Criminal code reform continues in House

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Reducing the number of federal crimes and establishing a dedicated commission are a few of the ideas members of a special task force agree on in terms of reforming the federal code in an attempt to reduce over-criminalization or the imposition of penalties without proof of criminal intent.

The number of laws added to the criminal code increased by 30 percent between 1980 and 2004, according to a Federalist Society study, resulting in more Americans breaking the law through innocent mistakes and being charged with criminal offenses.

The problem is being addressed by the House Judiciary’s Over-Criminalization Task Force, which met for its fifth hearing Feb. 28 in Washington, D.C.

“The criminal code is a mess,” said Rep. James F. Sensenbrenner Jr., R-Wis., who chairs the task force. “Rather than a well-organized tool for enforcing important criminal statutes, the code is riddled with provisions that are outdated, redundant or simply inconsistent with more recent modifications to reflect today’s modern approach to criminal law.”

He said the problem is due, at least in part, to Congress legislating in a vacuum, a politically popular manner or as a rapid response to a crisis or national news story instead of exercising careful thought and deliberation.

“What we refer to as a code is anything by systematic,” said Rep. Bobby Scott, D-Va., the task force’s ranking member. “Rather than take the time to utilize evidence-based research and drafting criminal law legislation, we’ve responded in a knee-jerk fashion, charging ahead with failed tough-on-crime legislation in order to appease public opinion. By addressing the crime of the day, we’ve failed to use evidence-based approaches to fashion criminal penalties.”

As an example, he cited the use of “absurd mandatory minimums” to address drug crimes when evidence suggests treatment and prevention may be more effective.

Rep. John Conyers Jr., D-Mich., said his staff counted 4,450 federal crimes. The Federal Society study noted Congress has been creating an average of 500 new crimes per decade over the past 30 years. The last time the federal code received a major overhaul was more than 60 years ago.

Julie Rose O’Sullivan, a professor at the Georgetown Law Center, said concerned groups on the right and left agree the code is broken and has to be fixed. The question, she said, is what is to be done.

She said the American Civil Liberties Union is concerned with over incarceration, racial equity, juvenile justice and overly harsh drug sentencing.

“By contrast, I think a lot of the conservative groups who have made their voices heard are much more concerned with federalism issues, with the overabundance and vagueness of white-collar offenses and with the deficiencies in mens rea that permeate the code,” she said.

O’Sullivan said she suspects once the actual process of code reform begins, there will be a splintering and politics will become much more contentious. She suggested taking the entire project on at once so those with different priorities will be forced to compromise, but may actually get something done.

O’Sullivan said the U.S. Sentencing Commission was created (in 1984), in part, because Congress could not reach agreement to fix the code and decided to instead address the punishments.

She urged the task force to create a permanent, expert bipartisan body to overall and continuously respond to emerging issues and problems that percolate up from the courts.

O’Sullivan was one of four witnesses testifying at the criminal code reform hearing. Roger A. Fairfax Jr., professor of law at George Washington University Law School, suggested a new broadly represented commission to draft new or work with existing legislation.

He said a partnership should be established with respected law reform entities, such as the American Law Institute and American Bar Association’s Criminal Justice Section, and technical assistance should be used from experts in the criminal justice policy community. Fairfax said a professionally staffed criminal law revision commission should also be established in Congress to assist members with the technical analysis and drafting of all proposed new criminal laws.

There should be five major points, according to John D. Cline, a San Francisco attorney who has practiced criminal defense in the federal courts for more than 27 years.

He said the focus should be on reducing the number of federal crimes, ensuring the revised code strikes a proper balance between federal and state law enforcement, clearly defining appropriate levels of mens rea, establishing uniform rules of construction and revising the overly harsh punishment system.

Cline said the proliferation of federal crimes, which has increased from a handful in 1790, creates notice problems and has resulted in multiple federal statutes that address the same conduct, encouraging prosecutors to over charge.

“The result is often juror compromise,” Cline said. “Jurors who can’t agree unanimously on guilt or innocence decide to split the baby to convict on some and to acquit on others, thinking that they’re giving the defendant a break by doing so, but they can’t be told the truth is that a conviction on one count in federal court is typically as bad as a conviction on all counts.”

He said reducing the number of crimes will reduce overcharging, juror compromise and help ensure fairness.

“One of my goals in this effort is to try to avoid the traps of having an omnibus revision of the criminal code becoming a debate on numerous criminal justice policy issues from the death penalty to mandatory minimums to disparate sentences and the like,” said Sensenbrenner, asking the panelists for suggestions on neutrality in order to not repeat revision failures of the past 50 years.

Michael Volkov, a former federal prosecutor and white-collar defense attorney from the D.C. area, equated neutrality as the most important principal, saying the code has to be rewritten first; debates can come later.

Rep. Louis Gohmert Jr., R-Texas, expressed concerns that eliminating mandatory minimum sentences could result in people going unpunished for their crimes.

“I’m a fan of mandatory minimums,” O’Sullivan said. “I don’t think judges are born with some wisdom the rest of us do not possess.” She said the racial, gender and other disparities before sentencing guidelines were introduced were shocking, but have since declined.

Panelists and House representatives also expressed concerns over the limited number of cases (about 7 percent) that go to trial, coercive plea bargaining, the use of stacking crimes for leverage and the ease in which people’s liberty is revoked.

“We should be very concerned about the state having so much power that criminal defense attorneys are afraid to go to trial because they know they take more risk going to trial than defending liberty and property and the things that the government should not easily take away from the defendant,” said Rep. Raul Labrador, R-Idaho.

Cline said he does blame prosecutors for plea bargaining techniques, but suggested removing various prosecutorial tools to level the playing field and reduce prosecutorial overreach.

Sensenbrenner concluded the challenge of getting code reform done is having the first step be policy neutral.

He has introduced the Criminal Code Modernization and Simplification Act (H.R. 1860), which cuts more than one-third of the existing criminal code, consolidates criminal offenses and streamlines the code to make it more coherent for attorneys, judges and Congress.

The task force was formed in May by the House Judiciary Committee and re-authorized last month for another six months. A video of the hearing may be found on the committee’s website at http://judiciary.house.gov.