We have to get this hearing in before the votes start between 11 3012 00. I think the time for Opening Statements will burn up the time between now and 10 30 so week get the the witnesses. I would like to welcome you to the Judiciary Committee meeting. We are talking about the lack of rules that plays on the issue. Over the past career year the task force has evaluated this subject. Despite the fact it is generally accepted that the federal government doesnt poses a General Police power, recent studies included that the number of federal criminal offenses on the books has grown from less than 20 to nearly 5,000 today which cover many types of conduct tended by the framers to be left to the state. The Congress Passes 500 new crimes every decade and this surge is highlighted by a telling statistics. Nearly 50 of the federal criminal provisions enacted since the civil war have been enacted since the 1970s. It leads to a number of concerns. Issues of notice and fairness to the practitioners and the general public have difficult determining it conduct violates federal law, if so, under which statue. The organization and nature of federal collection of criminal laws needs to be addressed. I have introduced legislation do that. My bill would cut a third of the criminal code, reorganize the code to make it more userfriendly and make title 18 include all major provisions. There are a number of reasons for the rapid expansion of federal criminal law include the fact many criminal statues are drafted from pressure or media in the public and often duplicate offenses are on the book and omit critical elements such as criminal intent or mense ray. Under the house rules, it is possible and not uncommon for new criminal legislation to make its way to the house floor without receiving scrutiny from the Judiciary Committee that is comprised of staff that has the availability to ignore redundancy. In addition to other potential recommendations we should consider an amendment to the rules clarifying the jurisdiction of the committee with respect to criminal Law Enforcement but criminal offense and legislation as well. I would like to thank our witnesses for appearing and the members of the task force for their service over the past year. In the coming months, i hope we can come together to address the concerns of over criminalization that have been identified. Before introducing mr. Scott, i would like to include a mem randem and a crs report entitled updated criminal offenses from 20082013 dated july 7th, 2014 into the record. Without objection is it so order. It is my pleasure to introduce the gentlemen from virginia, mr. Scott. We created this task force to deal with the growth of the prison expansion and the criminal code. Congress has increasingly addressed Society Problems by adding a criminal provision to the code and we have done this in a kneejerk reaction charging with the tough on crime policy instead of legislating with thought fully and through evidencebased research. Only the matters that cant be handle by the state need to be addressed by the federal government. What valid purpose is served if it is at the federal level and duplicate crimes enforced by the state. State and local Law Enforcement investigat investigat investigat investigated carjacking for years before making it a crime. Judge kelly recommended us of the recommendations made in 1995 regarding five types of criminal offenses that deemed appropriate for jurisdiction. Criminal activity with multi state or international aspects, criminal activity involving complex commercial enterprises using federal resources or expertise, high spread local corruption and criminal cases with highly sensitive issues. The library of congress informed us 403 criminal provisions were added between 20082013 for an average of 67 new crimes per year and of the 403 new provisions 39 were not even referred it the Judiciary Committee. The past several years we estimated there were 4500 federal crimes and the new estimate from crs is approximately 5,000. In addition to that, there are 3300 thousand federal regulat n regulations enforced with criminal penalties. Many of the regulations lack adequate criminal intent or mense ray requirement to protect those who dont intend to commit wrongful or criminal acts from prosecution. Ena they are suggested an in actment of mense ray. And we have heard concerns of criminal sanctions. It is time to put an end to that practice and maintain stole discrimination on determining which actions are criminal and what sanctions are appropriate when ones liberty is at stake. They can be enforced with Civil Penalties but when criminal penalties are considered congress should be involved. This has been the growth of the federal prison population from about 25,000 in 1980 to over 200,000 today making the United States the worlds leader in incarceration. About seven times the international average. We esmate the incarceration over 350,000 per 100,000 the crime deduction value deminishes because you have all of the dangerous people locked up. We learned from the collateral consequences that more than 65 million americans are now stigmiatized by the criminal convictions of over 45,000 consequences making reentry and job prospects dim. Over 350,000 per 100,000 shields returns and anything over 500,000 is counter productive. The United States leads at 700 per 100,000. Looking up people could be leading to better used money and we lock up well over 700 per 100,000. The testimony received during the hearings has told us longer sentences are not the answer but we continue to create more crimes, increases sentences and add more mand tory limited. They have been shown to disrupt pattern, discriminate against minorities, waste time and do nothing to help. A code is a systematic compilation of laws classified according to subject matter. Our criminal code isnt a criminal code by that definition. Federal criminal defenses are spread all over the 51 titles of the code making it impossible for practitioners and ordinary citizens to make sense out of t it. It is time to move all of the provision in the one title, title 18, but cleanup and revise it. We need to consider how to proceed and whether or not this should be done by congress or an appointed commission. It is time to look at evidencebased research. We are wasting billions in dollars and it is time to look to a realistic of incarceration and understand that not every offense requires long incarceration. There is still much more to do, mr. Chairman, and i look forward in drafting a report, presenting it to the committee and taking action to improve the committee. Without objection all members Opening Statements will be placed in the record. We have dr. John baker, jr. Who is the visiting professor at georgetown and university of oxford and professor of law at lsu and teaches classes on the federalist society. Dr. Baker previously worked as a federal court clerk and assistant District Attorney in new orleans and served as a consultant to the United States departme department of justice, the Whitehouse Office of planning, usaid. He was full bright specialist in the philippines and chile. He was District Attorney in new orleans before joining lsu in 1975. While a professor, he has been a consultant of the state and dejustice department, he has served on the aba task force that issued the report of the federalization of crime. He received his bachelor from Dallas University and yufrlaw de from the universities universities michigan. Steven benjamin is a member of the professional bar association. Members include private lawyers and defense counsel and law professors and judges commit today preserving fairness within americas criminal Justice System. He has a private practice. He serves as special council to the virginia Justice Committee and a member of the virginia forensic board and indigent organization. I would like to ask each of you to confine your remarks to five minutes. You know what the red, yellow and green lights mean. Without objection, your full written statements will be placed in the record and dr. Baker you are first. Thank you, mr. Chairman, Ranking Member, and members of congress. I have testified twice before and you prec thank the Committee Task force for allowing me to come back. I am coming back on the issue started on which was counting federal crimes. I have to conquer with everything i have heard about the problems of federal courts. I begin with the numbers. Numbers are not everything but they tell a story. I want to do three things quickly. Talk about the numbers. Two where we are going with the numbers. And three what is the significance of the numbers. When i testified on november 13th, i mentioned the number of federal crimes and the unknown number of federal reg lor tory offenses. And then the task force asked the Congressional Research service to conduct the count from 20082013. They came up with 403 new federal crimes and that is not counting reglortory offenses. That is just from the United States code. It is important to say the counts from crs, my count, and the department of justice counts used the same methodology and that is important for consistency. What is significant about where we are going is what this says about the average number of crimes and the total number of crimes. When i did the count in 2008, as of 2008, there were 454 crimes at least. Crs noted we have an additional 403 crimes. That is 4, 850 crimes. Almost 5,000 crimes. It means that congress is passing 500 new crimes a decade. In the aba task force i served on back in the 90s, the notation was that since the civil war 40 of all federal crimes since the civil war had been passed since 1970. From 1970 until 1996. When you add what is going on since 1996, we are approaching 50 of all federal crimes ever enacted in this country have been enacted since 1970 and that was the beginning of the war on crime and we have not been winning that war too well. What does this mean for the future . Well, the rate of crimes appears possibly to be increasing. My count was 56. 5 count and the new count shows 67. Something per year. That maybe skewed because in 2008 Congress Passed 195 crimes. What is the significance of all of this . If you talk to an assistant u. S. Attorney, they will tell you that the numbers mean nothing. They dont use all of these crimes. And they are right. In a certain sense they dont mean that much to the prosecutor or judges because the are only so many cases you can bring in federal court. But where they are really important is in Law Enforcement. That we have plenty of Law Enforcement agencies that do searches, seizures and arrest in cases that never get indictment much less trial. Given the broad array of crimes there is virtually nothing you cannot get a bases for probably cause on which is the bases for arrest, search and seizure. There is a lot of concern, rightly, about privacy. But people ought to focus on the fact surveillance isnt privacy, it is a matter of police power. The federal government has no General Police power. In reality de facto it has complete police power. People have been focused on the nsa but think about drones. There is nothing a drone cant search basically because there is every possibility for coming up with the bases of it. Some of the federal agencies will conduct raids that will never result in an indictment or if it does it will not result on those crimes. It is easy to come up with a charge and a Money Laundering charge and going out to see somebodys property. That is the reality of where the real power is. I think that this task force has done an amazing job of bipartisan in coming together and identifying the problem. Now it is necessarily i am Steven Benjamin and i am the past lawyer of criminal defense lawyers and ad vancing the goals and due process for people accused of crime. I commend you for creating the Overcriminalization Task force and congrats you on the work over the past year. 4800 at last count with 439 new enactments since 2008 competes only with the number of prisoners, a number greater than any other number on earth, is a representation of the overcriminalization. One such consequence is the difficulty of being a lawabiding citizen. Criminal law is enforced by punishment, fairness and reason require adequate notets of conduct. Adequate notice of conduct permits people to conform to the law. For punishing someone breaking the law we should make sure the law is knowable. This is true when the conduct accept wrongful. Criminal laws must be accessible to lay person and the lawyers whose job it is to identify the laws and advice their clients. The problem, however, is that the federal statutory crimes in the 10,000 regulations that can be enforced are scattered throughout 50 chapters of the cfr. Nacdl doesnt have a position on whether all criminal statues should be categorized. Common since would say most should reside in an order unless belongs else where. Within the code, it included clarity in drafting precise definition in scope. The government shouldnt have to punish a person without proving she acted with criminal intent. When the average citizen cant constitute what is unlawful activity in order to confirm her conduct to the law that is unfairness. When legislating criminal offenses, congress has failed to speak clearly and determine the necessity of criminal provisions and failed to assess targeted conduct. The cause of the failures are not clear but the solutions are. We should move forward with caution and make sure the drafting and review of criminal regulations is done by precision and by those with special expertise. Given the quality of the council, which alone poses a Broad Perspective designed to draft criminal laws, this congressional evaluation should include Judiciary Committee approval prior to practice. It would require that every bill that adds criminal offenses to be subject to referral to the Judiciary Committee committee. The members of this committee are better to take on this criminal role and seek out this committee to modify bills. Hopefully such oversight would stem the tide of criminalization and result in clearer criminal offenses with meaningful criminal intent requirements and reduce the number of Time Authority is delegated to people. These comments are limited to the issues i was invited to address. The problems are provasive and the measures necessary to reform go further than reorganization and committee oversight. Further discussion is in my written testimony. I thank you for ensuring our nations laws are not a threat to liberty. We will continue to assist and support you however week. Thank you, mr. Benjamin. The chair is reserving his questions until the end assuming we have time. The chair recognizes the gentlemen from alabama, mr. Bachus. I think we are to the point where we are ready to act, hopefully. We know the problem. It has been reinforced several times. We have gotten the message. I think the key is what do we do. And on page 9 of your testimony, mr. Benjamin, you suggest at least four things i hear, and i think congressman scott has mentioned one or two of these. One is by changing congressional rules to require every bill that would add or modify criminal offenses or penalties be subject to automatic referral to the relevant Judiciary Committee. I think that is very important because as you say this is the committee with the expertise. Two, an act of statutory law requires a limit to be read into any criminal defense that lacks one. Three, and it says this requirement should be protective to all existing laws. I know that is a radical idea but i believe in that. I think there ought to be something where you can go before a judge and present evidence or before a board particularly some of the environmental crimes. I had mentioned several cases of where people discovered Hazardous Waste on their property but couldnt afford to dispose of it fast enough and a lot of these cases i talked to a former congressman and energy and commerce was dealing with this and said we had cases like this in the 80s and 90s and were trying to figure out what to do but couldnt. And maybe that is because it wasnt Judiciary Committee. The next thing, and i will ask your reaction, on strict liability, your Association Urges strict liability not be imposed where strict liability is deemed necessarily the body only employ it after full deliberation and then only if explicit in the statute. I think that we ought to say if it isnt explicit in the statute there is no strict liability. And the fourth one is that, i didnt know this, but and i will say this to the members of the panel, the bottom of the page, you say spring court has cautioned against the imposcission against strict liability and criminal law and stated all but minor penalties maybe able to go on without intent requirement. We had in the deliberations and witnesses have that without an intent requirement, you know, i can see a minor fine, but when you are talking about putting someone in jail for a year and a day that is pretty scary. I would ask both of you to give us five or six specific statutes that we can do or your associations draft some as a model and we could look at them. I think that mind be particularly helpful. I really appreciate your testimony and dr. Baker you have been here before and this to me is such an important thing because i think we have seen travisty aof justice. And ingovernment can use the power to force things to be done just with the tlec