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OVER-CRIMINALIZATION OF CONDUCT/ 

OVER-FEDERALIZATION OF CRIMINAL LAW 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

JULY 22, 2009 

Serial No. 111–67 

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 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

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 ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia, Chairman 

PEDRO PIERLUISI, Puerto Rico 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

ANTHONY D. WEINER, New York 

DEBBIE WASSERMAN SCHULTZ, Florida 

MIKE QUIGLEY, Illinois 

LOUIE GOHMERT, Texas 

TED POE, Texas 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TOM ROONEY, Florida 

BOBBY VASSAR, Chief Counsel 

CAROLINE LYNCH, Minority Counsel 

(III) 

C O N T E N T S 

JULY 22, 2009 

Page 

OPENING STATEMENTS 

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

the State of Virginia, and Chairman, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 1 

The Honorable Louie Gohmert, a Representative in Congress from the State 

of Texas, and Ranking Member, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 3 

WITNESSES 

The Honorable Richard Thornburgh, former U.S. Attorney General, presently 

with K&L Gates LLP, Washington, DC 

Oral Testimony ..................................................................................................... 5 

Prepared Statement ............................................................................................. 9 

Mr. Timothy Lynch, CATO Institute, Washington, DC 

Oral Testimony ..................................................................................................... 20 

Prepared Statement ............................................................................................. 23 

Ms. Kathy Norris, Victim/Personal Impact 

Oral Testimony ..................................................................................................... 33 

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

Mr. Krister Evertson, Victim/Personal Impact 

Oral Testimony ..................................................................................................... 43 

Prepared Statement ............................................................................................. 46 

Mr. Stephen A. Saltzburg, Professor, George Washington University Law 

School, Washington, DC 

Oral Testimony ..................................................................................................... 52 

Prepared Statement ............................................................................................. 54 

Mr. James A. Strazzella, Temple University Beasley School of Law, Philadelphia, PA 

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

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

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of John Wesley Hall, President, National Association 

of Criminal Defense Lawyers .............................................................................. 80 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 89 

(1) 

OVER-CRIMINALIZATION OF CONDUCT/ 

OVER-FEDERALIZATION OF CRIMINAL LAW 

WEDNESDAY, JULY 22, 2009 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 3:03 p.m., in room 

2237, Rayburn House Office Building, the Honorable Robert C. 

‘‘Bobby’’ Scott (Chairman of the Subcommittee) presiding. 

Present: Representatives Scott, Pierluisi, Nadler, Lofgren, Jackson Lee, Waters, Quigley, Gohmert, Poe, and Rooney. 

Staff Present: (Majority) Bobby Vassar, Subcommittee Chief 

Counsel; Jesselyn McCurdy, Counsel; Ron LeGrand, Counsel; 

Karen Wilkinson, (Fellow) Federal Public Defender Office Detailee; 

Veronica Eligan, Professional Staff Member; (Minority) Caroline 

Lynch, Counsel; and Kelsey Whitlock, Staff Assistant. 

Mr. SCOTT. Good afternoon. The Subcommittee on Crime, Terrorism, and Homeland Security will come to order. 

We are going to begin today’s proceedings with an oversight 

hearing on ‘‘Over-Criminalization of Conduct/Over-Federalization of 

Criminal Law.’’ When we have an appropriate quorum, we will suspend the hearing and go into markup on the crack cocaine bill. 

We will begin today’s hearing about Over-Criminalization of Conduct/Over-Federalization of Criminal Law. 

The issue comes after a series of conversations that the Ranking 

Member and I have had with former Attorneys General, a coalition 

of organizations, including the Washington Legal Foundation, the 

National Association of Criminal Defense Lawyers, the Heritage 

Foundation, the ACLU, Constitution Project, the Cato Institute, 

the American Bar Association, the Federalist Society, and others. 

They have come out of concern for what they and many others 

view as an astounding rate of growth for the Federal Criminal 

Code. They question the wisdom of continued expansion of the 

Criminal Code without taking the time to consider and review the 

process by which crime legislation is enacted. 

But more than the rate of growth in the Code, those concerned 

citizens and groups are concerned about the deterioration of what 

has occurred in the standards for what even constitutes a criminal 

offense. There is great concern of the overreach and perceived lack 

of specificity in criminal law standards, perceived vagueness, and 

2 

the disappearance of the common law requirement of mens rea, or 

guilty mind. 

The mens rea requirement has long served an important role in 

protecting those who do not intend to commit wrongful or criminal 

acts from prosecution and conviction. Mens rea elements, such as 

specific intent, willful intent, and knowledge of the specific facts 

constituting the offense, are part of nearly all common law crimes. 

It serves as a means of protecting society; and, without these elements, honest citizens are at risk of falling into traps and being 

victimized and criminalized by poorly crafted legislation and overzealous prosecutors. There are a number of examples, and we are 

going to hear some of those examples today. 

When we enact criminal legislation, there is an issue of need: Do 

we need to enact more laws at the Federal level for a particular 

subject? That is, is there a valid purpose to be served by creating 

the crime at the Federal level, particularly if it duplicates crimes 

at the State level, or would it be better to just provide resources 

to States to enforce their own laws? 

Why should there be a Federal offense of car jacking? State and 

local laws have been investigating and prosecuting those cases long 

before Congress made it a Federal crime, and they have been doing 

the job much better. In fact, when you are a victim of car jacking, 

you do not call the FBI; you call the local police. Wouldn’t it be better in such a situation for the Federal Government to provide resources in the form of training, professional development, use of 

crime labs, consultation about best practices in law enforcement investigations, and other assistance? 

These are the kinds of questions we should be asking before we 

enact more Federal criminal laws. We should also be asking those 

questions about the laws that we already have on the books. 

We are honored today to have a panel that includes distinguished experts, practitioners who have long grappled with these 

issues, as well as two individuals, private citizens, who will share 

their personal stories of the dangers of engaging in seemingly innocent conduct only to have their lives shattered when they were investigated, prosecuted, and incarcerated for offenses that many 

would scratch their heads and wonder, where is the crime? 

Some of the questions their testimony will raise is whether Congress should authorize a review of existing Federal laws, with specific emphasis on those laws that have been enacted but are not 

being enforced; reconsider how to best fight crime within the Federal system; reconsider the true Federal interests in crime control 

versus the risks of federalization of local crime; articulate general 

principles which should guide Congress in determining whether or 

not new crimes should be implemented and to implement mechanisms to foster restraint on further federalization; enact sunset 

provisions with respect to both existing laws that are not being enforced and new laws; and whether the proper response to Federal 

safety concerns is enactment of new Federal crime legislation or increased Federal support for State and local crime control efforts. 

Those are some of the questions that we will be considering today. 

But it is now my pleasure to recognize the esteemed Ranking 

Member of the Subcommittee, the gentleman from Texas, Judge 

Gohmert. 

3 

Mr. GOHMERT. Thank you, Chairman Scott. I don’t know how esteemed, but there are times I am steamed, anyway. 

I am pleased that the Subcommittee is holding this hearing 

today on a topic that is of particular importance to me and one on 

which I and my colleague, Chairman Scott, both agree on, and that 

doesn’t happen terribly often. 

But the Federal Code contains nearly 4,500 Federal crimes. Recent studies estimate there are nearly 56.5 new Federal crimes enacted each year. Over the past three decades, Congress has averaged 500 new crimes per decade, this despite the fact that the Federal Government lacks a general police power. 

As the Supreme Court noted back in 1903 in Champion v. Ames, 

‘‘To hold the Congress has general police power would be to hold 

that it may accomplish objects not entrusted to the general government and to defeat the operation of the 10th amendment declaring 

that the powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States 

respectively or to the people.’’ 

Yet Congress’ continuous enactment of new Federal crimes has 

systematically overturned this principle, securing a de facto Federal police power under which virtually all criminal conduct can be 

federally regulated. Many of these laws overlap with existing State 

laws and blur the lines between traditional Federal and State jurisdiction. Part of this trend toward over-federalization and over-criminalization is the growing expectation that Congress is the arbiter 

of criminal conduct. 

Unfortunately, Congress has responded to this pressure with 

zeal, often legislating in a vacuum with little regard for existing 

laws or the tenets of proper criminal statutes. The result is a labyrinth of Federal criminal laws scattered throughout many of the 

50 titles of the U.S. Code. 

The current Code is riddled with laws that are outdated, redundant, or inconsistent with other provisions in the Code. It has been 

over 50 years since the Criminal Code was last revised. 

Our colleague, Mr. Sensenbrenner, is co-sponsoring legislation to 

simplify and modernize the Criminal Code which would cut over 

one-third of the existing Criminal Code, eliminate competing or duplicative definitions, and consolidate the criminal offenses all into 

Title 18. Such a rewrite would be a tremendous undertaking but 

one that would be invaluable to both practitioners and Members of 

Congress. 

Unfortunately, many of the new laws enacted by Congress are 

not targeting what we consider to be criminal conduct such as 

homicide, assault, or burglary. Many of these laws impose criminal 

penalties, often felony penalties, for violations of Federal regulations. But there is a significant element missing from many of 

these provisions, criminal intent. 

Some of us may not have thought much about the mens rea requirements since our law school days, but it is a cornerstone of 

criminal law, and it is eroding as regulatory crimes are being prosecuted under reduced or even nonexistent mental states or intent. 

For example, a 1993 decision by the Ninth Circuit, which speaks 

for itself, in U.S. v. Wiesenfeld held that criminal sanctions are to 

be imposed on an individual who knowingly engages in conduct 

4 

that results in a permit violation under the Clean Water Act, regardless of whether the polluter is cognizant of the requirements 

or even the existence of the permit. 

The Clean Water Act has always been interpreted to allow a construction supervisor to be sentenced to 6 months imprisonment 

after one of his employees accidentally ruptured an oil pipeline 

with a backhoe, and a Michigan landowner was convicted under 

the Clean Water Act for moving sand onto his property without a 

Federal permit. 

Today, we are joined by two individuals with firsthand experience with this phenomenon. Mr. Krister Evertson was sentenced to 

21 months in Federal prison for illegally transporting chemicals to 

a storage facility a half mile from his home in Idaho. 

Mr. George Norris, who is joined today by his wife Kathy, was 

sentenced to 17 months in Federal prison for what amounts to incorrect paperwork for importing orchids into the United States. 

I appreciate them joining us today to share those stories. 

I also can’t resist—we are talking about over-criminalization. We 

have got a bill that may expand over-criminalization to new 

heights, for example, basically criminalizing all rape. But that is 

under the hate crime bill that is going through Congress now. I 

can’t resist mentioning that in the topic of over-criminalization. 

Anyway, I do wish to acknowledge the efforts of the coalition, 

which include the Heritage Foundation, the ACLU, the Cato Institute, the National Association of Criminal Defense Attorneys, the 

American Bar Association, and others. But individually I also want 

to acknowledge our friend, Attorney General Ed Meese. What a 

great diplomat and thinker he is and what a pleasure to work with 

him. 

General Thornburgh, it is great to have you here. 

I will tell you, the level of minds that have been contributing to 

this, it has just really made me feel like the donkey entered into 

the Kentucky Derby. Comparatively, I don’t stand a chance, but the 

company is wonderful. 

I appreciate all of you participating. 

With that, I yield back. 

Mr. SCOTT. Our first witness is the Honorable Richard 

Thornburgh. He served as the Governor of the Commonwealth of 

Pennsylvania, as Attorney General of the United States under 

Presidents Reagan and George H.W. Bush, and Undersecretary 

General for the United Nations during a public service career 

which spanned more than 25 years. He is currently counsel with 

the international law firm of K&L Gates LLP in Washington, D.C. 

Our second witness today is Timothy Lynch. Under the direction 

of Tim Lynch, Cato’s project on criminal justice has become a leading voice in support of the Bill of Rights and civil liberties. His research interests include the war on terrorism, over-criminalization, 

the drug war, militarization of police tactics, and gun control. He 

has also filed several amicus briefs in the U.S. Supreme Court, including constitutional rights. 

Our third witness will be Kathy Norris, a founder and director 

of Real World Resources, a nonprofit faith-based organization that 

helps recently released prisoners reestablish themselves and reintegrate into the community. She has served in a number of conVerDate Aug 31 2005 15:23 Apr 13, 2010 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\072209\51226.000 HJUD1 PsN: 51226
5 

flict resolution initiatives, including the Houston Chapter of the Association of Conflict Resolution, Equal Employment Opportunity 

Commission’s Pilot Mediation Project, the Alternative Dispute Resolution Committee, the Council of the ADR Section of the Texas 

Bar, Texas Mediator Trainer’s Roundtable. She is a graduate of the 

University of Texas, where she studied English and education. She 

studied conflict resolution at Antioch University and is certified in 

choice therapy and reality therapy by the William Glasser Institute. 

Krister Evertson, our next witness, is a former owner and president of SBH Corporation, an Idaho-based corporation engaged in 

developing a process to reduce the cost of producing sodium borohydride, a chemical compound that is used to power hydrogen fuel 

cells. Fuel cells are a key component of the next generation of lowemission automobiles. He will speak about his experience with the 

Federal criminal justice system. 

The next witness is Professor James Strazzella. He teaches at 

Temple University Law School in Philadelphia, where he holds a 

James G. Schmidt Chair in law. He has been involved in both academic aspects of criminal law and practical attempts to improve 

the court system. Before entering teaching, he was a prosecutor in 

Washington, D.C., serving as Assistant U.S. Attorney for Washington, D.C. He is author of numerous publications, including several on the growth of Federal criminal law. In 1977 and 1978, he 

served and was a reporter for the American Bar Association’s Bipartisan Task Force on the Federalization of Criminal Law. 

Our final witness will be Stephen A. Saltzburg, who has been the 

Wallace and Beverly Woodbury University Professor at George 

Washington University of Law since 2004. From 1990 to 2004, he 

was professor of trial advocacy, litigation, and professional responsibility. He is the author of numerous books and articles on evidence, procedure, and litigation. He chaired the ABA Justice Kennedy Commission, which examined criminal law issues relating to 

punishment, sentencing, incarceration, racial disparity, 

commutations, pardons, compassionate release, prison conditions, 

and reentry. He also co-chaired the ABA Commission on Effective 

Criminal Sanctions, the successor of the Kennedy Commission. 

Each of our witnesses’ written statements will be entered into 

the record in its entirety. I would ask each witness to summarize 

their testimony in 5 minutes or less, and to help stay within that 

timeframe there is a timing device at the table which will start 

with the green light. When it goes to yellow, 1 minute is remaining 

and will turn to red when the 5 minutes have expired. 

General Thornburgh. 

TESTIMONY OF THE HONORABLE RICHARD THORNBURGH, 

FORMER U.S. ATTORNEY GENERAL, PRESENTLY WITH K&L 

GATES LLP, WASHINGTON, DC 

Mr. THORNBURGH. Thank you, Chairman Scott and 

Ranking Member Gohmert, for giving me the opportunity to 

speak with you about this important topic. 

I have served on both sides of the Federal criminal aisle, as a 

Federal prosecutor for many years and currently as a defense attorney involved in proceedings adverse to the Department of Justice. 

6 

I believe I have a balanced view of the issues before this Subcommittee and hope I can provide some insight and suggest some 

ideas to deal with the current phenomenon of over-criminalization. 

Those of us concerned about this subject share a common goal, 

to have criminal statutes that punish actual criminal acts and do 

not seek to criminalize conduct that is better dealt with by the 

seeking of regulatory and civil remedies. The criminal sanction is 

a unique one in American law; and the stigma, public condemnation, and potential deprivation of liberty that go along with that 

sanction demand that it should be utilized only when specific mental states and behaviors are present. 

Make no mistake, when individuals commit crimes, they should 

be held responsible and punished accordingly. The line has become 

blurred, however, on what constitutes a crime, particularly in corporate criminal cases, and this line needs to be redrawn and reclarified. 

The unfortunate reality is that the Congress has effectively delegated some of its most important authority to regulate crime in 

this country to Federal prosecutors who are given an immense 

amount of latitude and discretion to construe Federal crimes and 

not always with the clearest motives or intentions. 

A striking example of this is the ‘‘honest services’’ mail and wire 

fraud statute. Justice Scalia observed that the state of the law for 

honest services fraud was chaos and stated the practical reality of 

the statute as currently applied in a recent Supreme Court case, 

and I am quoting. 

The Justice said, ‘‘without some coherent limiting principle to define what the intangible right of honest services is, whence it derives, and how it is violated, this expansive phrase invites abuse 

by headline-grabbing prosecutors in pursuit of local officials, State 

legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct.’’ 

Since 1909, corporations have routinely been held criminally liable for the acts of its employees under the doctrine of respondeat 

superior. In recent history, one of the more significant cases is Arthur Andersen, a case with which this Committee is no doubt 

aware, in which a business entity received effectively a death sentence based on the acts of isolated employees over a limited period 

of time. A political cartoon that was published after the Supreme 

Court reversed the company’s conviction showed a man in a judicial robe standing by the tombstone of Arthur Andersen who simply said, oops, sorry. That apology didn’t put the tens of thousands 

of partners and employees of that firm back to work. This simply 

cannot be repeated, and reform is needed to make sure there are 

no future abuses of this sort. 

What can be done to curb future abuses? 

First, I have advocated for many years that we adopt a true Federal Criminal Code in place of the current hodgepodge of some 

4,450 separate enactments with no coherent sense of organization. 

There is a template in existence, the Model Penal Code, that can 

act as a sensible start to an organized Criminal Code and which 

has formed the basis for many efforts to establish State criminal 

codes in this country. 

7 

What is needed is a clear, integrated compendium of the totality 

of the Federal criminal law, combining general provisions, all serious forms of penal offenses, and closely related administrative provisions into an orderly structure which would be, in short, a true 

Federal Criminal Code. 

I suggested a commission should be constituted, perhaps in connection with Senator Webb’s National Criminal Justice Commission Act, to review the Federal Criminal Code, collect all similar 

criminal offenses in a single chapter of the United States Code, 

consolidate overlapping provisions, revise those with unclear or 

unstated mens rea requirements, and consider over-criminalization 

issues. 

This is not a new idea. Congress has tried in the past to reform 

the Federal Criminal Code, most notably through the efforts of the 

Brown Commission in 1971. The legislative initiatives based on 

that Commission’s work, in which I participated as then Assistant 

Attorney General in the Criminal Division, failed, despite widespread recognition of their work. 

I suggest that it is incumbent on the Congress to seek to make 

sense out of our laws and make sure that average, ordinary citizens can be familiar with what conduct actually constitutes a crime 

in this country. 

Second, Congress needs to rein in the continuing proliferation of 

criminal regulatory offenses. Regulatory agencies routinely promulgate rules that impose criminal penalties that are not enacted by 

Congress. Indeed, criminalization of new regulatory provisions has 

become seemingly mechanical. One estimate is there are a staggering 300,000 criminal regulatory offenses created by agencies 

without congressional review, some of which you will hear about 

today. 

This tendency, together with the lack of any congressional requirement that legislation pass through the Judiciary Committee, 

those of you who are responsible for keeping an eye on the rationality of traditional criminal offenses, has led to the evolution of a 

new and troublesome catalogue of criminal offenses. Congress 

should not delegate such an important function to agencies. 

In this area, one solution that a renowned expert and former colleague from the Department of Justice, Ronald Gainer, who is with 

us here today, has advocated, is to enact a general statute providing administrative procedures and sanctions for all regulatory 

breaches. It would be accompanied by a general provision removing 

all criminal penalties from regulatory violations, notwithstanding 

the language of the regulatory statutes, except in two instances. 

The first exception would encompass conduct involving significant harm to persons, property interests, and institutions designed 

to protect persons and property interests, the traditional reach of 

the criminal law. The second exception would permit criminal prosecution not for breach of the remaining regulatory provisions but 

for a pattern of intentional, repeated breaches. 

This relatively simple reform could provide a much sounder foundation for the American approach to regulatory crime than previously has existed. 

Third, and finally, Congress should also reconsider whether it is 

time to address whether respondeat superior should be the standVerDate Aug 31 2005 15:23 Apr 13, 2010 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\072209\51226.000 HJUD1 PsN: 51226
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ard for holding companies criminally responsible for acts of its employees. 

As this Committee is certainly aware, the Department of Justice 

has been troubled by this issue and has issued a succession of 

memoranda from Deputies Attorney General during the last decade 

addressing critical issues regarding charging corporations, particularly regarding the protection of the attorney-client privilege. The 

current guidelines may not be sufficient, because they continue to 

vest an unacceptable discretion in Federal prosecutors. A law, in 

short, is needed to ensure uniformity in this critical area so the 

guidelines and standards do not continue to change at the rate of 

four times every 10 years. 

Indeed, if an employee was truly a rogue or acting in violation 

of corporate policies and procedures, Congress can protect a wellintentioned and otherwise law-abiding corporation by enacting a 

law that holds the individual rather than the corporation responsible for the criminal conduct without subjecting the corporation 

and the fortunes of its shareholders to the whims of any particular 

Federal prosecutor. 

Before I close, I want to personally commend Chairman Scott 

and other Members of this Subcommittee for your role in securing 

unanimous House passage of the Attorney-Client Privilege Act of 

2007 in November of that year. The privilege is one that goes back 

to Elizabethan times, and the preservation of that privilege is 

something about which I have expressed concern for many years. 

Mr. Chairman, your recognition of the issue and your legislation 

to stop coercive waivers and overreaching to gain access to privileged communications is precisely the type of legislation needed to 

protect this important privilege. 

With respect to the problem of over-criminalization, let me repeat 

that reform is needed. True crimes should be met with true punishment. While we must be tough on crime, we must also be intellectually honest. Those acts that are not criminal should be countered 

with civil or administrative penalties to ensure that true criminality retains its importance and value in the legal system. 

Thank you, Mr. Chairman and Ranking Member Gohmert, for 

giving me the opportunity to address this Committee this afternoon 

on this important issue. 

[The prepared statement of Mr. Thornburgh follows:] 

9 

PREPARED STATEMENT OF THE HONORABLE RICHARD THORNBURGH


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Mr. SCOTT. Thank you, General Thornburgh. 

We have votes pending. There are six votes, which will take us 

at least half an hour, and we will be back as soon as we can. 

[Recess.] 

[5 p.m.] 


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20 

Mr. SCOTT. The Subcommittee will now resume its hearing. 

We will have testimony from Mr. Lynch. 

TESTIMONY OF TIMOTHY LYNCH, CATO INSTITUTE, 

WASHINGTON, DC 

Mr. LYNCH. Thank you, Mr. Chairman. I appreciate the invitation to appear here today. 

Before I get to the subject of mens rea and criminal intent, let 

me start off by explaining my general approach to the criminal law. 

My analysis of these issues begins with three facts that I think are 

important to keep in mind at all times. 

First, the power wielded by police and prosecutors is truly immense. We have to remember that all it takes is one raid on a 

home or business, one high-profile arrest, or a single indictment 

announced before the TV cameras on the courthouse steps and a 

person’s life can be forever changed. Reputation gone, job gone, 

friends gone, and that is before you even get the opportunity to go 

into court to mount a defense. These things have already happened. Your life has already been altered. 

Second, as Attorney General Thornburgh mentioned, the term 

‘‘criminal’’ carries a stigma. The term implies that the culprit has 

done something that is blameworthy. Now, that most definitely, is 

usually the case, but the term should not be twisted so as to apply 

in cases where there is no blameworthy choice. Criminality should 

be a situation where there is a clear line between lawful conduct 

and unlawful conduct and the person crossed over that line knowing what he or she was doing. 

Third, the Constitution contains many provisions that restrict 

the application of the criminal law. It restricts the power to search, 

it restricts excessive fines, it sets forth certain procedures about 

the notification of charges, it sets forth procedures for jury trials, 

speedy trials, the right to confront witnesses and so forth. Those 

safeguards amount to very little if the government can create very 

expansive theories of criminal liability that essentially obliterate 

traditional legal defenses, such as the ability to go into court to 

argue that you are doing something in good faith. If we are serious 

about maintaining constitutional safeguards, we have to keep a 

close eye on how the government creates and defines criminal offenses. 

With that background in mind, I want to briefly pinpoint the 

areas of our law where the problems of mens rea and criminal intent are especially acute. 

First, everybody here has heard of the old legal maxim that ‘‘ignorance of the law is no excuse.’’ But, Mr. Chairman, with the 

shelves and shelves of law books that can be found in libraries 

across the country, this doctrine no longer makes any sense. Even 

attorneys like us, it is impossible for us to keep up with the law 

these days. So, it is an old doctrine that no longer makes any 

sense, and the result of keeping this old doctrine on the law results 

in unjust prosecutions. 

My written testimony highlights the case of one Carlton Wilson. 

Mr. Wilson purchased a firearm. It was a perfectly lawful purchase. But, years later, when he was in divorce proceedings, a 

judge issued a restraining order; and nobody informed Mr. Wilson 

21 

that he had a legal obligation, once the restraining order was 

issued, that he had to surrender his firearm. The judge didn’t tell 

him. His own attorney didn’t tell him. And the terms of the restraining order itself didn’t say you had to turn in your firearm. 

Mr. Wilson got caught up in a Federal indictment and is serving 

3 years in a Federal prison for violating a law that he had no reason to know about. And the Federal prosecutors just shrugged and 

said, well, ‘‘ignorance of the law is no excuse.’’ 

It is time to discard this old doctrine by requiring prosecutors to 

prove that regulatory violations like this were willful. 

Again, in my written testimony, I show that this case against 

Mr. Wilson was not just an aberrational case where one prosecutor 

exercised poor judgment. There are many other cases like this; and, 

again, that is in my written testimony. 

Another problem area concerns the area of vague criminal statutes. In the situations where a particular law is brought to our attention, we still need to be able to understand the terms of that 

statute. We should be able to find that bright line between the conduct that is lawful and the conduct that is unlawful. 

In my written testimony, I direct the Committee to a situation 

where the Environmental Protection Agency (EPA) created a special hotline for the Resource, Conservation, and Recovery Act. They 

set up a special hotline to field questions, because they were getting lots of inquiries from people that wanted to know how that law 

applied in different situations. But there was a catch. The EPA 

said that it could not guarantee that the information given over 

this hotline would be correct, and prosecutors made it known that 

reliance on incorrect information would not be a defense in an enforcement action. 

Now, Congress should disavow situations like this, where ordinary citizens are relying on the government for guidance on what 

conduct is lawful and unlawful. 

Another thing Congress can do in this area is to direct the courts 

to follow the rule of lenity. The rule of lenity, you may recall, basically says that when a statute is ambiguous you give the benefit 

of the doubt to the defendant, not to the government. 

Mr. Gohmert mentioned we are going back to law schools to review some of these concepts. You might recall that in contracts, 

when a contractual provision was ambiguous, you would resolve 

that against the person who drafted the contract. So the rule of 

lenity is basically the same idea. When a criminal law is ambiguous, you give the benefit of the doubt to the citizen, not to the 

prosecutors and the government. 

Congress should also revisit the most expansive theories of criminal liability that have crept into our law. Under theories of strict 

liability and vicarious liability, persons can be labeled ‘‘criminals’’ 

but the defendants are barred from bringing in the extenuating circumstances of their cases to bring these to the attention of juries. 

That is because prosecutors and judges will make it clear even before the trial begins, that facts such as extenuating circumstances 

or somebody acting in good faith, these factors are irrelevant in a 

strict liability case. 

Let me provide you with one example to show you how this can 

produce an injustice. 

22 

My written testimony highlights the case of one Dane Yirkovsky. 

He is now serving a 15-year mandatory minimum sentence; and, 

according to the reported decision in the case, here are the circumstances of his ‘‘crime.’’ 

He was re-carpeting a room where he was living, and he found 

a bullet as he was pulling up the carpet. He took the bullet and 

put it in a box on top of his dresser. 

Months later, he got into a dispute with his ex-girlfriend about 

some property that she said he should not have taken, so he allowed a police detective into his room to show that he didn’t have 

the property that she was talking about. But as the detective was 

walking around the room, he discovered this bullet; and suddenly 

this man, Yirkovsky, found himself caught up in a Federal indictment for possession of ‘‘illegal ammunition.’’ 

He could not bring his innocent intentions or the extenuating circumstances of this case to the attention of the jury because they 

said it wouldn’t make any difference. You are a felon. He had 

served his time. He was coming back trying to reestablish himself 

into the community. And, under the law, it is very strict. If you are 

felon, you can’t possess illegal ammunition; and he couldn’t bring 

the extenuating circumstances of his case to the attention of the 

jury. They just said it was irrelevant. 

Mr. Chairman, I have more examples and I go into more detail 

in my written testimony, but let me quickly conclude by affirming 

what Mr. Gohmert and what Mr. Thornburgh said earlier: The 

Federal Criminal Code is presently a mess. 

At a minimum, I think Congress should take, at a minimum, 

take the following steps: 

Discard the old rule that ‘‘ignorance of the law is no excuse.’’ It 

doesn’t make any sense anymore. 

Second, Congress should establish the rule of lenity into our law. 

Right now, the courts are applying this rule haphazardly. Sometimes there is a favorable decision where they are applying the rule 

of lenity, but it is not applied uniformly in all Federal criminal 

cases, and that is something Congress can change by enacting a 

law. 

Third, Congress can abolish these most expansive theories of 

criminal liability such as strict and vicarious liability. They are inconsistent with the American legal tradition, and they hand too 

much power over to prosecutors, who can then coerce plea deals. 

Thank you very much. 

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Mr. SCOTT. Thank you. 

Mrs. Norris. 

TESTIMONY OF KATHY NORRIS, VICTIM/PERSONAL IMPACT 

Mrs. NORRIS. Good afternoon, Mr. Chairman and 

Ranking Member Gohmert and Members of the Subcommittee. 

I am here today to tell you about the consequences for my family 

when my husband George was arrested and imprisoned for a minor 

paperwork violation. It is not just the so-called criminals that suffer. It is the family as well. 

On October 28, 2003, our home was raided by Federal agents. I 

was at work, and one of my neighbors called and said, what is 

going on at your house? 

I said, what do you mean? 

And she said, well, there is a guy out in the street and he is stopping us as we go by, asking what we know about the criminal activity at your house. 

I thought, holy heavens. So I called my house five times before 

someone finally answered; and when they answered, they said, who 

is this? 

And I said, George? 

And they said, who is this? 

And I said, well, I have called my house. If you are not George, 

I have no clue who you are, so I think I am going to call up and 

call 911 and get the police over there to find out who you are and 

what you have done to my husband. 

‘‘I am a Federal officer.’’ 

I said, okay, now we are making some progress, I guess. 

He never identified himself by name, he never gave me any information about who he was, and it took about 5 minutes of talking 

with him to get him to let me speak with my husband, who was 

told to sit in a kitchen chair, was not allowed to move out of it. 

It went on for about 4 hours. They ransacked our house. We had 

no clue what this was about, why they were there. And when I finally talked to my husband, he was sitting there, and he was 

frightened, and he was confused, and there was no telling what 

this was about. 

So they eventually left. They took 37 boxes of documents out of 

our house and George’s computer. Eventually, they returned eight 

boxes and the broken computer. It took us about another 4 hours 

to clean the house up from what they had done. 

I called the clerk of the Federal court the next morning to ask 

what it is about; and they said, it is a sealed indictment. You don’t 

need to know. You can’t know. 

So for about 5 months we had no idea why they had been at the 

house and what they were doing. It is pretty scary to be that much 

in the dark. 

Yes, this case is about orchids. It is not about guns or drugs or 

anything else. George had had a passion for flowers and for orchids 

for years, and he eventually built it into a small business. It was 

operated out of our backyard. He imported orchids from all over the 

world, primarily species, and we sold them to people that wanted 

to hybridize orchids and develop new kinds of species. 

34 

All orchids are covered by the Convention on International Trade 

and Endangered Species. Even though they are not endangered, 

they fall under that convention, and that makes life working with 

the CITES Convention really delicate, because you never know 

when you are on track, off track, on the right page or off the right 

page. 

So as we eventually found out, George and our supplier from 

Peru, Manuel Arias Silva, who is an orchid producer and shipper, 

had shipped some of the orchids under a wrong name on the Customs document. What we assume is that the Federal Government 

wanted to make an example of someone in the orchid community, 

and they choose George. 

George is sitting over there in a blue shirt. We have been 

through this together all the time, and I wanted him here with me 

today. 

Our lives have never been the same, and they won’t ever be the 

same. We had to fly to Miami because we weren’t given a change 

of venue. My understanding is that normally when there is a crime 

and it is seen in one place that they give you a change of venue 

closer to where you live, which would have saved us a lot of money 

in flying back and forth to Miami. It would have given us a chance 

to find an attorney in a place where we actually knew some people. 

We are from the Houston area. There are competent attorneys 

there, and we at least know some people we could have asked. 

At first, we were going to fight the charges. We hired a lawyer, 

and we spent a lot of money traveling back and forth to hearings. 

Most of the time, we had 3 or 4 days’ notice, so all of our flight 

time was at full fare, not reduced fares. Then it became apparent 

that we needed to find a more expert lawyer, and we found one, 

but, unfortunately, he was monumentally out of our ability to pay. 

So George pled guilty. He was sentenced to 17 months in Federal 

prison, and he served that. Money was really tight. Our business 

was gone. George’s Social Security stopped while he was in prison. 

Then I got told that if I wanted him to be insurable after he got 

out of prison, I had to pay his Medicare premiums while he was 

in prison. So we had that on top of everything else. He had to have 

some money in prison, so I had to send him a little bit to buy 

things at the commissary, like paper and stamps and some food 

that he could actually eat. This was done on my salary running a 

mediation center. 

You know, it is one thing to lose your life savings when you are 

40. But when you are 60 and 65, it is really tough, because you 

don’t have any years to go back and rebuild it. So now we are kind 

of stuck with no money and a felon for a husband. 

There was a ton of grieving through all this, for me and for our 

children and grandchildren. The younger grandchildren were just 

told Papa George was traveling, and the older kids knew what was 

going on, and they went through their own grieving. 

George was in prison barely getting by. They sent him to a Federal medical facility. He is diabetic. He has got cardiac complications, arthritis, and Parkinson’s disease. 

We kept wondering about his treatment in prison. We weren’t 

getting normal treatment from his doctor there, so George would 

phone me, and he would tell me what was going on symptoVerDate Aug 31 2005 15:23 Apr 13, 2010 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\072209\51226.000 HJUD1 PsN: 51226
35 

matically, and I would call his doctor, and they would tell me, you 

know, up this drug, down this drug, stop that drug, see if you can 

get one like this. And when George would call me back, then I 

would relay that information to him, and he would go to the doctor 

and suggest those things, and the doctor would say, oh, sounds like 

a good idea. 

Well, about 3 or 4 months after George was released from prison, 

the doctor was taken out in shackles because it turned out he 

wasn’t a doctor. He had immigrated to Canada, gotten doctors’ papers and moved into the United States where he obviously couldn’t 

pass medical exams, but he was hired by the Bureau of Prisons to 

be the doctor. 

It was kind of a thing, but, you know, we did actually make it 

through it, and George is still alive, and here we are. 

Those kind of are the easy things to describe. The hardest part 

is I lost the man I married. He came home from prison and he ate 

and he slept and he sat on the couch and looked at the TV, but 

he wasn’t really watching it. We went through about 4-1/2 months 

of having him just kind of be there. It was like having him in a 

coma, almost. He wouldn’t water a plant, he wouldn’t call the 

grandkids, he wouldn’t invite a friend over, he didn’t want to go out 

to dinner. Nothing. 

He eventually got sort of reinterested in woodworking, which has 

been one of his hobbies, so his world expanded to include the 

house, the TV set, meals, and the shop where he worked on the 

wood. He still has prison nightmares. 

My world shrank, too, because I was there trying to figure out 

how to pay the bills, how to keep the house running, how to hold 

down my job, how to do what I could for the kids and grandkids, 

how to visit George in prison, and by the time I got all that done, 

there really wasn’t a whole lot of time for anything else. And that 

went on for months and months. 

George is out of prison now, and he is doing some better. The remaining part is the paranoia. We both really are still looking over 

our shoulder waiting for the other shoe to drop, wondering what 

will happen next. There was some real concern when we were 

asked to come and testify here about are we painting a bull’s eye 

on his back, will there be retaliation from the Department of Justice. We were assured it probably wouldn’t, but that is the level of 

paranoia. I never would have thought to ask that question before. 

Mr. SCOTT. If you will summarize the rest of your testimony. 

Mrs. NORRIS. I will do it very quickly. 

I grew up in a country that wasn’t like this. I grew up in a good 

part of Dallas. I didn’t know anybody that had been arrested or put 

in jail. Neither had George. And to have a group of people storm 

the house in kevlar vests with guns drawn and change our lives 

forever just simply isn’t something that should have happened. 

This was about orchids. It was about I think a total of 75 orchids, 

worth $8 apiece. 

I guess what I want to tell you is that the crime, the criminal 

and the punishment didn’t just affect him. It affected our entire 

family. It strained all of our family, and henceforth he is a felon. 

He is not allowed to do anything with his grandkids like hunt. He 

is not allowed to have alcohol in the house. He is not allowed to 

36 

have a bow and arrow. There is this whole list of can’t’s; and, quite 

frankly, the one-size-fits-all list of can’t’s doesn’t fit my husband or 

our family. 

I am told that to get a pardon you have to have completed your 

sentence by 5 years. Well, he got released from probation last December, so 5 years from that we can apply for one to the Department of Justice. Oh, goody. I can tell you what confidence I have 

in that process. 

So there is no way to get back. There is no way to retrench from 

this. 

I also want to tell you how much I appreciate the opportunity to 

talk here. It has been a long time. We were not allowed a voice. 

If you said anything to newspapers or anyone else, the retaliation 

was really severe. So this is the first time I have actually had a 

chance to sit and talk to people that might have a chance at doing 

something different in the future, and I am incredibly grateful for 

that. Thank you. 

[The prepared statement of Mrs. Norris follows:] 

37 

PREPARED STATEMENT OF KATHY NORRIS


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Mr. SCOTT. Thank you. 

Mr. Evertson. 

TESTIMONY OF KRISTER EVERTSON, 

VICTIM/PERSONAL IMPACT 

Mr. EVERTSON. Good afternoon, Mr. Chairman, Ranking Member 

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Thank you for holding this hearing. I only wish that you had 

held it a few years ago before I became a victim of over-criminalization. 

What I have experienced in these past years is something that 

should scare you and all Americans. 

I worked on my invention in my mother’s garage, and it was my 

American dream. And, instead, my dream and hard work, it turned 

into a prison term for doing something that no one would dream 

would be a crime. 

Please excuse me if I stutter a bit, but I have stuttered all my 

life. But being here is more important to me than not stuttering. 

I try to be an inventor, and I have done it since I was a kid. In 

school, I won the science fairs at my intermediate school and high 

school every year, and I won the third place at the Hawaii State 

Science Fair, which is pretty good at the State level, and that year 

I made a fuel cell battery using coconut milk. That was in 1971. 

When I started working with fuel cells, they were beginning to 

be big news, but they were expensive, so I was working on a new 

way to make a chemical called sodium borohydride that could be 

used to power fuel cells, and it is much more safe than other ways 

of making the hydrogen that you need to run the fuel cells. 

In 2000, I started a company to perfect my invention. I spent all 

my time working on it, but the money ran out, so I packed all my 

chemicals and equipment in stainless steel tanks and paid someone 

to watch over them. 

On May 27, 2004, my American dream about inventing turned 

into a nightmare. Two black SUVs pushed my car off the road. Federal agents, just like with her, dressed in black, jumped out with 

machine guns. I was arrested, interrogated, and I was thrown into 

jail. 

The charge was that I didn’t put the right label on a box that 

I had lawfully sold on E-Bay. Sodium can be hazardous, so it has 

to be shipped by ground or on cargo planes. I checked ‘‘ground’’ on 

the shipping label when I shipped it. I didn’t know that, in Alaska, 

UPS shipped ground by plane. 

Instead of a civil penalty for an innocent mistake, which I did at 

the time, the government prosecuted me. The prosecutors pushed 

me to plead guilty, but I refused to plead guilty because I knew I 

was innocent. 

But it didn’t end there. While I was in jail on the box label 

charge, the EPA ripped open my storage tanks and declared everything inside them to be toxic waste and threw everything away. 

The EPA spent almost half a million dollars destroying everything 

I had worked on for almost 2 years. Nobody told me about what 

was happening when the EPA was doing this or asked me about 

the tanks. They just went ahead and did everything. 

After I was acquitted by a jury on the label charges, the government brought new charges for storing hazardous waste without a 

permit. 

Mr. GOHMERT. I am sorry, Mr. Chairman, the acoustics in here 

are such that conversations are really distracting. I am having 

trouble hearing. 

Mr. SCOTT. Go ahead. 

45 

Mr. EVERTSON. After I was acquitted, the government brought 

new charges. That was ridiculous. Mr. Timothy mentioned RCRA, 

and I was the same. The same charges were RCRA. 

I knew nothing was waste. My materials were extremely valuable and worth a lot of money. Why would I abandon valuable materials? I paid for them and intended to return to work on my invention. And they weren’t hazardous. The tanks were sealed tight. 

Nothing ever leaked. No person was ever put in harm’s way. There 

was no risk to the environment. 

So I pled not guilty again, because I knew I wasn’t guilty, and 

if I pled guilty I would be lying. I had not abandoned my materials. 

But the judge said that the government didn’t have to prove that 

my materials were hazardous waste. It was enough that the EPA 

said so. 

No one could defend himself against such charges, so I was convicted, and I served 18 months in Federal prison. Now I am in a 

halfway house and will be released in about a week. But I will always be a felon. I never wanted to be a felon. Unless the Supreme 

Court takes my case, I will not regain my rights to vote or to serve 

on a jury to possibly help other innocent people. And I am losing 

other rights. I was working on fuel cells, trying to improve the environment. I am an American inventor and a law-abiding citizen 

pursuing my dream, and I wound up in prison. 

My story proves that these things can happen to anyone. There 

are too many laws that put ordinary, well-meaning Americans at 

risk of criminal prosecution and conviction. 

An old saying comes to mind: One man’s trash is another man’s 

treasure. I had treasure on my invention, and the EPA said it was 

trash, and so I lost my treasure. That is why I am testifying today 

in Congress. 

Please protect our American treasures and our American freedoms. 

Thank you again, Mr. Chairman. 

[The prepared statement of Mr. Evertson follows:] 

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PREPARED STATEMENT OF KRISTER EVERTSON


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Mr. SCOTT. Thank you, Mr. Evertson. 

Professor Saltzburg. 


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TESTIMONY OF STEPHEN A. SALTZBURG, PROFESSOR, 

GEORGE WASHINGTON UNIVERSITY LAW SCHOOL, WASHINGTON, DC 

Mr. SALTZBURG. Mr. Chairman, Ranking Member Gohmert, 

Members of the Committee, thank you for having me here today. 

I represent the American Bar Association at the request of 

Tommy Wells, its President. In my written statement you will see 

I described, along with the other members of the panel, how we 

came to be where we are with 2.3 million Americans confined in 

jail or prison on any given day, one-quarter of the Earth’s prison 

population, in the land of the free and the home of brave. 

I was asked to talk about mandatory minimum sentences and 

how they contribute to over-criminalization and actually overpopulating our jails and prisons. I want to do that, but I also would like 

to say that I had the privilege of serving as Deputy Assistant Attorney General for General Thornburgh, and General Thornburgh 

named me his ex-officio representative to the United States Sentencing Commission. 

And while it is not part of my testimony today, I can say this: 

It didn’t matter whether you were a Republican or a Democrat. 

When he was Attorney General, these things, if they came to his 

attention, would never have happened. There was a time when people understood what serious crime was and what petty prosecution 

was that should never be dishonored by the Federal Government. 

It is heartbreaking to hear these stories, but all too true. 

Mandatory minimum sentences in their own way are heartbreaking. Why do we have them? We have them because there was 

a time in the mid-1980’s, particularly 1986, where Members of Congress believed that at least some Federal judges were sentencing 

criminal defendants too lightly. At the time, there was no appellate 

review of sentencing. There was nothing that could be done if a 

judge gave a defendant probation or a light sentence. 

So we ended up with the Drug Control Act, which gave us our 

first drug mandatory minimum sentences. And the end result, as 

I discovered when I was a sentencing commissioner, was that all 

of the sentences that we prescribed were driven upward, much 

higher than past practice, because of having to deal with mandatory minimums. That is, in order to grade offenses and treat more 

serious offenses with a higher punishment, the Commission had to 

take into account these mandatory minimums. 

Now, what is wrong with them? Well, in 1991, the Sentencing 

Commission issued a report; and the Sentencing Commission said 

exactly what justice Kennedy would say to the ABA 12 years later. 

What is wrong with them is it takes sentencing discretion away 

from judges and gives them to prosecutors, who often are younger 

and have much less experience. That is number one. 

Number two, it has a dramatically racially disparate impact on 

the system, particularly with respect to the crack cocaine mandatory minimum, which this Committee is well aware of, given the 

vote it just took on the bill that we heard about. 

Number three, the Sentencing Commission in 1991 said, when 

you have mandatory minimums, it is like driving a car up to a cliff. 

If you don’t go over the edge, you are fine. Judges have discretion. 

The moment your tire goes over, you are down and the mandatory 

53 

minimum kicks in, and it is a sentence that may have absolutely 

no bearing with respect to culpability versus the person whose tires 

stop short. It is arbitrary. It produces sentences that are too long. 

And how do I know that? For this reason. 

If a sentencing judge says 2 years, 5 years, 10 years, 15 years, 

the mandatory minimums we have heard about are not necessary 

in a case. Today, if a judge didn’t have these mandatory minimum 

sentences and the judge gave a lower sentence, the United States 

could appeal. 

We now have a system which has other defects that the Committee might want to take up at another time, but we have a system of controlled discretion. The sentencing guidelines tell judges 

where they need to start. Now, they are advisory, no longer mandatory, but they provide a starting point, and judges are required to 

consider the guidelines and to calculate a guideline sentence before 

finally determining what a sentence will be. 

We have appellate review at the behest of both the government 

and the defendant. That is, no trial judge, whether he or she is too 

severe or, in the eyes of a Congress, too lenient, no trial judge is 

a law unto himself or herself any longer. So we do not need mandatory minimum sentences. They drive up the prison population in 

two ways, and both of these ways are unnecessary. 

First, people go to prison who might not go at all. That is, a trial 

judge, but for the mandatory minimum, might conclude that someone could go to jail, and probation, someone could be put on probation. 

Second, the trial judge who might impose a sentence of a year 

may have to impose a 5-year sentence, and so the individual serves 

five times the sentence that the judge believes is appropriate. 

Mandatory minimum sentences may have been something that 

reasonable Congressmen would have thought were necessary at a 

time when there was no check on judicial discretion. We have a 

check. We have structure. We have balance. And still we have 

mandatory minimum sentences at a time that we don’t need them. 

They are not necessary to deter crime. They are not necessary to 

control judges. They are not a good thing for American criminal 

justice. And one the best things Congress could do is to abolish the 

mandatory minimums, trust the Sentencing Commission to then 

readjust the sentences so we could have a system that makes 

sense, and let judges exercise discretion, not prosecutors, subject, 

of course, to review by appellate courts. 

That is the ABA position, and I urge you to take it seriously. 

[The prepared statement of Mr. Saltzburg follows:] 

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PREPARED STATEMENT OF STEPHEN A. SALTZBURG


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Mr. SCOTT. Thank you. 

Mr. Strazzella. 


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TESTIMONY OF JAMES A. STRAZZELLA, TEMPLE UNIVERSITY 

BEASLEY SCHOOL OF LAW, PHILADELPHIA, PA 

Mr. STRAZZELLA. Mr. Chairman, Ranking Member Gohmert, 

thank you for your invitation to submit written testimony and to 

make some remarks. 

I will try to be brief, but I appreciate the chance to say a few 

words in the context of this broader hearing about what should be 

criminalized and talk particularly about the federalization of criminal law, which is increasing. That is, what should be made a criminal act under the Federal law, rather than under State law? 

My particular concern—and I want to emphasize that I speak for 

myself today. Although I obviously draw on my experiences, including as a reporter for the ABA’s Task Force on Federalization, my 

appearance here today is on my own behalf. I have drawn on that 

report and referred to it in my written statement. 

My particular concern and the concern of that report had to do 

with a narrow band of activity that was already criminalized by 

State law, is traditionally criminalized by State law, has serious 

penalties, and is in the general run of cases very zealously prosecuted, and then for one reason or another, which I am sure Congressmen and women can identify quickly with, gets criminalized 

on the Federal side. That presents serious problems in this system 

that we have, a dual system that is quite delicate and important 

to us governmentally. 

It would be very difficult I think to explain to the average citizen—if you put aside crimes involving real Federal or international issues, if we put them aside, it would be very difficult I 

think to explain to the average citizen today whether we would 

ever initially set up a system that made the same core conduct 

criminal under two sets of prohibitions, either in the same statute 

books or statute books next to each other, particularly because 

those two prohibitions, as do the State and duplicative Federal 

statutes, particularly because they have serious consequences that 

are disparate. 

One of them is that the Federal statutes tend to be much more 

severe in terms of penalty, which is why many of these cases are 

brought. They kick the cases into Federal courts rather than State 

courts. They give a different jury pool than the State cases do. 

They kick in different rules of evidence, different procedures, all 

sorts of different consequences, and they take the defendants out 

of the system and put them into Federal jails. 

I should underscore, of course, that this duplication doesn’t mean 

either/or. It can be both. That is, you can be prosecuted under our 

double jeopardy interpretations for both of those, compounding the 

sentences and the time. 

That system is the system, however, even though we wouldn’t 

initially think that up, that has grown more and more common 

under our growing patchwork of accumulating Federal law. 

A number of people have referred today to the large number of 

Federal offenses that exist. There are many of us who think it is 

not possible to count them, there are so many of them. The accumulation of them I think is well-known to this Committee and is 

demonstrated elsewhere, including in the ABA’s federalization report. That accumulation, as far as the local type of crime, which 

66 

often at its core is highly visible and violent in nature, has come 

about in just the last decades. 

Any crime legislation is popular. I certainly don’t need to suggest 

to this Committee the pressures on the Committee and on Congress to vote that some conduct that isn’t desirable should be 

criminalized, and many people somehow make the leap from that 

that if it is not desirable that it also should be criminalized under 

Federal law. 

It is hard to vote against crime legislation, I realize. But the 

principled assessment of whether there is a Federal need referred 

to in the Chairman’s statement and whether these activities which 

we can condemn very often ought to be made Federal is a really 

serious question. 

It is a serious question because I think there is a temptation to 

think that voting yes on a Federal crime bill is in many ways costfree; and I think, as the ABA report tries to itemize, that is certainly not the case. There is a human toll, much of which you have 

heard about today. There is a toll in terms of disparity. These decisions are made by prosecutors, sometimes low level, sometimes 

high level. 

I like prosecutors a lot. I was one myself in the U.S. Attorney’s 

Office in this city. But the idea that that decision would be made 

without basic review, which is the case, no judicial review, is troubling in its own way, because it kicks in lots of consequences. 

There are cost consequences. They end up in Federal jail, many 

of these defendants. There are certainly consequences in terms of 

the rights and privileges you would get in the process. There are 

disparities in sentencing, as you hear. 

There are also major consequences to our Federal-State governmental system. In the initial setup of the country, it looked to me 

like there were 17 Federal crimes. They were very site oriented in 

some respects, like governmental Federal-function oriented. That is 

no longer true. So a lot of these cases that end up in Federal Court 

sound to the Federal judges, I think, as though they are trying 

State cases. 

I just want to itemize quickly one more cost, which is the terrific 

penalty that Federal courts pay by having to take on these cases 

and deciding them, pushing other civil cases to the back or other 

truly Federal interest cases as well. 

I should close, if I can, by saying that the task force I think has 

identified a worthwhile notion in saying that, in the important debate about how to curb crime, it is critical, crucial, that the American justice system not be harmed in the process. It is a very important process to us. In the end, the ultimate safeguard for maintaining this valued constitutional system must be principled recognition by Congress of the long-range damage to real crime control 

and to the Nation’s structure caused by inappropriate federalization. 

So I add my voice to the list that the Chairman identified of the 

real need to pay attention to whether there really is some Federal 

interest involved; and the examples he gave—and car jacking I 

think is one of those—serve well to illustrate that, and that the 

Congress uses devices that are identified in the report of the ABA 

67 

and elsewhere to try to make it clear that if legislation is to result 

in a Federal crime it be carefully considered and strongly approved. 

I thank you again for having me. 

[The prepared statement of Mr. Strazzella follows:] 

PREPARED STATEMENT OF JAMES A. STRAZZELLA


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Mr. SCOTT. Thank you. 

We will now recognize the Members under the 5 minute rule. 

I will begin by asking General Thornburgh—and thank you. I understand you had to change your schedule because of the votes. I 

appreciate you remaining. If you have to leave, we certainly understand. 

Comments have been made about the fact that a lot of regulatory 

violations are subject to criminal sanctions. If they were just civil 


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and not criminal, would they be a sufficient deterrent to people 

who might think of violating the regulatory rules? 

Mr. THORNBURGH. I think the suggestion that I referred to that 

was made by Mr. Gainer would address that in terms of separating 

out those regulatory violations that were of sufficient gravity to 

justify a criminal penalty. I would remind the Committee that that 

would encompass those that were posing a real threat to persons, 

injury or other kinds of afflictions, to property interests, and to institutions designed to protect persons and property interests, number one. 

Secondly, a regulatory violation would qualify for criminal prosecution if there were a pattern of repeated intentional breaches of 

the regulation in question. 

Otherwise, I think when you absent those two characteristics 

from a regulatory violation you are left with a regulatory violation. 

And while there would be a deterrent capability by having someone 

be subject to a fine or an administrative penalty, you would not impose the Draconian type of hardship that has been described by the 

witnesses who appeared today. 

Mr. SCOTT. Thank you. 

You recommended the creation of a review panel or commission 

to review the Federal Criminal Code. How feasible is this and what 

happened the last time that was tried? 

Mr. THORNBURGH. I am a dreamer, Mr. Chairman. I have been 

through this drill for now probably 30 years, going back to my time 

in the Criminal Division, and we got just that close with the Brown 

Commission legislation in the bill identified as S.1, but for a number of reasons having very little to do with the merits, it fell short. 

I still look for someone with the courage and the tenacity to come 

out of this Congress and tackle this important task, because I think 

if we don’t soon engage the problem of this sprawling mass of statutes layered one on another over a period of years we will eventually cause an erosion in the credibility of the criminal law altogether. 

Again, I would refer to the poignant tales you have heard today 

from individuals who were caught up in the system. When you 

have duplication, overlap, when you have ill-defined terms, when 

you have no need to reconcile individual criminal legislation with 

the overall goals, for example, of the Judiciary Committees in both 

Houses who are schooled and expert in those things, then you get 

the current—I can’t think of appropriately strong words to characterize it. I will be gentle and say mishmash of what we have in the 

criminal law today. 

Maybe I am not realistic. Maybe that is not going to happen. But 

we have faced up to these kinds of things. 

I remember when I was a law student in Pennsylvania, we studied the Uniform Commercial Code, except we were reminded that 

it was uniform only in Pennsylvania. Now it is uniform throughout 

the United States, and somebody had the wisdom and the tenacity 

and the backing of the American Law Institute, which constituted 

that, to have a Code that makes sense, that doesn’t promote the 

kind of disparity on the commercial side that we see on the criminal side. 

73 

It is a worthy cause for someone young enough and tough enough 

to take on; and observing the leadership of this Committee, I would 

say you folks qualify. Anyway, I hope so. It is a general source of 

concern. It doesn’t make headlines. It is not the top of the 6 o’clock 

news. But for those of us who practice in the criminal courts, it 

would be a tonic for practice and attract I think more people into 

that area. 

Mr. SCOTT. Thank you. 

Mr. THORNBURGH. I am going to take you up on your invitation, 

Mr. Chairman. I apologize for having to leave, but I didn’t take account of the fact that occasionally votes interrupt your proceedings. 

But I thank you very much for the opportunity for me to be here. 

Mr. SCOTT. Thank you. 

Mr. GOHMERT. Thank you so much. 

Mr. THORNBURGH. Thank you to the Members as well. 

Mr. SCOTT. Professor Saltzburg, you mentioned mandatory minimums which proscribe a specific minimum punishment based on 

the Code section that is violated. I frequently note that the Code 

section that covers consensual sex between a 19-year-old high 

school student and a 15-year-old high school student is the same 

Code section that deals with a 40-year-old having sex with a 13- 

year-old. 

What is wrong with the mandatory minimum being based solely 

on the Code section, without regard to culpability, the roles, the remorse, responsibilities and that sort of thing? 

Mr. SALTZBURG. Well, that is what mandatory minimums exclude, and there is no regard at all for the offender. It is totally 

focused on the offense. In the statute you described, a judge ought 

to be able to consider the circumstances and whether or not there 

is grave abuse or not. 

Similarly, in a drug case, we have got addicts who have distributed drugs, a serious problem in the States now. State prosecutors 

have taken to drug treatment as an alternative. It is seven times 

less expensive—I should say one-seventh of the cost. Good programs work. It can’t be done in the Federal system, where the 

judge has to impose a mandatory minimum sentence. 

If I might add just one point in the response to the question you 

asked my former Attorney General, and that is whether it can be 

done, reform of the Federal Criminal Code. There is one thing that 

we have today that didn’t exist at the time of the Brown Commission, didn’t exist when S.1 was proposed or ‘‘Son of S.1,’’ as we used 

to call it, and that is the Sentencing Commission has already graded all Federal offenses. 

The sentencing guidelines—while there are problems with 

them—the sentencing guidelines serve as a basically a formula to 

figure out how to reform the Federal Criminal Code. They have 

grouped the offenses. They have said these are the offenses that 

are serious, that are equally serious or close to being equally. It is 

all there. 

If Congress decided it was serious and wanted the input of the 

American Law Institute and the various other groups, including 

the American Bar Association, we would give it to you and say, 

start with the guidelines, not necessarily the penalties that are associated with them at the current time, but start with them, and 

74 

I think you could get that statute done much more easily than 30 

years ago. 

Mr. SCOTT. Thank you. 

The gentleman from Texas. 

Mr. GOHMERT. Thank you, Chairman. 

I do appreciate everybody’s testimony and appreciate your patience waiting through a vote. I regret that General Thornburgh 

had to leave, but I am grateful that you all have been able to stay. 

For one thing, one of the comments that has been made is that 

the Federal law has not done a good job distinguishing between 

what should be a civil penalty and what should be a criminal penalty. It is something that in my first 2 years here, when my party 

was in the majority, I didn’t approve; and I got headwards with 

some of our leadership who were wanting to criminalize what 

should have been a civil penalty. And it just seems like we could 

do ourselves a favor if we would make that distinction, so that you 

don’t have people come do a take-down over failure to put a sticker 

on a package or checking the wrong box, something of that nature. 

I did want to ask Mr. Evertson, who was it that did the arrest 

of you? Was it the FBI or who? 

Mr. EVERTSON. I will never forget that minute that it took, really. When they turned around after everything happened, it was big 

letters, FBI. 

Mr. GOHMERT. FBI on them. 

Mr. POE. Just like on TV. 

Mr. GOHMERT. Mrs. Norris, who was it that arrested your husband? You mentioned EPA. 

Mrs. NORRIS. U.S. Fish and Wildlife. 

Mr. GOHMERT. U.S. Fish and Wildlife. U.S. Fish and Wildlife. 

Mrs. NORRIS. They had five people. 

Mr. GOHMERT. They have police. As I understand it, there are a 

number of Federal agencies that may not have police, but they 

want them. They want the black Suburbans, they want the lights, 

they want the guns, they want to take people down to the ground, 

and it certainly seems that is something we ought to avoid. 

My experience with FBI agents back in Texas was they display 

a little more professionalism than what we were hearing, and I was 

concerned that perhaps it was a different agency that came after 

you. 

Mr. Lynch, you mentioned we need to discard the old rule ‘‘ignorance of the law is no defense’’, and that is a rule that sometimes 

has a very unfair result. But then again, as a former judge, sitting 

up here with another former judge, I know how many people would 

come in and say, you mean it was against the law to shoot him? 

I didn’t know. Nobody told me that. 

Mr. POE. You have been asked that already. 

Mr. GOHMERT. I have heard that. They say, Judge, I just didn’t 

know I couldn’t shoot him. 

So it creates special problems if you completely discard that rule, 

because there was a reason for it. 

How do we get around every defendant coming in and saying, 

who knew I wasn’t supposed to rape this girl? 

Mr. LYNCH. Thank you for asking the question, because it is a 

common query that comes up—to say people will start feigning igVerDate Aug 31 2005 15:23 Apr 13, 2010 Jkt 000000 PO 00000 Frm 00078 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\072209\51226.000 HJUD1 PsN: 51226
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norance and we will have all sorts of problems. But we already 

have a very good model. 

Mr. GOHMERT. But they won’t start. I have already experienced 

that. It is an ongoing thing. 

Mr. LYNCH. I have heard that complaint by prosecutors and 

other judges before, that we can’t discard the rule. But I think we 

have got a very good model already with our tax laws. The tax laws 

are very complicated. It is complicated for lay people to understand. So we know some people want to evade taxes, and we also 

know other people are trying to work their way through the tax 

Code and do it honestly, but they make lots of mistakes. 

We have got a willfulness requirement for our tax laws, where 

basically the prosecutors have to prove that it was a willful violation in order for them to prove that the person is a real tax evader 

that needs to go to jail. So the tax money is continuing to flow to 

Washington, tax evaders continue to go to jail, and I think we 

should expand this model beyond our tax code, which is very complicated for lay people, even lawyers, to understand, to all the other 

complicated rules we have on the books. 

I think it is working within the tax code, and I think that is 

strong evidence that it will work in other areas as well, that the 

real culprit—prosecutors will be able to gather evidence, but people 

who are trying to struggle and try to understand regulations, they 

will not be swept up in Federal indictments. 

Mr. GOHMERT. Let me ask quickly, as my time is running out, 

Professor Strazzella, if I heard you correctly, you said there were 

Federal judges trying cases as if they were State judges. What did 

you mean by that? Keep in mind you have two former State judges 

up here. I wasn’t sure I heard you correctly. 

Mr. STRAZZELLA. I may have misspoken myself. I was referring 

to the fact that when I speak to Federal judges, what many of them 

tell me is I feel like a State judge. I am trying State crimes. 

In fact, I talked to somebody not long ago who was an assistant 

district attorney in one of the cities of the United States. Their job 

is to try car theft cases. The Chairman has already referred to the 

fact that a car jacking is a Federal crime. There is not a high rate 

of prosecution. They are usually very visible cases with a desire to 

take a bad actor and give him more time. 

That assistant district attorney, State district attorney, is designated in Federal Court as a Special Assistant U.S. Attorney. 

Some days she goes over and tries exactly the same kind of case 

there. 

Mr. GOHMERT. As a judge, we had that, and I couldn’t agree 

more. There were too many times Federal judges were required to 

try cases that should have been tried by State judges. 

I just want to be clear. Because there were times, having tried 

cases in Federal Court and in State court and having been a judge, 

I can tell you I preferred the requirements of the Texas State 

judges, in that we could not comment on the weight of the evidence, whereas Federal judges take a great deal, some of them, 

take that to an extreme. ‘‘You mean that is all you got, and you 

are going to go to the jury with that?’’ That would be reversible 

error in the State court. 

76 

So, anyway, I always appreciated the fairness that I saw in State 

courts that was not always afforded in Federal Court. But thank 

you. 

I yield back. 

Mr. SCOTT. The gentleman’s time has expired. 

I now recognize the gentlelady from Texas. We didn’t have statements in the markup on the crack bill, but she has done a tremendous amount of work on that bill, and I recognize her at this point 

for 5 minutes. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman; and I 

thank the witnesses as well. 

As I listened to the recounting of the experience, I think the horror stories that your husband went through, and Mr. Evertson, I 

think it is important to highlight again the position that I have 

taken with H.R. 3245 and reassert the position that I would assert 

in the markup that marked up H.R. 3245, which to you is only 

numbers but which has to do with evening or recognizing that disparities between crack cocaine is also—even though those were certainly not offenses you were engaged in—but recognize the failures 

of that system, particularly as people would come with the differing 

amounts and they would be penalized at such a high level, which, 

Mrs. Norris and Mr. Evertson, means people could not even rehabilitate themselves or make an argument, couldn’t make a community argument, that, for example, Mr. Norris should have been able 

to make a community argument under circumstances of his arrest 

and ultimate prosecution. So I am asserting my position on H.R. 

3245 by asking you questions that pertain to your particular dilemma. 

Mrs. Norris, what was the exact offense that your husband was 

ultimately indicted for? There was an indictment? 

Mrs. NORRIS. I have to be honest with you. There were seven 

counts, and I don’t remember which they were. Primarily, it came 

down—by the time we got through it, it came down to a Customs 

violation. As I understand it, the final judgment was that he had 

falsified a Customs document. 

Ms. JACKSON LEE. What he was bringing in? Was he a storekeeper that had items? 

Mrs. NORRIS. No, he had a greenhouse. We imported orchids 

from other countries and then we sold them. 

Ms. JACKSON LEE. So he wrote something on those imported—— 

Mrs. NORRIS. He didn’t exactly, because they came from Peru, 

and the people in Peru filled out the Customs documents. 

Ms. JACKSON LEE. I got you. So it was a document he received 

that had been written by someone else. 

Mr. Evertson, likewise, frame what your situation was in terms 

of your indictment. 

Mr. EVERTSON. I was working on my invention. I left to make 

some more money; and, in the meantime, the EPA went and took 

everything and destroyed everything. And the EPA said in my indictment, they said, any material that is intended to be disposed 

of would be hazardous waste. 

Ms. JACKSON LEE. You didn’t dispose of it? 

Mr. EVERTSON. No. Disposal under RCRA means spilling it or releasing it into the atmosphere or somehow escaping. 

77 

Ms. JACKSON LEE. But you left it where? 

Mr. EVERTSON. At a storage facility. I paid the rent and everything. 

Ms. JACKSON LEE. Who was the whistle-blower? How did they 

know it was there? 

Mr. EVERTSON. When the FBI came about me with the wrong 

label—or I didn’t need a label, but they said I did—I freely told 

them, because I didn’t think anything of it. I didn’t think anything 

was wrong. 

Ms. JACKSON LEE. Let me make sure I am posing the question 

correctly. 

Professor Saltzburg, what do you think of those two cases? 

Mr. SALTZBURG. I think they illustrate about as well as you can 

illustrate the overreach of Federal criminal law. It is necessary to 

have Customs forms, but it makes no sense to punish people criminally for a mistake. So what we are seeing is several factors that 

the witnesses have talked about: the absence of a mens rea requirement in some of these statutes; basically the use of the criminal 

law when a civil sanction would do just as well; and one thing that 

you can’t regulate and that is the common sense of prosecutors. 

These cases should not have been prosecuted. They didn’t have 

to bring a criminal prosecution. But every once in awhile somebody 

decides they want to send a message to orchid growers? Of all the 

things in this country we need to worry about, we need to worry 

about the disparities between crack cocaine and powdered cocaine, 

but in places where I live, nobody is running around talking about 

‘‘send a message to orchid growers.’’ 

Ms. JACKSON LEE. Or send a message to what seems to be a 

harmless inventor. 

Let me just finish this point, if I could. You said I think the exact 

right thing for the record: Where is the judgment and where is the 

common sense? 

I think the other point of it is, even though tomorrow someone 

may have a valid new bill for a valid criminal offense, I don’t think 

this hearing should be stifling that kind of cerebral thought, but 

I believe what you have said is that the dichotomy between civil 

and criminal, we need to get a handle around it. 

And I will end by saying this cowboy—and I love cowboys—approach to civilians, with guns and black jackets and all of that, is 

too gestapo, and we need to stop it. And I think we can at least 

begin to handle that. We don’t want to endanger law enforcement 

officers, but an orchid grower, I think they could have knocked on 

the front door. 

With that, Mr. Chairman, I will yield back. 

Mr. SCOTT. Thank you. 

The gentleman from Texas, Judge Poe. 

Mr. POE. Thank you, Mr. Chairman. 

Thank you all for your patience. 

Like my friend, Mr. Gohmert, I served on the bench in Houston 

for 22 years, and I only tried criminal cases, only felons. And everything is a felony in Texas. Wire cutters in your saddle bags will get 

you in jail because the cattle industry doesn’t want their barbed 

wire being cut. 

78 

But I say that to say my philosophy is we have too many Federal 

crimes. We started out with piracy. That was the number one 

crime prosecuted in this country. Now we have 4,450, with 50 more 

every year. So many Federal crimes that many of them are never 

prosecuted because they just aren’t. 

It just seems to me that we first have to have a way to look at 

those 4,450 crimes and start eliminating them or categorizing them 

or coming up with a system that the bad guys, we need to lock 

them up and throw the key away, and these others things maybe 

shouldn’t be crimes and certainly should go to civil sanctions over 

putting folks in the do-right hotel, as I call the penitentiary. 

I think judges need to have more discretion. Federal judges, you 

cannot make a bad judge be a good judge by regulating punishment. You have to come up with a good judge.That is what these 

Senate hearings are all about. And if you have a bad judge, you 

have to figure out how to get rid of him. 

But they need more discretion to do the right thing and punishment, and not have to put somebody in jail for growing flowers or 

bringing them in just because the law makes them. That is not justice. That is injustice. 

Mrs. Norris, in your husband’s case, if he had even been convicted, I would have had him provide a community garden in the 

neighborhood and grow food for some people in the neighborhood. 

You are familiar with some of those things I did when I was a 

judge on the bench there. You have to use a little sense that I 

think judges should have the discretion to do. 

In Mr. Evertson’s case, I would have ordered you to come up with 

a fuel cell. I would have sent you to Lamar University. They are 

working on the same thing right now. 

Mr. EVERTSON. I want to. I want to. 

Mr. POE. Well, it just seems like that is what judges ought to 

have the discretion of doing if you ever end up in the criminal justice system. 

And I certainly think we ought to have a mens rea. What has occurred now is in the criminal justice system in Federal Court is 

strict liability. If you do this act, it doesn’t make any difference if 

you had the intent to commit a crime or not; it is strict liability. 

And I am one that thinks we ought to have a guilty mind. 

Those are some of my comments. But I do have this question for 

the Professor, Mr. Saltzburg. Do you think judges need more discretion, Federal judges specifically? 

Mr. SALTZBURG. Yes, I do. As I said, the American Bar Association’s position has been consistent for decades now. That is, judges 

should have discretion. It ought to be controlled to some extent, 

guidelines, advisory. And now that we have appellate review, if you 

have a judge who is off the reservation, way high, way low, there 

is a way to deal with that. And the refreshing thing here is—— 

Mr. POE. As in appealing abusive discretion to the Circuit Court? 

Mr. SALTZBURG. Yes. It is a reasonableness standard of review. 

It defers to the trial judge. But outrageous cases can be taken care 

of. 

It is time I think that we recognize that judges aren’t the enemy. 

There was a sense for a while that somehow Congress was here 

and judges were there. And, actually, it turns out everybody agrees 

79 

with what you said, everybody I talked to when I chaired the Kennedy Commission. I went to Texas and talked to prosecutors there. 

The State prosecutors there said the same thing: People who commit serious crimes should do serious time. But what we learned is 

not everybody needs to be locked up. 

Mr. POE. People shouldn’t go to jail for having a red fish that is 

two inches too long? 

Mr. SALTZBURG. That is correct. Or for putting the mailing label 

on a UPS or Fed Ex tag not knowing that Alaska didn’t have 

ground transportation. I didn’t know that either. I am glad I wasn’t 

filling out a form. 

Mr. EVERTSON. But it is connected to the U.S. 

Mr. SALTZBURG. That I knew. 

Mr. POE. Well, I am nearly out of time. But I do want to thank 

you all for being here. I would hope that this Committee would 

come up with a solution on how we can take these 4,450 crimes 

and look at them and maybe reevaluate what we ought to do to 

folks that violate all these dastardly deeds, and maybe civil penalties ought to certainly be something we require and maybe defer 

to State court. Because under our theory, the way this country is 

set up, States are supposed to prosecute really the outlaws and 

Federal courts are supposed to do other things. Maybe we can get 

back to that. 

Thank you, Mr. Chairman. 

Mr. SCOTT. Thank you. 

Are there any other questions? 

I want to thank our witnesses for their testimony today. This has 

been very helpful. We may have written questions for the witnesses. If you would respond to those as quickly as possible so that 

your responses will be made part of the record. 

Without objection, the hearing record will remain open for 1 

week for additional materials. 

Without objection, we will enter into the record a written statement by John Wesley Hall, President, National Association of 

Criminal Defense Lawyers. 

[The prepared statement of Mr. Hall follows:] 

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PREPARED STATEMENT OF JOHN WESLEY HALL, PRESIDENT, 

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS


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Mr. SCOTT. Without objection, the hearing is adjourned. 

[Whereupon, at 6:08 p.m., the Subcommittee was adjourned.] 


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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS, AND MEMBER, SUBCOMMITTEE ON CRIME, 

TERRORISM, AND HOMELAND SECURITY

Mr. Chairman, I ask for leave to extend my remarks for the record. Mr. Chairman, I salute your leadership in convening this important hearing to address the 

issue of Over-Criminalization of Conduct/Over-federalization of Criminal Law. I 

would like to thank our distinguished witnesses, the Honorable Richard Thornburg, 

former Attorney General, Prof. Steve Salzburg, George Washington Univ. Law 

School, Tim Lynch—CATO Institute, Prof. James A. Strazzella, Temple University 

School of Law, Ms. Kathy Norris, and Krister Evertson. 

As a former trial state court judge, I like most jurists disfavor pre-set and static 

sentencing formulas set by the federal government rather than relying upon state 

legislators and state judges. Most members of the bench view federal sentences and 

many federal criminal statues as being redundant and devices that bar judges from 

employing hers or his discretion during the sentencing phase of trail. Indeed, such 

formulas shift the responsibility for selecting the penalty for a certain crime from 

the judge—an objective legal mind that spends hours listening to testimony and examining the facts and law of a particular case—to legislators who create these rigid 

guidelines far in advance of a particular criminal incident. 

As of 2003 there were over 4,000 offenses that carried criminal penalties in the 

United States code. Unfortunately, some of these punish conduct that is not typically considered to be criminal. This is because an increasing number of statutes 

require that the culpable party have only general intent, i.e. that he or she acted 

‘‘knowing’’ of the facts of the underlying conduct but not necessarily with intent to 

break the law, with knowledge that he or she was breaking the law, or even with 

knowledge that he or she was doing anything wrongful. This becomes especially important and relevant as Congress criminalizes more and more conduct that involves 

regulatory violations and highly technical misconduct. 

From the start of the year 2000 through the end of 2007, 452 additional crimes 

were created, for a total of at least 4,450 federal crimes. This increase of 452 over 

the seven year period between 2000 and 2007 averages 56.5 crimes per year—roughly the same rate at which Congress created new crimes in the 1980s and 1990s. In 

fact, in a 1998 report, the ABA’s Task Force on the Federalization of Criminal Law 

reported that more than 40% of the federal criminal law provisions enacted since 

the Civil War had been enacted since 1970. 

And while I have no fondness for federal criminal sentences, and redundant federal statues, I have an even greater disdain for criminal activity itself particularly 

that committed against the poor, women, children, and other vulnerable populations. Thus, I believe that a balance must be struck. A balance that seeks to protect the public wellbeing while expanding our judicial system by restoring the judiciary’s power to fix penalties based upon the unique circumstance of particular 

cases. 

Mr. Chairman, as you know, many of the sentencing laws in the federal criminal 

code have led to unprecedented rates of incarceration over a half century. The federal prison population has quadrupled since the Sentencing Reform Act of 1984, and 

now totals over 200,000 inmates. More than half of all federal inmates are serving 

sentences for drug offenses. In 2007, almost thirty-five percent of all federal convictions were for drug offenses, and 65% of these offenders received mandatory minimum sentences. Many of these offenders had only low-level involvement in drug activity. For example, 66% of the federal crack cocaine offenders in 2005 had only lowlevel involvement in drug activity. 

90 

The United States now incarcerates far more people than any other country in 

the world, with more than 700 incarcerated for every 100,000 in the population, or 

one in every 54 adult males ages 18 and older. There are more people in the prisons 

of America than there are residents in states of Alaska, North Dakota, and Wyoming combined. Over one million people have been warehoused for nonviolent, often 

petty crimes. The European Union, with a population of 370 million, has one-sixth 

the number of incarcerated persons as we do, and that includes violent and nonviolent offenders. This is one third the number of prisoners which America, a country with 70 million fewer people, incarcerates for nonviolent offenses. 

Our federal prison system is struggling to keep up with this growth. At the end 

of last year, the Bureau of Prisons was operating at 36% over capacity. High-security penitentiaries were operating at 46% over capacity. This ever-increasing rate 

of incarceration comes with a high price tag. Federal correction costs have soared 

in the last 25 years, increasing 925% between 1982 and 2007 to over $5.4 billion. 

This growth in incarceration also imposes indirect costs on communities. Researchers estimate that at least 1.5 million children have a parent in prison, and the majority of these children are under ten years old. Researchers have also shown that 

children of prisoners have increased risks of poverty and other deprivations, abuse, 

foster care placement, difficulties in school with both academic and social failures, 

as well as increased risks of ending up in the juvenile and criminal justice systems. 

A close examination of this matter reveals that the hardest hit by federal criminal 

statues have been African Americans and Hispanics, who make up a large segment 

of the 18th Congressional district that I represent. In addition to the disparate impact upon ethnic minorities, federal criminal sentences also yield irrational sentencing results. 

I introduced two important remedies, starting with H.R. 265, the Drug Sentencing 

Reform and Cocaine Kingpin Trafficking Act of 2009. This bill was intended to 

eliminate the unjust and unequal federal crack/cocaine sentencing disparity in 

America. I sought to achieve this end by amending the Controlled Substances Act 

and the Controlled Substances Import and Export Act to increase the amount of a 

controlled substance or mixture containing a cocaine base (i.e., crack cocaine) required for the imposition of mandatory minimum prison terms for crack cocaine 

trafficking. 

Mr. Chair, after working with you and our friends in the Republican leadership, 

I’m happy that you’ve incorporated the principals of my bill in new legislation that 

we hope to mark up today. I salute you and look forward to working with you to 

ensure ‘‘our bill’’ is passed and signed into law. 

In addition, I’ve introduced H.R. 61, the ‘‘Federal Prison Bureau Nonviolent Offender Relief Act of 2009’’ also known as a Good Time Bill. My bill provides for the 

early release of non-violent offenders who have attained the age of at least 45 years 

of age, have never been convicted of a violent crime, have never escaped or attempted to escape from incarceration, have not engaged in any violation, involving 

violent conduct, of institutional disciplinary regulations, and have completed at least 

half of their sentence. 

H.R. 61 seeks to ensure that in affording offenders a second chance to turn around 

their lives and contribute to society, ex-offenders are not too old to take advantage 

of a second chance to redeem themselves. A secondary benefit of H.R. 61 is that it 

would relieve some of the strain on federal, state, and local government budgets by 

reducing considerably government expenditures on warehousing prisoners. 

Mr. Chairman, I firmly believe that the disparate impact of federal criminal sentences on African American is not only unjust, but it also leaves a lasting stain on 

the fabric of the American judicial system. These laws have been shown to compromise the basic fairness and integrity of the federal criminal judicial system. For 

example, the U.S. Sentencing Commission found that mandatory minimum sentencing ‘‘appears to be related to the race of the defendant, where Whites are more 

likely than non-whites to be sentenced below the applicable mandatory minimum.’’ 

The facts reveal that White offenders were less likely to receive the mandatory minimum sentence than Black or Hispanic offenders. The African American and Hispanic communities are well aware of this disparity, and as such these populations 

have grown distrustful of our system of checks and balances. 

Mr. Chairman, Judge Gohmert, fellow colleagues, I salute us for holding this 

hearing to take a comprehensive examination of our federal criminal statues. I look 

forward to hearing from our witnesses and I yield back the balance of my time. 

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