Kevin Kiley Questions Witness About Where He Thinks Criminal And Civil Liabilities Should Diverge

Forbes Breaking News

At Wednesday's House Judiciary Committee hearing, Rep. Kevin Kiley (R-CA) questioned a witness about over-criminalization.

Transcript

00:00Chair recognizes the gentleman from California, Mr. Kiley.

00:03Thank you, Mr. Chair. In California this last year, we passed an initiative to restore some consequences for things like retail theft.

00:11And my slogan in connection with this proposition, Prop 36, was make crime illegal again.

00:16Because there are some things in our state, like stealing, that are sort of classic textbook criminal behavior,

00:23that because of our criminal laws, folks could basically carry out with impunity.

00:29So that did pass. There are also at the federal level, as has been mentioned,

00:33ways in which we need to be enforcing the law against serious crimes in a more aggressive fashion.

00:41But perhaps there should be a corollary to that slogan, make crime illegal again,

00:46which is to make non-crimes legal again, which is what we're talking about today.

00:52You know, we shouldn't be prosecuting people for buying Swiss cheese without holes

00:56or for making a stamp with the wrong kind of duck on it

00:58or for accidentally buying the wrong kind of fish for your aquarium.

01:02I think there are some basic, intuitive, common-sense principles we would all agree

01:05a criminal code should have, that it should include things that a typical person

01:10either knew or should have known are wrong or are illegal.

01:13They should be reasonable things that make sense to people.

01:16Yes, this is the sort of thing that ought to be illegal.

01:19They should be in statutes that were issued by elected lawmakers.

01:23They should be accessible to the average citizen.

01:26They should be easy to understand for the average citizen.

01:29They should be coherent.

01:30We shouldn't have conflicting criminal laws.

01:32And they should be enforced in an even-handed manner.

01:34But none of those things are met with the current criminal code.

01:37There's a lot of, as we've discussed, strict liability crimes.

01:39There's a lot of things that aren't reasonable and don't make sense.

01:42It's a 75-to-1 ratio for crimes that are issued by bureaucrats as opposed to lawmakers.

01:48A lot of the criminal code is behind paywalls that you have to pay money to access.

01:52And then even if you can access it, you can't make heads or tails about what it says

01:56without cross-referencing the rest of the code.

01:58There's all kinds of conflicts within the body of law.

02:02And because the average person commits several crimes a day unwittingly,

02:06it can only be arbitrary in its enforcement.

02:08And so it's not enforced in an even-handed manner.

02:11And some of the consequences for this are, number one,

02:13the diversion of resources towards prosecuting true crimes.

02:16Number two, a weakening of respect for the rule of law, of course.

02:21And then number three, a loss of freedom as sort of the default in society

02:26as you have to walk around on eggshells not knowing what is and is not allowed.

02:31Mr. Canaparo, I thought I'd throw out a few questions.

02:35You can address any of them.

02:37And then if there's time, perhaps the others could weigh in as well.

02:40Number one, do you think it would make sense to say that we shouldn't have

02:43any further crimes that are issued by regulators as regulations

02:48and even those that currently exist perhaps should be reconsidered by Congress?

02:54And then also, what principles should we consider in drawing the line

02:59between criminal and civil liability?

03:01Like what sorts of offenses are more appropriate for one than the other?

03:05And finally, are there due process issues that exist

03:09because of the nature of the criminal code as it now exists?

03:12So let me take the second one first because I think it's the easiest one,

03:16which is I would default to the traditions that we inherited from British common law

03:23and that has been in American law forever,

03:25which is that the criminal law is meant to be for those things

03:28which are morally reprehensible.

03:29Now, that doesn't mean, of course, that accidents or sort of neutral,

03:36morally neutral things which impose harm don't get punished through civil remedies, right?

03:41But as Professor Turley mentioned, to make those all crimes fundamentally erodes that difference

03:47and changes the nature of citizenship.

03:49So that's question number two.

03:50Number one, let me get to we've been touching on the counting

03:54and how we count and how we cut regulatory crimes, right?

03:57I think actually you can do both at the same time.

04:01What I would recommend is that you direct every agency and not, again,

04:05probably not through the Department of Justice

04:07because this would be run through the Office of Legal Policy.

04:10They don't have the staff to do it.

04:11I would say probably direct every agency to send you a list of all the regulations

04:15which can be criminally enforced.

04:17And if they don't do that, any that they don't send you are cut, voided immediately.

04:21And why this is good is because there's a ton of stuff the agencies have

04:25that they don't actually use and they don't particularly need.

04:27And so what they'll do is they'll send you the stuff that they think is important.

04:32And by virtue of what they don't send you, you can sort of say, okay,

04:35the Swiss cheese kind of crimes, those go away.

04:37But here are the ones that the agencies in their limited time and resources thought,

04:41these are really important, let's keep them.

04:43So I would say, in short, tell the agencies, tell us what's important.

04:46Anything that doesn't show up on your list is voided immediately.

04:49So you can sort of do both at the same time.

04:53I yield back.

Category

Transcript

Recommended