Congressional Task Force on Overcriminalization

On May 7, 2013, The House Committee on the Judiciary voted unanimously to create the “Overcriminalization Task Force of 2013.” At a press briefing that day, Judiciary Committee and Overcriminalization Task Force leaders expressed agreement on the need to address several important issues, including the erosion of the mens rea (or criminal intent) requirement in federal criminal law, the often unnecessary duplication of state law in the federal code, overincarceration, mandatory minimum sentences, and the explosion of regulatory offenses that some estimate may now number as high as 300,000, among other issues. 

The Task Force will be commissioned for six months and led by Crime, Terrorism, Homeland Security, and Investigations Subcommittee Chairman Jim Sensenbrenner (R-WI) and Ranking Member Bobby Scott (D-VA). The task force is made up of five Democrats and five Republicans, and will include Judiciary Committee Ranking Member John Conyers (D-MI) and Chairman Goodlatte (R-VA) as ex-officio members. The Task Force will conduct hearings and investigations into the topic of overcriminalization throughout its existence.

Each Task Force hearing will be listed below with lists of witnesses, transcripts, and webcasts when available.

March 27, 2014: "Over-federalization"

The bipartisan House Judiciary Overcriminalization Task Force held its second hearing of 2014, on the topic of "Overfederalization." Republican and Democratic Task Force members agreed that any examination of overfederalization of criminal law must begin with an acknowledgement that the body of federal criminal law has become enormous. Indeed, there are over 4,500 crimes scattered throughout the federal code, and by some estimates hundreds of thousands in the federal regulations. Representative John Conyers (D-MI) noted that Congress on average creates some 50 new federal crimes each year. The hearing evidenced a broad, bipartisan consensus that the overfederalization of criminal law is a problem in need of a solution.

There were multiple references to certain types of offenses that the witnesses and Task Force members appeared to agree were more properly the province of state law, and therefore unnecessary at the federal level, such as carjacking and dog fighting. In order to avoid such further expansion of the federal criminal law, both witnesses as well as numerous Task Force members agreed that Congress must more carefully analyze whether any proposed criminal law is necessary at the federal level.

State Prosecutor Joseph Casilly told the Task Force that "the problem of overfederalization is due largely to [Congress] reacting to the crime of the month." He suggested that any proposal to Congress to adopt another federal criminal law be required to make a predicate showing both that "states are unable or unwilling" to prosecute that particular type of offense and that there is a "compelling federal interest."

Witness List 

Mr. James Strazzella
Professor
Temple University Beasley School of Law
Written Testimony 

Mr. Joseph I. Cassilly
National District Attorneys Association
Written Testimony 

February 28, 2014: "Criminal Code Reform"

On February 5, 2014, the House Judiciary Committee adopted a resolution reauthorizing the bipartisan Overcriminalization Task Force for an additional six months, through August 5, 2014. On February 28, 2014, the reauthorized Task Force held its first hearing of 2014, and the subject was "Criminal Code Reform."

Opening and closing the discussion, Subcommittee Chairman Jim Sensenbrenner (R.-Wisc.) suggested that any first effort at criminal code reform be "policy neutral." A number of the witnesses urged the establishment of a commission – one that would include judges, practitioners and the like -- that would advise Congress on comprehensive criminal code reform. In his testimony, criminal defense lawyer John Cline specifically outlined five key areas for reform: "A comprehensive revision of the federal criminal code should focus on five main points: (1) reducing the number of federal crimes; (2) ensuring that the revised code strikes a proper balance between federal and state criminal enforcement; (3) clearly defining the different levels of mens rea; (4) establishing uniform rules of construction; and (5) revising the overly harsh punishment system." Cline went on to explain this vision in detail, and with examples.

Witness List 

Mr. John D. Cline
Law Office of John D. Cline
Written Testimony 

Professor Roger A. Fairfax, Jr.
George Washington University Law School
Written Testimony 

Professor Julie Rose O'Sullivan
Georgetown Law Center
Written Testimony 

Mr. Michael Volkov
CEO
The Volkov Law Group LLC
Written Testimony 

 watch_now2 

November 14, 2013: "Regulatory Crime: Solutions"

While the title of the hearing reflects a focus on regulatory crimes, the witnesses testified about multiple potential solutions that could help ameliorate the problem of overcriminalization throughout the federal system. The two solutions most discussed were a default mens rea, or criminal intent, statute that would address the pervasive erosion of the intent requirement in the federal criminal law, as well as a codification of a statutory rule of construction that would require that vague criminal laws be strictly construed and any ambiguities be construed in favor of the accused. Both reforms are well-documented in a joint study by the National Association of Criminal Defense Lawyers and the Heritage Foundation, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law. Such measures would have far reaching effects on the whole of the criminal justice system. Members of the Task Force also expressed concern and probed the panelists on how an excessive number of federal offenses, mandatory minimum sentences, and resource imbalances negatively affect the fairness and efficacy of our criminal justice system. They discussed how these combine to put the prosecution in a position of advantage and create a "trial penalty," whereby defendants are encouraged to plea instead of exercising their constitutional right to trial.

With the Task Force’s initial six month authorization set to expire, Task Force Chairman Jim Sensenbrenner (R-WI) noted in his opening remarks that he expects the Judiciary Committee will vote to give the Task Force a six month extension.

Witness List 

Mr. John S. Baker, Jr., Ph.D.
Visiting Professor, Georgetown Law School
Visiting Fellow, Oriel College, University of Oxford
Professor Emeritus, LSU Law School
Written Testimony 

Mr. Lucian E. Dervan
Assistant Professor of Law
Southern Illinois University School of Law
Written Testimony 

 watch_now2 

October 30, 2013: "Regulatory Crime: Identifying the Scope of the Problem"

The official topic of the third hearing was “Regulatory Crime: Identifying the Scope of the Problem.” The witnesses at the hearing included Mr. Reed D. Rubinstein (Partner, Disnmore & Shohl, LLP) and Ms. Rachel Barkow (Segal Family Professor of Regulatory Law and Policy, New York School of Law), as well as two victims of regulatory overcriminalization, Mr. Lawrence Lewis (Bowie, MD) and Mrs. Steven Kinder (Grand Rivers, KY). In addition to the explosion in regulatory offenses, though, the discussion at the hearing covered topics including the erosion of the mens rea (or criminal intent) requirement in the federal law and possible fixes, the collateral consequences of conviction, the perverse incentive to plead not because of actual guilt but because of the costs of trial and risk of incurring harsh mandatory minimum sentences, prosecutorial discretion, the Lacey Act, U.S. drug laws and resulting mass incarceration, and more.

Witness List  

Mr. Reed D. Rubinstein
Partner, Disnmore & Shohl, LLP
Written Testimony 

Ms. Rachel Barkow
Segal Family Professor of Regulatory Law and Policy
New York School of Law
Written Testimony 

Mr. Lawrence Lewis
Bowie, MD
Written Testimony 

Mr. and Mrs. Steven Kinder
Grand Rivers, KY
Written Testimony 

 watch_now2 

July 19, 2013: "Mens Rea: The Need for a Meaningful Intent Requirement in Federal Criminal Law"

The second hearing of the Congressional Task Force on Overcriminalization focused on the specific subject of “Mens Rea: The Need for a Meaningful Intent Requirement in Federal Criminal Law.” NACDL Executive Director Norman L. Reimer was one of two witnesses appearing before the task force today. Norman testifying 

The chair of the Task Force, Congressman Jim Sensenbrenner (R-WI), opened the hearing by praising, and citing extensively, the findings set forth in the joint report of NACDL and the Heritage Foundation, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law. Ranking Member of the Task Force Bobby Scott (D-VA) also recognized the absence of adequate mens rea, or criminal intent,requirements in the federal criminal code and regulations. In a written statement, Chairman of the House Judiciary Committee Bob Goodlatte (R-VA) pointed to the explosion in the size of the federal criminal law, adding that as a result “no average American citizen could be expected to read and understand, let alone conform his conduct” to that body of criminal law. “A primary cause of this predicament is Congress itself,” he acknowledged. 

Confirming the substance of the introductory remarks of the bipartisan leadership of this task force and the House Judiciary Committee as a whole, NACDL Executive Director Norman L. Reimer opened with the observation that the erosion of intent requirement in federal criminal statutes “is one issue on which the most important ingredient for reform is already present – that is, impressive bipartisan consensus.” Urging Congress to adopt a default mens rea statute, requiring willful conduct – specifically, that a person must act with the knowledge that the person’s conduct was unlawful -- as the basis for criminal liability, and to altogether abandon strict liability criminal laws, Norman Reimer said:

“Without a clear intent requirement, the individual will not realize when they are crossing the line. That is not fair. And it’s not effective. If people do not know something is wrong, they will not be deterred from doing it. That’s the whole point of a criminal law in the first place.”

Witness List 

Mr. John S. Baker, Jr., Ph.D.
Visting Professor, Georgetown Law School
Visiting Fellow, Oriel College, University of Oxford
Professor Emeritus, LSU Law School

Mr. Norman L. Reimer
Executive Director, National Association of Criminal Defense Lawyers
Written Testimony 

 watch_now2 

June 14, 2013: "Defining the Problem and Scope of Over-criminalization and Over-federalization"

The inaugural hearing of the first Congressional Task Force on Overcriminalization was held on June 14, 2013. NACDL President Steven D. Benjamin was one of the four witnesses.

Congressman Jim Sensenbrenner (R-WI) chairs the newly-formed Task Force and opened the hearing by acknowledging that this bipartisan effort to address the problems of overcriminalization and overfederalization is “long overdue.” Ranking Member Bobby Scott (D-VA), who specifically pointed to NACDL’s work in this area, described the problem in stark numerical terms that detailed how “the criminal code has dramatically increased in size and scope” over the last 50 years. Also in attendance was the Chairman of the House Judiciary Committee, Bob Goodlatte (R-VA), who observed that “concern for this issue is bipartisan.”S. Benjamin testifying 

In his presentation, NACDL President Steven D. Benjamin discussed the fairness and due process implications of the problem of overcriminalization, making clear that “it is not just a problem with white collar implications.” Pointing to these consequences of overcriminalization, particularly upon the poor, Benjamin called upon Congress to address the crisis in funding for federal indigent defense: “The dynamic between overcriminalization and overincarceration cannot be ignored, nor may the fact that the government’s expenditure on federal law enforcement significantly outpaces its spending on the defense function. It is inexcusable that during this 50th anniversary of Gideon v. Wainwright and the right to counsel, our indigent defense system is in crisis. That crisis has long afflicted the states, but now budget cuts imperil the federal indigent defense system, even as resources for the prosecutorial function flow unabated. This imbalance imperils the integrity of the criminal justice system.”

In addition, Benjamin discussed the problems of the volume and poorly drafted nature of criminal laws, many lacking adequate mens rea (or criminal intent) requirements. And he called the Task Force’s attention to the scope and impact of the collateral consequences of a criminal record. Benjamin also discussed the explosion in regulatory offenses as well as how unlimited discretion over charging decisions, together with mandatory minimum sentences and high sentencing guidelines, “deter the accused from asserting their innocence or testing new laws before a jury of their peers.”

Witness List 

Mr. Steven D. Benjamin
President, National Association of Criminal Defense Lawyers
Written Testimony 

Mr. John Malcolm
Rule of Law Programs Policy Director, The Heritage Foundation
Written Testimony 

Mr. William N. Shepherd
Chair, Criminal Justice Section, American Bar Association
Written Testimony 

The Honorable George Terwilliger, III
Partner, Morgan, Lewis & Bockius LLP
Written Testimony 

 watch_now2 

 

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