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The Champion

June 2013 , Page 56 

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NACDL News: Benjamin Testifies at Inaugural Hearing of Overcriminalization Task Force

By Ivan J. Dominguez and Isaac Kramer

Read more NACDL News columns.

The inaugural hearing of the first Congressional Task Force on Overcriminalization was held on June 14 before a standing room only crowd and broadcast live via the Internet. Four witnesses testified (pictured right to left above): Steven D. Benjamin, NACDL president; John Malcolm, Rule of Law Programs policy director, the Heritage Foundation; William N. Shepherd, chair, Criminal Justice Section, American Bar Association; and the Honorable George Terwilliger, III, partner, Morgan, Lewis & Bockius LLP.

Congressman Jim Sensenbrenner (R-WI) chairs the newly formed task force and opened the first 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 and efforts 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.”

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 the 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 (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.”

A link to a webcast of the hearing and the written witness testimony is available on NACDL’s website.

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