▶ 0:04:50Now there are and I hope we can find some solutions to that. Amen. Subcommittee will come to order. Without objection, the chair is authorized to declare recess. We welcome you all to the hearing today and please stand as the gentleman from North Carolina leads us in the pledge of allegiance to the flag of the United States of America and to the republic for which it stands.
▶ 0:05:20One nation under God, indivisible with liberty and justice for all. I thank everyone for coming and um I'm told others are on their way. I hope that's true. I re uh I recognize myself now for an opening statement.
▶ 0:05:47I thank the members who are here and those who will be coming and I thank our witnesses today. This is really a great panel we have and uh a lot of talent, expertise, and I'm grateful that you are would take time to be with us today. Today's hearing is titled Criminalizing America: The Growth of Federal Offenses and Regulatory Overreach. We could have just as easily called it oversight of Congress because we created the problem that we are here to discuss today.
▶ 0:06:18The problem is the number of federal and regulatory crimes has simply escalated out of control to the point that law-abiding Americans unknowingly commit several crimes every day. According to one study, the average American commits three felonies per day, which does not consider the overwhelming number of misdemeanors or civil violations. In some instances, the laws are so obscure and vague that even law enforcement and federal agencies are unaware that they even exist.
▶ 0:06:46The US code is estimated to contain more than 5,000 crimes today. And I'll hold it up for you. This massive tome is the criminal code. Just a decade ago, some scholars estimated there were approximately 4,500 crimes. And the fact that these numbers are just estimates underscores the severity of the problem. According to a study by the Federalist Society, the number of federal criminal offenses increased by 30% between 1980 and 2004.
▶ 0:07:15There were 452 new federal criminal offenses enacted between 2000 and 2007, averaging 56.5 new crimes per year. And over the past three decades, Congress has been averaging 500 new crimes per decade. And keep in mind that these estimated 5,000 criminal laws are not all neatly tucked into Title 18. Rather, they are scattered around the other 49 titles as well.
▶ 0:07:42The fact that this is only an estimate means that no one knows exactly how many federal laws subject US citizens to criminal sanction. That includes Congress, the Department of Justice, and other federal agencies responsible for enforcing those laws, let alone let alone your ordinary American. I called when I first got elected, this is an issue I wanted to take care of.
▶ 0:08:07And so eight, nine years ago when I was here, I called Congressional Research Service and I said, "How many how many crimes do we have not just in the federal code but through regulatory agency?" They said, "I'm not kidding you." When they said, and I tell you this, they said, "No one knows." And I thought that is impossible that no one knows, but estimates have that over 300,000. And so I guess it truly is. No one knows.
▶ 0:08:37So, how did we get here? After all, our founding fathers first enumerated federal crimes in the Crimes Act of 1790. And that act enumerated 23 federal crimes and established punishments for those crimes. Among others, the Crimes Act of 1790 established crimes for treason, piracy, and counterfeiting. While the legislation did establish some crimes against the person such as murder and crimes against property such as lararseny, the federal jurisdiction of those crimes was limited to federal property and federal territories.
▶ 0:09:08Over the past century, Congress has lost its way. Instead of method, excuse me, methodically and deliberatively crafting a comm criminal code, Congress acted in a knee-jerk reaction to every minor and major crisis. In doing so, Congress believed that there always had to be a federal response to every headline and every breaking news story.
▶ 0:09:30So, one academic has aptly noted, quote, "It was the spate of bank robberies by John Dillinger in the 1930s that provoked passage of the federal bank robbery statute. The kidnapping and the Lindberg baby about the same time caused passage of the federal statute on kidnapping.
▶ 0:09:46The assassination of President Kennedy in the early 1960s prompted the statute on presidential assassination and the killing of Senate Ro Senator Robert Kennedy in the late 1960s that resulted in the passage of a statute finally making a federal crime to kill a member of Congress. More recently, we saw the enactment of Sarbain Oxley in response to the Enron scandal. All of us on this das have witnessed this phenomena among our own colleagues.
▶ 0:10:12Some have termed this the accumulation approach to offenses whereby Congress has simply accumulated new offenses for 200 years or so with little examination or reformulation of existing offenses which has resulted in serious overlaps in coverage and irrationalities among offense offense penalties which excuse me offense penalties which create new possibilities for disparity in treatment and for double punishment for the same harm or evil and this leads to absurdities.
▶ 0:10:41For example, the code of federal regulations makes it a federal crime to sell a quarantine zebra while it is still in quarantine. In another 16 USC section 703 and 50 CFR section 20.91A make it a federal crime to offer to buy swan feathers for use in making a woman's hat. According to one scholar, the proliferation of crimes makes it extraordinarily difficult to far it out the law applicable to a particular factual situation.
▶ 0:11:10It also creates unfairness within federal law, which provides federal prosecutors with a near limitless menu to pursue criminal defendants. And when Congress isn't creating new criminal code provisions, it is passing laws that allow undetected, excuse me, unelected bureaucrats to write regulations that carry civil and criminal penalties. To make matters worse, many of these regulatory crimes are strict liability crimes. Many ordinances do do not have men's ray requirements.
▶ 0:11:36Therefore, these ordinances make it a violation of law regardless of whether someone intended to break the law in question. As a result, Congress wrote and passed a slew of strict liability crimes in which a defendant was not required to possess the men's rig typically required to establish guilt of the accused.
▶ 0:11:53This resulted in both federal agencies and Congress using regulatory crimes as another tool to penalize arguably innocent citizens, resulting in the deprivation of liberty and the loss of rights, such as the right to vote or possess a firearm. What we all what we all too often forget is that many of the problems we seek to solve are actually state and local issues.
▶ 0:12:15Under the federal system, the United States Supreme Court has observed that quote, "States possess primary authority for defining and enforcing the criminal law and our national government is one of delegated powers alone. Under our federal system, the administration of criminal justice rests with the states except as Congress acting within the scope of those delegated powers has created offenses against the United States. But Congress is not relented and continues to add federal crimes to our federal code.
▶ 0:12:41Congress can and should restrain from overlegislating on issues that should be left to state and local governments. This hearing is an opportunity to examine potential legislation introduced in past Congresses to restrict federal agency's ability to criminalize conduct that a reasonable that a reasonable person would consider lawful. Thank you. I look forward to hearing from our witnesses and the members. And I will yield back and recognize the ranking member, Miss McBTH, for her opening statement.
▶ 0:13:09Well, thank you, chairman, and I want to thank you um to our witnesses today, those of you that I was able to shake hands with, and Mr. Tolman, I'm sorry I didn't get a chance to properly thank you for being here today. Uh but thank you for uh being with us on this hearing overcriminalization. Our criminal justice system has many important purposes. laying out the laws that if followed prevent us from harming one another and making our country safer.
▶ 0:13:39Our criminal laws prohibit murder, drug trafficking, and fraud and impose harsh penalties for those who harm others, whether it be physically or financially. Many of our laws are written clearly to achieve this goal and many of our law enforcement officers and prosecutors use their judgment to prioritize cases in which they can address the gravest injustices.
▶ 0:14:05But unfortunately, some of our laws are not well written at all and some actors in our justice system do not have their priorities in order. Whether due to misguided leadership or a lack of resources, charges are sometimes brought against those who are the easiest to prosecute rather than to those who have caused the greatest harms.
▶ 0:14:27Often this results in the disproportionate incarceration of people of color, people with limited financial resources, immigrants, people suffering from addiction, and even people who are actually victims of crime, such as those who commit crimes while being victims of human trafficking. Overcriminalization, the proliferation of federal crimes that cover more and more conduct exasperates this problem.
▶ 0:14:55It leads to more surveillance, profiling, and targeting within the minority communities. It allows for people to face multiple charges for one criminal act, lengthening their sentences and increasing mass incarceration. Minorities are already subjected to harsher penalties for committing the same crimes.
▶ 0:15:17And the variations of potential charges brought on by our laws allow for even more variability, increasing the potential for discrimination in a system that is is supposed to be impartial. Because of this, communities have lost trust in public safety and the overall system. Many don't feel safe.
▶ 0:15:40They don't feel supported enough to call the police when they witness a crime or provide a tip that may break open a case for fear of being arrested themselves or prosecuted, which in turn making it even harder to prosecute serious crimes. This problem is especially troubling given administration's stated priorities. President Trump has already repeatedly vowed to use the criminal justice system for his own interests.
▶ 0:16:10Rounding up the non-violent immigrants and people who look like immigrants, pursuing his political enemies, exonerating grifters, and even mass pardons for those who violently assaulted our police officers here in Washington on the hill January 6 just because they did so in the name of Trump.
▶ 0:16:30This is an incredible abuse of our criminal justice system which should be focused on preventing and prosecuting violent crime, preventing theft of families, hardearned servings and uh savings and holding corporations accountable when they harm workers and our consumers. We need to return to an evidencebased policy agenda that actually use our limited resource to make us safer.
▶ 0:16:58That's why I'm proud to co-lead along with Congressman Roy, Ranking Member Biggs, and Congressman Cohen the Count the Crimes to Cut Act. This bipartisan bill would require the attorney general to provide us with a report detailing all federal crimes including the elements the potential penalties and the number of prosecutions in the last 15 years and the men's rehea requirement which
▶ 0:17:28asks what the mental state of the person was at the time that they committed the crime. This will help us look for places where we might eliminate policies that simply don't make sense so we can make sure that our criminal justice system is focused on what really really matters.
▶ 0:17:47I look forward to hearing uh more from each of our witnesses today about this um bipartisan bill that will directly overcriminalization and other ways that we might be able to address this ongoing problem. and I ask a unan unanimous consent to enter into the record of statement for the record on today's hearing from the National Association of Criminal Defense Attorneys. Without objection. Thank you. And with that, I yield back. Gentle lady yields back.
▶ 0:18:15Um I'll turn to the ranking member of the entire committee, Mr. Rascin, and yield to you if you'd like. Thank you, Chairman Biggs. I appreciate it. Uh and thanks to the ranking member, Miss McBth. Thanks to the witnesses for joining us today. Um, criminal defense attorney Mike Chase has documented some of the most preposterous crimes in the federal code. For example, it's a federal crime to sell Swiss cheese without holes in it.
▶ 0:18:43Um, some people prefer Swiss cheese without holes in it, but it's a crime to sell it. It's also a federal crime to receive through interstate commerce a small toy ball that doesn't contain a warning that says this toy is a small ball. Um, and apparently it is still a crime to sell canned green beans and call them stringless unless you're sure they are in fact stringless.
▶ 0:19:06So, um, prosecutors may be unlikely to charge some of these ridiculous crimes on their own, but overcriminalization is a serious problem nonetheless because it's an invitation to arbitrary prosecution and selective political uh, prosecution. Um, we can see and quantify who the overcriminalization problem affects most directly.
▶ 0:19:29People who are at a social or economic disadvantage, people who don't have the lawyers to defend themselves um against such prosecutions with um immigrants, people with disabilities. Between uh federal uh state, local, and tribal criminal justice systems, nearly 2 million people in the US are incarcerated, costing taxpayers $182 billion a year.
▶ 0:19:53Congress often crafts new criminal offenses and expands existing crimes without considering whether the federal government should even be involved in the underlying conduct. Recent studies estimate there nearly 5,000 statutory federal crimes and between 300 to 400,000 crimes in the regulatory code. Um, according to one study, Congress created 56 new crimes every year from 2000 to 2008, despite the fact that crime rates were actually um declining during this time period.
▶ 0:20:24While federal criminal law plays a vital role undoubtedly in protecting the public, it should complement state law rather than duplicate it and it should not be uh the source of an extraordinary burden in the lives of the people. Um, some people have seemed to escape the trend of overcriminalization. Criminal prosecutions of white collar crimes from public corruption to tax evasion have been declining for decades.
▶ 0:20:48Um, under the current administration, those statistics are likely to plummet further given the Department of Justice's gutting of the department's top anti-corruption unit and its removal of its own power to charge politicians and public officials for bribery and extortion in some cases.
▶ 0:21:06its disbanding of anti-corruption task forces and its purge of veteran prosecutors and agents who are dedicated to public safety um but who have run a foul of the new um pinched political correctness standards of the administration. These changes have taken a bad situation and they made it worse.
▶ 0:21:27Um, so instead of playing politics and trying to prove who's tougher on crime, we should work in a bipartisan manner to craft evidence-based policy that keeps all of us safe. Um, we could do more to fight crime by addressing underlying issues that give rise to crime. Um, and thoroughly studying the criminal code.
▶ 0:21:47Um and uh during last uh week's House Judiciary Committee consideration of the reconciliation bill, I tried to restore funding to um uh hundreds of critical grant programs that were cut by Doge. Uh unfortunately, my colleagues refused to even discuss them. Uh and yet voted against our amendment to restore funding to these programs, addressing the needs of crime victims, victims of rape and sexual assault.
▶ 0:22:16Um, I think that we can all agree that we need to make sure that our federal criminal laws are clear and fairly enforced. We cannot have a criminal justice system that holds the president's allies above the law, gutting enforcement of fraud and corruption offenses and pardoning January 6 copers um, and fraudsters who happen to be allies of the president while threatening criminal prosecution against journalists, politicians, and peaceful protesters who speak out against the current administration.
▶ 0:22:45look forward to working with my colleagues to ensure that the federal criminal code and its enforcement serves the public safety of all the people. Thank you, Mr. Chairman. I yield back. Gentleman yields back. Without objection, all other opening statements will be included in the record. I will now introduce today's witnesses. Start with Mr. Brett Tolman. Mr. Tolman is the founder of the Tolman Group, a public policy law firm that works to hold federal, state, and local governments accountable and advance transparency.
▶ 0:23:12He's also the executive director of Right on Crime, an organization that advocates for criminal justice reform. Mr. Tolman previously served as the United States Attorney for the District of Utah and has testified before Congress multiple times on criminal justice issues, including the First Step Act and many times before this committee. Welcome, Mr. Tolman. Thank you. Uh, Mr. Jonathan Turley, Professor Jonathan Turley is the JB and Maurice C.
▶ 0:23:36Shapiro, professor of public interest law, director of the environmental law advocacy center, and executive director of the project for older prisoners at the George Washington University School of Law. Professor Charlie has written and litigated on a wide range of areas of the law, including the question of overcriminalization before us today. He has also testified here and before this committee a number of times. Mr. Dr.
▶ 0:23:59Jean Carlo Kaparo is a senior legal fellow at the Edwin Me third the third center for legal and judicial studies at the Heritage Foundation. His research focuses on constitutional administrative law, civil rights, the rule of law and the courts. And he was the co-author of the study that almost everybody up here has referenced already uh iterating something in the near order of 5200 federal crimes in the current uh federal criminal code. Thank you for being with us. Mr.
▶ 0:24:28Michael Fox is a legal fellow at the Kato Institute's project on criminal justice. His research focuses on overcriminalization, policing, and the criminal justice system. He previously served as a public defender in Colorado. We welcome each of you today. Thank you for being here. And we'll begin by swearing you in. Would each of you please rise and raise your right hand?
▶ 0:24:52Do you swear or affirm under penalty of perjury that the testimony you're about to give is true and correct to the best of your knowledge, information, and belief. So help you God. Let the record reflect the the witnesses have answered in the affirmative. Thank you each. Please know that your written testimony will be entered into the record in its entirety. Accordingly, we ask that you summarize your testimony in five minutes. If you're getting close, I tend to tap that kind of give you a 15-second warning and then I really hammer it at No, I'm just kidding.
▶ 0:25:22I just we want to get as close to the five minutes as possible. So, we're going to start. We're just going to go down the line today. We'll begin with you, Mr. Fox. You recognized for your five minutes. Thank you, uh, Chairman Biggs, uh, Ranking Member McBth, Ranking Member Raskin, distinguished members of the committee. It's an honor to speak to you today about the rampant overcriminalization and the very real impact it's had on people across the nation. We are a nation of too many laws.
▶ 0:25:48As it's been said, over 5200 federal criminal statutes alone, and that's not counting the over 3 to 400 uh federal regulations, despite having never been passed by Congress, can land Americans behind bars. Uh the federal government is one of enumerated powers. Yet, this important limitation hasn't stopped Congress from enacting criminal statutes that far exceed the legitimate ambit of the federal government. Nor has it stopped the Justice Department from enforcing laws in a manner inconsistent with constitutional limits or legislative intent.
▶ 0:26:16With so many laws and regulations, it's easy for good people to become entangled in our criminal justice system through no fault of their own. While leading a shark uh diving charter, John Moore and Tanner Mancel stumbled upon what appeared to be the work of poachers. They cut the line, freed the sharks, and reported it to authorities that would change their lives forever. Unbeknownst to Moore and Manel, it was actually a bonafideed research project.
▶ 0:26:39In an act that defies common sense, assistant US attorney Thomas Watts Fitzgerald charged them with felony theft within the maritime jurisdiction of the United States. The trial judge didn't give the defense requested jury instruction explaining what rational people would understand to be theft, the wrongful taking of property with the intent to deprive the owner of the use or benefit and convert it to the use of one's own of oneself or another. The juror sent seven notes to the judge begging for a way to acquit before reluctantly convicting Warren Mancel. The 11th Circuit Court of Appeals affirmed.
▶ 0:27:09Nevertheless, Judge Barbara LGOa lambasted the prosecution and castigated Watts Fitzgerald by name for his imprudent exercise of discretion in choosing to prosecute the case. Judge Lgoa highlighted the sheer absurdity of branding Morin Manel lifelong felons for engaging in conduct that no rational human being would interpret as criminal. Our system was painstakingly designed to discourage illconceived prosecutions and palpably unjust convictions. Yet, it plainly failed to do so here.
▶ 0:27:35At the founding, the greatest protection against unjust convictions and excessive punishment was the citizen jury. The framers understood that depriving a human being of their liberty should not be easy. The government had to prove to a jury that a given prosecution was wise, fair, and legitimate. Jurors would uh scrutinize the government's actions with a fine tooth comb and ensure that the sentence was proportionate to the wrongfulness of the crime. Jurors had a civic duty to acquit against the evidence as justice demanded.
▶ 0:28:03It's indisputable that jurors still have this important power today. Devoid of juries as a meaningful safeguard against an overly punitive government. It's all the more important that we robustly apply other core defendant protecting doctrines. At common law, prosecutors had to prove that a defendant knew or intended to commit a crime. This is known as men's rhea. It's highly doubtful that a jury cognizant of its historic power to acquit against the evidence would have convicted Morren Mancel.
▶ 0:28:29It's highly unlikely Watts Fitzgerald would have even charged them had he known that a jury could cause his bluff. Likewise, the jury been given a narrow instruction on the definition of the word theft. Jurors likely would have acquitted as well. You too can easily become a criminal. It's as simple as walking your dog on Supreme Court grounds with a standard 6-ft leash where the maximum permitted length is only 4 feet. Any longer and you could be looking at 60 days in jail. No one is aware of this regulation because there's no signage putting potential violators on notice.
▶ 0:28:56Yet any one of us could be charged with violating it despite the reality that no reasonable person would understand this to be against the law. There are some many actions Congress can take to mitigate these profound injustices. Here are some examples. Draft prescriptive legislation. Repeal statutes that confer blanket criminal lawmaking authority on federal agencies. Include a men's rehea component in every new statute. Establish a default men's setting where existing statutes are silent.
▶ 0:29:23mandate that federal judges inform jurors of their historic prerogative to acquit against the evidence. As Justice Gorsuch notes in his recent book, criminal laws aren't the solution to every problem. A criminal justice system must be perceived by the public as legitimate to be effective. A system that seeks to send well-meaning people like John Moore and Tanner Mancel to prison over a ver veritable mistake merits neither our confidence nor our respect. I'm eager to work with you to change that. Thank you for holding this important hearing. I look forward to your questions. Thank you.
▶ 0:29:53Now we will recognize Mr. Kaparo for your five minutes. Thank you all very much for having me. It's my pleasure and honor to testify. My name is John Carlo Konoparo. Uh and among other things, as was mentioned, I wrote this report which is as far as we know the most recent and up-to-date count of the crimes in the United States code only. Uh I want to begin with the ancient Roman maxim that ignorance of the law is no excuse. That old rule makes very good sense when the law prohibits things that are morally wrong like murder or kidnapping or theft.
▶ 0:30:23And uh because every person knows that morally wrong actions are often illegal and and it's fair to presume that people know that. We can also fairly presume knowledge of some laws that are morally neutral, what lawyers call malum prohibitum crimes, provided that those crimes are well publicized, not too numerous, and based on common sense. like for instance the rule against smoking in this building. But what if malum prohibitum crimes are not well publicized number in the tens or hundreds of thousands and defy common sense?
▶ 0:30:53What if for instance as uh um Congressman Raskin mentioned we made it a crime to sell Swiss cheese that didn't have holes in it? And what if we divided that crime among four different laws and scattered them pelmel throughout hundreds of thousands of pages of law? America has in fact done exactly that. It is a federal crime to sell Swiss cheese without holes in it. And to know that, you'd have to consult three statutory provisions and a federal regulation. It's not the only such crime.
▶ 0:31:19In 2022, I partnered with the Mercadus Institute to deploy an algorithm to count the crimes in the or to count the provisions in the United States code that create at least one crime and then to estimate the number of crimes contained therein. our report uh found that the number was 5,199 crimes in the US code, but that's only in the US code. That's already more than any one person could know, but the code of federal regulations includes probably hundreds of thousands of more more.
▶ 0:31:49And if and if as you mentioned, chairman, nobody actually knows. Now, the Swiss cheese crime is only one example. Um as as Representative Maskin mentioned, Mike Chase, the lawyer, wrote How to Become a Federal Criminal. It's a hilarious and depressing book about some of these most extreme examples. It's illegal to sell bacon that uh in a package that doesn't display the the uh the representative slice through a through a visual window, clear window.
▶ 0:32:15It's a crime to submit a design to the federal duck stamp contest if your design does not primarily feature eligible water fowl. And again, crime to sell a marble across state lines if it's not marked with a warning that says this toy is a marble. Now, there's some laughter in the room because those examples are ridiculous. And that is the first problem with the proliferation of malin prohibiting crimes. The criminal law should not be ridiculous.
▶ 0:32:38Ridiculousness brings the criminal law, indeed the whole system of law, into disrepute, and it brings our lawmakers into disrepute, both Congress and the agencies, which are meant to be reasonable and competent governors and not pedantic nannies. The second problem is that if knowledge of the law is not a reality, the rule of law itself suffers. Everyone will know, of course, that they can't actually know the law, and everyone will know, therefore, that they can't obey the law. And all the while, everyone will remember that they cannot justly be expected to do the impossible.
▶ 0:33:09Americans will rightly conclude, then that such a system of laws is unjust and worthy unworthy of both obedience and defense. Meanwhile, the government won't be able to enforce all those laws equally and fairly. So, the rule of law will be tainted by bias or the appearance of bias, both of which are destructive to the rule of law. Now numerosity is one problem. The lack of any intent or men's rhea element is another. The intent element is a requirement as ancient as the maxim that ignorance of the law is no excuse.
▶ 0:33:37But at the same time that we broke the foundation under that maxim, we eliminated intent elements from many of those numberless crimes. That means that you can be guilt guilty of violating countless thousands of federal criminal laws even though you don't know that they exist and even if you don't know that you're breaking them. So for instance, the Swiss cheese crime has no intent element. So even if you don't know about that law, and even if you don't know that your Swiss cheese lacks holes, you can be prosecuted.
▶ 0:34:04You can find many more examples of such prosecutions in my written testimony and in the sources cited therein. The takeaway from all of this is that the proliferation of federal crimes and the erosion of intent elements has made America's criminal law both ridiculous and unfair. That status quo is terrible for the rule of law and ought to be changed. So what could Congress do? You could order agencies to count the criminal regulations and get a handle on the problem.
▶ 0:34:30But a word of caution, that task is beyond the Department of Justice. It may even at this point be beyond the agencies. It might be better simply to repeal regulatory crimes that have not been enforced in say 10 years. Uh meanwhile, Congress can and should create a default intent element in any federal regulation regulatory crime that lacks one. And finally, Congress or the courts might create a limited mistake of law defense for certain malpom crimes. All these are good options. I hope you consider them and thank you for inviting me.
▶ 0:35:01Thank you gentlemen. This time is expired. Chair recognizes Mr. Professor Turley for your five minutes. Microphone please. I thank thank you chairman Briggs uh ranking member McBth chairman Jordan ranking member Rascin uh for the pleasure of an honor speaking to you today about criminalization of federal law.
▶ 0:35:26It was exactly uh 27 years ago on May 7th 1998 that I appeared in this room to testify on overcriminalization of federal law. And I note this uh for two reasons. One is my birthday was just yesterday and I didn't think I could feel any older then. So I thank you for making me feel very very old.
▶ 0:35:48The second is to it's something of a a a a marking point a navigational beacon on how little success we have had over 27 years. We are facing the same crisis of There are an estimated over 5,000 federal crimes and hundreds of thousands of regulatory crimes. This would have been unimaginable for the framers. After all, in the Constitution, there was only three crimes mentioned.
▶ 0:36:19Treason, piracy, and counterfeiting. When Congress got to the point of actually creating criminal code, they came up with 23. They seem to think that was sufficient. I it it would be truly otherworldly for them to know what happened to the federal criminal code particularly because they believe that police powers largely rested with the states. The danger is that it erases the line between criminal and civil conduct.
▶ 0:36:46And that danger is that criminal law not just is is meant to create a stigma because it's supposed to reflect an intent of harmful or even evil intent, but it also creates all types of costs for our legal system. And the framers talked about that. Madison talked about it in Federalist 62. And what they said is that you can't make criminal laws where where citizens just have to guess what is criminal.
▶ 0:37:14It has to be the brightest of bright line rules. And instead, we have become a nation of mattress tag felons uh where everything that you do can also be treated as a felony. And while we say ignorance uh uh is no excuse. The problem is that Congress has created a system where you have to be ignorant of the crimes because nobody including Congress knows what the crimes are. So it's hardly surprising uh that the citizens do not.
▶ 0:37:44One out of every 47 adults are now reportedly under some form of correctional supervision. That is also a cost. The proliferation of crimes is moving a huge percentage of citizens into the criminal justice system. It also allows prosecutors to overcharge also to coersse uh plea bargains. uh and citizens are faced with near bankruptcy and if not direct bankruptcy in fighting a criminal case.
▶ 0:38:12The Supreme Court has tried its best to try to reinforce the narrow meaning of crimes. But as Oliver Wendel Holmes said, "If my fellow citizens want to go to hell, I will help them. It's my job." Uh and the point is, as was raised in a couple of cases by the justices, Congress is allowed to do stupid things. And Congress isn't sending anyone to hell.
▶ 0:38:35It's created hell for the entire citizenship of this country because no one knows what is a crime anymore and anyone can be charged as a felon and that's wrong. Now this is a problem of Congress's making and Congress will have to solve it.
▶ 0:38:53I've suggested some ideas in my testimony uh including as was stated earlier an effort to get agencies preferably through an executive order to either name all of the crimes under their jurisdiction or explain why they cannot do so. I've also encouraged the creation of a committee with a counterpart in the executive branch that can act more swiftly to reduce these.
▶ 0:39:15I actually believe there's one reason to be optimistic here with the advantage of AI and my colleague has used it brilliantly with his algorithm. It may be possible today when it was not possible 27 years ago when I spoke to this committee last on this subject. It may be possible for us to actually do something about this using AI and properly written algorithms to identify the number of crimes and to do something about them.
▶ 0:39:43I hope that we're all up to that task because this is perhaps the darkest legacy of the of the United States Congress. It has failed the American people. It has used criminalization as a way of putting an exclamation point on their issues. That has to end. And I hope some of my suggestions may help. And I have the honor again of speaking with you today. And I'd be happy to answer any Thank you, Professor Turley.
▶ 0:40:11We're thrilled that you would spend the birthday eve with us as you did so many years ago. And now, Mr. Tolman, you're recognized for 5 minutes. Thank you, Chairman Biggs, Ranking Member McBath, and Ranking Member Rascin and members of the subcommittee. Thank you for having me. I've spent 25 plus years working in the federal criminal justice system and over 15 years warning the just that the justice system is a powder keg waiting to blow.
▶ 0:40:40Let me get straight to the point. Overcriminalization is a real and growing threat to our justice system, to the rule of law, and to individual freedom in this country. Overcriminalization happens when the government creates too many laws, laws most Americans don't know even exist. We don't know, as as many have stated, we don't know the the number. I'm encouraged by Professor Turley's comments that we may eventually know that number.
▶ 0:41:09It's not justice as it currently stands. It's chaos disguised as law. Let me give you an example, one that I learned of on Instagram of Charles and Heather Ma. When I saw their story, I reached out and volunteered to represent them pro bono. They are a South Dakota ranching family under the Biden DOJ. They they were charged with federal crimes over a land dispute involving a fence.
▶ 0:41:38Offense on property that had been in their family for over a hundred years. They they were threatened not only with prosecution, but they were indicted and then told that they should seek um alternatives to raising their two minor children, Lyall and Kennedy. I was honored to fight on their behalf and last week we announced the dismissal of the criminal case against them.
▶ 0:42:04It's the kind of abusive prosecution that we see all too often in our justice system. With the attorney help of the attorney general Bondi and the and the sec secretary of the agriculture, Brook Rollins, these charges were dropped for this family. But it should not have ever happened and it shouldn't take those at the highest levels having to review what's being done by those with this power for ultimately justice to be applied.
▶ 0:42:34This isn't how a free nation should operate. We are punishing people who make mistakes, not criminals, not violent offenders, just people who happen to run a foul often of laws that they don't understand or they don't know. We incarcerate indiscriminately and it's not making us safer. Nearly half of federal inmates are non-violent drug offenders and our prisons are beyond capacity.
▶ 0:42:57To add fuel to the fire, hundreds of thousands of Americans remain on some kind of community supervision for many years after their release, far beyond what studies have shown reduce recidivism. It's estimated $500 million and burdens on parole officers valuable time are required now to monitor nonviolent offenders. That's why the safer supervision act must be reintroduced to streamline and simplify safer or federal supervision.
▶ 0:43:28It's just one tool to overcriminalization. In addition, prosecutors have too much discretion, too little restraint, and no virtually no oversight. I've been a prosecutor. I know how important those tools are to catch true criminals. But without con constitutional checks like men's rhea, the intent to commit a crime, we risk punishing innocent Americans for actions they didn't even know were illegal. Adding to their unsettling perception of unbridled power is the use of civil asset forfeite.
▶ 0:43:58Abuse and uncon an abusive and unconstitutional way to take citizens property without ever securing a c criminal conviction. That's why I support chairman bigg's mensa reform act and the fair act which restores the basic principle that intent matters. The administrative state is another part of the problem. Unelected bureaucrats are creating tens of thousands of new rules and regulatory crimes every year 75 to1 compared to Congress.
▶ 0:44:26And most of those rules are made by people who who you didn't vote for and cannot hold accountable. That's why I also support Representative Chip Royy's Count the Crimes to Cut Act. It's simple. We need to know what crimes are on the books and who's enforcing them. Let's audit this system. It's common sense and it's required if we want a constitutional rule of law in our justice system. We cannot ignore that the role of some judges are playing.
▶ 0:44:52When judges pick winners and losers based on politics, not law, they erode the trust in the entire system. Recent rulings on deportation, election integrity, and sanctuary cities are just latest examples. But to but this issue is bipartisan. Democrats have also tried to pack courts when decisions don't go their way. In short, overcriminalization fuels lawfare, undermines our constitution, and strips Americans of their rights and dignity.
▶ 0:45:18It leads to over incarceration, abuse of prosecutorial discretion, runaway regulation, and judicial activism. Thank you. We appreciate all of your testimony. Um, and now we'll begin proceed under the five-minute rule with questions. Chair recognizes the gentleman from North Carolina, Mr. Not for five minutes. Thank you, Mr. Chairman. To the witnesses and those opening statements. This is an important topic and I thank you for your scholarship and for your advocacy.
▶ 0:45:46I will put uh just one single plug in. As a former federal prosecutor like you, Mr. Tolman, I will say that as a society, we all have benefited from good criminal law enforcement and there is a very distinct role and an important role in the legitimate use of the prosecutorial authorities and to combat um real crime and as an organized crime prosecutor, I saw real crime.
▶ 0:46:12But unfortunately, the topic that we are diving into today delegitimizes, I would submit the use of criminal law. it weakens it and it pollutes it in the minds of of all Americans. And um you know I'm I'm thrilled that we're having this discussion and one of the unfortunate effects a at the local the state the federal level Mr. Mr.
▶ 0:46:34Tolman, your example speaks to this quite clearly is it inverts the intended constitutional balance where the government should be working for the citizens but in reality all citizens now because of the abuse are working for the government.
▶ 0:46:49Whether you're an educator, a business owner, uh whether you are a family, a someone who's just an independent person, uh your ability to operate freely has been greatly hindered over the last 50 years because of the overcriminalization of what should be civil actions. And to that end, Mr. Holman.
▶ 0:47:08Uh the administrative state in my opinion and sort of its bureaucracy has been so confusing and uh robust in its growth that most people don't even know how to conceptualize it, respond to it, adhere to it, challenge it if there is an enforcement action of some sort. What are some ways that citizens can uh or how should we better enable citizens to to uh protest and to fight back when the administrative state approaches them?
▶ 0:47:38I I couldn't agree more. It it has been almost impossible. Two things. Uh the attorney general now has uh has started a commission that will be re-evaluating cases that um that lack that appropriate intent or that look like might have been uh you know warfare lawfare or politization of the power.
▶ 0:47:59And in addition, um, Secretary Rollins and I think other other agencies should follow has, um, opened up a hotline for individuals to call and to identify their case and what's going on and and to be able to plead their case. I I only happened upon the mods based on Instagram and a social media post. I would love to know those others out there of all walks of life that are being targeted unfairly by our justice department. Mr.
▶ 0:48:28Harley, in in your opinion, what is something simple that we could do quickly to give citizens relief from these confusing patchworks of of criminal enforcement? I mean, for instance, what about a reasonable care defense u or something that we could afford uh citizens efficiently and quickly right now? I think the challenge for Congress is this has snowballed to such a size and it's metastas to mix my metaphors, it's also metastasized throughout the system.
▶ 0:48:55Most of the problem here are going to be administrative crimes where Congress creates a general crime, just leaves it to agencies to fill in the details. It's what uh Justice Scalia said, the fuzzy leave the details to be sorted out by courts legislation, but he could add also by agencies. Um I've suggested a couple of things that Congress can do to start here to make changes in how it proceeds.
▶ 0:49:18One is to establish a tight rule that if you create a new crime uh you have to not only go through multiple committees but satisfy a narrow uh type of standard and that standard should include a men's ra requirement that itself would at least stop the flow from here and then you need to focus on what has already gone through the system and I suggest a couple of steps to try to first gauge the exact number of crimes that we're dealing with here
▶ 0:49:49but also to create a shadow system to create a a committee here and also an executive office that can work in real time together. So the part of the problem is that the delay in dealing with this as we saw with previous task forces is just otherworldly. It just the clock got burned and nothing really happened. And so I hope my testimony lays that out. It does to some extent.
▶ 0:50:13And in terms of just the long-term risk here when we look at the potential criminalization of political preferences, what is the long-term risk to our country if we don't get this under control? Well, you know, it's it is interesting that this is we always have a certain conceit that or the problems we face today are unique. This was a problem that the framers I felt understood.
▶ 0:50:36If you make everything a crime, you make everyone a criminal and then frankly it loses all distinction as to what's a crime and what's right what's a civil violation. That line between what is criminal and what is civil is key to our rule of law. It is those are the navigational beacons for citizens to define their conduct. You lose that. If you turn everyone into a a presumptive criminal, then it changes what it is to be a citizen in this country.
▶ 0:51:03It basically prosecutor discretion becomes discretion to be able to turn anyone to a felony at any time. A felon at any time and that danger cannot be overstated. Gentleman's time is expired. Thank you. I yield back. Thank you. Chair now recognizes the ranking member. McBth for her five minutes. Thank you, Mr. Chair. Uh Mr.
▶ 0:51:23Fox, as you as you know, minorities and members of marginalized communities often face barriers to assessing legal resources, including legal representation, knowledge of their rights, understanding the legal system, or the means to navigate a really complex legal system, um, and making them far more vulnerable to unjust prosecution and punishment.
▶ 0:51:46Can you kind of just expound a little bit with us today on explain how overcriminalization exploits these disparities? Yeah, sure. So, if you look at, you know, the federal inmate population right now, it looks like it's about 156,000 people. That's a lot considering that the federal government actually doesn't have that much jurisdiction over crime. It's mostly quintessential state law. So, it's a lot there. If you look, it's 35% black when the population's 14% black, 31% Hispanic when the population is 19% Hispanic.
▶ 0:52:15a lot of these laws, it's just, you know, they want to go after people that have limited means, that have less resources to fight back. So that way they, you know, they're able to sort of go after, you know, people that they think are easy targets. Uh, and as was mentioned earlier, you know, a lot of the people that are in federal prison are low-level, you know, drug offenders, non-violent drug offenders. These are not people who actually need to be incarcerated, who need to be in the system.
▶ 0:52:42We spent, you know, about $182 billion over the course of a year incarcerating 200 million, sorry, 2 million people. Uh, and frankly, all this does is undermine people's trust in the system. There are, you know, jurisdictions in certain cities in the country where the clearance rate for violent crimes is at or near zero. I think everyone wants violent crime solved, but when you're harassing people over things that most people would agree shouldn't be crimes, you sort of undermine the legitimacy.
▶ 0:53:11People are not willing to call the police. They're not willing to testify for the prosecution. you know, when there's a lot of these communities, DC being one of them, that are both overpoliced and underpoliced at the same time, meaning that there's a lot of officers per capita, yet the crime rates are still pretty high because the arrests are for low-level offenses that people just really don't want to be involved with. Thank you for that. And Mr.
▶ 0:53:34Tolman, how does the investigation of minor crimes reduce the effectiveness of law enforcement personnel and prevent uh them from addressing violent crimes? you kind of touched upon it a little bit earlier. So, if you you could spend a little more time telling us about that. Yeah, we're we are not using our resources for the most important crimes, the mo the crimes in which we need to be afraid of an individual rather than just mad at an individual for what they did.
▶ 0:54:02It's it's ironic that the one particular A USA was referred to by Mr. Fox earlier. actually had a case against him and it was an individual who owned an aquarium that brought in a the wrong type of fish and was uh saddled with a federal felony. Um did not know that he brought in the wrong type of fish and the paperwork was one of the issues that happens every day in this country. We can talk about the crimes that are not being you know uh that we laugh at.
▶ 0:54:30Many of those crimes are being used by bureaucrat prosecutors. I'm very proud of the work that I did, but the number of cases that I wish were actually aimed at the violent individuals in our communities, we've stopped working and being part of gang task forces across this country. We've we've we've limited the the use of the federal federal resources on sex trafficking and human trafficking.
▶ 0:54:55We've got to get back to being good partners to our state police and law enforcement officers who have the primary responsibility on violent crime. Thank you for that. that. And then also, can you kind of explain how uh statutes that were meant to target our kingpins, like you just said, violent crime, like the mandatory minimum drug statutes that we have yet to meaning meaningfully reform, that's easy for me to say.
▶ 0:55:22How they uh end up sweeping in the low-level uh offenders. Well, absolutely. We we are in a backup back a a really backwards system right now. We are using oftentimes higher level individuals in a drug distribution ring to cooperate and get credit against lower level individuals. Uh I prosecuted many drug cases and we rarely ever were able to get intel on the upper levels and actually take down drug drug conspiracy rings.
▶ 0:55:52Instead, we utilized, you know, what we could in order to get low-level individuals who simply did not have the knowledge, and we didn't take the time or the patience because we didn't have the resources to investigate those those conspiracies and those drug rings and cartels properly. Okay. Thank you so much. I yield. Gentle lady yields. Chair recognizes the gentle lady from Florida, Miss Lee. Thank you, Mr. Chairman, and thank you to our witnesses for joining us today.
▶ 0:56:21I think you have a group of members here that are very interested in finding ways to refine and streamline our criminal justice code. Uh and you all are very helpful with the ideas and thoughtful testimony that you have brought with you here today. I would like to go back to something and Professor Turley, I'm going to start with you. Uh Mr. Fox told a story about a case in his opening remarks that I thought was very instructive in this way.
▶ 0:56:49I am a former state court judge and in my experience juries work very hard to follow the instructions that are given to them uh most juries and to apply the law correctly as charged by the court. What is the effect if the elements of an offense are incoherent or vague? What is the effect on the instruction that goes to the jury and how might that affect cases that they are deliberating upon?
▶ 0:57:18Thank you for that uh question because it's it's probably one of the most important ones that the committee can tackle. Uh the effect is huge. You know, I spent most of my career as criminal defense attorney and I can say that there are certain crimes you don't have much of an argument to make because we have strict liability criminal offenses and criminal negligence offenses. I actually testified against both 27 years ago. I think that those are two categories that the Congress should focus on.
▶ 0:57:44uh that we could do away with most of those offenses because once you get into court, you don't have much of an option. But so the point is that if you've got a client as a criminal defense attorney who comes on to you on one of these crimes, you know, you've got, you know, if you take a look at um the Yates case that went to the Supreme Court of the undersized grouper, right? Those cases while we look at them and go, my god, how did that ever be criminalized? It's a tough case for a criminal defense attorney because the judge is handcuffed.
▶ 0:58:13the judge is going to give instructions based on that statute and as you say jurors are very faithful in in carrying it forth and the judge tells them you've got to apply this. So we have to eliminate those those laws. We can't just rely on discretion and the other thing about prosecutorial discretion which is enormously important uh because I really do agree uh with Congressman when we talk about the role of prosecutors here. Most prosecutors like Mr. Tolman are very faithful and very thoughtful.
▶ 0:58:43I've worked with a lot of great ones. But prosecutoral discretion only works if you frame the range of discretion. So what you've done is you've blown away that frame. So there's literally discretion now for prosecutors covers conduct that everyone commits every day. That's the danger.
▶ 0:59:01It's not that we're not saying you shouldn't have discretion, but you're the ones who are supposed to wall in the discretion and allow them to work within And staying on that point, I think that gets back to I believe it was Justice Scalia the fuzzy laws that we passed and then hand over to regulatory agencies.
▶ 0:59:18Uh share with us if you will h what the consequence of that is when we leave too much discretion in the hands of the regulatory agents to agencies to actually criminalize behavior and have you seen disproportionate impact or exercise of that authority by different Yes, I mean there are certain agencies that pull the trigger pretty fast.
▶ 0:59:41Uh but the point is that whether you're on the regulatory side or you are an actual prosecutor, there's a tendency to just lower the boom on people to to count stack because what you want is to get a plea agreement. Most most cases ends up end up in please. So if you're on the defense side, you're looking at a client with limited funds and those funds will evaporate the minute they start a criminal defense. and I mean evaporate within months. So they will have to sell their house.
▶ 1:00:10They'll have to tap their relatives. And the alternative is the prosecutor says, "Look, instead of my bringing these hundred counts against you, I'll let you plea out plead out on on two with no jail time." Most people accept that and they then become part of the criminal justice system. They get a record. That stigma follows them. They have trouble getting jobs. They have trouble in possibly getting leases. It's a horrific system. And on that subject, Mr.
▶ 1:00:40Tolman, I know in your written testimony, you mentioned the Safer Supervision Act, which actually discusses the intersection between community safety and successful reintegration. Uh, briefly, if you would tell us why you believe those types of reforms to the supervised release system are important. Yeah, just real quickly, the states are leading on this. Conservative states are are doing amazing things on this. They've realized that if we have them on supervision for a year, maybe 18 months at most, they are incentivized.
▶ 1:01:09They do what they're supposed to. They get on with their life. In the federal system, the average is almost five years of supervision. Thank you, Mr. Chairman. I yield back. Gentle lady yields. Chair recognizes the ranking member of the entire committee, Mr. Raskin. Thank you very much, Mr. The Department of Justice announced that it would um demote the Foreign Corrupt Practices Act and not um bring prosecutions there.
▶ 1:01:38Um it sacked 17 inspectors general when it started. Uh people who saved us a combined $91 billion last year in faring out waste, fraud, abuse, and corruption in uh the government.
▶ 1:01:52Uh, it pulled the plug on the corruption prosecution of Mayor Adams in New York after Mayor Adams agreed to engage in a political alliance with Donald Trump, which then prompted uh the resignation ultimately of um six or seven attorneys, including the US attorney for the Southern uh district, Danielle Sassoon, who was a conservative Federalist Society lawyer and a Republican.
▶ 1:02:21Um and uh her her number two also quit saying that um you know he he you'd have to be a fool or a coward to give into this kind of pressure. Then they decimated the public integrity unit. They dismantled the kleptocracy unit in department of justice. They shut down other units focused on stopping foreign interference in American politics. Mr.
▶ 1:02:47Fox, why is prosecuting white collar crime with the um specific enumerated offenses with the definite uh material elements in the crime? Why is prosecuting white collar crime important? Yeah. So, I looked, you know, it seems like there's about maybe 7% or give or take of crimes that DOJ prosecutes. Seems like that or fall under the white collar category.
▶ 1:03:14I think you know there's a lot of what a lot of the work that the federal government prosecutes are things that far exceed the doctrine of enumerated powers are things that uh you know the federal government has absolutely zero business getting involved in. I think white collar crime is one that arguably can fall under the ambit of the federal government and it's something that is important to, you know, discourage political corruption, make sure that people are, you know, being prosecuted because the Department of Justice has evidence that they committed a crime and they're not being prosecuted because of, you
▶ 1:03:45know, what their political views are or that they're not being let off because of what their political views are. You know, people don't trust a system that targets people or that ignores people based upon the views they espouse or the people they support. So, do you think that undermines public trust in the justice system? Oh, Um, it sends out the message that we have this two-track system.
▶ 1:04:08One for uh people who engage in kind of the the run-of-the-mill state law crimes like assault or theft or robbery. And then one for white collar criminals in the government or in corporations or in politics who are able to get away with it if they know the president or they know the right person. Yeah, I think that's right.
▶ 1:04:31It also goes back to the question ranking member McBath asked which is you know about are they going to target people who they know will fight back versus won't or won't have their resources to. So I think you know that's all very related there. Yeah. Have you studied the the whole question of um whether there is systematic inclusion of a men's ray requirement so we're not putting people in jail for uh most regulatory offenses? Yeah.
▶ 1:04:59So a lot of uh a lot of regulatory offenses and frankly also a lot of statutory crimes don't include a men's right the theft charge that I talked about before in the Morren Manel case. If I were to take uh Mr. Konopara's water bottle and give it to Professor Turley or on federal property. Technically, I could be charged. That's preposterous. No reasonable person would ever think that's theft. But without a actual explanation as to what theft is that I actually intended to, you know, take his wallet and bring it home with me. People would Yeah.
▶ 1:05:28They would absolutely, you know, fall victim to these types of prosecutions, which dramatically undermines trust in the system. Yeah, I understand that the chairman and I think McBth have this count the crimes act um which suggests that we don't even know how many crimes we have. There's been such a radical proliferation of offenses throughout the federal code.
▶ 1:05:50Um, but do you think it would be advisable for us once we've counted the crimes to uh to propose a cut the crimes act where we get rid of a lot of the offenses that uh malum prohibitum regulatory crimes into um real criminal offenses that we most people would think should apply only to Malum in say yes certainly I know the uh chairman also as the
▶ 1:06:20men's rehea reform act. I think those two things in tandem if you set a default men's rehea that way, you know, we're not sweeping people into the criminal justice system over things they didn't know would be crimes and then also I'm not sure it's actually possible to count all the crimes. But assuming we can do that, then yeah, then we're able to sort of come to a consensus as to what doesn't belong. But I would also say if we're not able to do that, there's other changes we could do. Like I have an idea that we could just inform jurors that they have the power to acquit against the evidence when justice requires.
▶ 1:06:50So in a case where the Department of Justice brings a charge like the case I discussed before where you know any rational person would think it's absurd, the jury can be like, you know what, we don't agree with the defense theory. This is nonsense. We're going to acquit. And that's a power they still have. And I yield back to you, Mr. Chairman. I don't want to commit a criminal infraction here by going over my time. It's too late. Too late. Yeah. Chair recognizes the gentleman from California, Mr. Kylie. Thank you, Mr. Chair.
▶ 1:07:17In California this last year, uh, we passed an initiative to restore some consequences for things like retail theft. And my slogan in connection with this Proposition Prop 36 was make crime illegal again because there are some things in our state uh, like stealing that are sort of classic textbook criminal behavior uh, that because of our criminal laws, folks could basically carry out uh, with impunity. So that did pass.
▶ 1:07:43Uh there are also at the federal level as has been mentioned uh ways in which uh we need to be uh enforcing the law against serious crimes uh in a more aggressive fashion. But uh perhaps there should be a correlary to that uh slogan make crime illegal again which is to make non-crimes uh legal again which is what we're talking about uh today.
▶ 1:08:04you know, we shouldn't be prosecuting people for buying Swiss cheese without holes or for making a stamp with the wrong kind of duck on it or for accidentally buying uh the wrong kind of fish for your aquarium. I think there are some basic intuitive common sense principles we would all agree a criminal code should have. That it should include things that uh a typical person either knew or should have known are wrong or are illegal. They should be reasonable things that make sense to people. Yes, this is the sort of thing that ought to be illegal.
▶ 1:08:31uh they should be in statutes that were issued by elected lawmakers. They should be accessible to the average citizen. They should be easy to understand for the average citizen. They should be coherent. We shouldn't have conflicting criminal laws. And they should be enforced in an even-handed manner. Uh but none of those things are met with the current criminal code. There's a lot of, as we've discussed, strict liability crimes. There's a lot of things that aren't reasonable and don't make sense. It's a 75 to1 ratio for crimes that are uh issued by uh bureaucrats as opposed to lawmakers.
▶ 1:09:01A lot of the criminal code is behind pay walls that you have to pay money to access. Then even if you can access it, you can't make heads or tails about what it says without cross- referencing the rest of the code. Uh there's all kinds of conflicts uh within the the body of law. And because the average person commits several crimes a day un unwittingly, it can only be arbitrary in its enforcement. Uh and so it's not enforced in an even-handed manner. And some of the consequences for this are number one the diversion of resources towards prosecuting true crimes.
▶ 1:09:29Number two a weakening of respect for the rule of law uh of course and then number three a loss of freedom as sort of the default uh in society as you have to walk around on eggshells uh not knowing what is and and is not allowed. Uh Mr. uh Canoparo I thought I'd throw out a few questions. Uh you can address any of them and then if there's time perhaps the others could weigh in as well.
▶ 1:09:53Uh number one, do you think it would make sense to say that we shouldn't have any further crimes that are issued by uh regulators as regulations? Uh and even those that currently exist perhaps should be considered uh reconsidered by Congress. Uh and then also um where should we what principles should we consider in drawing the line between criminal and civil liability? Like what what sorts of offenses are more appropriate for one than the other?
▶ 1:10:18Uh and finally uh are there due process issues uh that exist because of the the nature of the criminal code as it now exists? So let me take the second one first because I think it's the easiest one which is I would default to the traditions that we inherited from British common law and that has been in American law forever which is that the criminal law is meant to be for those things which are morally reprehensible.
▶ 1:10:42Now that doesn't mean of course that accidents or um sort of neutral morally neutral things which impose harm don't get punished through civil remedies. Right? But as professor Turley mentioned to make those all crimes fundamentally erodess that difference and changes the nature of citizenship. So that's number question number two. Number one let me get to um we've been touching on the count counting and and how do we count and how we cut regulatory crimes, right?
▶ 1:11:10I think actually you can do both at the same time. Uh and what I would recommend is that you direct every agency and not again probably not through the Department of Justice because this would be run through the Office of Legal Policy. They don't have the staff to do it. I would say probably direct every agency to send you a list of all the regulations which can be criminally enforced. And if they don't do that, any that they don't send you are cut, voided immediately. And and why this is good is because there's a ton of stuff the agencies have that they don't actually use and they don't particularly need.
▶ 1:11:40Um and so what they'll do is they'll send you the stuff that they think is important. And by virtue of what they don't send you, you can sort of say, okay, the Swiss cheese kind of crimes, those go away. But here are the ones that the agencies in their limited time and resources thought these are really important. Let's keep them. So I would say in short, tell the agencies, tell us what's important. Anything that doesn't show up on your list uh gets is is voided immediately. So you could sort of do both at the same time. Thank you. Uh I yield back. Gentleman yields. Chair recognizes the gentleman from Tennessee, Mr. Cohen.
▶ 1:12:10Thank you, Mr. Chair. Uh Mr. Fox, I just curious. I was listening to your testimony and uh about Sako and Venzetti or whoever they were, Moore and Mitchell or Mo Manel. Yeah, we have Mo and Manzel. um what should have been the crime for cutting that uh u Noah uh apparatus apart? Yeah. So, going back to actually the point Congressman Kylie just made is I don't think it should be a crime.
▶ 1:12:36I think this is a a crime to cut a a something that you got nothing to do with. It's not your area of jurisdiction and to cut it and destroy it. Well, if they intended to do that, yes. But because they didn't, I think this is sort of a civil issue where the I forget the person's name, but the uh person who had the research project should, you know, take them to court and they should pay for the loss of the property that was damaged. But I don't think it's the purview of the government to get involved and prosecute them for it.
▶ 1:13:06And this goes back to the point of why men's right of matters. If they had gone in there intending to destroy it, yeah, I think that's very different. and then that probably would be appropriate to charge them and convict them with what happened. But that's not the case here. It was a it was a mistake. They thought they were, you know, saving some wildlife, saving some uh sharks, and inevitably it was not poachers. Just curious. I looked it up and kind of didn't think I think it probably should be some type of offense to destroy something.
▶ 1:13:33You, you know, really no have no jurisdiction and you don't make yourself the police and you make a mistake. They should have taken a deal or something. But regardless of that, Mr. Mr. Tolman, let me ask you a question. Uh, your name was familiar to me, so I Googled it for a long time and I didn't find any Tolmans that I would have known of. Most of them were scientists and brilliant people as like you, but there was a Tolman Hall at Vanderbilt and I think that's where it came to the back. Do you know Tolman Hall? I I do know the family. Um, I I tried to get into Vanderbilt Law School and was not admitted.
▶ 1:14:06It's good school and I'm sure that doesn't mean anything really, but it's good school. overcriminalization. Uh that's a lot of that is federal congress people looking for issued a jouring laws that probably should be state laws. Is that not correct? I wholeheartedly agree. Yeah.
▶ 1:14:24Years ago when I was a state senator, there was a group of Congress people that came down to Nashville and all talked about carjacking and they wanted to make it a federal law and I suggested that it was more of a state responsibility and they passed it. Some federal law up here and now I don't know what it was. I've read somewhere there's a new carjacking law being proposed I think by Senator Blackburn and it changes the duty.
▶ 1:14:45I mean a standard that used right now you have to have an intent to murder or kill or do great injury to be a federal crime and now they're reducing it to being I forget what it is. Uh do you do you know what what the difference is in this proposed law and the law that exists now? I I have I have seen that. I I think the current carjacking law is an inappropriate federal law.
▶ 1:15:07It's uh it should be the states um it is their primary role to enforce those those laws and um sadly the the carjacking and I would also say the hobbs act cases which is in essence now the robbery of a Kentucky fried chicken for example. I mean this is an example of the headline of the day driving the law making and expanding the federal federal code.
▶ 1:15:31Well, we'll have to look at that when a bill comes before our committee to see how we respond to it because it's sometimes so easy to jump into something which is really state law. Yes. Mr. Fox, I was listening to your testimony. You were talking about respect for the law and all these laws, etc. Do you think that the pardoning people that attacked policemen just makes people think less of the law? Yeah. I I think, you know, it's a case- by case basis.
▶ 1:15:59I think, you the, you know, the federal justice system or even state justice systems really don't work well at all. So, there's obviously problems, but blanket pardoning people who violently attack police and try to overthrow the government, yeah, that's wildly inappropriate. Anybody think it was a appropriate thing to do to pardon all those 1600 people in mass without going through them case by case?
▶ 1:16:22That creates a lot of people thinking it's who you know or what you do, etc., etc., and and just disrespect for the court system because it was nothing to do with the prosecutors doing wrong or anything like that. It was just a class of people that he decided to do. And then there's been a lot of pardons lately. I don't know if you've kept up with them, but lots of folks in the crypto business uh who have been convicted uh large monetary fines as well as jail time and tremendous amount of restitution and they've been pardoned.
▶ 1:16:53And that's, you know, it happens. It used to be that the presidents had some shame and even if they gave a pardon to their brother or to somebody that gave them a ton of money, they waited until the last minute they could get out of town. Now they put it on truth social and they parade it around and then they appoint them to be an ambassador somewhere. Thank you. I yield back the balance of my time. Gentleman yields back. Chair recognizes the chairman of the committee, Mr. Jordan. Thank you, Mr. Chairman. Mr. Kopero, um what was the number?
▶ 1:17:22How how many crimes? It was like 5,000. You had some number in the US code. We with reliable certainty 5,199. But that's only the code. That's only the code. So how how many crimes are out there that aren't created by Congress, but are created by the agencies? We don't know for sure, but the number is almost certainly around between three and 400,000.
▶ 1:17:47So, Americans can be charged with all kinds of crimes that they don't even know exist, that they don't even know they broke, that were created by people they didn't elect. That's the situation we're in. Correct. Such a deal, right? Such a deal for Americans. This is how ridiculous it'll give you a real real life example.
▶ 1:18:08The ATF out of thin air said something that they had even said was legal, that had always been legal, said, "We're going to now say pistol braces are illegal, and if you don't get rid of it, turn it in, destroy it, whatever, your property, if you don't do that, even though we told you it was fine years ago, even though there's nothing in the law that says it's it's a crime, you're going to be a felon. It's crazy." So, this I I want to thank the chairman for bringing this together.
▶ 1:18:37I mean, you cannot create a talk about lack of respect for the citizens of this country. They don't even get a say in the people they elect on most of this stuff that they can get charged with, which is crazy. How does that fit with our constitutional system, Professor Turley? I'll let you and Mr. Tolman talk a little here, too. And we appreciate you all being here. Well, it it it goes to what I mentioned earlier that we're the danger of overcriminalization is it can change what being a citizen is.
▶ 1:19:04if if everyone is potentially criminal in in in conduct that they they engage in every day. Uh it changes the relationship to the government. And by the way, it also has an impact on how people view real crime. So if everyone is a presumptive fallon, if everyone is a mattress tag puller, if everyone uh can be charged with the discretion of a prosecutor for things that most people do, then you lose the stigma, the clarity for the real crimes.
▶ 1:19:33And that includes things like shoplifting. That is, you see the sort of casual attitude towards lawbreaking, but the government can be a terrible teacher in that respect by treating everything as potentially criminal. And then nothing's really criminal. It's just basically the government can either bring you into the criminal justice system or not based upon a whim or discretion. That has an enormously corrosive impact on the meaning of being a citizen, the relationship of individuals to their state. Yeah.
▶ 1:20:02diminishes respect for the law in in general and may lead to less prosecution of real crime, which Mr. Kylie just talked about. And then the thing that scares me as much as both of those is it encourages, I think, the weaponization of the government against people they don't like or who have a different political philosophy. And we have seen all three of those things in the last few years, which is again frightening and why this hearing is so important. Mr. Tolman, I'll go to you.
▶ 1:20:29And one thing to keep in mind about the 300,000 plus regulations that have criminal penalties, almost all of those are white collar crime. So you're targeting a you you have the largest section of your your criminal laws are actually targeting those that most likely have no criminal intent.
▶ 1:20:49And that's why we're seeing such ability of prosecutors without any proper accountability to use that against everyday citizens that don't have criminal intent. So back to the men's rehea for at least that that for at least that. Yeah, that would make that would make sense. I'll give the Democrat witness, which I normally don't do in hearings like this. I'll let you say something if you want, Mr. Fox. Yeah. No, I agree.
▶ 1:21:13I mean, you know, the the whole idea is you have to actually intend to commit a crime, just doing something, you know, thinking you're trying to help someone, like saving a, you know, a bunch of sharks from poachers or there's another case where it was a man who was hiking uh on a mountain. He was um you know, a professional runner went up what unbeknownst to him was a closed trail. It had two tiny little signs. Now he's battling federal charges. There's another case Le United States.
▶ 1:21:41is pending in front of the Supreme Court, which was a um snowmoiler who was charged for taking pictures, advertising his business, which is not what he was doing, but that's what they allege, while he was on federal land. And in a case like that, because the max penalty is 6 months in jail, according to the Supreme Court, despite that there's no uh textual basis in the Constitution or historical basis at all, he doesn't even get a right to a jury trial at all.
▶ 1:22:09So, this is just government like you did something you didn't know was a crime, now you're guilty. And not only that, but of course, Congress never even passed these laws. Yes. Been one thing to shake him down, but they're going to shake him down and put him in put him in jail potentially. It's crazy. Uh, Mr. Chairman, thank you for this good hearing. I yield back. Uh, thank you. I just have a UC request, please. Uh, this is uh the federal justice statistics for 2023. Very interesting.
▶ 1:22:3457,000 arrests and 184 of them were for regulatory arrests or 2% but that may be too high uh given what was done. So anyway for the record without objection chair recognizes the gentleman from New York Mr. Coleman. Thank you Mr. Chairman. Um Mr. Turley, good to see you again.
▶ 1:22:54um you are a uh a frequent witness uh for a variety of different hearings uh for the Republicans and in fact you uh testified in the last Congress uh related to an impeachment investigation um and as I recall you testified that you believed that the Republican investigation related to Hunter Biden's private foreign investments did merit an impeachment investigation
▶ 1:23:25against President Biden. Uh I guess based on alleged meetings that the president had with Hunter's business partners, even though there was never any evidence presented that they discussed Hunter's uh businesses, business ventures, or that the president ever financially benefited from those ventures. Uh is that generally an accurate uh assessment? You didn't call for impeachment. You just suggested there should be an investigation, right?
▶ 1:23:53Uh, the purpose of that hearing was to determine whether there could be an impeachment inquiry and whether if I'm just asking what you testified, Mr. I'm I'm trying to to say that. Well, no. Did you suggest Did you say directly that there was a legitimate basis to move forward with an impeachment investigation? Yeah. What I said is that if those allegations were proven, they could amount to impeachable offenses. All right. Well, let's focus for a second on some conduct that's been going on over the last few months.
▶ 1:24:24the related to uh World Liberty Financial. Are you familiar with that company? No. You're not familiar? Okay. Are you familiar at all with uh Donald Trump's interest in cryptocurrency? No. So, you're not familiar with the fact that Donald Trump uh issued a memecoin two or three days before his inauguration? I saw something of that in the press, but I'm not that familiar with it. Okay.
▶ 1:24:52Um, well, let's hypothetically, it's not hypothetical, it's true. Donald Trump has a financial interest uh in a memecoin named after himself. And he recently offered a VIP White House tour and special reception to the memecoin's 25 biggest holders. After that announcement, the coin surged more than 50%.
▶ 1:25:22Um, does that seem like something that warrants investigation to you, Mr. Turley? Well, there's no question that you can investigate that to see if there was any criminal conduct. I want to distinguish between that and the influence peddling scandal that the hearing was about uh in the Biden administration. I I'm not talking about that hearing and I know you like to filibuster, Mr. Turley. No, no, I'm happy to talk about that hearing. It was the biggest joke of an investigation.
▶ 1:25:47It was embarrassing that you uh call yourself a credible criminal uh criminal professor that you would actually think that there was any evidence that warranted an investigation. I'm focusing right now because it would seem to me if you have any credibility, you would agree that auctioning off a White House tour for the highest investors in your own company would warrant either impeachment or criminal investigation.
▶ 1:26:16But let me move on because it gets worse. Um, the president is a significant financial beneficiary of a company called World Liberty Financial, which issues a stable coin. Are you familiar with stable coins? I'm not. Okay. A stable coin is essentially a a digital version of a dollar that can be used in transactions.
▶ 1:26:43recently the uh World Liberty, the this organization which uh Donald Trump is a beneficiary of um entered into a deal with a UAE backed company to that would complete a two transaction billion dollar transaction with a company that has previously admitted to engaging in moneyaundering.
▶ 1:27:11ing and Donald Trump's company will now generate tens to hundreds of millions of dollars in revenue from that transaction with a foreign government and I'm sure you're familiar with the foreign imalments clause uh Mr.
▶ 1:27:28Would you say that based on that information, since apparently you only follow Hunter Biden's finances and not President Trump's, would you say that based on me providing you with that information that that would warrant an impeachment investigation? Uh, Congresswoman, you say that uh we have to preserve our credibility. I think you would agree. Can you answer the question, sir? He's trying to answer the question. Your time your time has expired. I will allow the gentleman to answer the question. Thanks.
▶ 1:27:56In the interest of credibility uh cited by the member, I'm not going to rely on the facts that you just gave me for the first time to render a judgment on it. I'm not opposed to investigations of alleged corruption. That was the point of the previous hearing. But the way to establish credibility is not, as you did, sir, just engage in personality attacks and personal innuendos. I I'm happy to speak with you and to work with you about anything dealing with corruption in this building.
▶ 1:28:26I've been writing about that for three decades. I've been called as a witness for both the Democrats and Republicans dealing with that. But the way to pres I've only seen you as a witness. Your time is expired, sir. Your time is expired. I'm happy to yield back. Did you Did you finish your qu only that the way that we can actually regain? Thought my time is expired. Your time is expired. I said your time expired. He gets an opportunity to finish answering the question. You I'd like to reclaim my time. You have no additional time. He's answering are out of order. my question.
▶ 1:28:56You are out of order. I would like to rec. No, he's answering the question because you personally attacked him. I've said he can answer the question. We I give that courtesy. How did I personally attack him? Mr. Chairman, you attacked his credibility. We're not going to get into we're not getting we're not getting into this right now. What we're going to witness his credibility matter. Sir, you are out of order. I c you are out of order. You're done. You can't say anything else right now. You may finish answering your question. Thank you, Mr. Chairman.
▶ 1:29:26I think that the one lesson from this exchange is that it's possible that we can restore credibility in this institution if we can just get beyond the personal attacks. There were no personal attacks, Mr. Turley. You are done. Your cred your credibility matters. You sir, you sir, you've lost your credibility with me. I gave that courtesy to everyone on this bench. Mr. Chairman, you ask a question.
▶ 1:29:55If they wanted to continue to answer beyond the time limit, I said, "Time's expired. You may answer the question." That's my routine. That's what I did today. You challenged him, asked him a question. You wanted an answer. You Your time is expired. He is answering the question. Mr. Chairman, you don't like his You don't like You don't like his answer. Because you don't like his answer, you want to shut him What's your inquiry?
▶ 1:30:20My inquiry is when you offered at when my time was up at 000 for him to answer the question, he went and answered the question. You then gave and said my time. That's not a parliamentary inquiry. You gave a parliamentary. I would like to know when that's that's not a parliamentary up and when he gets to continue answering. That is not a parliamentary inquiry. You're you're parliamentarian is about to tell you that's not a parliamentary inquiry. He he actually disagrees. He thinks it is a parliamentary. That's not a parliamentary inquiry. Why?
▶ 1:30:50I'm asking for the process question. The parliamentary the process question as to when my time is up, which you allowed him to answer the question. You then gave and said my time is expired. And then you then offered him to answer the question again, which he already had done. He was No, he No, sir. Let us If we were to watch, he did it based on accusations that I was personally attacking him, which I was. Excuse me. Excuse me. You are in you.
▶ 1:31:18Not only are you out of order. You're being incredibly rude. Here's the deal. I gave everybody the same courtesy. You didn't like where he was going. You began interrupting again, but your time was expired. He was trying to answer the question. You didn't like the answer. That is false. I'm happy to have this answer. No. No. That's what happened. I didn't like the accusation that I was personally attacking him.
▶ 1:31:44His credibility didn't say that till the third round when you interrupted his person and you continued to interrupt. You continue to be out of order as you are out of order. I asked you what am I personally attacking and you said his credibility and he is a witness credibility matters. You're you're out of order. You are so far out of order I can Well, you are not conducting this in a fair and equitable way. Sure I am. Because everybody everybody got the same courtesy. You asked a question, they're going to finish answering.
▶ 1:32:15Everybody got that same courtesy. You interrupted him while he was giving the answer. That's why you got gave you got interrupted. You interrupted. That's why and then you said, "My time is up." Which is when you would go to the next person. I gave the same courtesy to every member on your side of the aisle as I gave over here. When you were time, when your time was expired, five minutes expired. If they were in the middle of answering the question, I let it go. Now, we can talk about that round and round all you want. That's what I did.
▶ 1:32:44That's what I do. Well, I look forward to continuing to do that. Yeah. Well, good. And I I look forward to you being in order next time. So, Mr. Turley, you may continue to answer the question that he so much doesn't want to hear. Uh I've never been so certain in saying I'm happy to move on. Very good. Thank you. Now, I'll yield to myself five minutes and we'll go through this. And Mr. K, Mr.
▶ 1:33:11Kanoparo, you talked about something I thought was very interesting and that was trying to resolve the agency overcriminal overcriminalization where you said what we could do is put something forward where the agency would actually reduce the number of crimes that they have, determine what they actually have to have, and then excuse me, all the rest would be avoided. Can you expand on that? Sure.
▶ 1:33:38I think that given the sheer number of such crimes that are on the books, that's probably the best way to proceed. If you ask them just to say um maybe through the Department of Justice for instance, just say give us the list of all the regulatory crimes. I fear that what would probably happen is that you would not get a list. It may actually be impossible. Yeah.
▶ 1:33:59So what I think the the better solution would be to to do is to say to the agencies directly, all of you agencies that have any sort of criminal enforcement regulations or criminal enforcement authority, you must by a specific date, give us the list of all of them. And any that you have which are not in that list are immediately voided.
▶ 1:34:20so that if the next year they tried to prosecute somebody with one of these arcane rags, that person could say, "I have a defense uh that has been voided by this statute." And I think that's probably the most efficient way to to both count and cut at the same time because my fear is that if you just try to count, you won't actually ever get a number. I don't I don't disagree with that. Mr. Professor Turley, you said you wanted wall-in prosecutorial discretion because that seems to be a problem.
▶ 1:34:50And I would suggest to you that uh a blanket men's rehea statute might do that. Do you have any other ideas on how to wall in the prosecution? Well, we have we have two sets of of criminal laws we that we've been discussing. One is the most direct which is in the criminal code for laws passed by Congress. And then we have this massive unknown body really of agency crimes that uh were basically written by the agencies. uh that's why we don't have really any walls. There are no walls.
▶ 1:35:20It it's basically is almost uh in uh covers the same expanse of civil conduct and you can't have a of of a illegal system like that I think without fundamental problems for for citizens. So the idea is that prosecutor discretion is supposed to exist within a walled space where you define that space that this is the the specific conduct and you're absolutely right.
▶ 1:35:45If that space is defined by men's rhea, then prosecutorial discretion really really works quite well. And I want to say that I really am in intrigued by Mr. Kaparo's idea that I that you can ask the agencies what are the crimes that you are enforcing and just presume that everything that they don't mention is obviously a crime that's not that important to them. and you can we're going to have to engage in sort of categorical eliminations.
▶ 1:36:15You're talking about hundreds of thousands of crimes. So, you're going to have to find some way to make deep and and serious cuts and the agencies can actually give you the the the map for that. Thank you, Mr. Mr. Fox. While not explicitly mentioned in your written testimony, you've written about trial penalty in the past. Can you briefly explain why one of the problems we're talking about today, too many laws on the books, contributes to the perpetuation of the trial penalty? Yeah, absolutely. Thank you, Mr. Chairman.
▶ 1:36:43So, the trial penalty is the difference in the sentence that you're offered at a police stage and what you would get post-trial. In theory, it should be the same because if it's not the same, there's some, you know, something changing there. Uh, and there's a n number of ways that prosecutors can coersse people into pleading guilty. Someone before mentioned charge stacking. That's just filing multiple charges. They can threaten family members, threaten to reindict as a habitual offender, use pre-trial detention. And I was a public defender.
▶ 1:37:08I had clients who would be offered plea deals that they could walk home that very moment while the prosecutors were arguing that they were a danger to the community and needed to be held on bond if they were going to go uh to trial. Obviously, those two things cannot simultaneously be true. So, that's another way that they uh frequently do that. They've even been able to threaten uh to impose a death penalty against people just to get them to plead guilty. Uh and you know when you have things like mandatory minimums that tie judges hands.
▶ 1:37:35So if they go go to trial and are convicted there's nothing the judge could do but impose the sentence that uh he's b he or she is bound to impose. And then absent juries who are you know able to ask questions like what would the sentence be if I convicted or is this something that I think is appropriate as a member of the community to prosecute someone for? They're sort of you know prosecutors have unbridled discretion. I will say I also wrote recently there's two federal judges. Judge John Kaine in Colorado, Judge Jed Raikoff in New York.
▶ 1:38:05Both of which uh Judge Rayoff actually said that the point reduction for accepting responsibility is unconstitutional. And Judge Kaine said that he will not apply it uh for the same reason. And the argument basically is you're you're getting a reduction in sentence because you're pleading guilty. That undermines your Sixth Amendment right to a jury trial. And the right to a jury trial is the only right that exists twice in the constitution is both in article three and in the sixth amendment.
▶ 1:38:32So really judges need to aggressively police plea bargains and not just blanketly, you know, uh do whatever prosecutors ask them to do. Thank you. Thanks for that. Thanks to our witnesses for being here today. It's kind of fun till the end, Appreciate you being here and your testimony and uh and we will adjourn