcommittee and can be accessed at http://www.urban.org/uploadedpdf/ 

412932-stemming-the-tide.pdf 

Mr. Chairman, I ask unanimous consent that three documents, 

one from the Urban Institute,* one from Families Against Mandatory Minimums, and a letter from Ranking Member Conyers and 

myself to the Sentencing Commission be entered into the record. 

Mr. BACHUS. Well, thank you. In fact, without objection, all 

Members will have 5 legislative days to introduce any extraneous 

materials or statements, or to submit written questions to the witnesses. 

[The information referred to follows:] 
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Mr. BACHUS. And at this time, I am going to recognize the Chairman of the full Committee for questions. 

Mr. GOODLATTE. Mr. Chairman, thank you very much. I apologize for having to slip away. We have a Task Force that the Speaker appointed regarding the issue of our border, and children and 

others coming to the border, and I had to go to that meeting, but 

I am glad I got back in time to ask a few questions. 

I will address this to U.S. Attorney Heaphy. We learned recently 

that the Solicitor General’s office filed briefs with the Supreme 

Court in three cases that reflect the Department of Justice’s new 

position that the ‘‘willfully’’ element of 18 USC Sections 101 and 

1035 requires proof that defendant made a false statement with 

knowledge that his conduct was unlawful. 

So my question to you is, do you believe it is appropriate to require proof of knowledge of unlawfulness for every Federal crime? 

And what about for every element of a crime? 

Mr. HEAPHY. Yes, I am familiar with the recent position taken 

by the Solicitor General. It is limited to false statements in Federal 

health care programs, 1035 and 1001, which is the general statute, 

which prohibits false statements in a matter of Federal interest. 

But ‘‘willfully’’ in those statutes has to be read in context. I feel 

like I am giving you a very lawyerly answer, but it is important 

because the language matters. 

There are other contexts and statutes in which the word ‘‘willfully’’ has a different interpretation, like in the Securities Act or in 

tax offenses. There is no specific intent requirement, even though 

the word ‘‘willfully’’ appears there, and that has been repeatedly 

upheld by the Supreme Court. 

So the Solicitor General opinion was limited to 1035 and 1001, 

but it does not touch the long-settled view of how ‘‘willfully’’ is defined in other areas of the law because of a different context. 

Mr. GOODLATTE. I would imagine that would cause a lot of confusion for those who are not as lawyerly as you and I try to be. And 

I wonder, do you believe that the definition of ‘‘willfully’’ should be 

consistent? 

Mr. HEAPHY. Again, I think it depends on the sentence in which 

it appears. I think most of us understand—— 

Mr. GOODLATTE. As a legal term, so that when one is being given 

legal advice, and when one is attempting to abide by the law and 

not act in a willful way that would cause them to encounter that, 

would it not be helpful to have a definition that was consistent 

across the law? 

Mr. HEAPHY. I think the department’s position was based on sort 

of a similar view that it was important to make clear that ‘‘willfully’’ in the context of 1001 and 1035 meant someone had to know 

that the statement was false. As a matter of fair notice, the important goal that you flagged, yes, it is important for people to understand that certain decisions will or will not violate the law. 

But again, Congressman, a uniform standard that would apply 

to that word in every context, we would not go that far. 

Mr. GOODLATTE. And with regard to the underlying question of 

the appropriateness of requiring proof of knowledge of unlawfulness for every crime, I take it your answer is that you wouldn’t require that in every case. 
102 

Can you give us some examples of cases where it would not be 

appropriate to require that the person have mens rea or criminal 

intent? 

Mr. HEAPHY. Yes. Right when you walked in, we were talking 

about the Purdue Pharma case, which you are probably familiar 

with that happened right in our district. And that was a responsible corporate officer prosecution, where Purdue Pharma was marketing OxyContin, explicitly not flagging the addictiveness of the 

medication. Three executives from the company, with no evidence 

that they were personally aware of and monitoring the marketing 

messages that were sent by the company, but they should have, 

and under that responsible corporate officer doctrine, they were 

charged with and pled guilty to a misdemeanor, essentially, responsible corporate officer doctrine misdemeanor. 

So again, these are rare cases, and I want to emphasize that we 

are talking here about a very miniscule percentage of the overall 

portfolio of the work that we have to do. The garden-variety, 

malum in se, day-to-day work in our department, as you know, Mr. 

Chairman, is dealing with garden-variety crimes. And that is what 

we are underresourced to do, and that is why we are talking so 

much about sentencing reform. 

But there are limited circumstances, like the Purdue Pharma 

matter, where we think that it is appropriate as a policy matter to 

hold people accountable even if they didn’t know because they 

should have known, given that they work in a regulated industry. 

Mr. GOODLATTE. And what about the rule of lenity and the possibility of codifying this rule, that, as I understand it, is a judicial 

construction that says when a statute is not clear, it should be interpreted in favor of the defendant? 

Mr. HEAPHY. Yes, it would be anomalous for Congress to say, if 

we are ambiguous, give the benefit of the doubt to the defendant. 

Judges do that. That, as you said, is a canon of statutory construction. 

The answer is for Congress to very specifically identify intent 

standards, and we don’t need a rule of lenity. That only kicks in 

if the language is ambiguous. 

So we would always urge Congress to be very specific in terms 

of what level of intent is required in defining crimes. 

Mr. GOODLATTE. Congress tries, but with 4,500 separate Federal 

criminal statutes, it is not always as clear as one might think, especially when you don’t have the real-life case matter before you 

that you are applying the test of that language to. 

And that is why I think some of the criminal law scholars who 

testified before us have advocated for something like that. 

Let me ask any of the panel witnesses if they have anything to 

offer on either of those two subjects. 

Judge KEELEY. I had mentioned earlier, Chairman Goodlatte, 

that the Judicial Conference has not take a position on mens rea, 

and I am here as the conference representative, so I don’t have any 

additional comments. 

Judge SARIS. As I mentioned, as well, we focus on penalties, not 

on elements. The commission doesn’t have a position. 

Mr. GOODLATTE. All right. You are the representative of defendants in these cases, but what do you think? 
103 

Mr. PATTON. I am, Congressman. And a few moments ago, to 

many laughs, I noted that we don’t deal with too many regulatory 

offenses, in my line of work. Most of our clients are facing more serious felonies. 

Of course, as a broad principle, I think mens rea is—— 

Mr. GOODLATTE. But this could apply in any type of criminal violation of the law. 

Mr. PATTON. It could, and, certainly, we do deal with issues of 

false statements. And I do think that the mens rea requirement in 

those situations, outside of the health and environmental and regulatory situations, which we really don’t deal with on a regular 

basis, but as a general principle, I, of course, agree that mens rea 

is vital. 

It is what often distinguishes criminal from civil misconduct, and 

it is an important distinction. It is why we impose some sort of separate moral sanction because of the person’s intent and what they 

meant or didn’t mean to do. 

Mr. GOODLATTE. Well, thank you. I want to thank you all. I do 

have a concern that individuals who believe they are acting in good 

faith and do not know that they are willfully violating the law, I 

think the overall effectiveness of the rule of law is weakened when 

you don’t take into account a requirement that you have a showing 

of mens rea. 

And I would be happy to work with you, Mr. Heaphy, and others 

on whether there is a narrow band of exception to that. But I 

think, in general, that should be a requirement. 

Thank you, Mr. Chairman. 

Mr. BACHUS. Thank you. 

At this time, we are going to adjourn. Do any of you have closing 

statements you want to give? 

I will say this, there is a bipartisan recognition in this Congress, 

and I am retiring after 22 years, but I have never seen such a bipartisan recognition about the urgency to address over-criminalization, over-federalization of criminal cases, and sentencing reform, 

particularly. There is broad agreement among U.S. Attorneys, 

judges, Members of Congress, I think the general public. And it is 

a very important thing. 

And I commend Members of this Committee and our Chairman 

for recognizing that, Mr. Scott and Mr. Conyers and others for offering legislation, which we have some of our most conservative 

Members and our most liberal Members on. 

So hopefully, it is something that we can do. If we have to do it 

incrementally, I don’t think there is any perfect solution, but I 

would hope that we can take some action on that. 

It looks like some of the other issues are going to be much harder 

to gain consensus. 

We appreciate your testimony. Our Federal judges have been 

telling us in my district for years we had a problem, and they continue to tell us. And I know our inaction, to a certain extent, is precipitating the problem. 

So I thank you for your attendance, and this is important testimony. As we read your testimony, we may have additional questions for you. 
104 

We have a vote and less than 5 minutes remaining on the floor, 

and some of us are not as fast as others, so this hearing is adjourned. 

[Whereupon, at 10:31 a.m., the Task Force was adjourned.] 

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