to enable our partners, which i think would be very helpful in enabling our partners in a variety of different ways. >> have you see special operations forces evolving, giving the demand and they touched on the pressures that you are looking at and you have mentioned to senator ayotte about the size of the force be with look at including in afghanistan. do you see the special ops evolving and i will discuss you how to we see them evolving. and i think it is important as we continue to focus on some of

the work that has been done by the admiral. and strengthen this with other military partners out there and so we do have dependable relationships and partners out there that we can work with and depend upon to accomplish a broader effort. so i do think it is important. and we have those who share interests. >> i would ask you, general, we are going to be conducting these operations outside afghanistan, how effective without me.

>> throughout the region as well, if you would lose all of your forces within the country. >> i think that that would be very challenging. and certainly there are lots of things that we can look at and i think that it would be challenging to try to address problems in one country from other regions and other countries. and this includes how we best use this in a manner that gives us the most effect. >> and your thoughts on that as well?

if you're talking about afghanistan and how it involves the relationship of pakistan come in the capability and i look forward to the work that we are doing to provide those assessments on the resources that would be required for the mission. >> i appreciate this on having this stability and also to be able to make decisions based upon and thank you, mr. chairman. >> senator mccaskill. >> thank you. are the smugglers moving through mexico with impunity right now i'm at. >> i would say the effect of the mexican government and the armed

forces are not as effective as they could be whether or not they are trying to interdict them and i do not have any specifics on that, but i seriously doubt it. >> i think it is important once you confirm that you have a handle on this because it appears to me and it is the same enemy that we have been funding for as long as i have been in the united states. so at a certain point in time we have a metric on how successful the money we have been pouring into mexico has actually been in enabling the basics. and it's obvious that buses and trains are loaded with thousands

of children from miles through mexico. mean, clearly something like this shows that they don't give a dam. >> date control areas that give them the freedom to do what you're saying. >> i think that that is certainly a priority and if we have a neighbor to the south that has decided this is acceptable, it is acceptable that threatens our national security. >> and i look at our quaint strategies and if you look there was a belief that if we did the political piece it would be

successful than the political piece did not turn out so well. and the economic piece is an abject failure because we spent hundreds of billions of dollars building of a structure and facilities that are in crumbles and inoperable. so is there any movement among her level of leadership to take another look at the strategy and i have just been highlighting this and we have the highway and we are so focused on our mission of the weed is good landers on.

and there's a lot of functioning capabilities of the government or military and it appears to me that we have put a band-aid on a cancer and that it really is not something that is being successful and is it time to take another look at the strategy. >> what i would tell you is that the military continues to take a look at all of its tactics and to the and procedures to make sure that we are flexible to always see what the next fight would be and we always have to be caught and sent and so this really isn't just the military piece, but a whole approach and so we have to bring in the entire inner agency to continue

to learn the lessons and apply the resources to make sure we can continue to sustain. and that includes whatever we are building capacity in the country and it is a whole government peace and not just a military this. and they have to put in this effort as well. so the leadership makes a difference and we have to work with that hard. >> we have a lot of this with infrastructure in iraq and there are major league infrastructures in afghanistan and some of the situations, they were doing those things.

and we will not be able to see that and there is a percentage of projects that you will inherit that we can have any oversight and i watched and analyzed that i think many of them are going to come to pass again in afghanistan and i wonder if we will do the same thing again. >> i don't want to see what is happening in afghanistan and iraq was much further along in terms of penning some kind of central ability and i admire all

of you so much and i'm so proud of our military and what you are capable of. and i think that you are being given an impossible task in afghanistan in light of what the reality is in that country in terms of them realizing the investment that we hope that we would realize in the money we spent on building things for them. >> i would only add that i think it's an inherit responsibility for all of us who are intellectually challenging ourselves and our concepts and the way we think about the missions that we are given and i do think that we have to include our way work. my current level of leadership

and i look forward to working within the general purpose forces. >> this includes what has worked and what hasn't and why the failures have occurred but works against you in terms of acknowledging that there could be something there that we are trying to do under the circumstances, it just doesn't make sense russert tried. so thank you both. >> thank you, mr. chairman. and thank you so much.

>> i have been there and i know what happens is they came about. >> this is the crown jewel of criminal justice in that part of the world and there's a very moderate facility and they would not be putting this without a threat to afghanistan and they will be secured with these cases. and this is very important with the insurgency. and so they have to believe at times and they will get killed or captured. >> we have to understand they're

likely to go to jail. so without that, it's very hard to defeat these guys. does that make sense you? >> yes, and the pastor has been saturated that has created the conditions to allow organizations. >> you agree with that? just. >> the forces have safe haven in afghanistan's leadership. is that correct? >> that is correct. >> that we have had at least one attack generated by the pakistan taliban and then filled in new york and the bond and go off in times square, but apparently is that still accurate, do you think? >> many organizations that want to do harm to the homeland, every day the great military services other individuals.

>> many of those organizations have talked about work into the afghan pakistan regions as well. >> we have provided this. >> especially if we do these things as we desire to do. >> i think it is possible as

let's just lay out the plan for the american people. >> by the end of this, it's 9800, the current plan and the proposal right now is half of that, probably 5500. >> what percentage of counterterrorism forces would exist today? how many forces, special forces we have in afghanistan today? >> and today we are roughly 300 plus. >> i think 7000 is the total

effort there and that includes the efforts with that. and how many do we expect to have the current plan. >> well, let's look at what we could have. we are down to the security cooperation forces. >> that is the current plan. >> and how many corporations forces to be way behind in iraq? >> i believe that the rough number is in the neighborhood of 200 or 250. >> let's say it is a thousand in afghanistan. but with their chief mission be? >> achieve mission is an example

and so we have that number. so who fills the not what we go through this. a rate on a scale, the ability be of the pakistani and afghan army to cooperate together including counterterrorism capabilities. >> i'm sorry, i haven't looked at it in those terms.

and i agree with the general on this. >> we can't rely on the afghan and pakistani element from the regenerated al qaeda task force. and it seems to me that the line of defense is going to vanish if something doesn't change. is that a fair statement? >> following your knowledge, that would be a fair statement. >> this includes the likelihood of afghanistan holding together.

>> decanted through this process and they have done this political power and i think it narrows really and increases the risk. >> i couldn't agree with you more. as to the makeup of the security forces, about 45% are on the east and what percentage of the leadership in the security forces were? is it disproportionately large? >> i don't have an exact percentage but i would think it is probably low.

>> benefit has been holding strong. >> and that is considering what they could revert to to go to the trouble filiation. >> thank you, senator graham. >> thank you for being here, gentlemen. >> how would you describe that level right now with the taliban and a commie network?

>> level directed against them or inside afghanistan? >> both. >> that includes the general interagency and the threat to the homeland because they keep the pressure on the networks are continue to be mitigated and we haven't had another 9/11 type of attack because people haven't been trying to do that. this includes being on the ground since april to give you a better sense of this. >> if i understand your testimony the threat has been mitigated because of the pressure and if that is right that raises an obvious question which it will be reduced in 2017

and that's nothing. and so if that plan is carried out, what will be our capabilities to engage in the operations and defeat that. >> we have other technologies and as i stated earlier, we continue to work hard at building the capacity for the afghan forces who have a better force and we are doing that now continuing to work on that. and we do have a threat at that point in time still and we will

have to come up with a different strategy to be able to keep that thread and mitigate that threat. >> in your personal judgment and this includes effective counterterrorism with a true presence? >> i am not the commander on the ground, sir. i'm very comfortable where we are today based on what we know in the great capacity and if confirmed, it continues to be one of the missions that we have and i will make sure that we understand resources that are wired to carry out that mission.

and the allies situation is quite real. does this include what we have needs for dealing with this process? >> if confirmed, i'm going to have to learn more about that particular mission and threat. >> what's shifted to different aspect.

and including what would this play given the crisis in this includes those doing the best they possibly can and we are in support to them and currently providing them instruction support and surveillance support and transportation support and surveillance support. we can continue doing this in order to beef it up, but that is the limit of our authority at this time. >> given over 50,000 unaccompanied children have illegally entered the country this year do you think it is clear do you think think that they are aware of our own abilities. >> i would have to assume that they are. we were raised to find this

would situation, whether is was the smuggling of the children whether it is drugs or weapons, those things can be exploited to tourists as well. it gives us the surveillance the ability to detect it should it occur would you agree that the coyotes and the cartels are smuggling in all these little boys and little girls and these are hardened violent criminal organizations? >> yes, absolutely. it would give them the freedom to move whatever they would like to do for money. >> in your judgment.

>> yes, sir, the department of defense is providing the law enforcement agency great deal of equipment and it has come back from iraq and will come back from afghanistan. the magnitude of the threat of the southwest border in particular continues to grow. and this includes the people crossing the southwest corner. nearly 50,000 of them were from countries other than mexico.

and so many were apprehended along the border. and i think that from the numbers that you described, the magnitude that it came from the border south of mexico, that is why it is important working with our partner nations downer work on the condition to prevent the flow of their people a voice into their boilers and other border is not a long-term commitment that our nation has make if we work very closely.

>> thank you, adam hall, thank you generalist. you so much, senator. >> i didn't get a chance, but i wanted to talk to you about the detainees in march of 2012 and then in an effort to reduce tensions we signed another in march of 2013 and it established the afghan review board and that process has resulted in a release of hundreds of detainees on our focuses. and so i believe that the government shares the belief that this is flagrant disregard of the principles outlined. and so do you have any ideas as to how we can end this that we

can stop this release of these detainees who have attacked our military? >> thank you for the question. i have not looked at it in those terms. this includes with the authorities that would be required to ensure that we could put some controls on that. so there is concern with this way coming back into the fight not something that we have do continue to work with the afghan government on. and provide them the evidence that we have in the wrongdoing

and we will continue to advise this as well. >> we are in limbo about who will be the country and whether or not are significant. so i think that there would be a dramatic impact if we are capturing those that they open the doors a day later and let them out. and i know we share this to help make sure that the situation does not become the norm. >> thank you, ma'am. >> thank you.

and your great support on this committee, deservedly so, and we stand adjourned. [inaudible conversations]

here today to testify and, tim, welcome. >> thank you. our other witnesses, we have honorable irene m. kheily from west virginia, clarksburg, west virginia, a u.s. district judge. she received her undergraduate degree from the college of maryland in baltimore and she received her law degree at the university of alabama. before attending law school, she was employed as a secondary education teacher. she received her juris doctorate from western virginia college of law. we welcome you, judge.

from 1980 to 1992, she practiced law with the firm of steptoe & johnson. was that here in washington? >> no, that was in west virginia. >> so they're originally a west virginia firm. >> yes. >> thank you. she was appointed judge of the united states district court for the western district of virginia from president george bush in 1992. she served as chief judge from march 2001 to march 2008. currently she serves as chair of the criminal law committee at the judicial conference of the united states. we welcome you. our next witness is the honorable patty saris, who is no stranger to this committee, and we welcome you back again. she served as chair of the united states sentencing commission since december of 2010. judge saris has served as united

states district judge for the district of massachusetts since 1994, having been nominated to the federal bench by president clinton. prior to her appointment to the district court, judge saris served as an associate judge for the massachusetts superior court. previously, judge saris served as a federal magistrate judge for the united states district court for the district of boston. judge saris served as staff counsel to the united states senate committee on the judiciary. she also served as a law clerk to the late justice robert brochter in the massachusetts supreme judicial court. she then became an attorney in the civil division of the justice department and held position of the chief of the civil division in the office of the united states attorney for massachusetts. judge saris received her ba from

radcliffe college and her j.d. from harvard law school. she is the sister-in-law of jim sokul, who many of you know, whose office was right down the hall for several years and served as chief of staff for chairman frank. >> mr. chairman, if i might? >> the chairman is recognized. >> i shortchanged my united states attorney, and i never want to do that, by leaving out his credentials. he's a graduate of the university of virginia and the university of virginia school of law, and upon grad yauation fro law school, he served with judge tierney and served two years at more morrison & forester in san

francisco. he has also lectured frequent the at the justice of north carolina. he served 12 years as assistant district attorney in both the districts of columbia. >> thank you. >> we have at least two virginia grads. our last one is david patton. he's been defender and chief of the federal defenders of new york since july 2011. mr. patton, from 2002 to 2008, worked at the federal defenders as a trial attorney in the manhattan office. during that time he also served as an adjunct professor at nyu school of law. in 2008, mr. patton taught as an assistant to the university of

alabama. and from 2010 to 2011, he was visiting associate professor of law at the stanford law school. he currently teaches professional responsibility in criminal law as an adjunct professor of law at nyu. mr. patton clerked for the honorable hilton for the eastern district of virginia. he's a graduate of university of virginia law school, and we welcome you to the committee. we're expecting our first and our own votes of the day at 10:15, so without objection, members' opening statements will be made part of the record. you are recognized for your opening statement. does that suit anybody? no objections? >> mr. bachus, there. thank you. thank you very much for inviting

the department of justice today, and thank you, congressman, for that very nice introduction. we very much appreciate the opportunity to appear at today's hearing. last august in remarks at the annual meeting of the american bar association's house of delegates, my boss, the attorney general of the united states, spoke of his desire to forge a more just society and to reform and strengthen america's criminal justice system. he said it is our duty to identify those areas we can improve in order to better advance the cause of justice for all americans. on behalf of the attorney general, i want to thank the members of this task force for your pursuit of the goal of reform. your work has contributed and will continue to contribute significantly to the discussion of improvements to make our system more fair and efficient. the department has an interest in all of the interests that this task force has explored. in our written testimony we address issues regarding so-called regulatory crimes, a

possible mens rea uniform crimes, which are the focus of the task force. i look forward to addressing those topics today. in my opening statement, i would like to use my very limited time on focusing on the crucial and urgent need of improving federal sentencing and correction policies. as this task force has recognized, our strategies have included a greatly expanded use of the criminal sanction. incarceration rates in this country has skyrocketed. our nation now has the greatest number of prisoners in the country or the world. it is a rate that's five to ten times higher than other democracies. currently our state and federal government spend about $74 billion a year on incarceration. at the department of justice, spending on prisons and detention now amounts to almost a third of our overall operating

budget compared to only about a quarter in 2000. as a result, prison spending has increasingly displaced other crucial justice and public safety investments, including resources for investigation, prosecution, prevention, intervention and assistance to state and local law enforcement agencies. in response to the increasing percentage of our resources devoted to incarceration, the attorney general has launch aed smart on crime initiative. that began last year. it involves all the federal prosecutors, the men and women with whom i work every day, to ensure we're devoting our resources to the most deserving of the federal criminal charge. smart in crime also augments our state and local support, as well as funding and other support of prevention in reentry programs. our goal is to fulfill our core function while also fulfilling

other priorities to human safety. we have a reform of low-level drug offenders. of the 210,000 people in custody today, nearly half are serving time for drug offenses. the department is committed to controlling charges, making sure that they will face sentences appropriate to their individual conduct. to most effectively address that issue, however, congressional action is necessary. we strongly urge this task force and the full committee to take up sentencing reform legislation this year. the department strongly supports the legislation introduced by congressmans scott and labrador, the smart sentencing act, by strongly reducing penalties for non-violent drug offenders. the bill could allow billions of

dollars to be reallocated to other priorities while affecting our sentence reform. it has already proved successful at the state level. state leaders and democrats have begun to review policies across the country. changes in state laws have demonstrated that it's possible to spend less money on incarceration without sacrificing public safety. in fact, many of these states have seen a drop in recidivism. so by shifting away our focus on incarceration, we can concentrate on violence protection and vulnerability of appropriations. it is an approach that is not only more effective at reducing recidivism but also at treating all americans as equal under the law. we cannot achieve these critical goals without the support of congress. we ask you to seize this opportunity in making our

justice system fair and keeping our people safe. thank you. >> at this time i recognize judge kaley for her opening statement. >> thank you, chairman, and distinguished members of the task force for allowing me to testify today. it's an honor to appear before you and alongside such distinguished witnesses, especially my good friend and colleague, chief judge saris. i testify today on behalf of the judicial conference of the united states, the policymaking body for the federal judiciary. the conferences committee for federal law that i chair oversees the pre-trial services system and reviews legislation and other issues relating to the administration of criminal law. my committee has watched this task force's progress with keen interest. the judicial conference has

submitted letters for the record at past hearings, and i thank you for accommodating us with regard to that. i offer for your consideration today several strategies to address the pressing problem of overcriminalization in the federal system. each of these points, curbing overfederalization, limiting mandatory sentences and following guidelines are in my written testimony. at the outset, however, i do want to emphasize major criminal justice reform is currently under consideration, back and front end criminalization, reforms to the sentence and guidelines will increase the federal judiciary's workload. congress must provide the courts, which are currently operating at 1997 staffing levels, with adequate resources to shoulder those additional burdens. the failure to do so will result in further delays for your

constituents and ultimately could have public safety consequences. for nearly a century, the federal judiciary has expressed concern about the federalization of crime. the conference encourages congress to conserve the federal courts as distinctive, judicial form of district federalism. it is the conference's longstanding position that federal prosecutions should be limited to charges that cannot or should not be prosecuted in state courts. to this end, the conference has identified five types of crimes that are appropriate for federal prosecution. first, offenses against the federal government are inherent interest. second, criminal interest with substantial multi-state or international aspects. third, criminal activity involving complex commercial or

institutional enterprises most effectively prosecuted using federal resources or expertise. fourth, serious high-level or widespread state or local government corruption. and fifth, criminal cases raising highly sensitive local issues. the conference also recommends that congress review existing federal criminal statutes with the goal of eliminating provisions that no longer serve an essential federal purpose, an idea that i know has been discussed at past hearings of this task force. another pressing problem related to overcriminalization is the best of your knowled burgeoning problem of overpopulation, especially of crimes carrying a mandatory sentence. mandatory opinions are wasteful

of tax dollars by unnecessarily increasing costs which are burdened by the department of prisons which is within the judiciary. for 60 years, the judicial conference has consistently and vigorously opposed mandatory minimum sentences. mandatory minimums are incompatible with guideline sentencing, a point on which judge saris makes. on mandatory minimums, judges would not have judging on sentencing. the federal guidelines would remain fully in force. departures or variances from the guidelines would be reviewable on appeal for reasonableness. hand to h mandatory minimums also cause

disproportionality and sentencing by treating those who may pose a very different risk to society. the judicial conference endorses amending 29-c by preventing stacking of accounts and saying that penalties only apply when one or more convictions have become final prior to the commission of the next offense. the congress has already shared draft legislation in this regard with congress which i would be pleased to resubmit to this task force. one example of the significant cost of stacking is the case of weldon angelos, a first-time non-violent offender whose 55-year sentence resulted in stacking mandatory minimums. i would ask whether our taxpayers are truly well served by spending $1.4 million or more to incarcerate mr. angelos for

55 years. thus, the judicial conference has agreed to seek legislation such as the safely valve act of 2013. the judicial conference also supports the policies contained in the smarter sentencing act of 2013. legislation that i know several members of this task force have co-sponsored. the third major public policy initiative that the judicial conference supports relating to overcriminalization is the sentencing commission's april 2014 decision to amend the guidelines to lower the base offense levels and quantity table across drug types. the commission is currently considering whether to make this decision retroactive. the judicial conference endorses these reforms on principals of fairness, nevertheless recognizing they will impose cost on the judiciary.

retro activity in particular would cause a dramatic influx of prisoners out of prison and into the public system. this event would imperil public safety. we endorse activity only if the first wave of prisoners is delayed by six months in order to give the probation system time to prepare for the first wave of new supervisees, and if the commission coordinates a national trade program among all the affected agencies. thank you for inviting me to testify today and for considering the conference's views on curbing overfederalization, reforming mandatory minimum sentences and amending the sentencing guidelines. i look forward to answering your questions. >> thank you, judge keeley, and this time we'll hear from judge saris. >> good morning, everyone.

ranking member scott, chairman, members of the task force. thank you for the opportunity to allow me to testify on behalf of the united states sentencing commission. we are so pleased the judicial committee has set up this task force. i've been waiting for this hearing and i'm thrilled we're all here with such a distinguished panel. the commission identified reducing incarceration and overcapacity as a priority for the amendment cycle this year and last year. in doing so, the commission is carrying out its statutory duty, and i quote the statute. we are required to ensure that the sentencing guidelines minimize the likelihood that the federal prison population will exceed the capacity of the federal prisons. while state prison populations have begun to decline slightly due to reforms, the federal prison population has grown by about a third in the past decade and exceeds capacity by 32% overall and by 52% in high

security facilities. drug offenders make up a third of the sentences federally every year, and a majority of the prisoners serving in the federal bureau of prisons. so they are extremely important to the size and nature of the federal prison population. can you hear me better now? usually hearing me is not a problem. the commission set out to determine ways to address the crisis and the federal prison budget and population that are fair and appropriate. we set out the law enforcement to make sure any changes would be consistent with promoting the goal of public safety. the commission found, in its 2011 review of mandatory minimum penalties, that certain mandatory minimum provisions apply too broadly, are set too high or both. and as a result, certain mandatory minimum penalties are applied inconsistently from district to district and even within districts. we also found that 23% of all

drug offenders were couriers who are usually low level, and nearly half of these were charged with offenses carrying mandatory minimum sentences. the category of drug offenders most often subject to mandatory minimum penalties who didn't receive any kind of relief from mandatory minimums like the safety valve were street level dealers who are many steps below high level suppliers and illegal organizations. we are concerned, too, about how mandatory minimum penalties apply and how relief is granted in different demographic groups. mandatory minimums have contributed to the growth in federal prison populations. the numbers tell the story. the number of offenders in federal custody who are subject to a mandatory minimum penalty at sentencing increased from 29,603 in 1995 to 75,000 in 2010, a 155% increase. so the bipartisan seven-member

commission has accordingly unanimously recommended that congress reduce statutory mandatory minimum penalties for drug trafficking, that the provisions of the fair sentencing act of 2010 should be made retroactive and that congress should consider expanding the safety valve that is allowing sentences below mandatory minimum penalties for non-violent, low-level drug offenders to offenders with slightly greater penalties than currently permitted. they added to allow two levels assigned to most drug traffic offenders based on drug quantity. why? the guidelines were originally set slightly above the mandatory minimum penalty so even those offenders with no advancements or criminal history would plead not guilty and otherwise cooperating. congress subsequently created the safety valve which gives

low-level offenders a greater benefit for cooperating. so setting the guidelines above the mandatory minimum is no longer necessary for that purpose. indeed, after a similar reduction for crack offenders in 2007, the rates at which the crack cocaine defendants pled guilty and cooperated with authorities remained stable. in addition, at the time the original guideline levels were set, the guidelines only had one enhancement for a gun. but now it has 14 enhancements for specific conduct, which reduces somewhat the need to rely so heavily on drug quantity in setting guideline levels. we were encouraged -- we recently did a recidivism study after five years there was no statistically significant difference in recidivism rates between those offenders and other ones who were released the previous year after serving their full sentence. the study indicated a modest reduction in drug sentences main not lead to any increase in

recidivism. the amendment we approved if it goes into effect on november 1st is an important modest step to prison costs and crowding consistent with the law on public safety but more comprehensive change needs to come from congress. the commissions are encouraged to see bipartisan legislation introduced in the house and the senate that is consistent with the recommendations we have made. we hope to see further progress toward enacting legislation in this kerri and stand ready to work with you and others in congress. i am sorry if i spoke too quickly. thank you. >> i've followed your testimony. >> thank you, it is an honor for me to be here. i am the federal public defender in new york city.

good to see you, representative jeffries. with my defender colleagues around the country and court-appointed attorneys assigned to cases we collectively represent all those accused of federal crimes who are too port to afford a lawyer. nationwide we represent 80% of all defendants in the federal criminal justice system and i can tell you we are grateful to this committee, very important topic of overcriminalization. when i think of the term overcriminalization i think of a quote by the late harvard law professor william stunts who wrote legal condemnation is a necessary but terrible thing to be used sparingly, not promiscuously. as i think this committee knows the federal criminal justice system has become remarkably promiscuous by any measure. whether it is by the size of the

federal criminal code which has doubled since 1970 or the sheer number of people arrested and prosecuted for federal offensees which tripled since 1984 most significantly if measured by the number of people federal government in prisons. the federal prison population has increased by 1,000% since 1980 and in the last ten years it has increased at a rate three times the rate of state prison populations and this is at a time of historically low crime rate so it is not increase in crime that is driving the increase in incarceration so what is driving it? two things in the federal criminal justice system. a vast increase in the number of federal prosecutions of basic routine crimes that were once solely the province of state and local law enforcement and 2, vast increase in the severity of federal sentences largely driven by mandatory minimums that

prevent sentencing judges from imposing what would otherwise be reasonable common-sense appropriate levels of punishment. you already heard great deal about the human toll the state of affairs has taken in the fiscal told it has taken. i would like to focus on the tolls it is taking on the very structure of the federal criminal justice system and what do i mean by that? i will summarize it with one number, 2.7. 2.7 is the percentage of federal criminal defendants to go to trial. 30 years ago, the trial rate was tweet 5 times that number. it is the state of affairs because the supreme court to state that criminal justice today is for the most part of system of lees, not a system of trials. this vanishing file rate poses a serious threat to the quality of

justice in federal court. why is that? first we have to ask why are they disappearing? the answer is straightforward. the disappearing file rates correspond precisely with the enormous increase in power we have given prosecutors for severe and mandatory sentencing regimes. prosecutors have always had enormous discretion in charging but they now have full control over many cases from start to finish and state-controlled whether to charge a mandatory minimum or not entirely at their discretion and their power is largely used to create a spread in the sentence that someone will receive if they plead guilty versus if they go to trial. 10 or 20 or 30 years or more. why is that a problem. it is a problem because juries are fundamental to our criminal

justice system, the way ordinary citizens can check government overreach. they are vital to a constitutional democracy like ours and they also happen to be the best way we know in the history of the world that transparently and accountable getting at the truth of various matters. the jury's teach us sometimes government agents make mistakes. sometimes witnesses make mistakes. those truths get lost in a system where only 2.7% of defendants can go to trial because they can't risk the decades of additional time they might face if they go to trial not based on the severity of the offense but on exercise of that trial. it is the system our founders would surely find unrecognizable and does great damage to our

constitutional values. my time is up and i look forward to answering your question. >> at this time we have questions from the member. i will go to mr. scott and reserve my question is if there is enough time. >> thank you, i would like to thank all the witnesses for their testimony and ask judge keeley un mandatory minimum, the judicial conference for their opposition to mandatory minimums, they violate common sense and discriminate against minorities, waste taxpayer money and frequently required judges to impose sentences that violate common sense. if we eliminate mandatory minimums not just in smarter sentencing but the safety valve act, that would allow judges to sentence below the mandatory

minimum when it violates common sense. if the judge would be a departure from the sentencing guidelines would be an appealable issue. >> as i noted in my comments whether it is departure specified under the guidelines or variants pursuant to the 35-53 factors of the sentencing reform act it is revealed oil for reasonableness and no judge has unfettered that area. >> thank you. on the retroactivity you mention those that got retroactive benefit last time, recidivate did at a rate in the lower. are there any statutory barriers we need to look at that slow the

sentencing? >> that slow up our work? no. if i had a wish list i could go through them but right now we feel we are a bipartisan commission working at the crossroads. we feel as if we worked well with congress, we have our hearings, at this point there are no statutory barriers, there are certain things we would love. but the commission feels if we were able to work very well on the whole area of recommending changes to congress and doing our own respect to the guidelines. >> i you prepared to discuss prison issues? >> i think so. >> the prison programs that help reduce recidivism?

>> the bureau of prisons has entered a reentry coordinator in every federal prison. directors daniels has an assistant director who focuses exclusively on reentry programs. it is imperative we spend time for men and women who are incarcerated to develop skills that when they get out they can be productive. in our view the vast majority of them want to make a choice is, they need assistance and there are programs from ingraham management to substance abuse counseling to job skills, educational programs up to college classes, we're working hard in virginia to get some of the online content providers like number university to provide content to prisoners in the va system. there's a great bipartisan movement across the country to provide more tangible services to those who are incarcerated to reduce recidivism. >> of those programs been studied to ascertain whether they are effected? >> those studies are ongoing because a lot of those programs

are new. anecdotally we have lots of evidence that they were can second chance act which you pioneered has been hugely successful and we urge that it continue to be fully funded. >> what about employment programs? >> you know core provides tangible skills to those incarcerated and translates to job opportunities when they get out. if it is a certification, and portable skills that are used on the outside. >> that pays for itself. >> absolutely. >> recidivism rates of those who had opportunity to get in, how does that compare to the general rate. >> absolutely lower. to get a job you are less likely to make a criminal choice. >> for those, the opportunity to get in to you needcourt there is

a great management tool. >> people that are involved in prison programs generally have a lot more fewer disciplinary actions. >> can the panelists discuss the need to to get a mensaray requirement to prosecute people? >> the vast majority of criminal statutes include a standard that somehow are not. the department believes there's a role for the careful use of strict liability, highly regulated industries and impact health and safety and environmental protection. statute that provides strict liability are appropriate. >> the ranking member and former chairman of the full committee,

mr. conyers. >> thank you, mr. chairman. welcome the contributions of the witnesses. i can't emphasize how important this task force is in the judiciary committee and i am so glad this discussion is taking place. judge saris, the commission's impact demonstrates 70% of the 51,000 inmates eligible for the-2 amendments are of color, black or hispanic. will you agree that retroactivity would disproportionately impact minorities who have already been

prosecuted and sentenced at disproportionate rates. >> let me start by saying we haven't made our decision yet. we vote next week, next friday. back in d.c. at 1:00 we vote so we have not made a decision on retroactivity. we have however -- innumerable letters from everyone from law enforcement to the courts to various stakeholders, religious groups and heard from everyone. we heard that decision next week. what i will say is mandatory minimum penalties and drug sentencing scheme over all has had a particularly significant impact on racial and ethnic communities and their subject to mandatory minimums, black and hispanic. black offenders have qualified

for the safety valve so that the mandatory minimums have disproportionately affected minority populations. >> thank you so much. could i ask for the opinions of judge keeley and david patton on the same issue? >> thank you, ranking member conyers. i wanted to remind everyone that our committee, the criminal law committee did have the authority of the judicial conference to make a decision regarding retroactivity and at our june meeting of the criminal law committee we voted by a large

majority in favor of making the drugs-2 amendment retroactive. >> mr. patton, would you comment on this? >> safe to say defenders would strongly encourage the commission to make for congress to make any changes retroactive. it does not serve the interest of justice for the amount of time somebody serves to just depend on the fortuity of when the law goes into place. if it is an unjust sentence isn't just for people serving the time now. in addition to people who will be sentenced tomorrow. and it would greatly help to ameliorate some of the racial disparities, significant racial disparities we see in the

system. >> thank you. my last question is directed to judge saris, judge keeley and mr. patton and here it is. congress intended mandatory minimums to be imposed against drug kingpins, but as we found out it is often low-level offenders, often people of color who received it. does this comport with your experience? >> i am going to jump in because congress asked us a few years ago to do a study on exactly this issue and we should our report in 2011 and as of that time we studied it and the

mandatory minimum applies broadly, not just to serious and major drug offenders but also applying to street level dealers, courier's and mules so for example many of those get safety valve released but they are being hit at high levels with convictions carry it -- mandatory minimum industry level dealers are in the end subject to them. >> mr. chairman, can i finish by asking judge keeley to weigh in on this please? >> as you know i speak for the conference and the conference for six years has opposed mandatory minimums. one of the basic reasons we oppose it is the disproportion malady in sentencing that results by treating similar of the offenders that may pose very

different risks to society. to the extent these statistics demonstrate that this proportionality affects the african american and hispanic community in a more desperate fashion, that is a result of the fact that mandatory minimums for viewing an offender who isn't similar in a very similar way instead of individually which is the way sentencing should result. >> david patton, would you give us your opinion? >> to your initial point about the fact that mandatory minimums suite in, they were not originally intended for, the evidence is in. congress intended mandatory minimums to apply to managers in the organizers of large-scale drug organizations and instead we swept in much lower level of

vendors. >> thank you very much. thank you, mr. chairman. >> at this time the gentleman from new york, mr. jeffries. >> let me thank the distinguished panel for your presence here today and tremendous service to our country. let me start with mr. patton. it seems to me there are four primary actors in the criminal-justice system. you have the frost accusing, the defense, the presiding judge and jury, but if you have a trial participation rate, the number was 2.7%, it seems to me that the course of the criminal prosecution as you point about in your testimony. as long as it is determined by only one of those four actors,

the prosecution, to the exclusion of the other four, contemplated to bring about a just result in our constitutional system meaning the presiding judge largely excluded. certainly the jury largely excluded. the opportunity to mount a meaningful defense largely excluded. the system is out of balance in my view is fair to say. what a would be your recommendation in terms of how to restore balance to the system in a manner that allows for meaningful engagement and participation by all of the actors in the criminal justice system so that we can have a better shot of reaching the most just results. >> the committee is probably growing tired of hearing it but the answer is straightforward in one respect, to ameliorate and

eliminate mandatory minimums. and the charging process, when they control the back end of a process that is an unhealthy state of affairs. most prosecutors and most americans of trying to do the right thing most of the time. we are very wary historically and with good reason of investing too much power in transparent decision making and that happens in the plea-bargain in process. when a judge imposes a sentence it is on the record. there is a transcript. it can be appealed. others can review it. congress can look of the reasoning and decide if changes need to be made to but charging decisions about whether or not to stack multiple 924 cs or file 851, that exponentially increase somebody's sentences, those that the not transparently and not accountable. >> let me pick up on that point

with mr. heaphy. thank you for your service and your testimony in the for aggressive positions being articulated but i want to follow upon this point in terms of the prosecutorial incentives to move forward. notwithstanding the direction appropriately that has been given by the attorney general and the context of u.s. attorney receiving a performance evaluation, is it normal practice that the performance evaluation is based in part on their conviction rate? >> no. absolutely not. >> how is prosecutorial advancement determined? >> depends on the individual but it is about judgment, it is about fairness, compliance with our discovery and obligations and legal requirements to provide what is material. i have never in my 20 years as a

federal prosecutor been asked about a conviction rate, i don't even know what it is. i keep track of that for the lawyers in my office. our objective is to do justice and we evaluate our people on consistency on pursuit of the goal. >> how do you measure the judgment or discretion and the ability to do justice consistent with what a prosecutor's obligation is? >> it is hard to do that empirically. justice is not always reflected in a conviction rate or the number of cases handled. it is a product of a case by case evaluation of whether someone is fair, has an innate sense of justice and is achieving outcomes that in the view of the management of the office are fair and just and that is what people are trying to do every day. >> some have articulated a concern based on performance evaluations being largely measured by conviction rate and/or enhance the length of sentencing, i am pleased from

where you sit in your capacity, that is not your view and hopefully that is the case across the country. the other side of the coin is the notion, one of the disincentives for prosecutorial misconduct, can you cite instances where examples of bad judgment, perhaps even judgment that crosses illegal boundary into potentially unlawful conduct has actually been sanctioned in a way that every other american citizen has to face consequences in the context of the criminal justice system when they make a grievous error? >> in the federal system we have the office of professional responsibility that closely receives complaints and investigate allegations of professional misconduct. there is a doctrine of sovereign immunity that actors whether

they are law enforcement or prosecutors in good faith attempting to do their job if they make decisions that are later viewed to be unwise are protected from in unity but there are tremendous checks and balances, in turn oil within our department to ensure our lawyers, junior lawyers up to senior decisionmakers are playing by the rules and are doing what is right. >> my time is expired. i yield back. >> thank you. let me first go to -- actually, i think i will go to the u.s. attorney. you mentioned environmental crimes may not need to be -- we have had testimony before this committee and i personally know of two businessman in my destruct that were convicted in

the 80s of environmental violation of environmental statutes. i have looked at those statutes and none of them are criminals statutes. by regulation it was made a crime. and the regulation basically said the storing of toxic materials. in both of those cases, what happened, i will give you one example, a gentleman who was a vietnam war veteran, businessman, bought a piece of property which had been a business, ongoing business, he found on that site some barrels and he reported it to the epa that he had found these barrels

and he was told that he needed to dispose of them. he then contacted them back and said it is going to cost over $1 million. he started disposing of them but they gave him a deadline and he didn't meet that deadline. here was an individual that bought a piece of property not knowing there were chemicals stored on it, notified the agency, started disposing of them, it is hard to get people to take these chemicals. that is a very expensive process. and going with what mr. patton is saying, i can see a lot of cases where the u.s. attorney's

office, the environmental protection, they have all the resources, he is faced with a situation of hiring an attorney. he has offered a year and a day to serve 60 days. he is told that if he didn't do that, he could get ten years. his attorney spent over $100,000 in the 1980s on the attorneys. he has denied to, what mr. patton said, he can go to court, he can roll the dice, he can pay his attorneys money he doesn't have, but he chooses to take a plea. he is very bitter about this because he thinks he has done everything -- and i think he says to me everybody says why

didn't you go to trial? he is saying i can't risk this. i have young children. he has a criminal record. can't vote. that is how i found out about the situation. i don't think many people knew. you mentioned environmental, that triggered -- shouldn't there be some -- intent to violate the laws that even if you notify an agency, something that you didn't cause? does anybody have any comment on that? i talked to people up here on various committees in the judiciary committee, and there were a slew of these convictions in the 80s, literally thousands of these cases. >> appreciate the question. i would not want someone 20

years from now to second-guess every charging decision but that said if that case just on the facts as you described and nothing more came to me today that would not be a federal criminal case. >> now it is not. i think it has changed. they do not as a matter of policy -- >> let's assume instead of being an individual practitioner or someone who has a piece of property and found the barrels, that it is the company routinely deals with hazardous waste, has sophisticated professionals aware of the regulations. perhaps our warrant you must dispose for you will face a legal consequence and they choose not to, that probably should be a crime and this gets down to prosecutorial discretion. the reality we are dealing with is i don't have enough people, we don't have enough agents or prosecutors to deal with the 100

statutes, guns, drugs, fraud, child exploitation that we face every day because we have so many people in prison and our budgets are so stretched. a case like confinement regulation of someone not furrowing appropriately disposing of a barrel of waste, that is an anomalous and peripheral matter i am even less likely to reach because i can't get my core work done. only if we are looking hard at sentencing that we increase the amount of resources available for us to get our core work done that we will be able to sustain the system going forward. >> anybody else have any comment? my time is expired. >> thank you, mr. chairman. mr. chairman, i don't know if we usually introduce guests from the audience, baptist temple

children just arrived. could they stand so that we know? thank you. they are to ring the capital and want to see what the commercial hearing -- >> what looks good in this charge? >> baptist temple church. >> where are they located? >> hampton, va.. >> you have an outstanding congress. >> thank you. >> i want to follow upon the questions, mr. heaphy, a strict liability may not be appropriate health and safety is not a factor, you have willful disregard to get passed strict liability, and we have civil funds. what rational basis would there be with their people just didn't

know? no deterrent effect if you didn't know? >> there is greatly enhanced deterrent effect if there's a criminal sanction. when you are talking about people at work in highly regulated industries like food and drugs and the protection of public health and safety, it is apologies' choice congress has made to force those people to know the rules and if they do not know the rules then there is a criminal sanction. we had a recent case involving janzen farms, this was a business that produced fresh fruit and they had cantaloupes that were insufficiently washed. they had listeria bacteria on the cantaloupes. those cantaloupes got into the stream of commerce 20 or 30 states and ultimately tied 33 deaths because of the ingestion of that listeria. no evidence the two proprietors or owners of the business at jensen's intentionally send

tainted cantaloupes but because they are operating in a business that directly has that kind of impact on health, strict liability misdemeanor of being responsible for insuring that that did not happen was employed by the department. in cases like that -- >> misdemeanor was not a felony. and civil fines were insufficient? >> the judgment of the prosecutor in that case benefited. the business problem could be ameliorated by writing a check and involving the civil case, that is a policy determination congress made, criminal sanction has greater attention getting deterrent effect with corporate entity. >> all of this would be limited to situations where health and safety were involved. >> reliability offenses, the bp oil spill, no one intentionally injected oil into the gulf of mexico but it was such magnitude responsible corporate officer

could be held responsible as the the company. those crimes are in that area highly regulated industries, sophisticated actors who would have to make it their business to know the rules and ensure people are protected. >> time deregulated is an important factor because they know highly regulated nature of the business they are in. >> congress has decided the onus on them, the public, the person eating cantaloupe can't protect himself, that is why the policy matter, the bonus is on the company that distributes that to ensure health and safety. >> judge keeley, you mentioned state offenses should not be tried in federal court. should we repeal the statutes or lie on the discretion of prosecutors to reduce the number of state offenses tried in federal court? >> i think the response of the conference would be that we have

always urged congress to do reasonable review of statutes to see if there is still a need for them. in those circumstances, it would make sense to review those statutes. it would be within the discretion of congress to determine if the statute should remain in place. >> is the decision to try something in federal court reasonable if there is a differential and -- should that be a factor in ascertaining whether or not the federal government ought to prosecute? >> certainly it is not within the conference's prerogative to say what crimes should be prosecuted in federal court for a particular reason but we would say that among the factors we have recommended to congress to review that would not be one of

them. >> thank you, mr. chairman. >> all right. back to me, i guess. let me pursue again some of the line i was hearing. i know that when people read laws they say congress intended this. many times congress didn't intend. you read a statute that says you shall not store hazardous wastes, when that statute was passed by don't think members of congress realized they were saying if you buy a piece of property you discovered toxic waste on it or storage chemicals or barrels, you buy a building and there are some chemicals

stored in that building, in an ongoing business and you almost immediately report that, find out what it is, you report it, and the cost is several times, even more than what you bought the piece of property for. back to this gentleman, this is a real example. he actually said to the bp a you can just have the property. >> was foreclosed. >> can you just take the property? i am not sure that congress ever intended -- may be a misdemeanor but a civil fine or forfeiture of the property or something of

that nature, do each of you agree that there may be should be a general statutes? >> no, candidly. no matter what we do, the system depends upon individual discretion of decisionsmakers and if you came to my office on behalf of that client who had the barrel of hazardous waste site cannot imagine why i would bring that case. it just does not make sense without more facts. to up why a uniform standard without a careful review case by case statutes by statute, our view would be wildly overinclusive because there may be rare cases with more sophisticated actors, more persistent conduct where a responsible corporate officer should be held accountable as a matter of policy and congress has passed the statute in the area of health and safety.

congress needs to be explicit when drafting statutes. generally they are. judges try to interpret them and apply certain standards to the interpretation but a blanket standards that would apply universally we think would be overinclusive. >> judge keeley. >> i am appearing as a conference witness and i can only speak on issues which the conference has taken a position and it has not taken a position on the men's great question. >> as you know the commission focuses on penalties, not on the elements of a crime. we have not taken a position they're either. >> i am sure will not be a surprise that most of our clients are not facing regulatory misdemeanors'. >> i am sitting here asking these questions and the elephant in the room is this is maybe

half of 1% of all cases, we are not dealing with 99.5. on page 7 of your testimony i saw this last night and i am thinking this is custer's last stand but you say my office, federal defenders of new york represent indigent federal defendantss in the southern and eastern districts in new york. those federal districts cover all of new york city, five counties north of the city, long island, you have 39 lawyers. for those same two districts there are three hundred federal prosecutors, 39 to 300. my first question as i read that, i didn't read the next sentence a lot of them hire attorneys, even after, even after that, you represent over a

third of those defenders, so a third of them don't, over a third of them don't and there is still up 8-1 ratio. prosecutors to defense attorneys. there is no way that you can try all of those cases. >> i would say that understates the resource and balance because that does not take into account those federal and local law enforcement agencies and the resources may bring to bear and cases require more and more time and energies these days. >> 90% of your budget is salaries. you have 10%, you can't really -- i wouldn't think you could pay for many dna tests. >> i don't want to overstate it. i think judicial conference works with us to help us with

our funding but it is out of whack. it is thoroughly out of balance with the resources on the other side of the aisle. even routine case today, not even a complicated case will involve cellphones or computers that need to be examined. the government will make claims based on metadata on a computer, these are things that require experts, required diligence and time and energy to investigate and we are certainly outgunned in that regard. >> could i jump in on that? my people going to be upset that i'm jumping in on any question but i have to very quickly -- federal public defender, very talented lawyers only represent in every district a percentage of all but indigent criminal defendants. if the defendant cannot avoid council of his or her choice and their appointed a lawyer who has

to be constitutional could be federal public defender or a private lawyer who is on a list from which a judge selects but we agree the department strongly supports adequate funding of indigent defense. is important for the system to work effectively that the resources are relatively balanced. if the defendant needs a dna expert or wants to bring an expert from some other place that he be able to do that and if he is indigent the court pays for that. the attorney general has consistently spoken of the need for adequate funding. as a trial lawyer i know that i am frankly in a better position if my opponent on the defense side is an effective advocate juries want to see a fair fight and that is fair, the way this should work. we agree with david that indigent defense, federal public defenders and the criminal-justice fact appointed lawyers need to be well resources. >> you mentioned you were a trial lawyer. i was a file lawyer and you know

if you have the resources it is a tremendous advantage. i sued the railroad and represented the railroads. i appreciate the difference in resources. >> got to go to environmental defense too to get some future there. >> my people, talking about your people, ask this question. how would a requirement that the person, talking about cases, there seems to be any overt actor or intention, how would a requirement that the person actually acted willfully, did something not just failed to do something or the food case was a failure but acted willfully prevent prosecution of these types of the egregious cases

that i have described. >> the cases in which we have charged a person or company for doing something that was not willful are extremely rare. they are a small percentage of the overall number but again there are instances where congress made a policy judgment and we agreed that as a matter of strict liability is important to hold someone accountable because they should have known the rules. the biggest example of strict liability offense in the american justice is drunk driving. you don't have to necessarily heard anyone. if you make a decision to get behind the wheel while intoxicated you are strictly liable even if you cause no harm. again that is because -- >> that is a will collect. >> that is true. but it doesn't necessarily have to cause injury. what we believe is there are times when holding a company or an individual responsible even

if they were not willful they didn't take steps to prevent an injury. there are those rare instances we believe, to use in the appropriate case. >> of course your case on food, there were deaths. that is sort of a different -- in this case, toxic chemicals have been stored there that only just continued to be stored there but there was an affirmative act of reporting. i have something here that -- what do i need to do? for >> we had a case in our district involving a pharmaceutical firm that was marketing painkilling medication, roxy condom, hiding evidence and in that case my predecessor in this job had three individual executives,

plead guilty because they were -- corporate officers who should have been aware that marketing was deceptive and they pled guilty to those misdemeanors. >> they acted willfully. they concealed -- they were warned, they were cautioned, i understand. let me just -- >> you have any final comment? >> willful blindness will require requirement that -- the problem is when people honestly did not know they violated some arcane regulations and end up in criminal court i don't think there is any limitation, getting in to criminal prosecution is one of concern when you are dealing with health and safety, you can have different standards but at some point you had to know you were actually

committing a crime. three documents, one from the institute, one from families against mandatory minimums and a letter from ranking member conyers and myself to be read into the record. >> thank you. in fact without objection, members will have five legislative days to introduce extraneously materials or to submit written questions to the witnesses and at this time i am going to recognize the chairman of the full committee for questions. >> thank you. i apologize for having to slip away when you have a task force the speaker appointed regarding the issue of borders and children and others coming to the border but i am glad i got back in time to ask a few

questions and i will address this to u.s. attorney, we learned recently the solicitor general's office filed briefs with the supreme court in three cases that reflect the department of justice's new position that element of 18 sections, 135, 1035, requires proof that the defendants made false statement with knowledge his conduct was unlawful so my question is do you believe it is appropriate to require proof of knowledge of on lawfulness for any federal crime and what about every element of a crime? >> i am familiar with the recent position to limit it to false statements and federal health care programs, 1035-1,000 one which is the general statute which prohibits false statements as a matter of federal interest, but willfully in those statutes has to be read in context. i am giving you a very lawyerly

answer it but it is important because the language matters. there are other statutes in which the word willfully has a different interpretation like the securities act or tax offense, there is no specific intent requirement even though the word willfully appears there and that was held by the supreme court. the solicitor general's opinion limited to 1035-1,001 but it does not touch the long settled view of how willfully is defined in other areas because of different context. >> i would imagine that would cause a lot of confusion for those who are not as lawyerly as you and i try to be. i wonder do you believe the definition of willfully should be consistent? >> it depends on the sentence in which it appears. most of us understand -- >> as a legal term, when one is being given legal advice and

when one is attempting to abide by the law and not act in a willful ways that would cause them to encounter that, would it not be helpful to have a definition that was consistent across the law? >> the department's position was based on a similar view, that it was important to make clear that will fully in the context of 1,001-1035 meant someone had to know the statement was false. as a matter of fair notice, important goal you flagstick is important for people to understand certain decisions will or will not violate the law but uniform standard that would apply to that word in every context we would not go that far. >> with regard to the underlying question of the appropriateness of requiring proof of knowledge of on lawfulness for every crime, i take it your answer is you wouldn't require that in every case. can you give us some examples of

cases where it would not be appropriate to require the person have criminal intent? >> when you walked in we were talking about the pharma case you are probably familiar with that happened in our district. that was a responsible corporate office, prosecution where it was marketing foxy kant and explicitly, not flagging the addictiveness of the medication and three executives from that company, no evidence they were personally aware of and monitoring the marketing messages and by the companies but they should have and under that responsible corporate officer doctrine they were charged with and pled guilty to a misdemeanor, responsible corporate officer, these are rare cases and i want to emphasize we are talking a minuscule percentage of the overall portfolio of the work we have to do, garden variety day-to-day work in the department as you know, dealing

with cotton variety crimes and we are under resource to do and we a talking about sentencing reform but there are limited circumstances like the farm not matter where we think it is appropriate as a policy matter to hold people accountable even if they didn't know because they should have known given they work unregulated industry. >> what about the rule, the possibility of, fighting a rule that as i understand it is a judicial construction that says when the statute is not clear it should be interpreted in favor? >> it would be anomalous for congress to say if we are ambiguous give the benefit of the doubt to the defendant. judges do that as a canon of statutory construction. the answer is for congress to identify standards, we don't need the rule, it kicks in if

the language is ambiguous so we always urge congress to be very specific in terms of what level of intent is required in defining crimes. >> congress tries but with 4500 separate federal criminal statutes it is not always as clear as one might think especially when you don't have a vote real-life case matter before you that you are applying the test of the language to and that is why i think some of the criminal law scholars testified for us have advocated for something like that. let me ask the other panel witnesses if they have anything to offer on either of those subjects? >> i had mentioned earlier, chairman goodlatte said the judicial conference has not taken a position, i am here as the conference representative and i don't have any additional comments. >> i mentioned as well we focus on penalties, not -- >> is that it?

you are the representative of the defendants, what do you think? >> i am. a few moments ago to many laugh, i noted we don't deal with too many regulatory offenses in my line of work. most of my clients are facing more serious felonies. of course as a broad principle -- >> this could apply to any type of criminal violation. >> it could and we do deal with issues of false statements and i think the minister a requirement in those situations outside health and regulatory situations we don't deal with on a regular basis but as a general principle i of course agree that it is vital, it is often what distinguishes criminals from civil misconduct. it is an important distinction. it is why we impose some sort of

separate moral sanction, because of the person's in tent and what they meant or didn't mean to do. >> thank you. i have a concern that individuals who believe they are acting in good faith and do not know that they are willfully violating a law, the overall effectiveness of the rule of law is weak and when you don't take into account a requirement you have a showing of mensraya. weather there is a narrow band of exception to that in general that should be a requirement. thank you, mr. chairman. >> thank you. at this time we're going to adjourn. let me say this. if any of you have any closing statements i will say is this. there is a bipartisan recognition in this congress and the retiring after 22 years but

i have never seen such bipartisan recognition about the urgency to address overcriminalization, over federalization of criminal cases in sentencing reform particularly. there is broad agreement among u.s. attorneys, judges, members of congress, the general public and it is a very important thing and i commend members of this committee, the chairman, for recognizing that, mr. scott and miss conyers and others for legislation which we have some, most conservative members, most liberal members of hopefully it is something we can do and if we

have to do it incrementally as opposed -- i don't think there's any perfect solution but i would hope that we could take some action on that. it looks like some of the other issues are going to be much harder to gain consensus. we appreciate your testimony. our federal judges have been telling us in my district for years we have a problem and they continue to tell us. i know our inaction to a certain extent is precipitating the problem. so i thank you for your attendance. this is important testimony and as we read your testimony we may have additional questions for you. at that time, we have a vote, five minute remaining on the floor. some of us are not as fast as others. this hearing is adjourned.

>> thank you. [inaudible conversations] ..