Congressional Task Force on Overcriminalization

In May 2013, the Judiciary Committee of the U.S. House of Representatives unanimously created the “Overcriminalization Task Force of 2013” to study and conduct hearings on the problem of overcriminalization. Led by Crime Subcommittee Chair Jim Sensenbrenner (R-WI) and Ranking Member Bobby Scott (D-VA), the bipartisan Task Force held ten congressional hearings over its one-year lifespan. Witness lists, testimony, and webcasts of each hearing are provided below.

Although the Task Force hearings have concluded, the issue of overcriminalization persists. The Congressional Research Service (CRS) identified at least 439 new criminal offenses enacted between 2008 and 2013. In a June 2014 Report, CRS explained that this total may be understated and does not include regulatory crimes. Because of the Task Force, Congress is now better positioned to address this troubling pattern of behavior.

NACDL remains a leader in the fight against overcriminalization. New developments in this area and additional resources are available on the Overcriminalization Initiative page.

July 25, 2014: "The Crimes on the Books and Committee Jurisdiction"

In its final hearing, the Task Force heard testimony from NACDL Immediate Past President, Steven D. Benjamin, and Dr. John S. Baker Jr, Visiting Professor at Georgetown Law School.

Benjamin provided the Task Force with a detailed overview of the overcriminalization problem, covering the proliferation of the federal criminal code, the absence of meaningful criminal intent requirements in federal statutes and regulations, rules of construction, sentencing, collateral consequences and the restoration of rights, and the critical importance of Judiciary Committee jurisdiction over legislation seeking to add or modify criminal offenses or penalties in the federal code.

During the hearing, Ranking Member Bobby Scott (D-VA) said that he looks forward to working with Task Force Chair Jim Sensenbrenner (R-IL) to develop a consensus report on the work of the Task Force for the full Judiciary Committee. Chair Sensenbrenner expressed a desire to extend this bipartisan approach into the next Congress and use it to pass mens rea and regulatory criminalization reform.

Witness List 

Dr. John S. Baker Jr.
Visiting Professor, Georgetown Law School
Professor Emeritus, LSU Law School
Written Testimony 

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

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July 11, 2014: "Agency Perspectives"

With this hearing the Task Force sought the perspectives of different agencies on the problem of overcriminalization. The Task Force heard testimony from Timothy Heaphy, on behalf of the Department of Justice, U.S. District Court Judge Irene Keeley for the Judicial Conference of the United States, David Patton from the Federal Defenders of New York, and Patti Saris, Chief Judge for the U.S. District Court for the District of Massachusetts and Chair of the U.S. Sentencing Commission.

In her testimony, Chief Judge Saris recognized that the task force “has given significant consideration to issues of regulatory crime, mens rea, and criminal code reform” and to the “excessive federalization of crime.” Saris explained that, similar to the Task Force, the U.S. Sentencing Commission has been looking into alternatives to incarceration and has “included in its proposed priorities for the next amendment cycle a study of the availability of alternatives to incarceration in the federal system.”

Witness List 

The Honorable Timothy J. Heaphy
United States Attorney for the Western District of Virginia
United States Department of Justice
Written Testimony 

The Honorable Irene M. Keeley
United States District Judge
Judicial Conference of the United States
Written Testimony 

Mr. David Patton
Executive Director and Attorney-in-Charge
Federal Defenders of New York (Southern & Eastern Districts)
Written Testimony 

The Honorable Patti B. Saris
Chair
United States Sentencing Commission
Written Testimony 

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June 26, 2014: "Collateral Consequences"

For its eighth hearing, the Task Force examined the issue of collateral consequences with the help of two expert witnesses. The Task Force heard from NACDL Secretary Rick Jones and Mathias Heck, a prosecuting attorney from Ohio, who spoke on behalf of the American Bar Association.

Jones set forth the steps Congress must take at the federal level to address the ubiquitous problem of collateral consequences. Heck and Jones agreed that mandatory collateral consequences should be eliminated and that an individualized approach is more appropriate to address questions of public safety. Both witnesses also agreed that the fundamental constitutional right to vote should be reinstated to individuals who are no longer incarcerated.

This hearing followed the May 29th release of NACDL's major report: Collateral Damage: America's Failure to Forgive or Forget in the War on Crime - A Roadmap to Restore Rights and Status After Arrest or Conviction. This report, which was entered into the Task Force hearing record, includes a lists of goals and recommendations for the collateral consequences problem.

Witness List 

Mr. Mathias H. Heck, Jr.
Prosecuting Attorney
Montgomery County, Ohio
Written Testimony 

Mr. Rick Jones
Executive Director
Neighborhood Defender Service of Harlem
Written Testimony 

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May 30, 2014: "Penalties"

The Task Force used its seventh hearing to examine the issues of mandatory minimums and excessive sentencing. The four witnesses came with diverse viewpoints, but it was Marc Levin, testifying on behalf of Right on Crime, who really captured the relationship between excessive sentencing and overcriminalization.

Levin related the success Texas has had in reducing prison populations, closing prisons, and using alternatives to incarceration to reduce crime and cut costs. He explained that these solutions were only possible because Texas does not have mandatory minimum drug sentencing laws. Requiring long prison sentences runs counter to these sorts of reform.

Federal legislation in this area is currently pending in both the House and the Senate. For example, Task Force members Bobby Scott (D-VA) and Spencer Bachus (R-AL) support the Smarter Sentencing Act, which would significantly reduce mandatory minimum sentences for drug offenses. Although this Act would not eliminate mandatory minimums entirely, it would take a step in the right direction by reducing mandatory minimums. The bipartisan support for this Act is similarly a step in the right direction.

Witness List 

Mr. Eric Evenson
National Association of Assistant United States Attorneys
Written Testimony 

Mr. Marc Levin
Policy Director
Right on Crime
Written Testimony 

Mr. William G. Otis
Adjunct Professor of Law
Georgetown University Law Center
Written Testimony 

Mr. Bryan A. Stevenson
Founder and Executive Director
Equal Justice Initiative
Written Testimony 

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March 27, 2014: "Over-federalization"

The 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 creates on average some 50 new federal crimes each year.

State Prosecutor Joseph Cassilly 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."

Task Force members seemed to agree with this sentiment and that the concrete examples of federal offenses, such as carjacking and dog fighting, offered by the witnesses are more properly the province of state law. And, the hearing evidenced a broad, bipartisan consensus that stopping the overfederalization of criminal law is one critical component of solving the overcriminalization problem.

Witness List 

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

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

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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: "(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.

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 

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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 

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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 requirement in the federal law and possible fixes, the collateral consequences of conviction, the perverse incentive to plead because of the costs of trial and risk of harsh mandatory minimum sentences, prosecutorial discretion, the Lacey Act, U.S. drug laws, and more.

Witness List  

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

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

Mr. Lawrence Lewis
Bowie, MD
Written Testimony 

Mr. Reed D. Rubinstein
Partner
Disnmore & Shohl, LLP
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 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 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.
Visiting 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), chair of the newly-formed task force, 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 over-incarceration 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 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 

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