U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

71–622 PDF 2012

CRIMINAL CODE MODERNIZATION AND 

SIMPLIFICATION ACT OF 2011 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

ON

H.R. 1823 

DECEMBER 13, 2011 

Serial No. 112–81 

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 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MARK AMODEI, Nevada 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

JARED POLIS, Colorado 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

LOUIE GOHMERT, Texas, Vice-Chairman 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

SANDY ADAMS, Florida 

MARK AMODEI, Nevada 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

SHEILA JACKSON LEE, Texas 

MIKE QUIGLEY, Illinois 

JARED POLIS, Colorado 

CAROLINE LYNCH, Chief Counsel 

BOBBY VASSAR, Minority Counsel 

(III) 

C O N T E N T S 

DECEMBER 13, 2011 

Page 

OPENING STATEMENTS 

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

from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 1 

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

the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 3 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 4 

WITNESSES 

The Honorable Edwin Meese, III, Ronald Reagan Distinguished Fellow in 

Public Policy, Chairman of the Center for Legal and Judicial Studies, 

The Heritage Foundation 

Oral Testimony ..................................................................................................... 8 

Prepared Statement ............................................................................................. 10 

The Honorable Dick Thornburgh, Counsel, K&L Gates LLP 

Oral Testimony ..................................................................................................... 28 

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

Tim Lynch, Director, Project on Criminal Justice, CATO Institute 

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

Prepared Statement ............................................................................................. 35 

Stephen Saltzburg, Wallace and Beverley Woodbury University Professor, 

George Washington University School of Law 

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

Prepared Statement ............................................................................................. 45 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 5 

Wall Street Journal article, ‘‘A Sewage Blunder Earns Engineer a Criminal 

Record,’’ by Gary Fields and John R. Emshwiller ............................................. 60 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Letter from the American Civil Liberties Union (ACLU) to the Subcommittee 

on Crime, Terrorism, and Homeland Security ................................................... 79 

Section-by-Section of H.R. 1823, the ‘‘Criminal Code Modernization and Simplification Act of 2011’’ ......................................................................................... 83 

(1) 

CRIMINAL CODE MODERNIZATION AND 

SIMPLIFICATION ACT OF 2011 

TUESDAY, DECEMBER 13, 2011 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to call, at 10 a.m., in room 

2141, Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding. 

Present: Representatives Sensenbrenner, Gohmert, Goodlatte, 

Chaffetz, Scott, Conyers, Pierluisi, Chu, and Deutch. 

Also Present: Representative Quigley. 

Staff Present: (Majority) Caroline Lynch, Subcommittee Chief 

Counsel; Sam Ramer, Counsel; Lindsay Hamilton, Clerk; (Minority) 

Perry Apelbaum, Minority Staff Director and Chief Counsel; Bobby 

Vassar, Subcommittee Chief Counsel; Ron LeGrand, Counsel; and 

Veronica Eligan, Professional Staff Member. 

Mr. SENSENBRENNER. The Committee will come to order. Today 

we will have a hearing on H.R. 1823, the ‘‘Criminal Code Modernization and Simplification Act of 2011.’’ I would like to welcome 

our witnesses today and thank them for coming, and also thank the 

Ranking Member, the gentleman from Virginia, Mr. Scott. 

Today’s hearing continues the Subcommittee’s bipartisan review 

of overcriminalization and overfederalization that began last Congress. Hearings convened in the last Congress by my colleague, Mr. 

Scott, resurrected important policy discussions that had been dormant for over 2 decades about the breadth and scope of Federal 

criminal law. Today, the Subcommittee will examine legislation I 

have sponsored in this Congress and the preceding three Congresses to reform the Federal Criminal Code. 

There are an estimated 4,500 Federal crimes in the U.S. Code 

today. According to a study by the Heritage Foundation, over the 

last 3 decades Congress has been averaging 500 new crimes per 

decade. It has been over 50 years since the Criminal Code was last 

revised. The existing Criminal Code is riddled with provisions that 

are either outdated or simply inconsistent with more recent modifications to reflect today’s modern approach to criminal law. 

H.R. 1823, the ‘‘Criminal Code Modernization and Simplification 

Act of 2011,’’ reforms and codifies Title 18 of the U.S. Code. This 

is not a frivolous exercise. As my colleagues and our witnesses 

know, this effort to reform the Federal Criminal Code has resulted 

2 

in a bill that exceeds 1,200 pages in length. And this bill encompasses only part 1 of Title 18. If nothing else, the sheer volume of 

this bill brings into specific focus the breadth of the Criminal Code 

and the need to reform it. 

Federal prosecutions constitute less than 10 percent of all criminal prosecutions nationwide. Congress must ensure that the Federal role in criminal prosecutions is properly limited to offenses 

within Federal jurisdiction and within the scope of constitutionally 

delegated Federal powers. 

Through the years, the Criminal Code has grown more and more, 

with more and more criminal provisions, some of which are antiquated or redundant, some of which are poorly drafted, and some 

of which have not been used in the last 30 years, and some of 

which are unnecessary since the crime is already covered by other 

existing criminal provisions. The bill cuts more than a third of the 

existing Criminal Code, reorganizes it to make it more user friendly, and consolidates criminal offenses from other titles, in particular drug crimes from Title 21, and immigration crimes from 

Title 8, so that Title 18 includes all major criminal provisions. 

The bill applies several drafting principles. First, it reorganizes 

the chapters to streamline the code and make it more user friendly 

for attorneys, judges, and Congress. In doing so, the bill joins similar offenses together within one chapter. 

Additionally, in reviewing the code, there were instances where 

the same terms were defined differently. In most cases, there was 

no evident policy basis for the different definitions. To eliminate 

this problem, a common set of definitions is established in the first 

section of the revised Code. 

The bill makes two broad changes to bring greater uniformity to 

the Code. First, it creates a general attempt statute and a general 

conspiracy statute that punish these offenses in the same manner 

as a completed offense unless otherwise provided for in the Code. 

Legal scholars may dispute whether inchoate crimes should be 

punished to the same degree as completed offenses, but the Model 

Penal Code instructs that, quote, ‘‘The objective of the criminal law 

would not be sufficiently served if the only action which could be 

taken against an attempt were an on the spot prevention of the 

crime on that particular occasion, for an attempt yields an indication that the actor is disposed toward such activity, not alone on 

this occasion, but on others,’’ unquote. 

Although other legislative bodies may choose to assign a lower 

punishment for attempts or conspiracies, Congress now routinely 

includes these offenses in new or amended criminal provisions. 

H.R. 1823 merely codifies what is now commonplace in modern day 

criminal Federal drafting, and uniformly applies it to all offenses 

in the revised Code. 

The bill also seeks to bring uniformity to the Code by adopting 

a straightforward approach to the mens rea requirement. Where 

possible, the term ‘‘knowingly’’ is used to define the requisite intent 

for every crime except those criminal offenses that require some 

additional and more specific intent. 

I believe that all proponents of overcriminalization reform support the proper use of mens rea and the need to expressly articulate it within the Code. Some may disagree, however, on which 

3 

mens rea is appropriate, urging the use of a willful standard in 

place of knowingly. The bill preserves the willful standard for a 

number of offenses in Title 18 that can be characterized as regulatory. But to quote Judge Learned Hand, who criticized the use of 

the term ‘‘willful,’’ ‘‘It is an awful word. It is one of the most troublesome words in the statute that I know. If I were to have the 

index purged, ’willful’ would lead all the rest in spite of its being 

at the end of the alphabet.’’ Although a willful standard may have 

its place in certain offenses, particularly regulatory ones, where 

specific knowledge of the law should be proven, such a requirement 

should not extend to all offenses, especially malum in se offenses. 

Again, as with the general attempt and conspiracy statutes, the 

bill’s use of knowingly mens rea reflects modern day drafting practices, and brings a greater uniformity to a code riddled with a wide 

range of mens rea, or in some instances no articulated mens rea 

at all. 

I wish to welcome our witnesses today, and thank you for participating in the hearing. I appreciate your comments and suggestions 

on the bill, and look forward to continuing the dialogue on Criminal Code modernization. It is now my pleasure to recognize for his 

opening statement the Ranking Member of the Subcommittee, the 

gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. I am pleased to join you 

for this hearing, and appreciate your interest in modernizing and 

simplifying the Federal Criminal Code. By introducing this bill, you 

have inspired continuing dialogue about the Criminal Code and the 

process for improving and revising it. Moving all Federal crimes 

into one title, Title 18 of the U.S. Code, makes tremendous sense. 

It organizes groups of crimes by category, and it enables judges, 

practitioners, and everybody else to more easily locate criminal 

statutes. The process of identifying and grouping crime statutes 

would also enable us to identify and eliminate redundancies, and 

also address conflicting or inconsistent statutes. 

Mr. Chairman, I appreciate the steps you have taken in H.R. 

1823 to clarify and remove inconsistencies in the mens rea requirement needed to hold someone criminally liable. I hope a significant 

focus is placed on this issue, particularly the idea of strict criminal 

liability and the effect that the nuanced difference between knowingly and willingly has. 

As we reorganize the Federal Code, I also hope we will take the 

opportunity to address overfederalization by reducing the role and 

breadth of the Federal Government in crime, particularly in the 

prosecution of ordinary street crime, which should be prosecuted in 

State courts, and other crimes which do not seem to need a Federal 

response even though they may technically fall within Federal jurisdiction. 

The task presented by H.R. 1823 is an enormous undertaking, 

and I look forward to working with you. The Code has grown dramatically since it was last recodified about 50 years ago. Some significant house cleaning and purging is obviously in order. There 

are statutes that are redundant, and some that never should have 

been enacted in the first place. It is also time to eliminate those 

provisions which have not been enforced or utilized by prosecutors 

for years. Doing it right and effectively will require a major comVerDate Aug 31 2005 14:12 Mar 29, 2012 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\121311\71622.000 HJUD1 PsN: DOUGA
4 

mitment of time and must involve participation and input not only 

from members of both parties in the House and the Senate, but 

also a diverse gathering of other interested parties, including, but 

not limited to judges, criminal law professors, prosecutors and defense counsel, the Federal law enforcement community, and representatives of the judiciary and U.S. Sentencing Commission and 

other interested officials. 

Major recodification will be difficult, but it will obviously become 

impossible if we have to concurrently debate substantive changes 

in the law. I therefore thank you for your policy decision that there 

be no policy—that the changes will be policy neutral unless there 

is a clear consensus on changes. With the issue of, as you have indicated, attempts and conspiracies, I think this, we will have to 

look to see if this complies with that policy decision, because I 

think there may be some difference between two people who, on the 

way to robbing a bank decide it is not a good idea, turn around and 

go home; whether they should be punished the same as two people 

who go and actually rob the bank. But there are a number of other 

concerns with the bill, many of which I expect our witnesses to address. 

But again, I appreciate your efforts to bring this issue before the 

Committee for discussion, Mr. Chairman. I am also pleased that 

you have a distinguished list of witnesses, all of whom have testified before on the issue of overcriminalization of conduct and overfederalization of criminal law. So I look forward to their testimony 

and look forward to working with you as we deal with this issue. 

Mr. SENSENBRENNER. Thank you. The Chairman emeritus of the 

full Committee, the gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Sensenbrenner. This is an 

important hearing. I want to compare it with what I consider to be 

some of the most important issues the Judiciary has tackled in recent years, copyright reform, patent reform, and voter rights revision, which at least one, maybe two of these occurred during your 

chairmanship, Chairman Sensenbrenner. And that is why I was enthusiastically supporting your picture to be added to the walls of 

the House Judiciary Committee. Now I hope you will return the 

favor next year. 

But the importance of those three items now almost seem small 

compared to the enormity of the task we are called upon to discuss 

today. And I am glad the Attorney General is here. We welcome 

him, and all the witnesses. And I think that the whole notion of 

putting the crimes under Title 18 is something that we ought to 

deal with today. We ought to get rid of the old myth that you are 

presumed to know the law. We have—how many agencies did you 

say—464 agencies who are writing the criminal law. I mean the 

whole idea that this is all going on without ever coming through 

either legislative body, especially not the Judiciary Committee of 

each House, which has the jurisdiction over the Criminal Code. 

And so this presumption, with exactly 4,450 Federal crimes that 

now exist, makes the mens rea requirement—well, sometimes they 

don’t even require a mens rea requirement, they don’t even need 

that. 

And so I would like to add to the Chairman and the Ranking 

Member’s excellent discussion introducing this subject. Why don’t 

5 

we consider ‘‘purposefully’’ as a compromise between willfully and 

knowingly, both of which have been stretched out of recognition 

and real usefulness? 

And so I think that this idea of modernizing and reforming the 

Federal Criminal Code is one that is going to go well into next 

year. Maybe it can’t even be done in the 112th Congress. It is very 

important. And I support this fact, and I am very pleased with the 

witnesses that have been invited today. To have Meese and 

Thornburgh here with us I think reflects very significantly upon 

their activities and their continued concern about what and how we 

can make the law, the actual operation of the law fit with the constitutional descriptions of what a democratic society is all about. 

I will put the rest of my statement in the record. 

[The prepared statement of Mr. Conyers follows:] 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 

For the past several decades, Congress has decided that the answer to most every 

problem is to create a new federal crime with stiff penalties. 

I believe all agree that the Criminal Code is long-overdue to be modernized. Recodifying the Criminal Code and bringing all federal criminal laws into Title 18 

makes sense. As we go about this task, however, we must make sure our actions 

clarify and address the Code’s current shortcomings, without creating new problems 

and expanding prosecutorial discretion. 

To begin with, the sheer volume of federal crimes is out of control. We now have 

more than 4,450 federal crimes—many of which lack any mens rea requirement. Not 

surprisingly, our Nation has the highest incarceration rate in the world. 

While we’re at it, let’s also remember that there are an estimated 300,000 federal 

regulations that impose criminal penalties. This is the perfect opportunity to address and end the shift from Congressional responsibility to delegated Agency 

power. 

Worse yet, the number and severity of these criminal punishments has grown 

over the years. 

I believe any discussion of reform must also address sentencing and mandatary 

minimums which I am not sure has happened in this current bill. 

But to get back to the point, no longer are regulations merely civil offenses with 

monetary penalties, but many regulatory infractions constitute felony crimes with 

significant prison exposure. 

It should be noted that these regulations were neither subjected to scrutiny by 

this Committee nor any other Congressional committee. Rather, they were promulgated by unelected officials at various federal agencies. 

Because of the fundamental rights implicated, criminal penalties should not be 

within the ambit of the Executive Branch. 

And, given the incredibly vast number of regulatory crimes, it is absolutely unfair 

and unreasonable to adhere to the maxim that ‘‘ignorance of the law is no defense.’’ 

Who could possibly know about every single one of these provisions? 

Second, these problematic trends in criminal law have been well-documented by 

our Committee. In prior Congresses, the Crime Subcommittee has conducted several 

hearings on the over-criminalization of conduct and the over-federalization of criminal law. 

At these hearings, we received testimony documenting the rapid growth of actions 

penalized under the Federal Criminal Code and federal regulations. 

Witnesses testified at these hearings that many of the 4,450 federal criminal offenses are poorly defined and lack the common law requirement of mens rea, or 

‘‘guilty mind’’ that has long served an important role in ensuring that those who 

lacked intent would not be subject to criminal prosecution. 

This is also true of the 300,000 federal regulations that impose criminal penalties. 

We must stop passing laws that do not require a mens rea, but we also must be 

careful in not weakening a standard to open wide prosecutorial discretion. 

I have concerns about this bill. I am concerned that eliminating the ‘‘willful’’ mens 

rea requirement, and applying a standard ‘‘knowing’’ intent may further increase incarceration rates. I am concerned about the proposal to expand both attempt and 

conspiracy, and apply them to every federal crime, rather than having them specifiVerDate Aug 31 2005 14:12 Mar 29, 2012 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6621 H:\WORK\CRIME\121311\71622.000 HJUD1 PsN: DOUGA
6 

cally mandated by Congress on the current statute-by-statute basis. To make matters worse, conviction under either of these proposed provisions would result in the 

same punishment as the completed offense. I also have concerns about any provisions that eliminate fines as a sentencing alternative. 

Which brings me to my final point. Today’s hearing on H.R. 1823, the ‘‘Criminal Code Modernization and Simplification Act of 2011,’’ provides an opportunity for 

us to examine how we should best fashion a solution to this serious problem. 

Indeed, the very length of this bill reflects the enormity of the challenge. 

Our analysis, however, requires a prudent process hopefully conducted in a policyneutral manner. 

To that end, we will need to form a working group involving input from my colleagues from both parties in the House and the Senate, as well as a broad spectrum 

of experts, including representatives from the prosecutorial and defense bars, law 

professors, members of the judiciary, the ACLU, the ABA, the Heritage Foundation, 

the National Association of Criminal Defense Lawyers, CATO, the Sentencing Commission, and the Federalist Society, among others. 

All of these groups already agree that the Federal Criminal Code is seriously in 

need of updating. All have agreed that over-criminalization and over-federalization 

are serious problems that need to be addressed. Their participation and input in the 

revising, reorganization, and recodification of the Criminal Code is essential if we 

are to be successful. 

So let’s all roll up our sleeves, bring in the experts, and get this job done. 

As a first step, and as I mentioned previously, we need to consider the intent 

standard under H.R. 1823 that appears to replace ‘‘willfully’’ with ‘‘knowingly.’’ 

I have grave concerns that changing this standard is not as simple as replacing 

the word. We need experts to determine the following issues: 

• Does this have the effect of weakening the mens rea elements for many 

crimes? 

• If so, does it increase the possibility that some defendant will be convicted 

who would not be convicted under current law? 

• Does the term ‘‘knowingly’’ provide greater clarity, or is it also subject to varied interpretations? 

Accordingly, I appreciate my colleague’s desire to address a long overdue opportunity to reform. I very much look forward to discussing these issues with our witnesses today, and I recommend that more hearings be held in order to have a more 

in-depth examination of the points I have mentioned as well as other issues. 

Mr. SENSENBRENNER. Without objection. And without objection, 

other Members’ opening statements will be made a part of the 

record. Also, and without objection, the Chair will be authorized to 

declare recesses during votes on the House floor. 

It is now my pleasure to introduce today’s witnesses. Edwin 

Meese, III, holds the Ronald Reagan Chair in Public Policy at the 

Heritage Foundation. He is also the Chairman of the Heritage Center for Legal and Judicial Studies, and a Distinguished Visiting 

Fellow at the Hoover Institution at Stanford. Mr. Meese served as 

the 75th Attorney General of the United States from February 

1985 to August 1988. January 1981 to February 1985, Mr. Meese 

held the position of counselor to the President, where he functioned 

as the President’s Chief Policy Adviser. He also served as Chairman of the Domestic Policy Council and of the National Drug Policy Board. From 1977 to 1981, Mr. Meese was a Professor of Law 

at the University of San Diego, where he was also Director of the 

Center for Criminal Justice Policy and Management. He served as 

Governor Reagan’s Executive Assistant and Chief of Staff in California from 1969 through 1974, and as Legal Affairs Secretary from 

1967 through 1968. Before joining Governor Reagan’s staff in 1967, 

he served as a Deputy District Attorney in Alameda County, California. He graduated from Yale University in 1953, and holds a law 

7 

degree from the University of California at Berkeley, and is a retired colonel in the Army Reserve. 

The Honorable Dick Thornburgh is Counsel to the international 

law firm of K&L Gates, LLP, in Washington. Previously, he served 

as Under Secretary General at the United Nations from 1992 to 

1993. He served as the 76th Attorney General of the United States 

from 1988 to 1991 in the Cabinets of Presidents Reagan and 

George H.W. Bush. Mr. Thornburgh served as Director of the Institute of Politics at the John F. Kennedy School of Government from 

1987 to 1988. And previously, he was elected twice as Governor of 

Pennsylvania, and was Chair of the Republican Governors Association. He served as U.S. Attorney in Pittsburgh from 1969 through 

1975, and as Assistant Attorney General in charge of the Criminal 

Division from 1975 through 1977. He received a bachelor’s degree 

in engineering from Yale in 1954, and an LLB from the University 

of Pittsburgh Law School in 1957. 

Mr. Tim Lynch is currently the Director of the Project on Criminal Justice at the Cato Institute. He has been with Cato since 

1991. In 2000, he served on the National Committee to Prevent 

Wrongful Executions. He has filed several amicus briefs in the U.S. 

Supreme Court in cases involving constitutional rights. He is the 

Editor of In the Name of Justice: Leading Experts Reexamine the 

Classic Article ‘‘The Aims of Criminal Law,’’ and After Prohibition: 

An Adult Approach to Drug Policies in the 21st Century. He earned 

his bachelor of arts and doctor from Marquette University. 

Steven Saltzburg is currently a Wallace and Beverly Woodbury 

University Professor of Law, and co-director at the Litigation and 

Dispute Resolution Program at George Washington University 

School of Law. He joined GW Law in 1990. Before that, he taught 

at the University of Virginia Law School. In 1996, he founded and 

directed the masters program in litigation and dispute resolution 

at GW. The Chief Justice of the United States appointed him as 

reporter for, and then a member of, the Advisory Committee on the 

Federal Rules of Criminal Procedure, and as a member of the Advisory Committee on the Federal Rules of Evidence. Professor 

Saltzburg has had a variety of governmental positions, including 

Associate Independent Counsel in the Iran-Contra investigation, 

Deputy Assistant Attorney General in the Criminal Division of the 

U.S. Department of Justice, the Attorney General’s ex officio representative on the U.S. Sentencing Commission, and Director of the 

U.S. Treasury Department’s Tax Refund Fraud Task Force. He received his bachelor degree from Dickinson College, and his juris 

doctor from the University of Pennsylvania. 

All of the witnesses’ statements will be entered into the record 

in their entirety. I ask that each witness summarize his or her testimony in 5 minutes or less. And we do have the lights in front of 

you to advise you how fast the clock is ticking. I will first recognize 

Mr. Meese for 5 minutes, and welcome. 

8 

TESTIMONY OF THE HONORABLE EDWIN MEESE, III, RONALD 

REAGAN DISTINGUISHED FELLOW IN PUBLIC POLICY, 

CHAIRMAN OF THE CENTER FOR LEGAL AND JUDICIAL 

STUDIES, THE HERITAGE FOUNDATION 

Mr. MEESE. Thank you, Mr. Chairman, Ranking Member Scott, 

Vice Chairman Gohmert, Members of the Committee. Thank you 

for the opportunity to appear before you and to comment on what 

has already been described accurately as a very important task 

which this Subcommittee has undertaken. I certainly commend you 

for this effort, which I think will benefit all those that are involved 

in the criminal justice system and the Federal system, as well as 

in the States, in view of some of the recommendations that have 

already been discussed by the Chairman, and I am sure many of 

us will concur, and that is to separate the Federal responsibilities 

and criminal prosecutions and investigations from those which are 

carried on very successfully by State and local governments. 

It may be of interest to the Committee to note that this is a task 

that has been ongoing over many years. In cleaning out my basement a week ago, I happened to come across the Committee report 

from the late 1970’s, when a commission under then-former Governor Pat Brown of California, chaired a commission in which they 

put together a volume of equal size to what is before the Committee today. Unfortunately, those efforts lapsed, and I think that 

this Subcommittee picking them up will make a very real contribution. 

Let me first of all say that I think we have to look at the objectives of any revision of criminal laws. One of them, of course, is, 

as has just been suggested by the Chairman, to streamline the 

Code itself. Second, we would I think agree, should be increased 

visibility, fair warning to people of what it is that they could be in 

jeopardy of by certain types of behavior. And thirdly, as Mr. Scott 

has already in his chairmanship worked very hard on, and that is 

decreasing overcriminalization, reducing the Criminal Code to 

those types of behavior which actually are offenses against the public safety. 

Four major areas are included in my written testimony, and I 

will comment briefly on each of them. Many of them have already 

been discussed by the Chairman in his opening remarks. 

But the first is to consolidate criminal laws, all the Federal 

criminal laws into Title 18. It is important that these laws be readily available so that people know, as I mentioned earlier, what it 

is that is prohibited. And it would certainly be a great service. 

It also would have one other added feature that I think is important, and that is that because of the jurisdiction of this Committee 

and the Judiciary Committee generally, it would mean that all 

laws carrying a criminal penalty would be subject to review by the 

Judiciary Committees of the two Houses. And this would mean 

that the expertise that is represented by both the Committee Members and its staff would be brought to bear on whether a particular 

subject matter should be subject to criminal penalties, and secondly, which would have a force, I believe, in making the penalties 

more proportionate and coordinated in their severity. So I think 

that would be an added benefit beside having all the laws in one 

place. 

9 

A second aspect is that there are, as has been pointed out, too 

many redundant, superfluous, and unnecessary criminal laws. Mr. 

Conyers mentioned 4,500 statutes, I believe, criminal statutes. This 

is in addition to over 300,000 other regulations that don’t appear 

in the Federal codes but which nevertheless carry essentially criminal penalties, including imprisonment. So the vast array of traps 

for the unwary, you might say, that lurk out there in the Federal 

criminal law is more extensive than I think most people realize. 

The third point is that it is important therefore that administrative agencies not be allowed to issue regulations that subject individuals to criminal penalties. If something is important to send a 

person to prison, the Congress itself should actually enact that as 

a statute. 

And finally, as the Chairman mentioned, mens rea is a necessary 

revision to make sure that all laws carrying criminal penalties 

properly include the mental element that has been traditionally required of crime, and that is the so-called guilty mind, or mens rea. 

And that should be set forth in a way that clearly identifies willfully or purposefully, whatever the phrase is, but it ought to be defined as meaning that the person definitely intended to commit the 

crime and to violate the law. 

Mr. Chairman, those are a brief summary of my suggestions. I 

think one thing the Committee will notice, each of us prepared our 

testimony separately. But when we exchanged them last night, 

there was a remarkable similarity which I think you will find as 

the other people testify this morning. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Meese follows:] 

10 


Meese-1.eps
11 


Meese-2.eps
12 


Meese-3.eps
13 


Meese-4.eps
14 


Meese-5.eps
15 


Meese-6.eps
16 


Meese-7.eps
17 


Meese-8.eps
18 


Meese-9.eps
19 


Meese-10.eps
20 


Meese-11.eps
21 


Meese-12.eps
22 


Meese-13.eps
23 


Meese-14.eps
24 


Meese-15.eps
25 


Meese-16.eps
26 


Meese-17.eps
27 


Meese-18.eps
28 

Mr. SENSENBRENNER. Thank you, General Meese. Well, I guess 

we must be starting out on the right track. 

Mr. Thornburgh. 

TESTIMONY OF THE HONORABLE DICK THORNBURGH, 

COUNSEL, K&L GATES LLP 

Mr. THORNBURGH. Thank you, Mr. Chairman, Ranking Member 

Scott, other Members of the Subcommittee here present. I want to 

disclaim any conspiracy on the part of the four witnesses here. I 

remember in the antitrust law there was a theory known as conscious parallelism. It was ultimately held not to be violative of the 

antitrust laws, and I think that is what you are looking at here. 

I appreciate the chance to appear before this Subcommittee this 

morning. I have not reviewed all 1,200 pages of H.R. 1823 line by 

line, but I would like to highlight today the phenomenon of overcriminalization, and to suggest that any reform legislation address 

solutions to the problems that this phenomenon has engendered. It 

may seem odd to some for me, as a former prosecutor, to focus on 

the perils of overcriminalization. We live in a time where concern 

remains high in our society about the problem of crime in general, 

and corporate crime in particular. But considerable misgiving 

about overcriminalization and the threat it poses to established institutions and ways of life have brought together a number of disparate public advocacy groups to deal with this problem and ensure 

that we have criminal statutes that punish actual criminal acts 

and do not seek to criminalize conduct that is better dealt with by 

the seeking of civil or regulatory remedies. 

I have served on both sides of the aisle in criminal cases during 

my career, as a Federal prosecutor for many years, and most recently as a defense attorney involved in proceedings adverse to the 

U.S. Department of Justice. This I think balances my view of the 

issues that we are talking about today. I want to move from my 

prepared statement into the suggestions that I offer to you as steps 

to curb abuses in the area of overcriminalization. I have both long 

and short term suggestions. 

First, I have advocated for many years that we adopt a true Federal Criminal Code. And I commend you, Mr. Chairman and your 

colleagues, for taking this issue up. While this may not be the first 

thing that comes to mind when people analyze issues of concern in 

the criminal justice system, it is an important one that should be 

undertaken without delay. The some 4,450 or more separate criminal offenses are a hodgepodge scattered throughout 50 different titles of the United States Code, without any coherent sense of organization. One commentator noted our failure to have in place even 

a modestly coherent code makes a mockery of the United States’ 

much vaunted commitment to justice, the rule of law, and human 

rights. 

This is not a new idea, of course. Congress did try nobly in the 

past to reform the Federal Criminal Code, most notably through 

the efforts of the Brown Commission, as noted, in the 1970’s. I was 

Assistant Attorney General in charge of the Department of Justice 

Criminal Division at the time, and I well remember the disappointment felt among department leadership over the inability to focus 

29 

the attention of legislative leaders on this important issue. And 

thus, it has been ever since until you have taken up this cause. 

Second, Congress needs to rein in the continuing proliferation of 

criminal regulatory offenses. Regulatory agencies routinely if not 

automatically promulgate rules imposing criminal penalties that 

have not been enacted by the Congress. Indeed, criminalization of 

new regulatory provisions has become seemingly mechanical. One 

estimate is there may be a staggering 300,000 criminal regulatory 

offenses created by U.S. Government agencies. This tendency, as 

pointed out, together with the lack of any congressional requirement that legislation pass through the Judiciary Committees, has 

led to an evolution of a whole new and troublesome catalogue of socalled criminal offenses. Congress should not delegate such an important function to the agencies. 

In this area, one solution that a renowned expert and former colleague of Ed’s and mine from the Department of Justice, Ronald 

Gainer, 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 

present criminal penalties from regulatory violations, notwithstanding the language of the regulatory statutes themselves 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 only for a pattern of intentional, repeated breaches. 

My third suggestion is that the Congress should consider whether it is time to address the standards whereby companies are held 

criminally responsible for the acts of their employees. The Department of Justice has issued four separate memoranda from deputy 

attorneys general during the last dozen years or so to set forth 

ground rules when a corporation should be charged criminally for 

the act of its employees. It should be noted that in its most recent 

memorandum, the government stated it may not be appropriate to 

impose liability upon a corporation, particularly one with a robust 

compliance program in place, under a strict respondeat superior 

theory for the single isolated act of a rogue employee. A law is 

needed to ensure uniformity in this critical area. 

I have set forth in my prepared statement some steps that I feel 

should be taken by the Department of Justice itself, and I would 

refer to those specifically, because the Department has a role, most 

important, to actively support as a matter of policy the effort to 

enact a true Criminal Code. 

Thank you for your attention and the opportunity to speak. 

[The prepared statement of Mr. Thornburgh follows:] 

Prepared Statement of the Honorable Dick Thornburgh, Counsel, 

K&L Gates LLP 

Chairman Sensenbrenner, Ranking Member Scott, and other Subcommittee members here present: Thank you for the opportunity to appear and testify before this 

Subcommittee. While I have not reviewed the 1,200 pages of H.R. 1823, line-by-line, 

I propose to address specifically today a subject that has commanded increasing attention here and in other countries around the world. My testimony today is intended to highlight the phenomenon of over-criminalization and to suggest that any 

reform legislation address solutions to the problems it has engendered. 

30 

I. 

It may seem odd to some for me as a former prosecutor to focus on the perils of 

over-criminalization. We live in a time when concern remains high in our society 

about the problem of crime in general and corporate crime in particular. But considerable misgiving has developed about this subject and the threat it poses to established institutions and ways of life. This misgiving has brought together such disparate public advocacy groups as the American Bar Association, the National Association of Criminal Defense Lawyers, and the ACLU on the liberal side with the 

Heritage Foundation, the Washington Legal Foundation, and the Cato Institute on 

the more conservative end of the spectrum. However divergent the interests of these 

groups may be otherwise, they all share a common goal in this area: 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 civil or regulatory remedies. This goal, 

as simple as it sounds conceptually, has turned out to be difficult to attain and 

needs to be addressed by this body. 

I have served on both sides of the aisle in criminal cases during my career—as 

a federal prosecutor for many years and more recently as a defense attorney involved in proceedings adverse to the United States Department of Justice. This provides me, I believe, with a balanced view of the issues in today’s criminal justice 

system. This testimony will suggest some thoughts as to how to deal with what I 

see as the growing challenge of over-criminalization. 

First, let me refine that challenge. 

By way of background, let me remind all of us of some basic fundamentals of the 

criminal law. Traditional criminal law encompasses various acts, which may or may 

not cause results, and mental states, which indicate volition or awareness on the 

part of the actor. These factors are commonly known as the requirements of mens 

rea and actus reus, Latin terms for an ‘‘evil-meaning mind [and] an evil-doing 

hand.’’ Most efforts to codify the law of common-law jurisdictions employ a variety 

of requisite mental states—usually describing purpose, knowledge, reckless indifference to a consequence, and, in a few instances, negligent failure to appreciate a risk. 

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 

have traditionally demanded that it should be utilized only when identified mental 

states and behaviors are proven. 

With respect to what has now become known as ‘‘over-criminalization,’’ objections 

are focused on those offenses that go well beyond these traditional, fundamental 

principles and are grounded more on what were historically civil or regulatory offenses without the mental states required for criminal convictions. Without a clear 

mens rea requirement, citizens may not be able to govern themselves in a way that 

assures them of following the law and many actors may be held criminally responsible for actions that do not require a wrongful intent. 

Such ‘‘strict’’ liability in a criminal action, incidentally, does have a long history— 

almost three thousand years ago, an Emperor of China is said to have decreed that 

it would be a criminal offense, punishable by death, for a governor of a province 

to permit the occurrence, within the province, of an earthquake. And man’s inability 

to control earthquakes, we have been reminded recently, can have tragic consequences. 

This is obviously an extreme, but our criminal justice system has not been entirely modest. Many scholars and the Department of Justice have tried to count the 

total number of federal crimes, but only rough estimates have emerged. The current 

‘‘estimate’’ is a staggering 4,450 crimes on the books with a projected additional 500 

per year in years to come. If legal scholars and researchers and the Department of 

Justice itself cannot accurately count the number of federal crimes, how do we expect ordinary American citizens to be able to be aware of them? Additionally, a recent report states that federal statutes provide for over 100 separate terms to denote the required mental state with which an offense may be committed, and another review observes that a number of the federal criminal offenses enacted in the 

last ten years had no mens rea requirement at all. Such trends cannot continue and 

suggested legislative reform in the nature of a default mens rea requirement when 

a statute does not require it is worthy of priority consideration. Moreover, a recent 

assessment of the new Dodd-Frank Wall Street Reform and Consumer Protection 

Act finds that it creates dozens of new federal criminal offenses, many lacking adequate criminal-intent requirements, which are ambiguous and duplicative of existing federal and state regulations. 

31 

II. 

Make no mistake, when individuals commit crimes they should be held responsible and punished accordingly. The line has become blurred, however, on what conduct constitutes a crime, particularly in corporate criminal cases, and needs to be 

redrawn and re-clarified. 

Since 1909, business entities have, with few limitations, routinely been held 

criminally liable for the acts of their employees. In recent history, one of the more 

significant cases involved the accounting firm of Arthur Andersen, a case of which 

you are no doubt aware, in which the company effectively received a ‘‘death sentence’’ based on the acts of isolated employees over a limited period of time. I gave 

a speech some time ago at the Georgetown Law Center in Washington regarding 

over-criminalization. I mentioned the Arthur Andersen case and referenced a political cartoon, published after the Supreme Court reversed the company’s conviction, 

in which a man in a judicial robe was standing by the tombstone for Arthur Andersen and said: ‘‘Oops. Sorry.’’ That apology didn’t put the tens of thousands of partners and employees of that entity back to work. This unjust result simply cannot 

be replicated, and reform is needed to make sure there are no such future miscarriages of justice. 

Over-breadth in corporate criminal law, for example, can lead to a near-paranoid 

corporate culture that is constantly looking over its shoulder for the ‘‘long arm of 

the law’’ and wondering whether a good faith business decision will be interpreted 

by an ambitious prosecutor as a crime. Perhaps even more significant is the impact 

on corporate innovation—if an idea or concept is novel or beyond prior models, a 

corporation may stifle it out of concern about potential criminal penalties. This stifling may render some businesses unable to compete in a global marketplace just 

to ensure compliance with domestic laws. And that may mean fewer jobs and reduced economic growth in this country. 

The unfortunate reality is that Congress has effectively delegated some of its 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 recent example of over-criminalization is the now-discredited ‘‘theft of 

honest services’’ provision of the mail and wire fraud statute, 18 U.S.C. § 1346, 

which was recently narrowed by the Supreme Court in the high-profile United 

States v. Skilling and United States v. Black decisions. The Court held that a criminal statute must clearly define the conduct it proscribes so as to give fair notice of 

the nature of the offense to those who might be charged. It was this statute, by the 

way, that formed the basis for the notorious prosecution of my client, Dr. Cyril 

Wecht, in my home state of Pennsylvania for felony counts relating, among other 

things, to his alleged use of the medical examiner’s office fax machine and official 

vehicles for legitimate outside personal business activities. This statute was subject 

to scrutiny in the Skilling case because of its expansion from traditional public corruption cases to private acts in business or industry that are deemed to be criminal 

almost exclusively at the whim of the individual prosecutor who is investigating the 

case, becoming essentially a ‘‘moral compass’’ statute. The Supreme Court rejected 

the government’s expansive view of the statute and returned the statute to its core 

purpose—prosecuting kickback and bribery schemes. Interestingly, the Court went 

a step further and specifically cautioned Congress regarding creating further honest 

services statutes, stating that ‘‘it would have to employ standards of sufficient definiteness and specificity to overcome due process concerns.’’ Another commendable 

decision came recently by a United States District Judge when he dismissed an indictment and reminded the government of the Court’s purpose—‘‘[t]he Court is not 

an arbiter of morality, economics, or corporate conduct. Rather, it is an arbiter of 

the law.’’ That signals to me a welcome judicial return to the rule of law. 

III. 

What can be done to curb these abuses? I have both long and short term suggestions. First, I have advocated for many years that we adopt a true Federal Criminal 

Code. While this may not be the first thing that comes to mind when analyzing the 

issues of concern in the criminal justice system, it is an important one that should 

be undertaken without delay. As I mentioned, there are now some 4,450 or more 

separate criminal statutes—a hodgepodge scattered throughout 50 different titles of 

the United States Code without any coherent sense of organization. As one commentator noted: ‘‘Our failure to have in place even a modestly coherent code makes a 

mockery of the United States’ much-vaunted commitments to justice, the rule of 

law, and human rights.’’ 

32 

There is a template in existence, the Model Penal Code, which can act as a sensible start to an organized criminal code, and has formed the basis for many efforts 

to establish state criminal codes in this country. What is needed is a clear, integrated compendium of the totality of the federal criminal law, combining general 

provisions, all serious forms of penal offenses, and closely related administrative 

provisions into an orderly structure, which would be, in short, a true Federal Criminal Code. 

This not a new idea—Congress has tried in the past to reform the federal criminal 

code, most notably through the efforts of the so-called ‘‘Brown Commission’’ in 1971. 

The legislative initiatives based on that Commission’s work failed despite widespread recognition of their worth. As Assistant Attorney General in charge of the 

Department of Justice’s Criminal Division at the time, I well remember the disappointment felt among Department leadership over the inability to focus the attention of legislative leaders on this important issue. And thus it has been ever since. 

It is therefore doubly incumbent on this 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 imposing criminal 

penalties that have not been enacted by Congress. Indeed, criminalization of new 

regulatory provisions has become seemingly mechanical. One estimate is that there 

may be a staggering 300,000 criminal regulatory offenses created by U.S. government agencies! 

This tendency, together with the lack of any congressional requirement that the 

legislation pass through Judiciary Committees, has led to an 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 renown expert and former colleague from the Department of Justice, Ronald Gainer, 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 present criminal penalties from 

regulatory violations, notwithstanding the language of the regulatory statues, 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 criminal law. The second exception 

would permit criminal prosecution, not for breach of the remaining regulatory provisions, but only 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 currently exists. 

My third suggestion is that Congress should consider whether it is time to address the standards whereby companies are held criminally responsible for acts of 

their employees. The Department of Justice has issued four separate Memoranda 

from Deputy Attorneys General during the past ten years or so setting forth ground 

rules for when a corporation should be charged criminally for the acts of its employees. It should be noted that in the most recent memorandum, the government stated: ‘‘[i]t may not be appropriate to impose liability upon a corporation, particularly 

one with a robust compliance program in place, under a strict respondeat superior 

theory for the single isolated act of a rogue employee.’’ A law is needed to ensure 

uniformity in this critical area so that the guidelines and standards do not continue 

to change at the rate of four times in a decade. Indeed, if an employee is truly a 

‘‘rogue’’ or acting in violation of corporate policies and procedures, Congress can protect a well-intentioned and otherwise law-abiding corporation by enacting a law that 

specifically holds the individual rather than the corporation responsible for the 

criminal conduct without subjecting the corporation to the whims of any particular 

federal prosecutor. 

One other aspect of over-criminalization should not escape our notice. A former 

colleague of mine at the Justice Department noted that there is something self-defeating about a society that seeks to induce its members to abhor criminality, but 

simultaneously brands as ‘‘criminal’’ not only those engaged in murder, rape and 

arson, but also those who dress up as Woodsy Owl, sell mixtures of two kinds of 

turpentine, file forms in duplicate rather than triplicate or post company employment notices on the wrong bulletin boards. The stigma of criminal conviction is dissipated by such enactments and the law loses its capacity to reinforce moral precepts and to deter future misconduct. Our criminal sanctions should be reserved for 

only the most serious transgressions and to do otherwise, in fact, can cause disrespect for the law. 

33 

While nearly all of the remedies I have suggested today would require legislative 

action, there are some steps that could be taken by the Department of Justice itself 

to aid in the process of reducing over-criminalization. Let me mention just three. 

First, the Department should require pre-clearance by senior officials of novel or 

imaginative prosecutions of high profile defendants. One of Justice Scalia’s major 

objections to the ‘‘honest services’’ fraud theory, for example, was its propensity to 

enable ‘‘abuse by headline-grabbing prosecutors in pursuit of [those] who engage in 

any manner of unappealing or ethically questionable conduct.’’ A second look before 

bringing any such proposed prosecutions would, I suggest, be very much in order. 

Second, a revitalized Office of Professional Responsibility within the Department 

of Justice should help ensure that ‘‘rogue’’ prosecutors are sanctioned for overreaching in bringing charges that go well beyond the clear intent of the statute involved. 

Finally, of course, the Department should actively support, as a matter of policy, 

the effort to enact a true criminal code. 

These are changes that truly merit our attention if we are to remain a government of laws and not of men. And they merit attention by all three branches of government—the legislative, the executive and the judicial—if productive change is to 

be forthcoming. 

Interestingly enough, this concern is not confined to the United States or our legal 

system alone. Because of recent abuses in the Russian Federation, a group of reformers is seeking to overhaul criminal laws and procedures in that country to combat over-criminalization as well. I have visited with these reformers, both here and 

in Moscow, and presented testimony before a round-table discussion in the Russian 

Duma, their legislature, sharing our experiences and suggestions for changes in our 

system. The primary focus of their examination is the abuse of criminal laws by 

business competitors to secure market advantages and efforts to deal with vaguelyworded statutes that purport to create criminal offenses to deal with ‘‘fraud’’ and 

‘‘illegal entrepreneurship.’’ 

I also had occasion myself to appear recently as an expert witness in the Moscow 

Arbitrazh Court, Russia’s commercial tribunal, in a case brought against a major 

U.S. bank to recover $22.5 billion in damages for alleged violations of the U.S. RICO 

statute. The case settled for a fraction of the amount sought without reaching the 

question of whether a U.S. statute predicated on violations of the U.S. criminal law 

can proceed in a Russian commercial court, but the mere filing of such a claim evidences the type of potential hazard U.S. companies face abroad. 

With respect then to the problem of over-criminalization, let me summarize. 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 our legal system. And the Department of Justice must ‘‘police’’ those empowered to prosecute with greater vigor. 

I hope and trust that you will include remedies to the challenge of over-criminalization in whatever modernization and simplification initiatives result from your 

present considerations. 

Thank you for the opportunity to share these thoughts with you today. 

Mr. SENSENBRENNER. Thank you, General Thornburgh. Mr. 

Lynch. 

TESTIMONY OF TIM LYNCH, DIRECTOR, 

PROJECT ON CRIMINAL JUSTICE, CATO INSTITUTE 

Mr. LYNCH. Thank you, Mr. Chairman. I also appreciate the invitation to testify here today. Many excellent points have already 

been made. I think I will start off by highlighting why I think the 

subject of Federal Code reform has generated such interest from 

across the political spectrum. 

We are talking about the rules by which people from our communities can be arrested, indicted, and sent to prison. Conscientious 

people in the criminal law field should not lose sight of the fact 

that even when somebody has not been convicted of a crime, their 

lives can be forever altered by the application of the criminal law. 

All it takes is a single raid, highly publicized, and a business can 

34 

go under. An arrest can end somebody’s career. Even in situations 

where a person can actually win an acquittal at trial, the financial 

burden involved in mounting a legal defense these days can break 

most families. 

Now, what is most disconcerting of all is that nowadays the scope 

of our Federal criminal law has been so expansive, as the other 

witnesses have said, that ordinary hardworking people can easily 

find themselves on the wrong side of the law without even knowing 

it. It is really time to take a fresh approach to the Federal Code. 

And I also commend the Committee for taking this subject up. 

But not just reorganizing it, it needs to be scaled back. And we 

need to provide procedural safeguards for persons accused of 

wrongdoing. The bill under consideration here, H.R. 1823, identifies scores of provisions that are duplicative and unnecessary. But 

there are a few points that I wish to highlight because I wish the 

bill had gone further. 

First, the bill does not do enough to shield ordinary people from 

the legal and regulatory minefield that presently exists. The criminal standard that presently exists in the tax area I think is the 

model to follow. We all know how complicated the Federal Tax 

Code is. So right now, to protect people who honestly try to get 

their tax returns right without accusations of tax evasion, prosecutors have to prove that the person willfully violated the tax law. 

In other words, the prosecutors have to show that the person knew 

what the law required, but went ahead and violated the law anyway. I think we need that willfulness standard in place for all regulations that cover conduct that is not intrinsically wrongful. 

The second point I wish to highlight is that to protect citizens 

from situations where statutes have ambiguous terms, Congress 

should codify the rule of lenity across the board. Right now the rule 

of lenity is applied kind of sporadically by the courts. They do it 

no some areas of the law, but not in others. Congress should codify 

this rule of lenity across the board so that doubts will be resolved 

in the defendant’s favor. Mr. Chairman, there is a principle in contracts law that says that when there are terms of a contract that 

are ambiguous, it will be resolved against the person or party or 

organization that drafted the contract. And the rationale there is 

that the person who drafted the contract was in a better position 

to resolve the ambiguity because they were drafting the language. 

It is a sensible rule. And if we have that rule in place in contracts, 

I think in the criminal law, where the stakes are even higher, that 

rule of lenity should be applied so that the law should be clearly 

written and ambiguities should be resolved in favor of people who 

are accused of crime, not in favor of the prosecution. 

The third point that I wish to highlight, and has been made by 

the other witnesses, is that Congress needs to pull the plug on 

agency rulemaking. I know that Members of Congress are busy, I 

know that you are pulled in different directions all the time to go 

ahead and address different subjects. But aside from the decision 

to go to war, it is hard for me to think of a more important responsibility than attending to the legal rules by which people can be indicted and sent off to prison. I know certain agencies have developed certain expertise. I think we should let them make their recommendations to the Congress. But when it comes to rules that afVerDate Aug 31 2005 14:12 Mar 29, 2012 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\121311\71622.000 HJUD1 PsN: DOUGA
35 

1 Ronald L. Gainer, ‘‘Report to the Attorney General on Federal Criminal Code Reform,’’ 

Criminal Law Forum (1989). 2Mark Sherman, ‘‘Scalia: Judges ‘Aint What They Used to Be,’ ’’ Associated Press, October 5, 

2011. 3See Robert Suro, ‘‘Rehnquist: Too Many Offenses Are Becoming Federal Crimes,’’ Washington Post, January 1, 1999. See also Timothy Lynch, ‘‘Dereliction of Duty: The Constitutional 

Record of President Clinton,’’ Capital University Law Review 27 (1999): 783, 832–38. 

fect people’s liberty where they can be sent to prison, I think the 

agencies should send these recommendations over to the Congress 

where they can be voted upon by our elected Representatives. 

I do have other comments and recommendations in my written 

testimony, and I would respectfully request they be made part of 

the record. 

[The prepared statement of Mr. Lynch follows:] 

Prepared Statement of Tim Lynch, Director, Project on Criminal Justice, 

Cato Institute 

I. INTRODUCTION AND BACKGROUND

My name is Tim Lynch. I am the director of the Cato Institute’s Project on Criminal Justice. I appreciate the invitation to testify this morning on H.R. 1823, which 

aims to modernize and simplify the federal criminal code. I am supportive of this 

undertaking because the federal code is a mess. As one writer has observed, the federal code is a 

loose assemblage of criminal law components that were built hastily to respond to perceptions of need and to perceptions of the popular will, and 

that were patterned more upon hindsight than foresight. Of the 3,000 provisions carrying criminal penalties, each was produced at a different time by 

different draftsmen with different conceptions of law, the English language, 

and common sense. Any relationship of one to another is more often than 

not accidental. The criminal statutes have never been subjected to a substantive reform, only a minor paring and partial rearrangement into a peculiar form of alphabetical order.1

Justice Antonin Scalia recently noted that Congress has unwisely expanded the 

federal criminal system in a manner that allows drug prosecutions to burden the 

judiciary.2 In an attempt to address that burden, Congress expanded the number 

of federal judgeships, but that has resulted in a reduction in the quality of judicial 

appointments according to Justice Scalia. 

I should note at the outset that since H.R. 1823 runs more than one thousand 

pages, I have not yet had sufficient time to study all of its provisions and thus all 

of the consequences (both intended and unintended). To assist the committee in its 

deliberations, however, I will first outline some general principles which I think 

ought to guide federal code reform. I will then offer a preliminary analysis of H.R. 

1823. Last, if there are any questions that I am unable to answer today, I will endeavor to develop an answer following the hearing and respond with a letter to the 

committee. 

II. PRINCIPLES TO GUIDE FEDERAL CODE REFORM

A. Constitutional Basis for Federal Statutes 

The American Constitution created a federal government with limited powers. As 

James Madison noted in the Federalist no. 45, ‘‘The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are 

to remain in the State governments are numerous and indefinite.’’ Most of the federal government’s ‘‘delegated powers’’ are specifically set forth in article I, section 

8. The Tenth Amendment was appended to the Constitution to make it clear that 

the powers not delegated to the federal government ‘‘are reserved to the States respectively, or to the people.’’ 

Crime is a serious problem, but under the Constitution, it is a matter to be primarily handled by state and local government. Unfortunately, as the years passed, 

Congress eventually assumed the power to enact a vast number of criminal laws 

pursuant to its power ‘‘to regulate Commerce with foreign Nations, and among the 

several States, and with the Indian Tribes.’’ 3

36 

4See American Bar Association, The Federalization of Criminal Law (Chicago: American Bar 

Association, 1998); John S. Baker, Measuring the Explosive Growth of Federal Crime Legislation (Washington: The Federalist Society for Law and Public Policy Studies, 2005). 5 United States v. Lopez, 514 U.S. 549 (1995). 6 Ibid., pp. 657–58 (1995) (Thomas, J., concurring). See also John Baker, ‘‘National izing 

Criminal Law: Does Organized Crime Make It Necessary or Proper?’’ Rutgers Law Journal 16 

(1985): 495. 7 United States v. Mills, 817 F. Supp. 1546, 1555 (1993). 8 Robert A. Anthony, ‘‘Unlegislated Compulsion: How Federal Agency Guidelines Threaten 

your Liberty,’’ Cato Institute Policy Analysis, no. 312 (August 11, 1998). 9See Timothy Lynch, ‘‘Ignorance of the Law: Sometimes a Valid Defense,’’ Legal Times, April 

4, 1994. 10 Henry Hart, ‘‘The Aims of the Criminal Law,’’ reprinted in In the Name of Justice (Washington, D.C.: Cato Institute, 2009), p. 19. 

In recent years, Congress has federalized the crimes of gun possession within a 

school zone, carjacking, wife beating, and church arsons. All of those crimes and 

more have been rationalized under the Commerce Clause.4 In United States v. 

Lopez, the Supreme Court finally struck down a federal criminal law, the Gun-Free 

School Zone Act of 1990, because the connection between handgun possession and 

interstate commerce was simply too tenuous.5 In a concurring opinion, Justice Clarence Thomas noted that if Congress had been given authority over matters that simply ‘‘affect’’ interstate commerce, much, if not all, of the enumerated powers set 

forth in article I, section 8 would be unnecessary. Indeed, it is difficult to dispute 

Justice Thomas’ conclusion that an interpretation of the commerce power that 

‘‘makes the rest of § 8 surplusage simply cannot be correct.’’ 6

Whether or not the Supreme Court adopts a more narrow interpretation of the 

Commerce Clause, Congress can and should acknowledge constitutional limits on 

federal jurisdiction and repeal federal statutes that merely duplicate local crimes. 

B. No Delegation of Lawmaking Power to Administrative Agencies 

Beyond the thousands of federal criminal statutes enacted by the Congress, there 

are also thousands of federal regulations that carry criminal penalties. (And what 

is worse is that some of those regulations contain vague terms; others carry inadequate mens rea terminology.) Members of Congress are busy, but it is their responsibility to carefully consider what infractions can result in a criminal conviction and 

prison time. 

The case law that has thus far allowed delegation has drawn criticism. Federal 

Judge Roger Vinson, for example, has observed: 

A jurisprudence which allows Congress to impliedly delegate its criminal 

lawmaking authority to a regulatory agency such as the Army Corps—so 

long as Congress provides an ‘‘intelligible principle’’ to guide that agency— 

is enough to make any judge pause and question what has happened. Deferent and minimal judicial review of Congress’ transfer of its criminal lawmaking function to other bodies, in other branches, calls into question the 

vitality of the tripartite system established by our Constitution. It also calls 

into question the nexus that must exist between the law so applied and 

simple logic and common sense. Yet that seems to be the state of the law. 

Since this court must apply the law as it exists, and cannot change it, there 

is nothing further that can be done at this level.7

As noted above, whether or not the Supreme Court chooses to revisit and restrict 

the ability of Congress, on constitutional grounds, to delegate the lawmaking power, 

Congress can and should recognize that federal law—especially federal criminal 

law—ought to be made by the people’s elected representatives.8

C. Ignorance of the Law is Now a Valid Excuse 

The sheer volume of modern law makes it impossible for an ordinary American 

household to stay informed. And yet, prosecutors vigorously defend the old legal 

maxim that ‘‘ignorance of the law is no excuse.’’ 9 That maxim may have been appropriate for a society that simply criminalized inherently evil conduct, such as murder, 

rape, and theft, but it is wholly inappropriate in a labyrinthine regulatory regime 

that criminalizes activities that are morally neutral. As Professor Henry M. Hart 

opined, ‘‘In no respect is contemporary law subject to greater reproach than for its 

obtuseness to this fact.’’ 10

To illustrate the rank injustice that can and does occur, take the case of Carlton 

Wilson, who was prosecuted because he possessed a firearm. Wilson’s purchase of 

the firearm was perfectly legal, but, years later, he didn’t know that he had to give 

it up after a judge issued a restraining order during his divorce proceedings. When 

Wilson protested that the judge never informed him of that obligation and that the 

37 

11 United States v. Wilson, 159 F.3d 280 (1998). 12 Ibid., p. 296 (Posner, J., dissenting). 13 Ibid. The Wilson prosecution was not a case of one prosecutor using poor judgment and 

abusing his power. See, for example, United States v. Emerson, 46 F.Supp. 2d 598 (1999). 14See, generally, Ronald A. Cass, ‘‘Ignorance of the Law: A Maxim Reexamined,’’ William and 

Mary Law Review 17 (1976): 671. 15 Connally v. General Construction Company, 269 U.S. 385, 393 (1926) (internal quotation 

marks omitted). 16Papachristou v. City of Jacksonville, 405 U.S. 156, 162–163 (1972). 

restraining order itself said nothing about firearms, prosecutors shrugged, ‘‘ignorance of the law is no excuse.’’ 11 Although the courts upheld Wilson’s conviction, 

Judge Richard Posner filed a dissent: ‘‘We want people to familiarize themselves 

with the laws bearing on their activities. But a reasonable opportunity doesn’t mean 

being able to go to the local law library and read Title 18. It would be preposterous 

to suppose that someone from Wilson’s milieu is able to take advantage of such an 

opportunity.’’ 12 Judge Posner noted that Wilson would serve more than three years 

in a federal penitentiary for an omission that he ‘‘could not have suspected was a 

crime or even a civil wrong.’’ 13

It is absurd and unjust for the government to impose a legal duty on every citizen 

to ‘‘know’’ all of the mind-boggling rules and regulations that have been promulgated over the years. Policymakers can and should discard the ‘‘ignorance-is-no-excuse’’ maxim by enacting a law that would require prosecutors to prove that regulatory violations are ‘‘willful’’ or, in the alternative, that would permit a good-faith 

belief in the legality of one’s conduct to be pleaded and proved as a defense. The 

former rule is already in place for our complicated tax laws—but it should also 

shield unwary Americans from all of the laws and regulations as well.14

D. Vague Statutes are Unacceptable 

Even if there were but a few crimes on the books, the terms of our criminal laws 

ought to be drafted with precision. There is precious little difference between a secret law and a published regulation that cannot be understood. History is filled with 

examples of oppressive governments that persecuted unpopular groups and innocent 

individuals by keeping the law’s requirements from the people. For example, the 

Roman emperor Caligula posted new laws high on the columns of buildings so that 

ordinary citizens could not study the laws. Such abominable policies were discarded 

during the Age of Enlightenment, and a new set of principles—known generally as 

the ‘‘rule of law’’—took hold. Those principles included the requirements of legality 

and specificity. 

‘‘Legality’’ means a regularized process by which crimes are designated and prosecuted by the government. The Enlightenment philosophy was expressed by the 

maxim nullum crimen sine lege (there is no crime without a law). In other words, 

people can be punished only for conduct previously prohibited by law. That principle 

is clearly enunciated in the ex post facto clause of the Constitution (article I, section 

9). But the purpose of the ex post facto clause can be subverted if the legislature 

can enact a criminal law that condemns conduct in general terms, such as ‘‘dangerous and harmful’’ behavior. Such a law would not give people fair warning of the 

prohibited conduct. To guard against the risk of arbitrary enforcement, the Supreme 

Court has said that the law must be clear: 

A criminal statute cannot rest upon an uncertain foundation. The crime, 

and the elements constituting it, should be so clearly expressed that an ordinary person can intelligently choose, in advance, what course it is lawful 

for him to pursue. Penal statutes prohibiting the doing of certain things, 

and providing a punishment for their violation, should not admit of such 

a double meaning that the citizen may act upon the one conception of its 

requirements and the courts upon another.15

The principles of legality and specificity operate together to reduce the likelihood 

of arbitrary and discriminatory application of the law by keeping policy matters 

away from police officers, administrative bureaucrats, prosecutors, judges, and members of juries, who would have to resolve ambiguities on an ad hoc and subjective 

basis. 

Although the legality and specificity requirements are supposed to be among the 

first principles of American criminal law, a ‘‘regulatory’’ exception has crept into 

modern jurisprudence. The Supreme Court has unfortunately allowed ‘‘greater leeway’’ in regulatory matters because the practicalities of modern governance supposedly limit ‘‘the specificity with which legislators can spell out prohibitions.’’ 16

38 

17Sykes v. United States, 131 S. Ct. 2267, 2284. 18 James Madison, ‘‘Federalist Paper 62,’’ in The Federalist Papers, ed. Clinton Rossiter (New 

York: New American Library, 1961), p. 381. 19Pennsylvania has protected its citizens from overzealous prosecutors with such a law for 

many years. See 1 Pa.C.S.A. 1208. 20Wayne R. LaFave and Austin W. Scott Jr., Criminal Law, 2nd. ed. (St. Paul, MN: West 

Publishing Co., 1986), pp. 193–94. 21Quoted in Morissette v. United States, 342 U.S. 246, 250 n. 4 (1952). 22 Utah v. Blue, 53 Pac. 978, 980 (1898). 23Morissette v. United States, 342 U.S. 246, 251 (1952). 

During the past 50 years, fuzzy legal standards, such as ‘‘unreasonable,’’ ‘‘unusual,’’ 

and ‘‘excessive,’’ have withstood constitutional challenge. 

Justice Scalia recently acknowledged that this trend has gone too far and ought 

to be halted: 

We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the 

volume increases, so do the number of imprecise laws. And no surprise that our 

indulgence of imprecisions that violate the Constitution encourages imprecisions 

that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-thecourts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) 

to grapple with the nitty-gritty. In the field of criminal law, at least, it is time 

to call a halt.17

The Framers of the American Constitution understood that democracy alone was 

no guarantor of justice. As James Madison noted, ‘‘It will be of little avail to the 

people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if 

they be repealed or revised before they are promulgated, or undergo such incessant 

changes that no man, who knows what the law is today, can guess what it will be 

tomorrow.’’ 18

The first step toward addressing the problem of vague and ambiguous criminal 

laws would be for the Congress to direct the courts to follow the rule of lenity in 

all criminal cases.19 Legal uncertainties should be resolved in favor of private individuals and organizations, not the government. 

E. Abolish Strict Liability Offenses 

Two basic premises that undergird Anglo-American criminal law are the requirements of mens rea (guilty mind) and actus reus (guilty act).20 The first requirement 

says that for an act to constitute a crime there must be ‘‘bad intent.’’ Dean Roscoe 

Pound of Harvard Law School writes, ‘‘Historically, our substantive criminal law is 

based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to 

do wrong.’’ 21 According to that view, a man could not be prosecuted for leaving an 

airport with the luggage of another if he mistakenly believed that he owned the luggage. As the Utah Supreme Court noted in State v. Blue (1898), mens rea was considered an indispensable element of a criminal offense. ‘‘To prevent the punishment 

of the innocent, there has been ingrafted into our system of jurisprudence, as presumably in every other, the principle that the wrongful or criminal intent is the essence of crime, without which it cannot exist.’’ 22

By the same token, bad thoughts alone do not constitute a crime if there is no 

‘‘bad act.’’ If a police officer discovers a diary that someone mistakenly left behind 

in a coffee shop, and the contents include references to wanting to steal the possessions of another, the author cannot be prosecuted for a crime. Even if an off-duty 

police officer overhears two men in a tavern discussing their hatred of the police 

and their desire to kill a cop, no lawful arrest can be made if the men do not take 

action to further their cop-killing scheme. The basic idea, of course, is that the government should not be in the business of punishing ‘‘bad thoughts.’’ 

When mens rea and actus reus were fundamental prerequisites for criminal activity, no person could be branded a ‘‘criminal’’ until a prosecutor could persuade a jury 

that the accused possessed ‘‘an evil-meaning mind with an evil-doing hand.’’ 23 That 

understanding of crime—as a compound concept—was firmly entrenched in the 

English common law at the time of the American Revolution. 

Over the years, however, the moral underpinnings of the Anglo-American view of 

criminal law fell into disfavor. The mens rea and actus reus requirements came to 

be viewed as burdensome restraints on well-meaning lawmakers who wanted to 

solve social problems through administrative regulations. As Professor Richard G. 

39 

24 Richard G. Singer, ‘‘The Resurgence of Mens Rea: III—The Rise and Fall of Strict Criminal 

Liability,’’ Boston College Law Review 30 (1989): 337. See also Special Report: Federal Erosion 

of Business Civil Liberties (Washington: Washington Legal Foundation, 2008). 25Lambert v. California, 355 U.S. 225, 228 (1957). 26 Herbert Packer, ‘‘Mens Rea and the Supreme Court,’’ Supreme Court Review (1962): 109. 

See also Jeffrey S. Parker, ‘‘The Economics of Mens Rea,’’ Virginia Law Review 79 (1993): 741; 

Craig S. Lerner and Moin A. Yahya, ‘‘ ‘Left Behind’ After Sarbanes-Oxley,’’ American Criminal 

Law Review 44 (2007): 1383. 27Thorpe v. Florida, 377 So.2d 221 (1979). 28 Ibid., p. 223. 29See United States v. Yirkovsky, 259 F.3d 704 (2001). 

Singer has written, ‘‘Criminal law . . . has come to be seen as merely one more 

method used by society to achieve social control.’’ 24

The change began innocently enough. To protect young girls, statutory rape laws 

were enacted that flatly prohibited sex with girls under the age of legal consent. 

Those groundbreaking laws applied even if the girl lied about her age and consented 

to sex and if the man reasonably believed the girl to be over the age of consent. 

Once the courts accepted that exception to the mens rea principle, legislators began 

to identify other activities that had to be stamped out—even at the cost of convicting 

innocent-minded people. 

The number of strict liability criminal offenses grew during the 20th century as 

legislators created scores of public welfare offenses relating to health and safety. 

Each time a person sought to prove an innocent state-of-mind, the Supreme Court 

responded that there is ‘‘wide latitude’’ in the legislative power to create offenses 

and ‘‘to exclude elements of knowledge and diligence from [their] definition.’’ 25

Those strict liability rulings have been sharply criticized by legal commentators. 

Professor Herbert Packer argued that the creation of strict liability crimes was both 

inefficacious and unjust. 

It is inefficacious because conduct unaccompanied by an awareness of the 

factors making it criminal does not mark the actor as one who needs to be 

subjected to punishment in order to deter him or others from behaving 

similarly in the future, nor does it single him out as a socially dangerous 

individual who needs to be incapacitated or reformed. It is unjust because 

the actor is subjected to the stigma of a criminal conviction without being 

morally blameworthy. Consequently, on either a preventative or retributive 

theory of criminal punishment, the criminal sanction is inappropriate in the 

absence of mens rea.26

A dramatic illustration of the problem was presented in Thorpe v. Florida 

(1979).27 John Thorpe was confronted by a thief who brandished a gun. Thorpe got 

into a scuffle with the thief and wrested the gun away from him. When the police 

arrived on the scene, Thorpe was arrested and prosecuted under a law that made 

it illegal for any felon to possess a firearm. Thorpe tried to challenge the application 

of that law by pointing to the extenuating circumstances of his case. The appellate 

court acknowledged the ‘‘harsh result,’’ but noted that the law did not require a vicious will or criminal intent. Thus, self-defense was not ‘‘available as a defense to 

the crime.’’ 28

True, Thorpe was a state case from 1979. The point here is simply to show the 

drift of our law. As Judge Benjamin Cardozo once quipped, once a principle or precedent gets established, it is usually taken to the ‘‘limit of its logic.’’ For a more recent 

federal case, consider what happened to Dane Allen Yirkovsky. Yirkovsky was convicted of possessing one round of .22 caliber ammunition and for that he received 

minimum mandatory 15-year sentence.29 Here are the reported circumstances surrounding his ‘‘crime.’’ 

In late fall or early winter of 1998, Yirkovsky was living with Edith 

Turkington at her home in Cedar Rapids, Iowa. Instead of paying rent, 

Yirkovsky agreed to remodel a bathroom at the home and to lay new carpeting in the living room and hallway. While in the process of removing the 

old carpet, Yirkovsky found a Winchester .22 caliber, super x, round. 

Yirkovsky put the round in a small box and kept it in the room in which 

he was living in Turkington’s house. 

Subsequently, Yirkovsky’s ex-girlfriend filed a complaint alleging that 

Yirkovsky had [some of] her property in his possession. A police detective 

spoke to Yirkovsky regarding the ex-girlfriend’s property, and Yirkovsky 

granted him permission to search his room in Turkington’s house. During 

40 

30 Ibid., pp. 705–706. 31 In my view, Congress should not stand by secure in the knowledge that such precedents 

exist. Justice Anthony Kennedy has made this point quite well: ‘‘The legislative branch has the 

obligation to determine whether a policy is wise. It is a grave mistake to retain a policy just 

because a court finds it constitutional. . . . Few misconceptions about government are more 

mischievous than the idea that a policy is sound simply because a court finds it permissible. 

A court decision does not excuse the political branches or the public from the responsibility for 

unjust laws.’’ Anthony M. Kennedy, ‘‘An Address to the American Bar Association Annual Meeting,’’ reprinted in In the Name of Justice (Washington, D.C.: Cato Institute, 2009), p. 193. 32See Wayne R. LaFave and Austin W. Scott Jr., Criminal Law, 2nd. ed. (St. Paul, MN: West 

Publishing Co., 1986), p. 212. 33Francis Bowes Sayre, ‘‘Criminal Responsibility for the Acts of Another,’’ Harvard Law Review 43 (1930): 689, 690. 34 Ibid., p. 702. 35 United States v. Park, 421 U.S. 658 (1975). Although many state courts have followed the 

reasoning of the Park decision with respect to their own state constitutions, some courts have 

recoiled from the far-reaching implications of vicarious criminal liability. For example, the Pennsylvania Supreme Court has held that ‘‘a man’s liberty cannot rest on so frail a reed as whether 

his employee will commit a mistake in judgment.’’ Commonwealth v. Koczwara, 155 A.2d 825, 

830 (1959). That Pennsylvania ruling, it must be emphasized, is an aberration. It is a remnant 

of the common law tradition that virtually every other jurisdiction views as passe’. 36 United States v. Park, 421 U.S. 658, 666 (1975). 37 Ibid., p. 672. 38 ‘‘[T]he willfulness or negligence of the actor [will] be imputed to him by virtue of his position 

of responsibility.’’ United States v. Brittain, 931 F.2d 1413, 1419 (1991); United States v. Johnson & Towers, Inc., 741 F.2d 662, 665 n. 3 (1984). See generally Joseph G. Block and Nancy 

A. Voisin, ‘‘The Responsible Corporate Officer Doctrine—Can You Go to Jail for What You Don’t 

Know?’’ Environmental Law (Fall 1992). 

this search, the detective located the .22 round. Yirkovsky admitted to police that he had placed the round where it was found by the detective.30

The appellate court found the penalty to be ‘‘extreme,’’ but affirmed Yirkovsky’s 

sentence as consistent with existing law.31

Strict liability laws should be abolished because their very purpose is to divorce 

a person’s intentions from his actions. But if the criminal sanction imports blame— 

and it does—it is a perversion to apply that sanction to self-defense and other acts 

that are not blameworthy. Our criminal law should reflect the old Latin maxim, 

actus not facit reum nisi mens sit rea (an act does not make one guilty unless his 

mind is guilty).32

F. Abolish Vicarious Liability Offenses 

Everyone agrees with the proposition that if a person commands, pays, or induces 

another to commit a crime on that person’s behalf, the person should be treated as 

having committed the act.33 Thus, if a husband hires a man to kill his wife, the 

husband is also guilty of murder. But it is another matter entirely to hold one person criminally responsible for the unauthorized acts of another. ‘‘Vicarious liability,’’ 

the legal doctrine under which a person may be held responsible for the criminal 

acts of another, was once ‘‘repugnant to every instinct of the criminal jurist.’’ 34 Alas, 

the modern trend in American criminal law is to embrace vicarious criminal liability. 

Vicarious liability initially crept into regulations that were deemed necessary to 

control business enterprises. One of the key cases was United States v. Park 

(1975).35 John Park was the president of Acme Markets Inc., a large national food 

chain. When the Food and Drug Administration found unsanitary conditions at a 

warehouse in April 1970, it sent Park a letter demanding corrective action. Park referred the matter to Acme’s vice president for legal affairs. When Park was informed 

that the regional vice president was investigating the situation and would take corrective action, Park thought that was the end of the matter. But when unsanitary 

warehouse conditions were found on a subsequent inspection, prosecutors indicted 

both Acme and Park for violations of the Federal Food, Drug and Cosmetic Act. 

An appellate court overturned Park’s conviction because it found that the trial 

court’s legal instructions could have ‘‘left the jury with the erroneous impression 

that [Park] could be found guilty in the absence of ‘wrongful action’ on his part’’ and 

that proof of that element was constitutionally mandated by due process.36 The Supreme Court, however, reversed the appellate ruling. Chief Justice Warren Burger 

opined that the legislature could impose criminal liability on ‘‘those who voluntarily 

assume positions of authority in business enterprises’’ because such people have a 

duty ‘‘to devise whatever measures [are] necessary to ensure compliance’’ with regulations.37 Thus, under the rationale of Park, an honest executive can be branded a 

criminal if a low-level employee in a different city disobeys a supervisor’s instructions and violates a regulation—even if the violation causes no harm whatsoever.38

41 

39 Hanousek v. United States, 528 U.S. 1102 (2000) (Thomas, J., dissenting from the denial 

of certiorari). 40See Susan S. Kuo, ‘‘A Little Privacy, Please: Should We Punish Parents for Teenage Sex?’’ 

Kentucky Law Journal 89 (2000): 135. 41Department of Housing and Urban Development v. Rucker, 535 U.S. 125 (2002). 42See Doe v. Ashcroft, 334 F.Supp.2d 471 (2004). 

In 1994, Edward Hanousek was employed as a roadmaster for a railroad company. In that capacity, Hanousek supervised a rock quarrying project near an Alaska river. During rock removal operations, a backhoe operator accidentally ruptured 

a pipeline—and that mistake led to an oil spill into the nearby river. Hanousek was 

prosecuted under the Clean Water Act even though he was off duty and at home 

when the accident occurred. The case prompted Justice Clarence Thomas to express 

alarm at the direction of the law: ‘‘I think we should be hesitant to expose countless 

numbers of construction workers and contractors to heightened criminal liability for 

using ordinary devices to engage in normal industrial operations.’’ 39

Note that vicarious liability has not been confined to the commercial regulation 

context.40 Pearlie Rucker was evicted from her apartment in a public housing complex because her daughter was involved with illicit drugs. To crack down on the 

drug trade, Congress enacted a law that was so strict that tenants could be evicted 

if one of their household members or guests used drugs. The eviction could proceed 

even if the drug activity took place outside the residence. Also under that federal 

law, it did not matter if the tenant was totally unaware of the drug activity.41

Vicarious liability laws are unjust and ought to be removed from the federal 

criminal code. 

III. H.R. 1823

One of the most serious problems with the current code is that there is no readily 

accessible list of federal crimes. Title 18 is a collection of criminal statutes, but it 

is not comprehensive. Scores of other federal crimes can be found in the other fortynine titles of the U.S. Code. H.R. 1823 helps to bring some order to the haphazardness by grouping offenses into a more rational arrangement and pruning federal offenses that are duplicative and unnecessary. However, I do have reservations about 

several aspects of the bill that I will outline below. 

A. H.R. 1823 does not improve procedural justice for persons facing federal 

criminal prosecution. The bill would retain those provisions in federal law 

that allow for the imposition of strict liability and vicarious liability. Further, H.R. 1823 does not codify the rule of lenity which could ameliorate 

the problem of vagueness in the statutes and regulations. 

B. H.R. 1823 does not address the problem of agency rule-making, but retains 

the current arrangement where unelected officials can promulgate rules 

that would carry criminal penalties. 

C. H.R. 1823 creates new federal offenses that are problematic. Take, for example, the new obstruction provision: 

Section 1135. Obstruction of Criminal Investigations 

Whoever, being an officer of a financial institution, with the intent to 

obstruct a judicial proceeding, notifies any other person about the existence or contents of a subpoena for records of that financial institution, 

or information that has been furnished in response to that subpoena, 

shall be imprisoned not more than 5 years. 

This provision raises several questions, such as whether the financial institution 

may consult with legal counsel with regard to the content of the subpoena. The provision would nullify private contractual arrangements between customers and their 

financial institutions. And there is a basic issue of free speech here.42 Moreover, if 

this provision is considered desirable, will a future Congress extend its logic beyond 

subpoenas to search warrants as well? How will Congress be able to exercise oversight when the organizations and persons affected cannot come forward freely? For 

these reasons, this provision should be removed. 

Another problematic offense concerns the interference with federal employees: 

§ 113. Interference with Federal officers and employees 

Whoever interferes with any officer or employee of the United States 

or of any agency in any branch of the United States Government (including any member of the uniformed services) while such officer or 

employee is engaged in or on account of the performance of official duVerDate Aug 31 2005 14:12 Mar 29, 2012 Jkt 000000 PO 00000 Frm 00045 Fmt 6633 Sfmt 6621 H:\WORK\CRIME\121311\71622.000 HJUD1 PsN: DOUGA
42 

43See Brian W. Walsh and Tiffany M. Joslyn, Without Intent (April 2010), p. 43, note 77. 

ties, or any individual assisting such an officer or employee in the performance of such duties or on account of that assistance while that person is engaged in, or on account of, the performance, official duties 

shall be imprisoned not more than one year. 

Again, the sweeping language employed here—undefined ‘‘interference’’—raises several questions. First, what problem is this provision seeking to address? Is it necessary to cover every employee of the federal government? If an employee at the Department of Labor is suspected of child abuse, for example, can the local child protective services people run afoul of this provision because they want to interview 

a reluctant and evasive suspect during work hours? What if the ex-spouse of a postal carrier confronts the employee about missing another pre-arranged drop-off of a 

child in a joint-custody situation? If the postal employee would rather not be bothered, is the brief confrontation a criminal offense? It is far from clear how far federal agents will interpret the ‘‘interference’’ term. For this reason, this provision 

should be dropped from the bill. 

D. Some of the offenses that H.R. 1823 would eliminate ought to be retained. 

Here are three statutes concerning the execution of federal warrants. 

§ 2234. Authority exceeded in executing warrant 

Whoever, in executing a search warrant, willfully exceeds his authority 

or exercises it with unnecessary severity, shall be fined under this title 

or imprisoned not more than one year, or both. 

§ 2235. Search warrant procured maliciously 

Whoever maliciously and without probable cause procures a search 

warrant to be issued and executed, shall be fined under this title or imprisoned not more than one year, or both. 

§ 2236. Searches without warrant 

Whoever, being an officer, agent, or employee of the United States or 

any department or agency thereof, engaged in the enforcement of any 

law of the United States, searches any private dwelling used and occupied as such dwelling without a warrant directing such search, or maliciously and without reasonable cause searches any other building or 

property without a search warrant, shall be fined under this title for 

a first offense; and, for a subsequent offense, shall be fined under this 

title or imprisoned not more than one year, or both. 

Since all three provisions limit the authority of federal agents, there is no problem 

with respect to a constitutional basis for congressional authority. And since all three 

provisions are statutes, there is no problem with respect to agency rule-making. 

These statutes do not duplicate state crimes and they advance an important interest—that abuses concerning the procurement and execution of warrants are not only 

unprofessional, but criminal. 

E. In addition to substantive offense changes and reorganization, H.R. 1823 

also seeks to make changes to federal sentencing. For example, the bill 

seeks to expand mandatory minimum sentencing in some areas while removing fines as a punishment option in other areas. These sentencing 

changes, whatever their respective merits may be, make an ambitious endeavor unnecessarily complex. Sentencing changes should be considered 

and scrutinized in a separate legislative proposal. 

F. As previously noted, the U.S. Code is much too complex for the average person to understand. As a result, it is too often a trap for innocent persons. 

H.R. 1823 falls short with respect to addressing this serious problem. In 

fact, wherever the term ‘‘willfully’’ is replaced by the term ‘‘knowingly,’’ the 

code is actually made worse.43 Every federal regulation that entails conduct 

that is not intrinsically wrongful should include a willfulness element—and, 

crucially, ‘‘willfulness’’ must be explicitly defined so that it covers both the 

law and the facts. To reinforce that safeguard, federal law should also make 

two defenses available to all defendants in all cases: (1) a good faith belief 

in the legality of one’s conduct; and (2) an inability to comply with any legal 

requirement. These safeguards exist with respect to our complicated tax 

code but they ought to be expanded to the rest of the U.S. Code as well. 

43 

IV. CONCLUSION

The federal criminal code has become so voluminous that it not only bewilders the 

average citizen, but also the most able attorney. Our courthouses have become so 

clogged that there is no longer adequate time for trials. And our penitentiaries are 

now operating beyond their design capacity—many are simply overflowing with inmates. These developments evince a criminal law that is adrift. To get our federal 

system back ‘‘on track,’’ Congress should take the following actions: 

• Discard the old maxim that ‘‘ignorance of the law is no excuse.’’ Given the 

enormous body of law presently on the books, this doctrine no longer makes 

any sense. 

• Minimize the injustice of vaguely written rules by restoring traditional legal 

defenses such as diligence, good-faith, and actual knowledge. 

• Restore the rule of lenity for criminal cases by enacting a statute that will 

explicitly provide for the ‘‘strict construction’’ of federal criminal laws. 

• Abolish the doctrine of strict criminal liability as well as the doctrine of vicarious liability. Those theories of criminal liability are inconsistent with the 

Anglo-American tradition and have no place in a free society. 

These reform measures should be only the beginning of a fundamental reexamination of the role of the federal government, as well as the role of the criminal sanction, in American law. 

Mr. SENSENBRENNER. Without objection. Professor Saltzburg. 

TESTIMONY OF STEPHEN SALTZBURG, WALLACE AND BEVERLEY WOODBURY UNIVERSITY PROFESSOR, GEORGE 

WASHINGTON UNIVERSITY SCHOOL OF LAW 

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

Mr. SENSENBRENNER. Could you please push the mike button? 

Mr. SALTZBURG. I am pushing it, but—— 

Mr. SENSENBRENNER. Could we get some of our technical gurus 

to—or Mr. Lynch, why don’t you pass your mike over to Professor 

Saltzburg, and that will solve the problem. 

Mr. SALTZBURG. Mr. Chairman, Vice Chairman Gohmert, Ranking Member Scott and Members of the Committee, I too am very 

happy to be here today. It is a special thrill for me to be here with 

two former Attorneys General whom I served. And I would like to 

say that I think it is a tribute to both of them that they pay close 

attention to issues of justice and come before you and speak so 

wisely based on their experience. And I agree with every word they 

said. And I agree with what Mr. Lynch said. In fact, I have testified before Congress many times. And this is the only time I can 

remember where I agree with everybody. And therefore, I don’t 

want to repeat what they said, Mr. Chairman. What I would like 

to do is hit some points that I think are worth discussing. 

You raised the issue of attempt and conspiracy, inchoate crimes. 

As you are well aware, the Model Penal Code takes one view. The 

States are basically divided in whether you should punish those 

crimes the same as completed offenses. I think some careful consideration needs to be given to that issue. It is not a simple one. After 

200 years, we still have division about how best to treat it. 

When it comes to mens rea, I think everyone on this panel is 

thrilled that for one of the rare times Congress is actually concerned about whether or not we are convicting people who are innocent, people who don’t have fair warning about the law. In the 

44 

past, so often in hearings the attempt seems to have been made to 

scare people about crime. And instead of worrying about Americans 

who are prosecuted and whether they are prosecuted fairly, the effort was let’s just be tough on crime. Now I think the Congress is 

being smart. It is looking at how to have a Criminal Code that will 

be streamlined, accessible, and will work. And I think that is one 

of the reasons we all applaud that. When it comes to the choice of 

mens rea, I think the truth is that ‘‘willfully’’ or ‘‘knowingly’’ are 

terms that can’t work across the board. That knowingly is almost 

as construed in as many different ways as willfully is by the courts. 

And I think one of the things that the Committee should consider 

is whatever term you choose, and I recommended for serious 

crimes, the most serious crimes using the Model Penal Code purposely or purposefully. And I think that whatever term you choose 

or terms, and you may very well have more than one, it is important for you to define that term, and not to leave it for the courts 

to say this is our definition. It is clear, and it could be captured 

then by every Federal court in a simple jury instruction, and it 

would go a long way to simplifying Federal criminal law. 

As the Committee goes about taking a look at the Federal Code, 

to me it makes a lot of sense, and I think this was mentioned by 

other speakers, not just to reorganize, but to take a hard look at 

the structure, a hard look at whether or not the ranking of offenses 

is right, whether or not the penalty structure remains the same. 

Because I think we could all honestly agree that over decades 

many Congresses have added statutes to the Criminal Code without going back and saying how do they compare to others? And in 

large measure, I think it has been left to the Sentencing Commission to try to figure out how to organize things in a way that 

makes sense. But that is a job for Congress in the first instance. 

It is not a job for just a Sentencing Commission. I think this is an 

opportunity to do that. And I am not urging any particular ranking 

at this moment or any particular penalty structure. I am just saying that this is something that would work well at a time when you 

are looking to reorganize the Code. 

The other thing about this hearing I can’t help but remark on is, 

Mr. Chairman, it is one of the rare times where the Chair of the 

Committee has actually said let’s have a discussion. And I can’t tell 

you how welcome that is to say let’s talk about this. Let’s get good 

minds together, experienced lawyers, and see if we can do something right for the American people, see if we can enact a statute 

or reform a code in a way that would make us proud. We have got 

a lot of models out there, not just the Model Penal Code, we have 

got a lot of work done by States. And if we took a careful look, if 

you took a careful look, I think the improvement in the Federal 

Criminal Code could be remarkable. And it is not, as I think we 

can tell, it is not a Democratic issue or Republican issue, it is not 

a liberal or conservative issue, it is an issue about fairness, about 

the structure of American law, about fair notice, about fair definitions of crime. 

That is why I think I agree very much with Mr. Conyers. This 

is one of the most exciting hearings that I have had an opportunity 

to participate in. And Mr. Chairman, I think it is because you 

45 

started us down this road of this discussion, and I couldn’t be 

happier to be a part of it. Thank you very much for having me. 

[The prepared statement of Mr. Saltzburg follows:] 


SAS-1.eps
46 


SAS-2.eps
47 


SAS-3.eps
48 


SAS-4.eps
49 


SAS-5.eps
50 


SAS-6.eps
51 


SAS-7.eps
52 


SAS-8.eps
53 


SAS-9.eps
54 


SAS-10.eps
55 


SAS-11.eps
56 


SAS-12.eps
57 


SAS-13.eps
58 

Mr. SENSENBRENNER. Thank you very much, Professor Saltzburg. 

This is the first time I have been praised by a witness that has 

been called by my friends on the minority. So we really are off to 

a good start. I will yield myself 5 minutes. 

Both General Meese and General Thornburgh have talked about 

the problem of having administrative regulations ending up having 

criminal penalties, and maybe not the criminal penalties that 

would have been thought about had this Committee gone through 

it. In yesterday’s Wall Street Journal, they had a rather lengthy 

story, which I won’t read, that the headline was, ‘‘A Sewage Blunder Earns Engineer a Criminal Record.’’ And a man named Leonard Lewis was an engineer at a senior citizens home, where frequently the residents there flushed adult diapers down the toilet. 

And it was Mr. Lewis’ job, basically, to unplug the sewage system. 

And when he did so, he put the backed up wastewater into something that he thought would end up in the sewage treatment plant, 

but actually ended up in Rock Creek. And the EPA came in and 

threw the book at him. And he ended up getting a $2,500 fine, and 

he ended up escaping prison because he didn’t have a criminal 

record, and told that to the judge. 

Now, this is an example of the civil-criminal penalty mix. Because he was subject to the same criminal law as somebody who 

knowingly and willingly dumped toxic materials into a navigable 

water of the United States. So I think we have got two problems 

with the penalties for violating administrative regulations, one of 

which is what the criminal penalties are. Because obviously there 

is no proportionality, because Mr. Lewis didn’t have the mens rea 

that he was committing a crime. It ended up being a strict liability 

crime. And the other is definitional. Now, both of them are difficult 

to solve. But relatively speaking, I think it would be easier to classify crimes for administrative regulation violations by this Committee, and thus get jurisdiction over them. And maybe that can 

bootstrap us into the definitional ones, where we can look at crimes 

that require mens rea. Which I think unplugging the adult diapers 

from the toilets at the senior citizens residence is one that certainly 

should have a mens rea and those that shouldn’t. 

What is your reaction to that and how can we get to it? Either 

General Meese or General Thornburgh. 

Mr. MEESE. Mr. Chairman, I think that one of the things that 

I used to teach when I was teaching criminal law, which admittedly was over 30 years ago, but at that time I used to start off 

the lecture on mens rea by saying there is no such thing—virtually 

no such thing in the criminal law as strict liability. And at that 

time it was true. This idea of strict liability as a part of the criminal law is a relatively recent feature, and has been mostly in the 

kinds of cases that you just cited, the environmental field, some of 

the business areas, that sort of thing. And I think it is a very dangerous idea to have strict liability where you remove entirely the 

intent of the individual to even commit a crime or to even do an 

act that would be criminal. 

So I read that same Wall Street Journal article, and I think it 

was a graphic example of this problem. And I think that the various ideas that have been presented here, including the Judiciary 

Committee review of anything that carries a criminal penalty, the 

59 

review of whether something should be a crime or not, there are 

two other ways at least that can handle the situations which are 

not really criminal in nature, the kind of thing you are talking 

about here. 

One, of course, is civil actions, which are readily available to in 

a sense recompense the community for the damage that was done. 

A second is, of course, some sort of administrative sanctions, calling 

them infractions or whatever the situation might be, but where 

there are several penalties of various sorts such as fines or that 

sort of thing rather than the potential for prison. So I think that 

would be one way, but particularly to remove this idea of strict liability from the criminal law. 

Mr. SENSENBRENNER. Mr. Thornburgh, I have 9 seconds left. So 

anything you want to add to that? 

Mr. THORNBURGH. Start the clock, Mr. Chairman. I agree with 

everything that my predecessor and friend and colleague Ed Meese 

said, and incorporate that in my testimony. 

Mr. SENSENBRENNER. Okay. Thank you. Without objection, the 

Wall Street Journal article referred to by both General Meese and 

me will be included in the record. The gentleman from Virginia, 

Mr. Scott. 

[The information referred to follows:] 

60 


71622B-1.eps
61 


71622B-2.eps
62 


71622B-3.eps
63 


71622B-4.eps
64 


71622B-5.eps
65 


71622B-6.eps
66 


71622B-7.eps
67 


71622B-8.eps
68 


71622B-9.eps
69 

Mr. SCOTT. Thank you, Mr. Chairman. Let me follow up on that. 

General Meese, you indicated the need to go through the Judiciary 

Committee because we have expertise on criminal law. But we do 

not have expertise on airline safety, mining safety, and food safety. 

From a procedural point of view, how would we coordinate with the 

other Committees in what should be a crime? And if someone 

knowingly, willfully, or purposefully violates a significant health 

standard, how would that become a crime? 

Mr. MEESE. Mr. Scott, I believe the way to do it would be 

through sequential referral. Obviously, the subject matter would 

probably be initiated in the subject matter Committee which has 

jurisdiction over the particular area of human conduct. And I 

would think that then if it was deemed that it would be appropriate, or would be suggested by that Committee that there be a 

criminal penalty attached, that then it would be referred to the Judiciary Committee. This is often done now in various areas where 

the Congress acts. And I think that would be a way of having the 

benefit of both subject matter knowledge of the initial Committee 

and the overall criminal offense knowledge of the Judiciary Committee. 

Mr. SCOTT. Now, would we have to—every time they change a 

regulation would you have to go through the same process? 

Mr. MEESE. Well, one thing I would hope is that if this were done 

there would be a lot fewer individual regulations carrying criminal 

penalties, particularly if the subject matter that was discussed with 

the Chairman were carried through, and that a lot of things would 

not be subject to criminal penalty. 

Mr. SCOTT. If there was something that was threatening food 

safety, you wouldn’t want to have to wait to go through a sequential referral on both sides of the Capitol before the President could 

get a bill to protect public safety. A regulatory change could go into 

effect. If you violate the regulatory change, you committed a crime. 

Mr. MEESE. Well, Mr. Scott, I believe that most of those areas 

are already covered. 

Mr. SCOTT. That is what we are dealing with. 

Mr. MEESE. But if there was an emergency, I would think that 

if there was something that required prompt action, there would be 

general agreement it could go through rather quickly. I don’t see 

this as a barrier to quick action in the unusual case such as you 

cite. On the other hand, I think we are talking about something 

pretty serious in sending someone to prison, as the article referred 

to by the Chairman indicates. So I think the importance of a criminal penalty really requires action by and an informed action by the 

most expert Committee of the Congress that has this total matter 

of criminal offenses within its jurisdiction. 

Mr. SCOTT. General Thornburgh, do you want to comment on 

that? 

Mr. THORNBURGH. I think you really have to look, Mr. Scott, at 

two separate kinds of situations. One is the laws that are currently 

on the books. And I have suggested in my testimony that those 

could be dealt with by removing all criminal penalties except in 

cases where there is a repeat offender, or where there is a demonstrated harm, such as you suggest on food safety or the like. Prospectively, it seems to me that if you have a bill moving through 

70 

the substantive Committee that relates to incorporating a new 

criminal offense, not a regulatory or civil remedy, but a criminal 

offense, that a sequential referral would not only be in order, but 

would make for a much more orderly way to operate. Because that 

relationship between the Committees in question would develop 

and become more or less routine. I don’t see it as a delaying or burdensome process. 

Mr. SCOTT. Thank you. On the question of conspiracies and attempts being charged with and sentenced the same as a completed 

offense, it seems to me conspiracy, where the conspiracy—where 

people change their minds and do not commit an offense, and an 

attempt which is interrupted by a police action where they tried to 

commit a crime and police stopped them are two entirely different 

situations. How do we deal—is there a difference? And should this 

be statutory, or should the sentencing guidelines deal with it 

through the Sentencing Commission? 

Mr. THORNBURGH. I would defer to Professor Saltzburg on that, 

because this is a field that he has looked at in great detail. My observations would be derivative from what I have learned from him. 

Mr. SCOTT. Thank you. Professor? 

Mr. SALTZBURG. I don’t think there is an easy answer to that. I 

think that reasonable people could differ. And I think one could differ on whether conspiracy and attempt should be treated differently as a starting point, as they are in some States. But either 

approach could work. But I think it is important for this Committee to take a position on it being one or the other. 

Mr. SENSENBRENNER. Thank you. The gentleman’s time has expired. The gentleman from Texas, the Vice-Chairman of the Committee, Mr. Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. And thank all of you 

for being here, for the work you have done on this issue. And I 

don’t know, Professor Saltzburg, I have been here, this is finishing 

7 years, and I am not sure it is good to say as long as this Committee takes a position on it, because I have seen some of our positions. But the last 4 years have seen some hearings that I will 

never forget, having people come in here, or in one case a man had 

had strokes in prison where there was no mens rea requirements 

in the offenses so-called. And just to see the damage to human life 

that this Congress has done by rushing forward and creating 

crimes just so that Congress could look tough without giving it 

thought, really reprehensible what has been to life. 

So I really appreciate the work you have done. Any time the Heritage Foundation and ACLU get together and think something is 

a good idea it does deserve merit. And General Meese, General 

Thornburgh, it is great having you here with your expertise. General Meese, your friendship over the last 3 or 4 years has just really meant so much to me in getting your expertise. 

With regard to strict liability, we know that that was something 

that was put in place as a cost shifting mechanism to handle damages from accidents. As a policy matter, some in power thought it 

would be good to have the deeper pockets responsible, so we just 

said strict liability. But can anybody think of anything that should 

be a crime, anything at all that would be okay to be absent a mens 

rea, a guilty conscience? Anybody think of anything? 

71 

Mr. MEESE. I would think the closest we would come to it would 

be something involving the use of a weapon of mass destruction, 

where there is pretty general knowledge that this is not a pleasant 

thing to do. And that is about as close as I can come to it. But 

other than that, I can’t see offhand anything that would require 

strict liability in the criminal law sense. 

Mr. GOHMERT. That is a good point. Mr. Lynch, you had mentioned we should follow the Tax Code example. Is willfulness, is 

that used in the Tax Code? 

Mr. LYNCH. Yes, sir, it is used in the Tax Code. But what is important is that the courts have treated the term differently depending on the case and the area of law. With the Tax Code we have 

got precedents in place where the law is now clear where willfully 

is interpreted that it is not only that the person knew the legal provision he was violating and he knew the facts that were involved. 

So it applies to both the facts and the law. So it is a very tough 

standard. And that is in place for the Federal Tax Code for tax evasion cases. And but the willfulness term is interpreted differently 

in other areas of the law. That is why it is important I think for 

the Committee, in bills like this, to define it and to define it the 

same way we have it in the Tax Code. 

Mr. GOHMERT. Do you think we need wilful in all cases instead 

of knowing? I mean, having been a judge and chief justice, I was 

always marveling at judges who had trouble figuring out what 

‘‘knowing’’ meant or what ‘‘must’’ or ‘‘shall’’ meant or ‘‘what is’’ is. 

But I am not sure if we are talking about murder or rape or 

something of that nature. Do you really need somebody to tell you 

in court that that is a crime, and do you really need the possibility 

of somebody going, oh, you mean I wasn’t supposed to kill him? Oh, 

I am sorry, my bad. I didn’t know there was a law against killing 

somebody. 

Mr. LYNCH. Right, I think what—I will speak for myself, but I 

think what we are driving at from what I have gathered from the 

written testimony of the other witnesses is that we are talking 

about the malum prohibitum area of the law. That is where the 

standards need to be tightened, elevated from knowing to willfulness, when it comes to malum—offenses such as murder, rape, 

theft; the common law offenses, willfulness, that wouldn’t apply in 

those situations. 

Mr. GOHMERT. Thank you. My time runs out. I would ask you if 

you think of anything after the hearing that you think really would 

be okay to allow somebody who was not in Congress, some agency, 

to just come up with some crime, I would like to know what it is, 

because otherwise I think we ought to be voting on those. 

Thank you, Mr. Chairman. 

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

gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you. Professor Saltzburg and Attorney 

Lynch, where do we go from here? What are your recommendations 

in terms of how we take this proposal and move ahead? 

Mr. SALTZBURG. Mr. Conyers, one of the things that I think came 

through from all the witnesses’ testimony is none of us, I think, is 

claiming to be familiar intimately with every single line of this 

draft. It is a huge undertaking. And one of the possibilities would 

72 

be for the Committee to decide to take pieces of it, to have a hearing on pieces to see whether or not the mens rea provision, as applied to, for example, you could take the most common crimes that 

are prosecuted, you could take drug crimes, immigration crimes, 

and you could examine both the structure of what is being proposed, the penalty structure, to see whether or not the grading of 

the offenses seems right and whether the mens rea provisions seem 

like they are the right ones for those particular statutes. 

And I suspect if you started out with the crimes that were prosecuted the most and were comfortable with what you were doing, 

the rest would tend to fall into place pretty nicely. 

Mr. LYNCH. I would say that the bill, as it is presently drafted, 

it identifies scores of offenses that are duplicative and unnecessary. 

But, as I said, I think there are some—a few simple things that 

can be done that would greatly strengthen the bill. 

Number one, apply this willfulness standard across the board for 

regulatory offenses. Secondly, you can codify the rule of lenity so 

that it applies across the Federal Criminal Code, which means 

where any of these regulations or laws that are ambiguous the ambiguity will be resolved in favor of the person on trial whose liberty 

is at stake. That is the way it ought to work. 

To reinforce that standard, I think we should also, very simply, 

you can put in a provision that would allow all the defendants to 

be able to have an affirmative defense to say that a good-faith belief in the legality of their conduct can be pleaded and proved as 

a defense. That would reinforce, I think, the mens rea element. 

It is so disconcerting to read some of this case law where a court 

will look and examine the law and say, well, good faith is not relevant here. And that should not be a part of our criminal justice 

system, in my view. 

Mr. CONYERS. Let me ask you former Attorneys General about 

corporations being people. I have had trouble with that Supreme 

Court decision, but at the same time I support the notion that has 

been raised in this discussion about corporate criminal liability. 

Can we rationalize these, or maybe Supreme Court decisions get 

changed over the years too, but how do you see that this morning? 

Mr. THORNBURGH. The doctrine of respondeat superior, of course, 

originally arose on the civil side to impose civil liability on corporations for acts of employees within the scope of their responsibility. 

In 1909, it was somehow transmitted in the criminal side that creates criminal liability for employees for actions taken on behalf of 

their employer. 

I don’t think we are wise to recommend that that be reversed, 

but I think that it is important to recognize that liability imposed 

upon the corporation affects not the wrongdoers, but the shareholders. And the viability of a company, look at the Arthur Andersen case, which, using the now discredited theft of honest services 

theory, destroyed a major institution in the American business 

world. And when the Supreme Court reversed it, there was no way 

to resurrect that organization or to reemploy the people who had 

been thrown out of work. 

Mr. CONYERS. The harm had been done. 

Mr. THORNBURGH. I beg pardon? 

Mr. CONYERS. The harm had been done. 

73 

Mr. THORNBURGH. Yes, it had. So I think that what we really 

ought to do is take a look at how corporate liability is imposed. I 

would suggest that the observations made and that I cited in the 

Attorneys General guidelines, that corporations that have an effective, internal mechanism for dealing with wrongdoing, and apply 

and execute that, should be recognized as such. And, similarly, if 

an employee is a rogue employee, proceeding in an illegal, criminal 

act without any authorization or without even a nod to the rules 

of the company, should not impose criminal liability. 

The particulars of that, Congressman Conyers, I would leave to 

the draftsmen, but I think the notion is that it is only in the most 

severe case where liability should be imposed upon the corporation. 

Now, that is not going to be a popular cause because people 

think it is a good thing to sock the corporations these days, but in 

this case it has a negative effect that really requires a much tighter 

set of rules. 

Mr. CONYERS. Chairman, can I get enough time for General 

Meese to respond? 

Mr. SENSENBRENNER. Without objection. 

Mr. MEESE. Thank you, Mr. Chairman, Mr. Conyers. I would 

agree entirely with Mr. Thornburgh on what he has said, but I also 

note that one other reason why this should be clarified is it can 

also go the other way, and that is the officers of the corporation 

will give up the corporation and allow it to plead guilty so that 

they can escape punishment themselves. And so that, I think, the 

whole issue should be clarified, remembering that a corporation can 

always be sued civilly in order to punish them in the only way that 

the criminal law could either, which is mainly by a large fine, but 

without the stigma of the indictment and the criminal accusation 

which, as Mr. Thornburgh properly points out, can kill a business 

organization, throwing out of work people who have absolutely no 

culpability whatsoever. 

Mr. CONYERS. So maybe we should just forget about the criminal 

liability part as applies to corporations? 

Mr. MEESE. I would suggest except in the case where the whole 

organization and methods of the corporation is a part of the whole 

corporate operation. 

Mr. CONYERS. Thank you. 

Mr. SENSENBRENNER. The gentleman from Puerto Rico, Mr. 

Pierluisi. 

Mr. PIERLUISI. Thank you, Mr. Chairman, and thank you all for 

appearing. 

In preparing for this hearing, I reviewed what Chief Justice 

Rehnquist had to say back in the 1990’s regarding the criminal jurisdiction in general, and I noticed that when dealing with criminal 

activity his view was that Federal courts should concentrate their 

efforts in cases involving substantial multi-state or international 

aspects. And another thing he mentioned is that also he recognized 

that Federal courts had a role when dealing with complex commercial or institutional enterprises. 

Then the thing that comes to my mind immediately when I hear 

this is all these drug cases that we have in Federal courts, particularly cases dealing with drug possession, as opposed to drug trafficking. 

74 

And I would like to hear from the former AGs their views on 

this, you know, limiting the role of Federal courts to fighting drug 

trafficking as opposed to simple drug possession or drug possession. 

Shouldn’t that be left in the hands of the States? 

Mr. MEESE. I would think that in general the answer is yes, but 

that we have to also be very careful in looking at the statistics, because in most, or I would say many, if not most of the drug cases, 

the possession charge is something that the defendant pleads to as 

a lesser-included offense as a way of settling a case, often in plea 

bargaining. But in cases where the only offense is possession, I 

think that in most cases this is properly left to the States. 

Mr. THORNBURGH. When I served as a prosecutor and when I 

served as Attorney General, we made a point to go out of our way 

to avoid simple possession cases, only as a means of including an 

exit for someone who wanted to plead guilty rather than face the 

real charges that have been brought against them, and that was 

a way for us, regretfully, to have to handle the business because 

it was substantial. 

But I think under every Attorney General that I have known or 

served with or under, the real concentration is on the international 

aspects and on the trafficking and those who make millions, if not 

billions of dollars out of dealing in these illegal substances. 

Mr. PIERLUISI. Yes. I do wonder, though, why we have those statutes the way they are if we are not really enforcing them. But that 

is another matter. 

Let me then address a question to Professor Saltzburg and Mr. 

Lynch. I, myself, am all for clarity and consistency in having the 

mens rea requirements imposed and so on. And then when I see 

the definition I get, or at least what is being done mostly when imposing the willfulness requirement, I see that it requires that the 

act be knowingly, that it be done knowingly. And as I view that 

is that it is voluntary, it is intentional. 

And then it also requires a batting tent or purpose, and a side 

view that it requires that the person at least knows that what he 

or she is doing is wrong, not necessarily that it violates section 

such and such of Title 18. 

Am I reading it well because, you know, and if that is what we 

are about to do I am all for it because we should be requiring both 

things, knowing this, knowingly, a knowing act, and also conscious, 

consciousness of the wrongness involved. Do you—would you like 

to comment? 

Mr. SALTZBURG. Yes. In my written testimony I talk about that. 

I think most people would agree that willfully combines both. 

Mr. PIERLUISI. Okay. 

Mr. SALTZBURG. A knowing and a sense that what you are doing 

is violating the law. The knowingly standing alone does not always 

do that and sometimes courts interpret knowingly as having a bad 

purpose, but sometimes they don’t. 

Mr. PIERLUISI. Okay. 

Mr. SALTZBURG. And so it is one of the reasons I said that it 

would be important to have a definition that was clear that worked 

across the board. 

Mr. LYNCH. Yes, and the only thing I would add is it doesn’t 

mean like—take the tax example, which I keep coming back to— 

75 

is a willful standard, doesn’t mean that a tax, that a prosecutor 

would have to prove that the person knew he was violating in a 

specific subsection 4 of the Tax Code. The prosecutor would only 

have to prove that the person knew what he was doing was against 

the law and went ahead anyway. And I think that is what you put 

your finger on, is what the standard ought to be. 

Mr. PIERLUISI. Mr. Chairman, can I have 15 more seconds, unanimous consent for 15 more seconds? 

Mr. SENSENBRENNER. Without objection. 

Mr. PIERLUISI. Thank you. Just one—I heard you say, Mr. Lynch, 

that you support having the defense of good faith belief that the 

conduct is legal, and I agree with that. But I wonder whether Professor Saltzburg also supports that. 

Mr. SALTZBURG. Not in all cases. I think it has to be carefully— 

in many cases, I do agree, but I think in some cases it would reach 

unfortunate results. 

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

gentleman from Florida, Mr. Deutch. 

Mr. DEUTCH. Thank you. Thank you, Mr. Chairman. 

I have some concerns about the section of H.R. 1823 as they 

apply to immigrants and in particular section 319. 

It is my understanding that under current law a person who improperly enters or attempts to enter the U.S. can be fined or imprisoned for up to 6 months or both. This bill seems to end judicial 

discretion in this area of the law. Judges would no longer have discretion to impose a fine and, as I read the section, this would require judges to impose, as I understand it, this would require 

judges to actually impose a prison sentence. 

I would like to understand, first, a sense from the panel, and I 

think, in particular, General Meese and Governor Thornburgh, 

your thoughts on this provision in particular, by removing the judicial discretion to impose fines I am concerned they were not only 

potentially exposing permanent resident immigrants who forget to 

travel with their papers when crossing the border to possible prison 

time, but hundreds of thousands of people who entered illegally in 

the past, which, if I understand this correctly, would be subject to 

6 months immediately. 

Am I reading that correctly? Is that your interpretation of this? 

Mr. THORNBURGH. First of all, I have to compliment the Member 

on doing what I haven’t done, and that is to read every section of 

this in search of these issues. 

And I think what you have to incorporate into your query is the 

previous discussion that we’ve had with regard to the nature of a 

criminal offense. You refer to someone who forgot to take their papers with them when they are traveling. I don’t think that would 

qualify as a criminal offense under the types of standards that we 

are talking about. The mens rea requirement would not be present. 

On the other, the matter of discretion, I would have to defer to 

others who may have given the kind of scrutiny you have given to 

this section that I haven’t frankly. 

Mr. DEUTCH. General Meese, I am not sure if you have. 

Mr. MEESE. Yes. I would suggest that for any offense or at least 

virtually any offense, certainly offenses of this nature, that fines 

and probation would be available to a judge. I think that a judge, 

76 

certainly, on all first offenses, with perhaps a few exceptions of 

very serious crimes, the judges need as much discretion as possible 

and so I would say taking away the fine aspect of it would probably 

not be in the best interests. 

Mr. DEUTCH. Professor Saltzburg, do you have the same concern 

I do? 

Mr. SALTZBURG. I do, and it is a concern in a number of provisions of the statute where under current law the judge has a 

choice, it is a fine, imprisonment or both. And it is not clear to me 

whether in the bill there is going to be a specific separate section 

on fines that authorizes them to be imposed. But right now the 

concern that you raise is a valid one. If you eliminate or find, you 

appear to be changing the law, changing sentencing and removing 

discretion that is now there, that seems to have worked pretty well. 

Mr. DEUTCH. And, in fact, again, as I understand as I read this, 

anyone who is in this country having come here illegally, as defined by the statute, would be subject to an immediate prison sentence of 6 months, that would include—that would draw no distinction between someone who snuck in across the border last 

week—— 

Mr. SENSENBRENNER. Will the gentleman yield? 

Mr. DEUTCH. I will, Mr. Chairman. 

Mr. SENSENBRENNER. You know, I can say that in terms of how 

we intended to draft this legislation it would be to allow the judge 

to impose a fine and probation in lieu of a prison term. And if we 

need to correct that before we move forward in the bill, we will do 

that. 

Mr. DEUTCH. I appreciate that, Mr. Chairman. And in reclaiming 

my time, my concern clearly is that as we have this broader immigration debate in our country, what this provision in the bill seems 

to say is that for the 11 million or so people who are here, having 

come under a variety of circumstances, that every one of them 

would be subject to an immediate 6-months prison term that, in 

fact, that would include—— 

Mr. SENSENBRENNER. If the gentleman will yield further, that is 

not the intent of the drafting of the bill. 

Mr. DEUTCH. Then I, in which case, I thank the Chairman and 

look forward to making that clarification so that there is a recognition in this proposed statute in this bill that there are differences 

and that, for example, the valedictorian I recently met with from 

a local college, who would be subject to 6 months imprisonment immediately under this bill, that we would make amends so that 

there is some difference in the way that we treat individuals and 

that, in fact, we treat them as individuals, and I thank the Chairman and I will look forward to working with you. 

Mr. SENSENBRENNER. The gentleman’s time has expired. All 

Members who are present have had a chance to ask questions, and 

I would like to thank our witnesses, thank the Members who have 

attended. 

General Thornburgh. 

Mr. THORNBURGH. If I might offer a suggestion, Mr. Chairman, 

I received in the mail yesterday from the American Law Institute, 

of which I am a member, a letter from its directors setting forth 

what their new projects are that are being undertaken and encourVerDate Aug 31 2005 14:12 Mar 29, 2012 Jkt 000000 PO 00000 Frm 00080 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\121311\71622.000 HJUD1 PsN: DOUGA
77 

aging members to come forward with other new projects. Absent 

from that list was any discussion of the kind of effort that you have 

embarked upon, and I would suggest that you or staff be in touch 

with the ALI, which as you know, drafted the original model penal 

codes and enlist their services in reviewing this from a technical 

point of view and I think it would be a useful thing to do and help 

to raise the profile of your efforts. 

Mr. SENSENBRENNER. A very good suggestion. Thank you for giving it to us. 

I would like to thank our witnesses for their testimony today. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses, 

which we will forward, and ask them to respond as promptly as 

they can so that their answers may be made a part of the record. 

Also, without objection, all Members will have 5 legislative days 

to submit any additional materials for inclusion in the record. 

With that, again, I thank the witnesses, and, without objection, 

this hearing is adjourned. 

[Whereupon, at 11:21 a.m., the Subcommittee was adjourned.] 

79 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD


71622A-1.eps
80 


71622A-2.eps
81 


71622A-3.eps
82 

f 


71622A-4.eps
83 


HR1823-1.eps
84 


HR1823-2.eps
85 


HR1823-3.eps
86 


HR1823-4.eps
87 


HR1823-5.eps
88 


HR1823-6.eps
89 


HR1823-7.eps
90 


HR1823-8.eps
91 


HR1823-9.eps
92 


HR1823-10.eps
93 


HR1823-11.eps
94 


HR1823-12.eps
95 


HR1823-13.eps
96 


HR1823-14.eps
97 


HR1823-15.eps
98 


HR1823-16.eps
99 


HR1823-17.eps
100 


HR1823-18.eps
101 


HR1823-19.eps
102 


HR1823-20.eps
103 


HR1823-21.eps
104 


HR1823-22.eps
105 


HR1823-23.eps
106 


HR1823-24.eps
107 


HR1823-25.eps
108 


HR1823-26.eps
109 


HR1823-27.eps
110 


HR1823-28.eps
111 


HR1823-29.eps
112 


HR1823-30.eps
113 


HR1823-31.eps
114 


HR1823-32.eps
115 


HR1823-33.eps
116 


HR1823-34.eps
117 


HR1823-35.eps
118 


HR1823-36.eps
119 


HR1823-37.eps
120 


HR1823-38.eps
121 


HR1823-39.eps
122 


HR1823-40.eps
123 


HR1823-41.eps
124 


HR1823-42.eps
125 


HR1823-43.eps
126 


HR1823-44.eps
127 


HR1823-45.eps
128 


HR1823-46.eps
129 


HR1823-47.eps
130 


HR1823-48.eps
131 

Æ 


HR1823-49.eps