00:00I recognize myself now for an opening statement.
00:07I thank the members who are here and those who will be coming, and I thank our witnesses today.
00:14This is really a great panel we have, and a lot of talent, expertise, and I'm grateful that you would take time to be with us today.
00:24Today's hearing is titled Criminalizing America, the Growth of Federal Offenses and Regulatory Overreach.
00:30We could have just as easily called it Oversight of Congress because we created the problem that we are here to discuss today.
00:38The problem is the number of federal and regulatory crimes has simply escalated out of control,
00:44to the point that law-abiding Americans unknowingly commit several crimes every day.
00:49According to one study, the average American commits three felonies per day,
00:53which does not consider the overwhelming number of misdemeanors or civil violations.
00:58In some instances, the laws are so obscure and vague that even law enforcement and federal agencies are unaware that they even exist.
01:07The U.S. Code is estimated to contain more than 5,000 crimes today, and I'll hold it up for you.
01:12This massive tome is the criminal code.
01:15Just a decade ago, some scholars estimated that there were approximately 4,500 crimes,
01:21and the fact that these numbers are just estimates underscores the severity of the problem.
01:26According to a study by the Federalist Society, the number of federal criminal offenses increased by 30 percent between 1980 and 2004.
01:34There were 452 new federal criminal offenses enacted between 2000 and 2007, averaging 56.5 new crimes per year.
01:45And over the past three decades, Congress has been averaging 500 new crimes per decade.
01:51And keep in mind that these estimated 5,000 criminal laws are not all neatly tucked into Title 18.
01:57Rather, they are scattered around the other 49 titles as well.
02:02The fact that this is only an estimate means that no one knows exactly how many federal laws subject U.S. citizens to criminal sanction.
02:11That includes Congress, the Department of Justice, and other federal agencies responsible for enforcing those laws,
02:18let alone your ordinary American.
02:22I called when I first got elected.
02:24This is an issue I wanted to take care of.
02:26And so, eight, nine years ago, when I was here, I called Congressional Research Service.
02:33And I said, how many crimes do we have, not just in the federal code, but through regulatory agency?
02:41They said, I'm not kidding you when they said, and I tell you this, they said, no one knows.
02:47And I thought that is impossible, that no one knows.
02:51But estimates have that at over 300,000.
02:55And so, I guess it truly is.
02:56No one knows.
02:57So, how did we get here?
02:58After all, our founding fathers first enumerated federal crimes in the Crimes Act of 1790.
03:03And that act enumerated 23 federal crimes and established punishments for those crimes.
03:08Among others, the Crimes Act of 1790 established crimes for treason, piracy, and counterfeiting.
03:15While the legislation did establish some crimes against the person, such as murder, and crimes against property, such as larceny,
03:22the federal jurisdiction of those crimes was limited to federal property and federal territories.
03:28Over the past century, Congress has lost its way.
03:32Instead of methodically and deliberatively crafting a common-sense criminal code,
03:37Congress acted in a knee-jerk reaction to every minor and major crisis.
03:42In doing so, Congress believed that there always had to be a federal response to every headline and every breaking news story.
03:49So, one academic has aptly noted,
03:53It was the spate of bank robberies by John Dillinger in the 1930s that provoked passage of the federal bank robbery statute.
04:01The kidnapping of the Lindbergh baby, about the same time, caused passage of the federal statute on kidnapping.
04:07The assassination of President Kennedy in the early 1960s prompted the statute on presidential assassination.
04:12And the killing of Senator Robert Kennedy in the late 1960s that resulted in the passage of a statute finally making a federal crime to kill a member of Congress.
04:23More recently, we saw the enactment of Sarbanes-Oxley in response to the Enron scandal.
04:27All of us on this dais have witnessed this phenomenon among our own colleagues.
04:32Some have termed this the accumulation approach to offenses, whereby Congress has simply accumulated new offenses for 200 years or so,
04:40with little examination or reformulation of existing offenses,
04:44which has resulted in serious overlaps in coverage and irrationalities among offense penalties,
04:51which create new possibilities for disparity in treatment and for double punishment for the same harm or evil.
04:59And this leads to absurdities.
05:01For example, the Code of Federal Regulations makes it a federal crime to sell a quarantined zebra while it is still in quarantine.
05:08In another, 16 U.S.C. Section 703 and 50 CFR Section 20.91A make it a federal crime to offer to buy swan feathers for use in making a woman's hat.
05:22According to one scholar, the proliferation of crimes makes it extraordinarily difficult to ferret out the law applicable to a particular factual situation.
05:30It also creates unfairness within federal law, which provides federal prosecutors with a near limitless menu to pursue criminal defendants.
05:37And when Congress isn't creating new criminal code provisions, it is passing laws that allow unelected bureaucrats to write regulations that carry civil and criminal penalties.
05:47To make matters worse, many of these regulatory crimes are strict liability crimes.
05:52Many ordinances do not have mens re requirements.
05:56Therefore, these ordinances make it a violation of law, regardless of whether someone intended to break the law in question.
06:01As a result, Congress wrote and passed a slew of strict liability crimes in which a defendant was not required to possess the mens re typically required to establish guilt of the accused.
06:13This resulted in both federal agencies and Congress using regulatory crimes as another tool to penalize arguably innocent citizens, resulting in the deprivation of liberty and the loss of rights, such as the right to vote or possess a firearm.
06:27What we all too often forget is that many of the problems we seek to solve are actually state and local issues.
06:35Under the federal system, the United States Supreme Court has observed that, quote,
06:39states possess primary authority for defining and enforcing the criminal law, and our national government is one of delegated powers alone.
06:47Under our federal system, the administration of criminal justice rests with the states,
06:50except as Congress, acting within the scope of those delegated powers, has created offenses against the United States.
06:57But Congress has not relented and continues to add federal crimes to our federal code.
07:02Congress can and should restrain from over-legislating on issues that should be left to state and local governments.
07:07This hearing is an opportunity to examine potential legislation introduced in past Congresses to restrict federal agencies' ability to criminalize conduct
07:15that a reasonable person would consider lawful.
07:20I look forward to hearing from our witnesses and the members.
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