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no you're going to you going to start with us yes you okay with that thank you for your patience we're waiting for um to find out if ranking the ranking member of the entire committee is on his way one thank you the committee uh subcommittee on crime and

0:28:56

government surveillance will come to order without objection the chair is authorized to declare recess at any time we'll begin today's hearing with the gentleman from Wisconsin leas and the Pledge of Allegiance Mr Tiffany Al to the flag United States of

0:29:14

America the stands naice yeah okay thank you you we welcome everyone to today's hearing on federal statutory and Regulatory crimes I will now recognize myself for an opening statement my opening statement out here we go I thank uh the members who are here

0:29:47

this morning I thank our Witnesses who were here and I thank uh those in in the uh uh Gallery both here and on uh video today today's hearing is titled over overreach and examination of federal statutory and Regulatory crimes we could

0:30:02

have just just as easily called it oversight of Congress because in many respects Congress has created the problem that we're here to discuss today the problem is the number of federal and Regulatory crimes has escalated out of control to the point

0:30:18

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 take into account the overwhelming number of misdemeanors or

0:30:31

civil violations in some instances the laws are so obscure and vague that even law enforcement and federal agencies are unaware that they exist the United States code is estimated to contain more than 5,000 crimes today just a decade

0:30:46

ago some Scholars estimated that these 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

0:31:00

Criminal offenses increased by 30% between 1980 and 2004 there were 452 new Federal Criminal offenses enacted between 2000 and 2007 averaging 56.5 new crimes per year and over the past three DEC decades Congress has been averaging

0:31:17

500 new crimes per decade and it is ironic quite frankly that tomorrow we're going to be considering more crimes in this this committee the entire Committee of Judiciary will be considering several more potential crimes and keep in mind

0:31:34

that the the estimated 5,000 criminal laws are not all neatly found in Title 18 they're scattered around the other 49 titles as well the fact that this is only an estimate means that no one knows exactly how many federal laws subject US

0:31:48

citizens to criminal sanction that includes Congress the Department of Justice and other federal agencies responsible for enforcing those laws let alone your ordinary American how did we get here after all our founding fathers first enumerated

0:32:02

federal crimes in the Crimes Act of 1790 that act enumerated 23 federal crimes and established the punishments for those crimes among other crimes the Crimes Act of 1790 established federal crimes for treason piracy and con and

0:32:21

counterfeiting while the legislation did establish some crimes against the person such as murder and crimes against property such as Larsen the federal jurisdiction of those crimes was limited to Federal property and territories over the past Century

0:32:35

Congress has lost its way instead of method methodol excuse me methodically and deliberately deliberatively crafting a common sense criminal code Congress acted in a knee-jerk reaction to every minor and major crisis in doing so Congress

0:32:50

believed that there uh there always had to be a federal response to every headline and breaking news story in fact it was even I mean sometimes I Get Off Script sorry about that but but I mean if you think about it if you look in the 50s you will

0:33:05

see that there was a popular radio show there was popular newspaper articles that said there ought to be a law so if you got the Readers Digest when I was a kid and you looked at it every month or two there was some outrageous conduct

0:33:20

and the response was they're ought to be a law and of course Congress responded and made many laws some of them criminal in nature one academic has aptly noted as it was the Spate of bank robberies by John dillig John Dillinger in the 1930s that

0:33:36

provoked passage of the federal bank robbery statute the kidnapping of the Lindberg baby about the same time that caused passage of the federal statute on kidnapping the assassination of President Kennedy in the early 1960s that prompted the statute on

0:33:48

presidential assassination and the killing of Senator Robert Kennedy in the late 60s that resulted in the passage of a statute finally making it a federal crime to kill a member of Congress more recently we saw the enactment of

0:34:00

sarban Oxley in response to the Enron Scandal all of us on this dis have witnessed this phenomenon among our colleagues some have termed this the accumulation approach to offenses whereby Congress has simply accumulated

0:34:12

new offenses for 200 years or so with little examination or reformulation of existing offenses which has resulted in serious overlaps and coverage and irrationalities among offense uh offense offense penalties which create new Poss

0:34:27

possibilities for disparity in treatment of a double punishment for the same harm or evil this leads to absurdities for example the code of federal regulations makes it a federal crime to try to sell a quarantine zebra while it is still in

0:34:39

quarantine in another example 16 USC sections 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

0:34:57

far it out the law applicable to a particular factual situation it also creates unfairness within federal law which provides Federal prosecutors with a near Limitless menu to pursue criminal defendants and when Congress isn't

0:35:08

creating new criminal code Provisions it is passing laws that allow unelected bureaucrats to write regulations that carry civil and criminal penalties what we all too often forget is that many of the problems we seek to solve are actually state and local

0:35:21

issues under the federal system the US Supreme Court has observed that quote States possess primary Authority for for defining and enforcing the criminal law close quote and quote our national government is one of delegated powers

0:35:34

alone under our federal system the administration of Criminal Justice rests with the St States except as Congress acting within the scope of those delegated powers has created offenses against the United States close quote but Congress is not relented and

0:35:48

continues to add federal crimes to our federal code Congress can and should restrain from over legislating on issues that should be left to State and local governments this hearing is an opportunity to examine potential legislation introduced in past

0:36:02

congresses to restrict federal agencies ability to criminalize conduct that a reasonable person would consider lawful we have wonderful excellent expert Witnesses today uh and I've read every one of your your um your your

0:36:17

testimonies that you have submitted and I think it is so important I look forward to hearing what you have to say today um one is one of you has said every criminal record comes with a host of consequences that we rarely think

0:36:29

about and I'm talking about the the results of the over over um abundance over of of uh criminal offenses but also with what happens to those who are charged and even convicted these collateral consequences are legal and

0:36:44

Regulatory restrictions that limit or prohibit people convicted of crimes from accessing employment business and occupational licensing housing voting education and other opportunities another another of you have said the sheer quantity of federal

0:36:59

regulations on the books today would require about three years to read if reading was your full-time job another of you said and you quoted James Madison I appreciated this from Federalist 62 it will be of little Avail to the people if the laws be so

0:37:16

voluminous that they cannot be read or so incoherent that they cannot be understood the Congressional research service justice department the ABA have all T tried and failed to count the Federal criminal laws but we believe

0:37:28

there may be around 4,000 existing Federal criminal laws but even this massive number is dwarfed by incredibly High estimates that Americans are subjected to about 300,000 Federal regulatory offenses and also the note that prosecutions even

0:37:46

politically inspired uh ones are protected under veil of legitimacy because of the overabundance of these uh criminal of the Criminal uh laws that we that Congress keeps putting into place another pointed out that 50% of laws

0:38:04

related to nonviolent and non-drug offenses lacked a men's Ray requirement which is perhaps one of the easiest Solutions we could put into effect immediately with men's Ray requirement I look forward to hearing from each of our

0:38:18

Witnesses and uh with that I yield back and recognize the distinguished ranking member Miss Jackson Lee for her opening statement good morning Mr chairman it's a pleasure to be with you this morning this is um a more than uh unique moment in history uh

0:38:36

we're having a hearing on the over proliferation of the potential impossibility of over federalization of laws and um we have both the responsibility to keep this nation safe uh and the responsibility to ensure that laws have common

0:38:56

sense uh and that the common sense uh is used effectively uh to ensure um that we have good governance and I think that's what we all want to see and hear uh so I'm delighted to open with you the hearing on overreach and

0:39:17

examination of federal statutory and uh regulatory uh crimes uh this morning on April 30th could not open these hearings without taking special note of the uh conditions of this nation around the world when America's youth are speaking out in loud

0:39:40

voices uh asking for guidance and help and assistance and trying to seek Direction so that the uh some of the oldest laws that are grounded in our uh Constitution the Bill of Rights are adhered to and respected and that is the respect for people's

0:40:06

differences um and um uh the respect for people's words and as well the respect for uh people's feelings uh we cannot have a nation of laws of which I believe is our greatest strength without understanding the p passion for both our

0:40:29

laws uh and the land that we love we pledge allegiance to the flag thank you so very much uh Mr chairman uh for that because it gives us the grounding of this hearing so thank you uh chairman bigs for convening this hearing to

0:40:48

discuss the very real problem of overcriminalization for more than a decade the overcriminalization of federal criminal law has been identified as a significant issue in our justice system in 2014 the Congressional research service

0:41:06

identified 435 offenses carrying criminal penalties that were were created between 2008 and 2013 that means Congress created nearly 900 excuse me 90 new Criminal offenses each year during that 5year period period this trend of expanding the scope

0:41:31

of Federal Criminal statutes has resulted in an excess of ambiguous and broadly defined offensive leading to confusion among citizens and even legal professionals the potential for individuals to unknowingly commit a crime due to the complexity and sheer

0:41:50

volume of federal laws not only undermines the principles of justice and fairness but also erose public trust in the legal system Additionally the proliferation of federal criminal laws uh has led to instances where Federal

0:42:08

where individuals particularly in marginalized communities are unfairly targeted prosecuted and incarcerated for minor offenses that do not warrant such harsh punishment this not only perpetuates social inequalities but also

0:42:23

strains um already uh overb bur prison system it is crucial for Congress to reexamine and streamline uh the um Federal Criminal statutes to ensure that these laws are proportionate clear serve the federal interest and promote the interest of justice and

0:42:46

fairness by focusing on meaningful and necessary criminal legislation we can prevent further overcriminalization and Safeguard the Integrity of our legal system since the number of existing Federal uh regulations has mushroomed to more than roughly

0:43:05

300,000 we should also consider whether the criminalization of conduct that could be better addressed through civil means necessarily burdens the criminal justice system however we must also recognize the importance of these

0:43:20

regulations that they are sometimes criminalized for good reason and that the criminal penalty often exist within a system that begins with administrative and civil tools that promote compliance and correction let us not forget that the purpose of

0:43:37

Prosecuting punishing and deterring future Bad actors is to protect us from the harms contemplated by the Clean Air Act uh the Clean Water Act the federal drug uh the federal Food Drug and cosmetics Act and the occupational safety and health uh

0:43:58

at for instance following an explosion at British petroleum's Texas city finery that killed 15 workers and uh injured another 180 BP uh pled uh guilty to knowing the violations of the Clean Air Act for its actions that led to the

0:44:16

explosion and paid a $50 million criminal fine uh the largest ever at the time under the CAA an examination of the company's safety record showed that Texas city was not in isolated occurrence as the corporate culture had

0:44:33

come to prioritize Revenue over safety and maintenance we have to learn I believe to match the punishment with the crime of course but we must also learn to understand uh the volume of criminalization and overcriminalization and we must learn to

0:44:53

work through the crisis of over criminalization I look forward to hearing from our very astute Witnesses today and engaging in what I hope will be a productive conversation with that Mr chairman I'd like to reserve but I

0:45:08

will reserve and yield uh at the same time the gentle lady yields back um I understand that the the chairman is yeah the ranking member is uh I think arriving and we're checking yes I think he would like to come so you he's walking I see

0:45:39

him we'll pause for just a moment the chair recognizes uh ranking member of the full committee Mr Nadler for his opening statement thank you Mr chairman for convening this important hearing roughly a decade ago we learned through this committee's bipartisan

0:46:20

overcriminalization task force of which I was a member that there are simply too many federal criminal laws on the bo books that their reach is often too broad and that too many individuals are jailed for far too long because of them

0:46:34

for too long Congress under both parties has created new offenses or expanded existing laws in response to a national crisis daily headlines or highly publicized tragedies often federalizing crimes traditionally prosecuted by the

0:46:49

states without inquiry to whether the federal government should be involved at all instead of playing politics and trying to prove who is tough off on crime we should be doing more to prevent crime before it even happens for

0:47:02

instance we could address Substance Abuse and Mental Health disorders end the school to prison pipeline cut off the iron pipeline that funnels guns into major cities like New York and Philadelphia or provide real solutions for the unhoused nonetheless I am

0:47:18

pleased that we have the opportunity to tackle the important subject of overcriminalization today which has long been recognized as a major contributing factor to both mass incarceration and overing in America but let's be clear

0:47:33

this hearing should not be about Donald Trump or about the January 6th riers the courts will decide whether they were properly charged nor should it serve as a platform to undermine the federal regulations that keep us our

0:47:46

constituents and our communities safe while overcriminalization in the regulatory context is certainly caused for concern we should remember that regulations Ensure that we breathe clean air drink clean water consume safe food

0:48:01

and medicines and that our loved ones worked work in safe environments this hearing should be about the countless individuals mostly black brown and poor who for decades have borne the brunt of the overuse and abuse of criminal law in

0:48:16

the federal system as the number of Federal Criminal statutes has ballooned overcriminalization has had wide- ranging negative impacts on individuals who are at social or economic disadvantage whether by exploiting already existing disparities in access

0:48:32

to Legal Resources by leading to the increased surveillance and targeting of minority communities by law enforcement or by driving mass incarceration the Department of Justice and particularly the Bureau of Prisons continues to Grapple with the cost of

0:48:47

overcriminalization and mass incarceration both fiscally and with respect to other resources such as Manpower that is why Congress should be working together to craft legislation that ensures that the resources of federal agencies law enforce federal law

0:49:04

enforcement and federal courts are used most effectively and not wasted on the enforcement of crimes that are better handled by the states if we are to have a real discussion about the problems associated with overcriminalization and

0:49:17

solutions we must first recognize the many forms that overcriminalization takes in the Federal Criminal Justice System it occurs most frequently through federalizing crimes traditionally reserved for the states adopting duplicative and overlapping statutes

0:49:33

enacting vague or broad criminal statutes and enacting criminal statutes that fail to set meaningful men's Rea standards whether Republican or Democrat we should all agree that the resulting broad expansion of federal criminal law

0:49:47

undermines any effort to provide just and proportionate punishment for criminal conduct and lessens the legitimacy of the criminal justice system over all it is vitally important that we reign in the growth of the federal criminal

0:50:01

code and ask whether all of the laws on the books are truly necessary and whether they are accomplishing what should be their ultimate goal the protection of the public safety I look forward to hearing from our Witnesses

0:50:14

and before I yield back the balance of my time I ask unanimous consent to enter into the record a written statement from Michael P heo president of the National Association of criminal defense an organization that has worked for more

0:50:28

than a decade on the issue of overcriminalization without objection and now I yield back the balance of my time the gentleman yields back appreciate that without objection all other opening statements will be included in the record and now it's my

0:50:39

pleasure to introduce today's Witnesses we have Patrick perel who serves as the Director of legislative affairs at Faith and freedom Coalition and is the Charles Evans Hughes lectur in politics at Colgate University previously he practiced law advising

0:50:55

corporations on form transactions corporate governance and compliance issues and in the George W Bush Administration he spent three years as Special Assistant to Deputy attorney general where he served on the serious

0:51:06

and violent offender re-entry initiative working group we thank you for being with us today Mr ptil uh Dr M Patrick mclin Dr mclin is director of policy analytics and a re senior research fellow at the mercus center at George Mason University his

0:51:24

research focuses primarily on regulation and the regulator regulatory process Dr mclin has authored more than a dozen peer-reviewed studies on topics such as regulatory economics administrative law industrial organization and

0:51:38

international trade thank you for being with us doctor 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 advanced transparency he

0:51:51

previously served as the UT United States Attorney for the District of Utah and has testified before for congress multiple times on criminal justice issues including the first step act thank you Mr tomman for being here miss

0:52:03

Bianca tyac did I say that right okay thank you Miss tyac is the founder and executive director of worth Rises a nonprofit organization that advocates for reform in the criminal justice system she has previously worked at the

0:52:15

Brennan Center for justice and the ACLU and co-founded College Way a program that worked to prepare students in Riker's Island to pursue higher education upon the release thank you for being with us Mr Ty we welcome all of

0:52:28

our Witnesses and we will Begin by swearing you in if you would each please rise and raise your right hand do you swear or affirm under penalty of perjury that the testimony you are about to give is true and correct to the best of your knowledge

0:52:44

information and belief so help you God let the record reflect the witness has answered each of the witnesses as answered in the affirmative you may be seated please know that your written testimony will we entered into the

0:52:57

record in its entirety accordingly we ask that you summarize your testimony in 5 minutes and uh I will if you get close I'll probably tap like this a little bit uh not not trying to break your flow but just trying to let you know that you're

0:53:13

nearing the end of your time I mean your time for Testimony you might have all the time in the world I don't know but that's just want to make clear of that so with that uh Mr head you may time with us head oh I'm sorry Mr ptil yes you may you may

0:53:30

proceed very good Mr chairman Madam ranking member members of the committee thank you for your the opportunity to speak to you today on the topic of overcriminalization its impact on our criminal justice system and its impact

0:53:43

on the rule of law I commend the committee for examining this important but over often overlooked issue uh the power to punish is the greatest domestic power that the government has the ability to take life Liberty property um

0:53:58

and as Government continues to grow exponentially the number of Acts and beliefs that it prohibits has continued to grow as well uh the overcriminalization the proliferation of laws is often they're often vague or ambiguous terms they expand the scope of

0:54:13

criminal Behavior Beyond reasonable limits this proliferation has resulted in a regime of statutes that criminalized conduct previously considered innocuous or non-criminal consequently individuals including those with no inent to break

0:54:27

the law find themselves ins snared in a complex web of statutes and regulations that are difficult if not possible to navigate uh it's it's it's uh it's Illuminating to remember that at common law there were only nine major felonies

0:54:40

uh murder robbery arson rape for example and various misdemeanors um and our constitution itself only specified three felonies within the body of the document although as the chairman pointed out one of the first acts of Congress was to

0:54:55

create another 23 I believe it was uh certainly a number that was comprehensible but today we've got more than 5,000 federal crimes and there are so many uh rules and regulations with criminal consequence that no one is able to count them uh a complete and

0:55:11

systematic effort to count sto somewhere uh just north of 300,000 including the uh uh federal regulations and this is one of the chief reasons that one in three Americans today has a criminal record of some sort uh and that many many Americans frankly

0:55:27

have lost faith and trust in the impartiality of the justice system and in the equal application of our laws it can't be overstated how dangerous this loss of faith and trust in the justice system is for a Democratic Republic so

0:55:41

why is this important I think that overcriminalization is important for several key reasons first is that it enables the proliferation of criminal laws tilts the playing field too far in favor of the prosecutor uh and if it's a

0:55:56

effectively undermined the Sixth Amendment right to a jury trial uh according to the American Bar Association 98% of criminal cases in federal court end with a plea um and there's substantial evidence that innocent people are coerced into guilty

0:56:12

ple because of the the power that the prosecutors have over them uh now I should I should pause for a moment to say that I think prosecutors are trying to do a good job they're they're an integral part of our system in

0:56:24

protecting Public Safety so I don't mean this to be uh an overt attack on them I think that this is the nature of the problem when you have these many criminal statutes you're going to have this happen um and too many laws make

0:56:39

overcharging or charge stacking one of the most common tools used by federal prosecutors which is why trials have become essentially just rare artifacts um and overcharging can be used not only to force a plea deal but it can also if you

0:56:55

do decide to exercise your Sixth Amendment right and go to trial overcharging also can influence the jury into thinking that well there's so many charges one of these must be one of these must be accurate so you can see situations where defendants are

0:57:09

acquitted on a number of charges but sometimes juries feel like they have to come back with a guilty charge on something just because there were so many charges to begin with um and it it and so many criminal laws make it

0:57:21

impossible for an ordinary citizen or probably anyone for that matter as you as you know noted that it would take 3 years to Simply read through uh the uh the all of the criminal statutes and regulations on the books today but that

0:57:34

means that ordinary citizens can't actually know what the law is um the legal Maxim used to be that ignorance of the law is no excuse and this made sense when we had nine felonies at common law uh and those and those felonies were

0:57:48

inherently blameworthy you don't need to every everyone understands that murder is wrong you don't need to know that someone passed a statute criminalizing murder to know that it is wrong they were inherently blameworthy uh offenses

0:58:03

uh but if a free citizen cannot be certain that they're in compliance with the law the problem is with the overly complicated legal regime it's not with the citizen rate it's because we're criminalizing uh actions and and beliefs that are not inherently

0:58:20

blameworthy uh and when you add this to uh the way that we go about charging now uh and inditing New York judge Saul wler famously observed years ago that if a district attorney wanted a grand jury would indict a hand sandwich uh and the

0:58:37

simple truth is that the mass of federal criminal laws and regulations makes this easier and makes every American a potential criminal rather than seeing a crime and then investigating to find the perpetrator the Staggering Labyrinth of

0:58:49

criminal statutes and regulations means you can identify an individual for prosecution and dig until you find some rule that they've violated uh you're you're over your time limits oh I'm sorry well I will I will stop

0:59:03

there but I would the only other thing I would say is you did mention that this comes with a host of collateral consequences and I think that the real danger and why I think it is important what you're doing here today is the real

0:59:14

danger is that it undermines the public confidence in the fair application of the law uh and that is truly a dangerous situation to be in so I commend you for having this hearing thank you Mr PTO and now uh I recognize uh Dr mclan for your five

0:59:31

minutes thank you chair bigs ranking member Nadler and ranking member Jackson Lee members of the committee I'm Patrick mclaughin a senior research fellow at the marcedes center at George Mason University the Marcus Center is a

0:59:44

nonprofit nonpartisan Research Center dedicated to Bridging the Gap between academic ideas and real world problems thanks again for inviting me here to testify today for more than a decade I specialized in using computer

0:59:58

algorithms to quantify various aspects of accumulated laws and regulations I learned early on in my career that it would be impossible for any human to read the entirety of federal laws and regulations so I divised computational Solutions

1:00:14

instead some of my work on regulatory accumulation has demonstrated how the buildup of rules over time significantly slows economic growth but I have also studied the accumulation of crimes as defined in the US code and on that topic

1:00:29

I have three main points today first there has been a significant increase in the number of Federal Criminal statutes and regulations over the past three decades second the expansion of federal criminal laws over the past few decades

1:00:42

has been linked to an increase in federal incarceration rates third the halfhazard expansion of federal crimes May duplicate state laws or existing federal laws resulting in redundant crimes a few years ago I worked on a

1:00:57

project that used some of these Advanced computer algorithms to create an inventory of criminal laws within the US code using a carefully cultivated set of Search terms such as the phrases imprisoned for not more than or shall be

1:01:11

guilty of we were able to estimate not only how many crimes Congress has written into the US code AS of 2019 but also how that number has changed over time our work revealed a significant increase in the number of federal

1:01:25

criminals statutes over the past three decades we estimated that 3,825 federal crimes were on the books as of 1994 by the year 2019 that number had increased by more than a third to 5,199 interestingly more than half of

1:01:43

the total growth in that entire 22-year period that we studied occurred between 1994 and 1996 this matched our expectations because a tough on crime agenda played a significant part in politics in the 1980s through the mid1

1:01:58

1990s I recently ran the same algorithm on the code of federal regulations to estimate the crimes that are defined in Federal Regulations I estimate that an additional 2,157 to 2876 crimes are defined in similar ways as in the US code within the code of

1:02:16

federal regulations as of 2023 now the number 300,000 has been also used in this hearing and I will just point out that I'm using the same algor ithms to look for these Search terms that we would devis by looking through the

1:02:29

statutes and applying it to the CFR to the regulations so my number is probably a floor probably not the ceiling but anyway that means the total number of crimes defined across federal laws including both statutes and

1:02:42

regulations likely Falls at least in the 7,000 to 8,000 range now a long-standing criticism of the haphazard expansion of federal crimes is that new federal criminal laws May duplicate state laws or existing federal laws in a patchwork of redundant

1:02:58

crimes this duplication has a number of downsides it erodes principles of federalism by having Federal authorities police conduct that has been traditionally viewed as better left to State and local governments this duplication also dilutes political

1:03:14

accountability because the public is not able to discern who has primary Authority for addressing a particular crime or whom to blame if a crime is not addressed and finally do duplicative federal crimes give prosecutors wide

1:03:28

latitude to charge different people committing the same offenses with different crimes opening the door for bias into to factor into charging decisions the US has the highest incarceration rate of any country in the world and that rate seems obviously

1:03:42

linked to the number of crimes defined in law the number of federal prison inmates alone has risen by 500% since 1980 any action by Congress to reduce the number of duplicative or otherwise undesirable crimes could only serve to

1:03:55

reduce that incarceration rate the accumulation of laws and regulations and the crimes that are defined within them should not be assumed to be harmless the US needs legislative reforms to simplify federal laws and regulations period such

1:04:09

reforms could involve reducing the number of federal crimes clarifying the language of statutes and considering decriminalization or the use of civil penalties for certain offenses to alleviate the burden on the criminal

1:04:20

justice system reforms like these are crucial to ensuring that laws are fair just and proportionate to the behaviors they aim to regulate safeguarding against the negative consequences of overcriminalization thank you again for

1:04:32

inviting me here today to discuss this important topic thank you Dr mcclaflin now miss Ty we recognize you now for your five minutes you might need to hit that microphone button please sorry thank you there we go thank you good morning

1:04:48

chairman bigs ranking member Jackson Lee and members of the committee I am Bianca Ty executive director of worth Rises a national organization working to remove the financial incentives to incarcerate people I'm also a crime victim and I've

1:05:02

had a loved one who's been murdered thank you for the opportunity to appear before you to discuss the issue of overcriminalization we all want safe and thriving communities and we can get there by working together while the others on this panel are and will

1:05:15

continue to speak about some of the legal specifics of overreaching the criminal code I will cover in my which I also cover in my written testimony I will focus my comments today on the impact that that uh Federal overcriminalization has on the American

1:05:28

people to start any discussion of overcriminalization at the federal level must reflect on the significant influence it has over State policies especially when funding is attached this was the case throughout the 1990s and

1:05:41

2000s when Congress provided federal funding for prison construction to states that enacted truff and crime laws like mandatory minimums Unfortunately today Federal programs like civil asset forfeiture continue to root the issue of

1:05:54

federal overcriminalization in state and local budgetary policy as a result of overcriminalization at the federal and state level someone is arrested every 3 seconds in the United States this amounts to 105 million arrests annually

1:06:09

with over 80% for low-level uh offenses like drugs and disorderly conduct those arrested are disproportionately black and brown and low-income people leading to the over incarceration and over surveillance of these communities core

1:06:23

to the overcriminalization crisis is that even committing a minor offense can impart a lifetime of negative consequences a simple arrest can lead to job loss while a criminal conviction and worse yet incarceration can threaten the

1:06:36

financial stability and economic mobility of the person convicted and their family for years even generations to come consider that roughly 57% of people in federal prison are the parents of minor children and more than half

1:06:50

were the primary Breadwinners for their families before they were incarcerated the most incar erated people in prison work their Penny wages prevent them from sending anything home so unsurprisingly about half of uh families with an

1:07:04

incarcerated loved one struggle to make ends meet and it's not just the loss of income at issue but families end up with new egregious expenses for basic food and hygiene products and communication services for their incarcerated loved

1:07:19

ones to make matters worse funds deposited by families for their incarcerated loved ones can be garnished for court fines and fees the Federal Bureau of Prisons recently sought to garnish as much as 75% of what families deposited thankfully Congress has

1:07:35

recently created some relief for decades one in three families with an incarcerated loved one has gone into debt trying to stay connected over expensive calls some cut off contact unable to afford it which is detrimental to correctional officers and Public

1:07:51

Safety with studies repeatedly showing that when incarcerated people are connected to their support systems facility violence decreases and re-entry success increases but Congress passed the Martha R re justtin reasonable Communications act to increase

1:08:07

regulation of the prison Telecom industry it made all calls free in federal prisons through the cares act a policy I urge Congress to implement permanently for too long women like Martha Wright Reed who skipped medication to afford calls with her

1:08:21

grandson in federal prison have carried the cost of over Criminal ization indeed over 80% of carceral costs like the cost of calls commissary and court fees are born by women largely black and brown women see the issue of

1:08:37

overcriminalization is not just about criminal justice it's about gender Equity Children's Health family Unity economic Justice and more that we don't have the time to talk about today like privacy rights and regressive taxes the

1:08:52

intersection of these issues all or one of which which may matter to you should bring us collectively to the table to address them and importantly overcriminalization does not just impact those arrested and sentenced but all of

1:09:06

us overcriminalization dramatically hinders Public Safety by exacerbating the social conditions that lead to crime in the first place but in doing so it lines the pockets of the 80 billion dollar Niche prison industry with a deep financial interest in the

1:09:24

overcriminalization of America Americans in fact major players in the prison industry have plainly stated that declining crime rates which improve our safety hurt their business an industry so offensive that it cannot advertise uses public fear

1:09:41

mongering to hide its interests and boost its business a huge reason for overcriminalization the prison industry is an impediment to passing smart policies that promote safety freedom and Justice and we must put an end to it

1:09:56

in closing uh I would be remiss not to mention that the roots of overcriminalization and even the prison industry date back to the exception in the 13th Amendment which gave way for the passage of Black Codes During the

1:10:07

Reconstruction Era that applied only to newly freed black people and criminalized minor offenses like vagrancy to feed the brutal practice of convict leasing by which states leased incarcerated people to private businesses more than a century later

1:10:22

slavery is still as uh still legal as criminal punishment your time's expired I two okay right uh more than a century later slavery is still legal as criminal punishment and we are still over criminalizing minor offenses with a

1:10:36

disproportionate impact on black and brown people I urge you to not just seek minor tweaks to existing policy but truly shift the trajectory of our country by ending the exception in 13th Amendment ending Federal overcriminalization and using the

1:10:49

federal power of the purse to incentivize State and localities to do the same I appreciate the opportunity thanks Miss Tyler for being here uh the chair now recognizes Mr Tolman for his five minutes chairman bigs ranking

1:11:02

member Nadler ranking member Jackson Lee and distinguished members of the committee thank you for inviting me to testify today I am a former United States Attorney for the District of Utah appointed by George Bush in 2006 today

1:11:15

however I serve as the executive director of ride on crime a national criminal justice campaign focusing on conservative datadriven solutions to reduce crime restore victims reform offenders and lower taxpayer costs as us

1:11:28

attorney I remember a plaque in the halls of justice that read the Hallmark of fairness in the administration of justice is consistency and yet this principle can be easily lost when there are too many federal criminal laws to

1:11:40

keep track of let alone understand James Madison warned of this issue in Federalist Paper 62 writing it will be of little Avail to the people if the laws be so voluminous that they cannot be read or so incoherent that they

1:11:52

cannot be understood Madison was on to something because we have no idea how many crimes are on the books as many have commented today nobody really knows the number of crimes what we do know is that overcriminalization offends both

1:12:06

sides of the aisle and is antithetical to our nation's founding principles criminal laws Now cover so many facets of our everyday lives that the government can Target citizens with impunity many of these crimes are easy

1:12:19

to prosecute because many lack men's rea the the men's Rea element to commit a crime you have to do it and you have to mean to do it or at least know that it could happen but often mental state requirements are abandoned allowing the

1:12:33

government to prove its case by a person's actions alone this isn't how our criminal laws are meant to function the bloated administrative State contributes greatly to overcriminalization faceless bureaucrats have made thousands of activities

1:12:46

illegal but they don't have to justify their decisions to the voter lastly overcriminalization encroaches on state prosecution Powers when Congress oversteps into the traditionally state- held criminal prosecution space State

1:12:58

offenses can be unnecessarily replicated making everything a crime and everyone a potential criminal overcriminalization is problem problematic in normal times but we're living in unique time with political pressures taking precedent

1:13:12

over the rule of law I've worked in the criminal justice system for over 25 years and cannot believe how the current doj is CH choosing to throw away the rule of law to attack political enemies when I was us attorney I was determined

1:13:25

to prosecute both Republicans Or democrats alike so far as the facts and law supported the charges but but times have changed now Federal prosecutors use their massive discretion and the O and the overabundance of of applicable laws

1:13:39

to Target whomever they choose even State prosecutors have jumped on the bandwagon with the most relevant example being the targeted prosecution of President Trump by da Alvin Bragg this case didn't have enough evidence to

1:13:51

support a legitimate Federal charge but prosecutors seeking to gain political points have chosen to Target political Enemy Number One even for Democrats this should be concerning because if it's Donald Trump today it could be you

1:14:04

tomorrow and prosecutions even politically motivated ones have the guise of legitimacy and are difficult to undercut or question part partner this with our overcriminalization problem and it's easy to see how power can be abused

1:14:17

Justice Scalia pinpointed this issue almost 30 years ago warning that prosecutors if left to their own devices can pick people they think should they should get rather than cases that need to be prosecuted and with there being

1:14:30

thousands of crimes to choose from a prosecutor can Target a man and then search the books to pin an offense on them this should scare every member of this committee my written testimony goes into more detail on how to avoid and

1:14:42

solve this problem but I'll quickly summarize some suggestions first Congress should practice restraint in creating more Federal criminal laws decriminalization should be as as equally important but if Congress does pan a new Criminal statute it must

1:14:57

ensure that it has a men's Rea element also this committee can revive broader men's Rea reform by considering bills that attach a default men's Rea to every statutory and Regulatory offense next Congress can conduct robust oversight

1:15:12

president Trump issued an executive order that told agencies to specify men's Rea standards and make regulatory crimes understandable President Biden undid this executive order why this committee can get to the bottom of of

1:15:25

that and urge the administration to take overcriminalization seriously in a similar vein agency's Powers must be reigned in the fourth Branch shouldn't be able to impose weighty criminal sanctions on Americans this power

1:15:38

belongs to the people's Representatives overcriminalization threatens our Public Safety individual liberties and the fair administration of justice consistent application of the law is a Cornerstone of our criminal justice system and

1:15:50

addressing our overcriminalization is a critical step to achieving this goal I appreciate your time and look forward to any questions you may have thank you uh Mr Tolman and we appreciate um all of the the statements that you've given to us and

1:16:07

now chair recognizes Mr Tiffany the gentleman from Wisconsin for his five minutes uh thank you Mr chairman I really appreciate you use the term crisis in your opening remarks um everything in America is a crisis today and when everything's a crisis nothing

1:16:21

is and um it's really unfortunate that the word gets used the way it does especially to drive public policy um Mr Tolman um I it's attributed to one of the worst um despots in the history of the world Joseph Stalin show me the man

1:16:37

and I will show you the crime uh what role do federal agency play in the complication of the criminal code through their regulations well it's fascinating to me that um three three entities the ABA the Department of Justice and and the

1:16:54

research agencies um all attempted to identify the number of regulations that have criminal penalties and and it is it is an abdication but it's of Congress to let anybody pass a criminal law but I don't I don't necessarily blame Congress

1:17:12

on this I think it is the it is the branch the executive branch in branches seeking to expand that regulatory power and and and they're blo we're bloating these agencies with with both the power and then no accountability are there any

1:17:30

federal agencies are there any you name in particular that have um exceeded their Authority more than others that are repeat offenders Well you certainly have um you know history has proven the IRS has gone from not a single agent carrying a

1:17:48

firearm to now most agents carrying firearms um you know what what is the evolution of that the evolution is a a regulatory body becoming a police body and so there are we could go down the list of all the acronyms that are now

1:18:04

moving from a regulatory body to a policing agency uh Miss tyac are you saying in your testimony that slavery still exists in America excuse me uh yes slavery is actually still legal in America it's not just only that exists in practice

1:18:25

but according to the 13th Amendment there's an exception Clause that says accept as punishment for a crime which means you know by law slavery is still allowed have you noticed is there in the work that you've done is there a greater

1:18:39

impact with this call it overcriminalization is there a greater impact on men versus women for sure um the 92% of the prison population is men so undoubtedly there's an impact from incarceration specifically and most of those arrested

1:18:57

are also men however women are carrying in many ways the actual cost of incarceration literally fiscally uh 87% of the cost of uh for example phone calls and visits and court fees are actually covered by women Mr purle um uh

1:19:13

do you accept that that this has had a greater impact on men than women with this over criminalization I do think that that is the case and I do think the prison population bears that out can you um name a give a couple examples or give me

1:19:28

something briefly that causes you to say that other than the statistic 92% would cause me to say that that that it's had overcriminalization has had a greater impact on men than women yes uh really I would I would kind of lean in

1:19:48

on unless you're unless you're saying that there's a a higher degree of criminality between one sex or the other I would think that there's probably uh I think the prison population probably Bears some of that out uh Mr

1:20:01

mcclaflin have any recent Supreme have any Supreme Court decisions of the last decade been helpful in this if you believe there's overcriminalization have there been any Supreme Court decisions that have been helpful in reigning that

1:20:16

in one case comes to mind but keep in mind I'm I'm an economist not an attorney but I I do recall in fact I joted down the name of the case Yates vers United States where the uh a crime created by the sarbanes Oxley Act was

1:20:32

applied in the case of a of a fishing boat um the the Fisher the captain of the boat destroyed evidence of keeping a fish that was too small to keep but he was prosecuted under the tarban Oxley act that comes to mind as an example of

1:20:48

using a crime that was created for one situation uh financial fraud applied somewhere else you recall ultimately what the penalty was that he paid for that well ultimately the Supreme Court overruled uh threw away the prosecution

1:21:00

so I don't believe there actually was any penalty how do we fix this problem I would advise active review of both regulations and statutes to First find the stuff that's obviously outdated obviously doesn't fit modern society but

1:21:15

also I think you can address more serious things um one example I would point to for review of old things that we no longer want is the base realignment and closure expired but you may finish your answer that might be an example to point

1:21:28

two say I and I I interrupted you please please re please restate what you were saying I I was I was saying one example of uh government reform where we look back on things that we didn't want anymore and tried to figure out what

1:21:42

could we get rid of was the base realignment en closure commissions okay a similar approach might work here thank thank you very much I Y back Mr chairman thank you Mr Tiffany chair recognizes uh the ranking member from New York Mr nler

1:21:57

thank you Mr chairman uh Miss Ty you launched the corrections accountability project at the urban Justice Center as I understand that the goal was to eliminate the influence of commercial interests on the criminal justice system and those that touches

1:22:13

could you explain the various ways in which the criminal justice system has been financially exploited absolutely thank you the criminal the corrections accountability project is a predecessor to worth Rises is um and I think one of the ways to

1:22:27

think about it is the ways in which like the prison industry is both working in uh tandem with sort of the correctional system but also at times um exploiting the correctional system for its own gains and so you know what we see is a

1:22:41

massive industry that has been built um and often times sometimes in conflict with the correctional system so a correctional system that wants to provide care with um Correctional healthc care companies that are actually

1:22:55

cutting cost dramatically and in many ways harming people significantly in inside of prisons and jails and so that's just one example um but there is a really broad industry here um that has kind of leeched its uh way onto our

1:23:10

caral system and so you believe that the prison industry has come to depend on stripping people of their Liberty absolutely I mean in fact you know if you take the the biggest example right the private prison operators that are actually publicly traded

1:23:25

they have minimum occupancy guarantees embedded in their in their contracts with agencies that are 80% 90% requiring all of their B beds or 80% or 90% of their beds to be filled um so there's no doubt that they have an interest in

1:23:41

putting more people behind bars do you believe the prison the private prison industry should be abolished absolutely I think there's no world that that we can have a um just system where people are profiting off of putting people in prisons and jails

1:24:02

there's only two ways for a business to make money and my you know career before what I do today was on Wall Street and I worked at the Goldman Sachs and the Morgan Stanley and the city groups of the World and there's two ways you make

1:24:12

money you either increase Revenue which for the prison industry means more bodies behind bars for longer or you cut cost um expenses which means basically worse quality in care how does the prison industry increase work to

1:24:26

increase the number of prisoners they Lobby and they um give campaign financing donations to those who are interested in tough and crime laws um they have done that extensively now thank you approximately 68 million Americans have a criminal record we're

1:24:41

aware of the direct cost of law enforcement prison and courts as well as the cost of businesses and the economy can you discuss the cost of the individual of having a criminal record how does impact their quality of life and their ability to contribute to

1:24:54

society and the overall economy um so there are all 45,000 collateral consequences to being incarcerated these um and just having a criminal conviction generally these collateral consequences can impact your ability to get housing or uh access

1:25:12

Public Assistance as was mentioned it can impact your ability to get a professional license which can uh hinder your you know future sort of income um in fact when people uh are incarcerated their families immediately see a decline

1:25:26

of income of 22% and even when they come home um income is depressed by 15% after incarceration what that does is it hinders their ability to sort of grow economically um up the ladder and not just for them but also their

1:25:42

families is there a correlation between collateral consequences that hinder the reintegration into Society of offenders and recidivism rates absolutely as I said earlier there's no way to think about a world in which you're creating

1:25:57

more crime creating more collateral consequences uh creating a situation and people have less Economic Opportunity and expecting them to be able to exist in the society productively right at the end of the day people will do what they

1:26:11

need to do to make ends meet to eat to find a place to sleep right we are seeing these cases of people who have nowhere else to turn but sleeping on the street and those becoming criminalized behaviors and finally what needs to be done to

1:26:26

improve re-entry outcomes we need to invest in community support the reality is that prisons were not meant for care and that if we really want to address the social alss that lead to criminal Behavior we need to provide support and

1:26:41

fund that support in community thank you and lastly um you said there were 32,000 consequences 45,000 how do you me how do you measure where do you get that statistic there's actually a database partially uh where BJ a is actually

1:26:58

involved where they have measured um the number of collateral consequences across States so that's consequences at the federal level as well as consequences in every state for having a criminal conviction there are 45,000 possible

1:27:10

consequences to an individual yes to having a criminal conviction thank you very much I yield back time has expired chair now recognizes the gentleman from South Carolina Mr Fry thank you Mr chairman thank you for having this

1:27:22

hearing today Mr Tolman in your testimony uh earlier you mentioned a few reasons why overcriminalization is a problem you said that uh the average American commits three felonies a day without even knowing it what are some of those examples well

1:27:38

the the crimes on the books right now there are many that are almost laughable a federal federal crime to write a check for under a dollar for example um I personally had a case in which a father and son were are cold and and didn't

1:27:53

think they would make it out of the Wilderness and they cut up a park bench and burned it to stay warm and they were charged and put in jail so it's examples like that we could go through those would be the low hanging easy fruit for

1:28:07

Congress to get rid of many of those laws my understanding is one of them is to sell Malt Liquor labeled as pre-war strength yes like what is that about yeah you know the the liquor business is very very serious you you can't you

1:28:19

can't you can't label it um there when they were regulating it very very tightly then you know there were there were issues with uh how they would be labeled in order to you know not falsely advertise um the contents and and you

1:28:34

developed the bottle in bottled in bond laws which required um certain certain levels of of alcohol um those are still on the books so the good stuff was the pre-war that's right all right just to be clear um you also spoke that the

1:28:49

current doj is choosing to throw away the rule of law when they attack um political enemies can you talk about that a little bit and give me some examples of how that's happening it it is a recent I think more recent development there's always been

1:29:04

at times pressures uh uh when I was us attorney I received a phone call from a member of Congress to investigate his political opponent and I indicated that I would not and that if he had a claim that he should submit it to the FBI um

1:29:20

but I and I think there are good you know well-meaning individuals that try to make those good decisions but there's no question you cannot simultaneously proliferate the laws and expand the power of the prosecutor and at the same time expand immunity

1:29:34

protection you can't take away accountability and give them more power and not expect abuse to come as a result you know Mr Tolman I think it's interesting you know prosecutor abuse happens it's happened for years I mean

1:29:48

you look at in in the case of politics you look at like Senator Ted Stevens as an example several years ago uh but to me it seems to be much more um uh in your face than it has ever been before would you agree with that I would

1:30:01

agree with that and that and I think the the prime example would probably be the prosecution of President Trump um under federal law and quite frankly under state law too well you have a prosecution going on right now that

1:30:13

individuals on both sides of the aisle have have commented on the lack of evidence the inapplicability of the law the attempt to manipulate the facts in order to to go after um whether you like him or don't like President trump it

1:30:27

should be concerning that a prosecutor would be able to manipulate their way into the court room against a political opponent correct and I'm going to switch gears on you again um you mentioned several examples writing a check the

1:30:39

pre-war stuff uh pre-order liquor how can we or even federal agencies start to rein in uh this this growth quite frankly in the administrative State how can we do that I think there are plenty of of professors um Advocates uh groups

1:30:59

even like right on crime the organization I'm with or many of the other organizations here that would be willing to lend a hand to identify the criminal statutes and the criminal regulations that are outdated and could

1:31:11

very easily be taken off the books and and that process should begin and it should should uh maintain so you should continually be doing that um as we move forward otherwise we're just we're just collecting and compiling in and and and

1:31:25

bloating our criminal code thank you that Mr mclin I want to turn to you the expansion of our federal criminal laws encroaching on areas traditionally governed by the states um creating constitutional tensions redundancies um

1:31:38

in statutes you know prior to Congress I served in the general assembly of South Carolina uh and I want to make sure that federal laws don't really over complicate efforts that are happening on the state and local level can you talk a

1:31:48

little bit about how Federal Regulations are affecting State economies uh and local businesses yes thank you uh it's it's a subtle effect uh in the work that I've done uh generally speaking there's not a single regulation that will put a business out

1:32:06

of business but it's the death by 10,000 cut sort of effect or in this case over a million Cuts so I found that as Federal Regulation accumulates over time it slows down investments in new ideas and then slows down Innovation and that

1:32:20

ultimately makes businesses suffer because they can't put out new products can't can't employ more people there's all sorts of consequences all the way down the line so Death By A Thousand Cuts the straw that broke the camels

1:32:31

back these are the things that local businesses are facing every single day from the growth of the federal uh regulatory overreach absolutely gentleman's time has expired thank you Mr chairman I you back gentlemen yield

1:32:43

is back chair recognizes the gentleman from Georgia Mr Johnson thank you Mr chairman uh Mr purcel the Merada Center was founded and is funded fed by the Koch Family Foundation isn't that correct is that for me sir well Mr pel

1:33:01

you're with the mercus Institute also correct no sir just you Mr mlin I am with the Marcus Center yes sir and you are familiar with the fact that um the mer Merada Center was founded and funded by the Koch Family Foundation I was funded long before

1:33:21

excuse me founded long before I was employed there I'm not privy to the details of the founding I'm not privy to the details of the funding so you don't know anything about the coch brothers then I probably know less than you sir

1:33:34

boy gosh you're really putting me on a pedestal there I think you probably have Superior knowledge you're just modest being modest but uh Mr Tolman your organization uh right on crime is also coch Brothers funded uh isn't that correct uh

1:33:54

we have a number of funders so one of Brothers is one of them one of them is also also the just trust he has actually funded you at the rate of about $5 million isn't that correct I I don't have those numbers and uh then you come

1:34:11

and you um make the case against Alvin Bragg for prosecuting Donald Trump and you also served as a pardon broker during the waning days of the Trump at Administration when pardons were being dispensed as if they had been paid

1:34:29

for correct no that's not correct about it's not correct I I'm very very proud I was an I was an attorney and I represented individuals who were deserving of clemency and I represented um mini and wish that we would have been able to get mini through and

1:34:47

clemency uh those last days were not the way clemency should be run not about p want to get bogged down on on pay to play but I do want to commend the Coke brothers for having an interest in uh Criminal Justice Reform uh they're to be commended for

1:35:09

that but I wonder whether or not they are looking down the line about perhaps uh being more involved in the private privatization of the uh prison industrial cont complex uh we spend about uh $80 billion uh to incarcerate uh $80 billion

1:35:33

annually to incarcerate 2.2 million people um Miss tyac can you give us I'm I'm wondering whether or not Koch brothers is interested in criminal justice reform because at some point they see dollar signs about privatization of the criminal inj

1:35:52

criminal justice system just as they have supported the Civil Justice System privatization with forced arbitration uh can you comment on that for us uh Miss Ty please sure well I definitely don't want to ascribe attent

1:36:09

intention to anyone I don't know um and so I can't say for certain what their long-term plans are what I can say is that it's not uncommon for people in in this space um to get into and invest in this industry with other long-term panss

1:36:24

there was a mention Earl earlier of the school to prison pipeline we actually recently um found that there are people interested in the prison to nursing home pipeline um and looking at ways to invest in Correctional health care

1:36:39

because they already own nursing homes on the outside um that said I will give one nod and say that Americans for Prosperity uh which is one of the C's um uh sort of you know nonprofit organiz ations does actually support the end to

1:36:56

um the prison Telecom industry mhm that industry by the way generates uh gosh I don't know how many 1.4 billion just T billions sipping off of the uh the backs of inmates relatives who are seeking to uh communicate with their loved

1:37:18

ones how about how Medical Care and food for the uh yeah inmates come into play in terms of privatization I think in in our time I want to really specifically issue uh address healthare because Health Care um in prisons and jails right now is under

1:37:34

attack it has been completely in many cases privatized and one of the most egregious um examples of um sort of bankruptcy fraud and some things happening currently is Horizon's um bankruptcy so for those who aren aware

1:37:51

corizon is expired but you may continue your answer just say really quickly corizon is a major Correctional healthc care company um that was saddled with over a billion dollars in lawsuits and settlements and they separated the

1:38:03

company into two put gave one half all the liabilities the other half all of the um assets and then they bankrupted the liabilities and all the families who L lost their loved ones kind of like the Sackler family gentlemen the time has expired

1:38:19

the chair now recognizes the gentleman from uh Alabama Mr Moore thank you Mr chairman uh Mr Tolman I was uh I have a friend who was a Assistant Attorney General in Alabama and he actually told me you could go in a Public's grocery

1:38:32

store and lock the door in charge every single citizen in there with some kind of crime if you were looking to do so and so how does the overwhelming expansion of the Federal Criminal criminal laws now affect ordinary Citizen's ability to abide by the

1:38:47

law when I when I was us attorney I used to tell people that I um give me a person or a company and give me just any time in their books or in their you know documents or in their Affairs and I could find a crime that we could apply

1:39:02

that that's how confident I was as a prosecutor that the expansion was so robust and it is it is no coincidence we have one in three Americans with a criminal history uh whether arrest or conviction and and those two those two

1:39:20

are connected inextricably connected with the expansion of of our criminal laws and then the the failure to reign in any prosecutorial abuse of it and and I think Mr purle hit on a point in his opening testimony about we've got to

1:39:35

have trust in the justice system within this country that undermines our entire ability to be a nation to me a nation of laws and so I I also I when I was doing our town halls in August of 21 the number one concern with the citizens

1:39:49

that I spoke with was the weaponization of the government against them and of course we recently hired a bunch of IRS agents I think 87,000 new IRS agents those are the kind of things to me that just send the wrong signal to what we

1:40:01

need to be doing as a nation so uh I was um Dr mofin I want to talk a little bit about Regulatory and I was a small business owner and uh it seemed like every day I was either dealing well I can remember one day specifically I was

1:40:13

dealing with the IRS the do T the EPA just trying to run a small business and one of my favorite quotes is Ronald Reagan said the government's idea on the economy is when they move move when it's moving you tax it if it keeps moving you

1:40:25

regulate it and when it fails you subsidize it and so Dr mcglen could you elaborate a little bit on the regulations and how that impacts small business and even our economy I know you you talked a little bit about it earlier

1:40:36

but that's part of the thing we've not really talked a lot about today we talked a little bit about criminal but certainly regulatory the impact on the economy itself could you elaborate a little bit on that absolutely thank you

1:40:47

the my career has built built up first a way of measuring how much regulation there is and how many crimes there are because we have this metrics we can measure it we can see what are the effects on small businesses what the

1:41:00

economy overall so one study that I published a few years ago was looking at small businesses in particular they found that they get overwhelmed when there's a a bunch of regulations created all at once and the thing I want to

1:41:13

point out this is not surprising right all businesses must deal with these costs but it's worse for small businesses than large businesses large businesses are able to absorb all those costs at once whereas small business is

1:41:24

flounder yeah certainly I think like you said that the small business owner doesn't have all the attorneys he doesn't have the team of lobbyist whatever the case may be to try to to work through that process Mr purle I remember I was uh when I was first

1:41:37

elected to congress I was sworn in in 21 and and I was getting on an airplane all the time they said Federal Law requires that you wear a mask and I didn't remember voting on that so very often it seems like to me there's a lot of

1:41:47

regulatory or a lot of things supposedly law that are put on the books by agencies if you will could you elaborate a little bit on what that impact has on the American citizen itself and we can't keep up obviously right and I think

1:42:00

that's the real problem because it means that as a free people we can't even know what the laws are so we can't even we can't even comply with them so it really undermines that trust and faith in the law uh when you've got hundreds of

1:42:12

thousands of regulations uh that are out there that carry a criminal penalty and as as Mr Tolman pointed out some of them are just kind of comical some of them are contra contradictory uh so that you can literally no matter what you do you

1:42:28

could be prosecuted for a crime because criminalize both sides of the uh of the behavior so to speak I think with the regulatory I think a lot of this is the uh frankly there's so much Congressional Authority has been delegated to the

1:42:43

executive branch and independent agencies uh that it's it's I think it's I think it's a real Challenge and I think better guidance on what they can do with that Authority when Congress delegates it uh would be good and

1:42:57

Congress pulling that Authority back in more often would be very good as well how does the Faith and family or faith and freedom Coalition view the moral aspects of criminalizing trivial and inadvertedly wrong criminal sanctions

1:43:12

are one of the most powerful forms uh one of the most incredible powers that we give to government the fact that we can take life or Liberty from someone and triv trivializing that is is is it just it harms the family it harms our

1:43:25

communities it overburdens the taxpayers uh and it's not necessary for Public Safety thank you Mr chairman I yield back gentleman yields chair recognizes now the gentle lady from Pennsylvania Miss Dean thank you chairman bigs thank

1:43:39

you ranking member Jackson Lee for convening this hearing and I thank all of you for being here and sharing with us your expertise uh and your ideas I wanted to focus on a particular area of criminalization or overcriminalization uh and I'll relate

1:43:52

it to an experience I had just uh recently in the last few weeks I met with Secretary of Corrections for Pennsylvania uh her name is last name is Harry um from our department of corrections she shared that in the facilities she oversees a staggering

1:44:08

percentage of inmates struggle with addiction and mental health challenges this is not new to any of you I know that just by her round estimates this is not perfect data 70% struggle with substance use or addiction and anywhere

1:44:22

between 15 to 35% mental illness uh women and men and so I I raise that because um it Bears repeating more than one in three people in our F federal prisons have a history of mental illness and probably two in three are struggling

1:44:41

with some kind of an addiction um it's an important issue for me and my family we have had uh folks who have struggled with addiction and are blessedly in recovery not everybody gets that and they are not incarcerated not everybody

1:44:55

gets that so miss tyac I'd like to start with the facts that you used in your written testimony every 3 seconds someone in the United States is arrested most often for low-level infractions including drug offenses and those

1:45:08

arrested are disproportionately black brown and poor uh thanks for grounding Us in that reality we have to continually say that it tells us there's something skewed about what's going on with our carceral system system uh what has your work

1:45:25

taught you about the connection between addiction and incarceration specifically what impact does incarceration have on somebody struggling with addiction thank you so addiction drugs are actually the number one arrested crime in the entire

1:45:40

country so of all those um crimes that we're talking about drugs is the center of everything um and that you know is in part because of the failed War on Drugs um that we've seen over all these years in the reality that there is no way to

1:45:53

incarcerate our way out of drug addiction drug addiction does in many cases have the Dual diagnosis of mental health where people are trying to um self-medicate and so that you can't really separate drug addiction from the

1:46:08

issue of mental health in many cases and over the last since the 1950s 1960s we have completely deinstitutionalized all support for mental health right and so as a result we have 350,000 people who are incarcerated today with a serious

1:46:22

mental illness not just a history of mental illness um and so what we really need is we actually need a care approach to drug addiction we need to be actually providing treatment and there is nothing about prisons the way they are built the

1:46:38

way they are designed the way they are financed the way they are structured that is meant to help deal with drug addiction those things need to happen in our community and we need to be investing them through re harm reduction

1:46:49

and then further efforts um to actually get people back to productivity I I completely agree with you and we have to change uh the narrative on on that uh Mr tomman um drawing on your experience as a prosecutor uh I'm sure you did work

1:47:07

with many cases where the defendant suffered from addiction I was reading something in your testimony on page two more and more individuals on both sides of the political aisle are recognizing that many of these low-level offenders

1:47:20

are being given extremely long sentences in federal prisons sentences that too often do not match the gravity of the crimes committed take drug I'm still quoting you take drug offenses and as an example the Department of Justice is

1:47:33

expected to use the hammer of mandatory minimum sentences uh to identify and take down kingpins at the high level and I'll end there by saying not uh an addict a user uh a small uh um possession case uh what do you see and

1:47:52

and maybe from your own um work in the criminal justice system what's the chances of a defendant's recovery when he or she most often he but he gets the hammer uh for low-level drug offense well thank you for the question I think

1:48:08

it's important critically important that people understand that we are doing a disservice by lengthening the sentences on what is in essence low-level drug cases and when I tell you that I I have a friend who is a prosecutor for 25

1:48:25

years I asked him Federal prosecutor how many Kingpin did you get in your 25 years he said one and yet he was applying mandatory minimums to low-level distribution why because they can and the and the the philosophy is that if

1:48:43

you have the case you're going to reward your prosecutors if they're being aggressive and they're Prosecuting a lot of people that's how they get pats on the back and so that's the danger of over has on the family of the incarcerated

1:48:57

person and the future of the incarcerated person thank you AEL Beck thank you g lady yields back chair recognizes now the Gent lady from Florida Miss Lee Mr Tolman I'd like to go back to a concept that you raised earlier that I think is one of the

1:49:12

really broad ideas we we need to focus on here today and that is that the Advent of overcriminalization empowers rogue or politically motivated prosecutors to identify a person or Target to prosecute rather than bringing criminal

1:49:32

prosecutions based upon Community needs Community safety or the principles necessarily of Fairless fairness and equity and you raised a particular example that I believe is instructive and that is Da Alvin Bragg I'd like to

1:49:50

return to him for just a moment Mr Tolman it is correct is it not that the case that Mr Bragg brought against President Trump is actually predicated upon a set of misdemeanors for which the statute of limitation has run yes that

1:50:05

is correct and would you agree Mr Tolman that in fact that case is a good example of overcriminalization leading to selective or what appears to be entirely politically motivated prosecution when they have so many tools at their

1:50:21

disposal and the ability to me manipulate them that that is what overcriminalization ultimately leads to is the use of the criminal code for something other than administration of fairness and and and Justice Mr ptil I'd like to return to

1:50:38

testimony that you gave in your opening statement that referred to criminal conduct that was not uh inherently blameworthy rather the criminalization of conduct that wouldn't inherently be identified as wrong or blameworthy and

1:50:51

I'd like to discuss the concept of men's Rea how do you think we could use or integrate the concept of men's Rea to ensure that that type of conduct to which you refer is not criminalized well I I thank you for the question the the concept of men's R is

1:51:08

critical I think it was Oliver Wendell Holmes who said even a dog knows the difference between being tripped over and being kicked that that guilty mind element is a necessary component to take away life or Liberty from someone so I

1:51:21

think one of the things that can be done is really taking a look where this shows up more often than not is in the regulatory realm where either Congress has given vague or an ambiguous term to an agency and the ability to criminalize

1:51:32

Behavior or an agency is stretching Beyond a little bit maybe a little beyond what Congress had intended it to be able to do uh but I think that there's there was a bill a number of years ago that would have simply if there was no men's reia in a federal

1:51:47

statute or a Federal Regulation it would it would insert a default men's rare requirement into the regulation or the statute and I think that that would be a huge step forward by Congress and Mr mlin or Dr mcglothan uh I'd like to go

1:52:02

back to testimony you gave earlier as well you used as an analogy the base realignment en closure commissions as as a concept on how we might come at identifying all of these regulations and all of these things that we need to take

1:52:16

account of and address as Congress would you go into some more detail there about your thoughts on how we might identify all of these Regulatory Agencies who have acted with such overreach and diminish uh the amount of these uh

1:52:32

purported crimes that are out there sure the the brat commissions was an example of they put together a blue ribbon panel of experts to look at what can we get rid of where we need to keep what's essential that's just one approach I

1:52:45

think another approach that I uh uh we've seen be very effective in finding someone to go back and identify regulations that could be cut because they aren't accomplishing their purpose but they're creating harm is regulatory

1:52:57

budgeting and this is where you put the agencies themselves on the task of finding old regulations that they've written and that they can get rid of and you say if you want to make a new regulation great go do your job but if

1:53:08

you're going to do that get rid of something that's on the books and been there for 30 years that you think isn't effective anymore right and then uh you mentioned also that you particularly utilized data and research and Analysis in your work

1:53:22

in in identifying where these problems might exist are there ways in which you think Congress could use the same types of tools to assist us in our work sure one easy example here is the dates when statutes and regulations were made and

1:53:38

looking if they've been updated especially regulations you can I can run a computer program through the code of federal regulations and find when each regulation was last updated if something hasn't been updated in 20 30 40 years

1:53:51

maybe it's time to get rid of it or or at least look at whether it's time to get rid of it thank you Mr chairman I yield back lady yields back to now recognizes the disting distinguished ranking member from Texas Miss Jackson Lee for her five

1:54:05

minutes uh let me um thank you very much um Mr chairman um you must have some uncanny sense of rightness or timeliness to hold this hearing on a day as I indicated um every uh part of America seems to be focused on uh student

1:54:26

protests which we haven't had in a while um I can recall uh my years of Campus activity in particular um when it was extremely um um how should I say it um exercised if you will it was extremely active and engaged when students had any Myriad of

1:54:50

activity to be engaged in the war of course the Vietnam War was certainly one of great height uh what we call the Black Power movement was an important element the whole issue of uh discrimination against um uh minority

1:55:06

students in particular in this instance African-American uh students uh there was a long L and these were legitimate uh grievances that individuals had uh I am particularly grateful um I don't know Mr Tolman uh whether or not uh we will

1:55:22

have a new uh Litany of offenses by the time we get out of this hearing I I hope not I I hope that we will not you know design more grievances Miss Tac and others for our college students to be charged with um this is a a perfect um

1:55:42

um how should I say it um scenario of freedom of speech protests um I can't imagine what else and hope there's no other Litany of things that these students might be engaged in they have the right for their expressions to be heard and I want to

1:56:00

for one indicate uh that I support the freedom of speech uh the uh freedom of uh the right to associate uh the first amendment is a wide vast uh amendment that many people have uh misused so in any event the chairman has certainly

1:56:18

picked a very uh timely moment for these uh cases and I hope that we um will be handling them them uh appropriately as which I think is uh going to be most most important let me quickly um then try to ask questions quickly and go to you Miss T and hope

1:56:41

for quick answers because you graduated from Harvard one of uh the nation's uh renowned universities that are grappling uh quietly I guess uh with their uh engagement uh you led the nation's first successful campaign to make Jail phone

1:56:58

calls free um I remember that case I was here in the Judiciary Committee it was um it was an unbelievable expression of Free Speech but you are right women carry the heavy burden of um carrying forward this whole idea of the cost of

1:57:13

being incarcerated in many different ways travel bus faires all of that was excessive and so I have a very quick question uh how much much were inmates required to pay for phone calls at that time and what other ways uh do

1:57:27

corporations make money and if you could just do that very quickly I have a series I see where I am on the clock I have a series of questions uh that you just might just give me a brief scenario because I've got a series of other

1:57:40

questions for other other uh Witnesses very quickly at the time in New York it was 50 cents for the first minute and 5 cents every minute after that but throughout the country those calls can still run 25 50 even 75 cents a minute

1:57:53

and that labor is not just phys or that cost is not just physical emotional labor yeah you can run up to how much almost uh today they still can run up to about 70 75 cents a minute in 2024 and would cost uh a hardworking uh maybe

1:58:10

hourly compensated person how much what would they wind up they're taking care of the children uh that taking care of the grandchildren a few I mean we're talking about a few hundred a month and for people who are incarcerated that are

1:58:22

either making nothing or 9 cents 10 cents 15 cents an hour it can be hours worth of Labor before they can get a simple 15-minute call so what has been a hourly um charge not hourly but what has been um a meager offense May wind up uh

1:58:38

Bank rolling uh not Bank rolling you may wind up breaking your account literally absolutely one in three families are going into debt over the cost of a simple phone call in 2024 which leads to why am I being slapped more than once on

1:58:52

on U the uh incarceration for a very lowlevel crime if you will if you and why is my family being slapped in that case for for sure let me go to Mr Tolman there are many overlapping statutes in the federal criminal code for example

1:59:08

there are more than two dozen different false statement statutes chapter 47 uh Title 18 which is a famous title there are also a number of fraud statutes and obstruction statutes so give me how could we reduce these of the statutes

1:59:24

that overlap and I do want to just make a point uh if you can answer that but I also want to say that my comments are not pointed to Mr brag because it is in the judicial system and I'm going to allow the judicial system to work its

1:59:39

will but I would like Mr Tolman to be able to answer this question please of course uh the gentle lady's time has expired but Mr Tolman you may answer the question thank you uh there's no question that if we we need to take

1:59:50

current federal statutes right now and and we need to see the overlap there there are ways you can do that through you know programs that you can run but we absolutely as you know Congress should and groups advocacy groups should

2:00:05

be looking very closely at the overlaps of these statutes because um many of them can result in in adding additional charges when you otherwise wouldn't because as a prosecutor you wanted to make sure you had all of the potential

2:00:19

crimes at issue and so then you get bloated indictments that have multiple and multiple counts in them when really they should be charged with what the heart of or the essence of the crime is well thank you very much we want to do

2:00:32

good uh in public service not do bad and do ill thank you so very much thank with that I wish I had more time but thank the witnesses and I yield to you uh Mr chairman thank you the G lady yields back so I recognize myself for my

2:00:47

questions so the the U the first thing I I want to just say is um I appreciate the testimony there's a bit this when I first got in I thought to Congress I thought we we really need to to do this because I I uh in my law practice people

2:01:06

said why'd you go into politics I said because most of my clients had been abused by just the reg the regulations so let's see here um I'm GNA ask all of you this question before and and and I want you to think about because I

2:01:20

appreciate all of you have produced uh in your documents and in your testimony some Reform movement that you think we should do I want each one of you to give us the lowest hanging fruit because that's always the easiest for Congress

2:01:34

to do you know as as I as I like to say I'm willing to do it was the least I can do I'm always happy to do Le the least I can do so that's kind of the congress's attitude on the SOA we want to do that so I'm going to ask each of you to do

2:01:47

that but in uh in speaking to that um I also want us to focus on really what Congress can do because we have actually been derel in our duty in my opinion and that's the problem and we need now to be active and uh I know that

2:02:07

and you don't need don't say the men's Ray thing because we all agree on the men's Ray thing okay so we all I need something else besides the men's Ray issue okay so um miss tyac you had uh I think about 20 different uh uh reforms

2:02:20

that you put in yours so if you can just give me your top one your number one that'd be good I don't know if it's the lowest hanging fruit but I do think ending the exception in the 13th Amendment is a critical step for our country and in the

2:02:33

250th year anniversary that's coming I would say that okay that you're right that may not be the lowest hanging fruit okay make phone calls free in federal prisons permanently you already did it in the cares act we can just make it permanent

2:02:46

policy okay that's that may be the the lowest hanging fruit but I'll take a look at your other proposal there thank thank you you miss Tyler Mr Tolman thank you Mr chairman I would I would very strongly urge you've OB obviously talked about Mena everybody

2:03:02

understands that that passage alone would be the that would be the the largest Band-Aid to until you could deregulate and and and so I would then say deregulation and and and if you if you do have you know president Trump put

2:03:18

into place if you're going to pass a regulation you've got to get rid of two and whatever you think about it that was really good governance and and and the Congress forcing the agencies to do that would would probably be the most most

2:03:32

important thing they could do immediately okay thank you Mr mclu Dr mclu so I I agree with Mr Tolman the changing the incentives of regulatory agencies to review their own regulations the old ones to identify duplication or

2:03:46

contradiction and you could accomplish that through a regulatory budget such as the one in two out or other means as well well I think that's the lowest hanging fruit make agencies review their own rules and get rid of ones that

2:03:56

aren't effective thank you thank you Dr Mr PTO I would associate myself with those so I'll take a slightly different tag I think there are a couple of bills before Congress right now that might really uh be interesting that do things

2:04:08

to amarate for folks who are already incarcerated or re-entering back into society some of the burdens that we've talked about here today the first would be the federal prison oversight act uh which came out of the oversight committee uh I think May maybe

2:04:21

unanimously but overwhelmingly for sure bipartisan support I think there's also a bill called the saf supervision act which would help before this committee which would help incentivize moving uh folks who are compliant who've served

2:04:36

their term and are compliant with their terms of their release into into society more quickly so we can focus on the more dangerous folks still within the system and the other would be uh the Clean Slate act which we mentioned we were

2:04:47

talking about the collateral the host of collateral consequences that we have that for lower level offenders uh who have committed non-violent crimes that you would seal their record after they commit their uh after they uh uh complete their sentence

2:05:01

and complete their supervision without committing new crimes you would you'd seal their record so that it' be easier for them to get house to get license or to uh uh to get a job and things like that and reenter back into Community

2:05:14

once again removing them out of the criminal justice system so that we can refocus our criminal justice system on the most on the most dangerous uh and and really I'd love to see something done with clearance rates which are

2:05:24

which are really quite low thank you and um I'll just say that a couple things that I um I've thought of and I appreciate you your suggestion that some of these things need move to civil penalties and I couldn't help but think

2:05:37

of the ranking members discussion of the the explosion at in in Texas city is that where it was Texas city um and and the there was no reason quite frankly in my mind for the feds to get involved involved you could have prosecuted the

2:05:53

execs who had overt violations of safety regs at for manslaughter at least and you could also uh facilitated civil um rewards which is actually really what you needed when people are are maimed or killed is in my opinion so that's one

2:06:12

thing uh the other one is maybe uh and I I'm I'm I'm really reticent to believe that bureaucratic institutions are going to give up their their power base I really don't think that's where they want to go so maybe Congress needs to every time take

2:06:31

a real good look at the ru making process because that's how these these things occur number two is uh maybe Congress like we do with constitutionality you have to put something on a bill that's constitutional you have to go in and say

2:06:44

um maybe whether you intend or don't intend for there to be some kind of criminal punishment involved with it as well just another thing for Congress to do anyway I appreciate all the all the testimony lot to lot to come out of this

2:06:56

I think this is I I I I think it's actually a very complex issue that has a some Simple Solutions in in part before you that we need to take those first steps and so I appreciate all your testimony today thank you with that we

2:07:10

are adjourned thank you WT yeah

2:07:50

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