aspen institute on the topic and i appreciate the commission's leadership on this and calling attention to an issue that i honestly have to deal with every day and it's very, very frustrating as the chairman of a major committee that at th but e time to be so handicap. you showed of the chart. policy wise we know it the right thing to do but the problem. jurisdiction is the holy grail but the right for the opportunity to have gotten this done at the very beginning and we complain about the executive branch not working together and i think the congress is just as if not more guilty of that and i will give you two examples. the cybersecurity bill has multiple referrals that are jurisdictions that requires me to negotiate with other chairman and that's fine it's part of the

deal but one chair and can and did hold up the cyber bill until just recently. they did a program governor thompson referred to because they also have a referral and stopped the legislation from moving to the floor. i think it is counterproductive and dysfunctional and quite honestly that hurts the american people because we can't pass legislation that can protect them and in addition the oversight issue with 100 committees and subcommittees how can the secretary j. johnson who had a great respect and admiration how can he do his job when he's constantly preparing for testimony and he has a very important job and the whole legislative shock us to do that. you look at the judiciary and it has the department of justice. they have the entire department of defense. why doesn't the committee on homeland security have

jurisdiction over the entire department of homeland security and not have to deal with all of these offshoots? we are passing bills to demonstrate the leadership from any other committees these bills will go to and it's a spiderweb like the charts of the authorization for the cbp demonstrates this is what happens to the legislation and i want to conclude because this is an important point if you can imagine the department has been around for about ten years. the department has never been authorized by the united states congress. every other department has been authorized by congress except for this one and i think that is shameful and embarrassing and shame on the members of congre

congress. we will see how that plays out but i hope that will demonstrate the problems and i hope that you and your colleagues in the commission can help to demonstrate why this is important. it's not about me trying to have a power grab jurisdiction but it's to make things more efficient to protect the american people. >> i will make a couple of comments and moveon. every recommendation that we made was implemented by congress and in opposing a set of changes on the executive branch and we were very appreciative of that. the only ones that were not implemented it had to or would have required congress to impose similar changes on itself and

that is just not right. this has real consequences. when i was the attorney justice, i knew what the chairman and the ranking member in the house and the senate of the oversight committees thought, what the reaction would be to the actions that we were taking were contemplating, and that helps with the agility that we were talking about it if it is necessary to protect ourselves. it is not possible for the secretary of homeland security to test the waters with only the committees on homeland security and the house and the senate. as hard as you may try it is difficult to get each of the other 91 committees to see the whole and the trade-offs that

occur so that the direction to move in a cohesive way. i want to turn to the data collection. we have had a period of the debate following the revelations in which the debate has been about how much should we fear the government and what it is doing asked to be sure the report says there must be robust oversight. but it seems to me and this is a personal comment reflected in the report that it is sometimes missing is the appreciation for how much robust intelligence keeps us safe and i was wondering if you could comment on this occasion of the tenth anniversary of the report.

>> thanks for the contribution of that. perhaps you want to answer that question? [laughter] >> i fear the terrorists more than the government but i know it'it's tuesday to give the government tget thegovernment t. i think as you know we stopped many terrorist plots through getting good intelligence by listening to foreign terrorists in different countries. there's been a lot of misinformation about the data collection program that when i was on the talk shows have asked about this and i applied with the fbi and we would go through the carriers at that time i didn't envision this being warehoused under the nsa and that was sort of dust sticking point. we are putting it under the federal government warehouse and

so with our reform bill he talked to how we used to do things going for the private phone carriers and i think that would give a little more eastern peoples privacy. so i think those reforms are good. with respect i can't tell you how much damage he has done to the national security in the united states. as a classified document that i've read and it hits us on almost every level i'm not allowed to go into but it's causing billions of dollars of damage and compromising national security with respect to russia and china. so he's not a hero in my book he's a traitor and the nsa has done good work protecting

americans and it's one of the reasons we haven't had a major attack but he is reformed and finally on the oversight i introduced a bill the intelligence community is one area where the government accountability office cannot really go and d in to do an independent oversight investigation. so if i want to do an investigation to the dhs, i can sit down and say i want you to look at x. y. and z. but i think that is a missed opportunity and i can see the resistance into the reluctance of wanting to be reviewed by an independent oversight but i think that can be another step forward that can restore the american people's trust. >> i know you are having a hearing on the subject, but we said ten years ago that we were deeply worried about the nuclear threat and the highest priority

had to be keeping the most dangerous weapons in the world out of the hands of terrorists. can you give a brief assessment of where we are in that effort? spinnaker think nuclear is a high damaged low probability but it's still a risk. i think what we saw in boston was probably the threat you're going to see play out for. you look at the fighters in serious trained in the bomb making capabilities and i think that's what you're going to see. you look at the internet and inspired magazine, aqap rack lacing people to blow up things i think that's what you're going to see that we are still always concerned about a weapon of mass destruction coming into the united states. how can we stop at? ports are pretty secure the portal monitors. if all these kids are coming in and not being stopped the 60,00f

them, it illustrates how wide-open it is and we don't know what is really coming through. we can't give you a case specific about a terrorist trying to get in but the fact remains a vulnerability for the united states until we get it secure. >> let's return to the lone wolf. we have the major four food killer. how worried about these individuals are you the ticket upon themselves, how well equipped are we to find such people and to stop them? >> i think it will be a textbook case for the counterterrorism

students and experts decades. when you look at the failures in that case not to point fingers because the 2020 hindsight but here they warn us if you are going to go into radicalized. i talked to the chief of the boston police and they had four boston police officers on the task force. the fbi opened up with a cold a guardian lead investigation. yet none of the boston police officers knew about this open investigations of when asked did you know the fbi had him under investigation he said no. did you know the russians warned us about them? did you know that he left and went to dog us on the candidate with the rebels and was radicalized? no, i did not know that. when he come back to the intranet postings they had kept

him out and there was a lot of state and the vocals can help us and i worked with the fbi but the state and locals are forced multipliers and they could have played a big role in the case to help stop what happened and there wasn't any difference because that case was closed. closed. that infuriated me because you know what's when they traveled overseas and met with the chechen rebels that case should have been reopened but it wasn't so all of the work that you did and then connecting the dots i still think there is a work to be done between the fbi and the state and the local dhs. >> the one place among all of the others where we think there has not been as much progress is that vertical sharing between

the federal government and state and locals. the connection of the dots across the federal agencies and the travel and the flow of information from the locals to the federal law enforcement authorities has been excellent. it's the other way around that the inspector general of the justice department and others have said has been a feeling. you work on the joint terrorism task force in your prosecutorial days into chaired a committee that has oversight of this. what can be done? >> the boston examples stressed and i talked to the need for the fbi that did have the expertise in the counterterrorism to utilize state and local in these investigations and to help monitor people like tamerlan.

the one i worked for, some things can be done through technology so that when the flag went out overseas and automatically showed through the task force with the fbi, that didn't happen. everything went in the wrong direction to make that happen in a particular case. in the most part it worked pretty well. that's why we stopped a lot of things from happening but i would say in the larger cities it is enhanced in new york and boston and the main cities like washington, la coming and even houston. and i think that he is ushering a new attitude of you have to be full partners with your locals. >> one of the observations that we made in our report is that

there was a failure of imagination on the part of our government prior to 9/11. the more imaginative people into government and that there was no institutionalized process for imagining what al qaeda might do. how well have we done at institutionalizing imagine in the department of homeland security cracks >> there is no department of imagination. i do think that the intelligence service, the homeland security folks, the fbi in their own way

they do a very good job day in and day out and try to incorporate thinking about it what could be the next threat. how can they apply this integrateand getit into the uni? and it's been tremendous since 9/11 but it's not institutionalized it is more of a culture and way of thinking that needs to go forward. one thing i and the report that got my attention was the american public interest in this topic and the unwillingness to fund the counterterrorism operations and i think that would be a huge mistake that goes again on a sunday show that we spend too much money into the big monster of it's not worth it. i would argue it still is worth it and i don't want to be the fearmonger kind of guy that when

i get the press briefings it's very clear that it hasn't gone away and in some respects it's become a great threat. they have more capability to bring it inside. it only takes 19 hijackers to do what they did. >> if you had to point to one critical observatio observationa report thithereport this time, e the danger of the complacency. and that's perhaps we have been the victims of our own success and preventing another 9/11 which could lead people to believe there isn't really a threat. one of the things we tried to do both in writing this report and having an event like this one is

to say let's pause over this for a moment and look at what the threat is and where we need to be vigilant. but let me put this back. we are going to go back to our jobs and our lives. having been exhumed for this d day, you live with this every day. what is the responsibility of the national leader to fight the complacency and what are the tools at the disposal. on the commission's report thank you for that but my

responsibility as i see it as the chairman of the national security committee is to first and foremost to be responsible in their rhetoric. there are a lot of members in congress to say crazy stuff to get attention. they say even crazier things and get more attention. there is an entertainment value to some of the news these days. the sunday shows are probably still the last substantive.

the question highlighting the threat in a responsible way isn't scaring people so they don't think i'm saying this sky is falling over time. what we are doing is important still. i wish of this threat was gone. but i don't think it's going to end in my generation. i hope it ends in my children's generation that what we are dealing with is an ideology that hasn't gone away. while the strikes have been evicted at killing the high-value targets and we did take down bin laden, the strikes alone cannot kill an ideology. in my judgment this is a long-term ideological struggle that we will be in the again for my lifetime. i know at the end of the day i'm

optimistic because the ideology prevails. it's the right ideology. it's not one of hatred and strapping bombs to your kids chest and blowing them up. it's like the comment until they love their own children and hate us will this ever end. and at the end of the day that is where we are with this. that is why your work is so important and i've been vigilant as the chairman. i see this no say this not justr thinking is so low a lined with the former commission members, but because you are at it every day in a way that's hard and you have to operate in an environment of secrecy so it's very difficult for you to make

the case in the way that it is made to you and that you see it and appreciate it. we have a couple of minutes i think for a minute or two. please identify yourself. thank you for coming today. getting back to the question with other committees and whether or not it is possible to consolidate the jurisdiction under your committee i tend to agree with you other committees don't want to give it up i think it is unlikely that they will sue the two-part question is do you think there is a benefit to the competition that we have seen on the phone records issuee could also do you think it is possible for you to convince the leadership when you bring up your authorization in the next congress to put deadlines for reporting so you don't have the

problem that you've had on some legislation with other committees holding up important legislation and are they committed to doing what you want to do next year? >> please give her my best. she is a real leader. to answer the question i think the reason i want to do the authorization bill.

that's where i am handicapped if i can't achieve that i will demonstrate why we need to. that's the case we take to the leadership. those arthe illustrious and are important bills that because of the jurisdiction and no other reason than the jurisdiction. i don't galvanize the efforts of

the commission and everyone in this room to help me. a very dynamic leadership. i know we are kind of a little bit obsessed with the threat in iraq and syria considering that we will be leaving afghanistan in a year or two what do you see about the threat of al qaeda and taliban elements both to the homeland and otherwise the allies in afghanistan and pakistan cracks >> that is a great question. this commission warned becoming a safe haven ten years ago and you were spot on in your recommendations. i am concerned about the same that we saw play out in

afghanistan. what happened in iraq to get to where we are i talked to a gold star mother and she said i just wanted my son's death to count for something. and now it's falling apart and i think there is a combination of factors one of which was a failure to negotiate the status oa status offorces agreement toa residual force behind and there's plenty of blame to go around and we cannot allow that to happen in afghanistan if we do not have a residual force in afghanistan, the network will move in, the taliban will move in and it will be chaos just like we are seeing and they will revert back to the safe haven for terrorists and that is precisely what we don't want to see. now you have the confessed contt election with potential fraud but both do support that notione

commission report. this is an hour and a half. [applause]

well thank you very much. i apologize for being late. i'm sure you understand. i do want to thank the vice chair and the 9/11 commissione commissioners. the right thing to thank them for is the love of our country. that's been manifested obviously in each case in many ways but particularly the commitments when they were commissioners when that was going on, but even more importantly the sustainment of that commitment which i think at its root is another reflects the level of the country. and also, i feel obliged to

support and thank them for the continued support of the intelligence community and our national security structure that. the past few days and weeks have been in tens with world events. so i appreciate the chance this morning to start by briefly and talk about the journey the intelligence community has taken over the past decade. like all journeys this is the one that is the work in progress. today we face the most diverse threads i've seen in my 51 years in the business. i started using that line in the midst of the arab spring events years ago and i'm still using it because it is still true end ofe terrorist threat to the united states is still very real and i will speak more to that in a

moment. the threat we are facing are more diverse than they were three years ago or any time since i started in this business in 1963. in the recent world events they show how complex our challenges are. as the report that has been put out by commenting on the ten-year anniversary of the commission, the terrorist threat is not diminishing. it is spreading globally and it is morphing into more and more so-called franchises. the ridthe rise for a example if particular concern and the thousands of the foreign fighters who are gravitating toward syria and now returning to the countries of origin are of a great concern to us. so again just to repeat as the

report the terrorist threat is not diminishing. and there are a lot that do not make headlines and i would cite for example those of us of her in the cyber realm and complicating the situation they've been working for what i refer to as a perfect storm. the factors that put into the capabilities. we lost intelligence despite what you hear or read we've lost the sources because of the source. we have made some policy choices that limit what and where we can collect. intelligence sharing become more difficult because of the damaged relationships internationally and also with domestic partners in the commercial sector. and to round out the perfect storm are the major significant budget cuts that we've taken in

the last three years and are forecast to take more budget cuts in the future. the bottom line of the perfect storm and in my considered professional opinion is we are accepting more risks than we were three years ago or even one year ago. as an intelligence community. they are in much better shape to address the challenges in 2001. they are going to take due credit on the work of the 9/11 commission which i think has been critical for setting up the

direction of the reform since 9/11. i want to quote a passage from the report which is the problem that we have in the community at the time and i was in it, so i know. the commissioners wrote the agency has cooperated some of the time. but even such cooperation as there wa was isn't the same as joint action. when agencies cooperate one defines the problem and accepts with it when they act jointly the problems are defined differently from the start. so, for the past decade since those lines were published with the 9/11 commission report as a compass and the intelligence reform and terrorism prevention act or the legislation as the map i think they have chartered of course integration and that has been my mantra since i started this job almost four years ago.

in the summer of 2001, which the commissioners described as blinking red, we were disconnected as a community. the 60% of the workforce that we have hired since 9/11 came to the integration as a reality. they come to us as integration minded if i can use that phrase. rather than a distant vision of the future. and so, for my part they've been a huge impetus for promoting integration in the community. we are responding to threats on the operations that we wouldn't have envisioned 13 years ago. we evolved the targeting for example as a discipline tracking the digital terrorist with a massive volumes of information coming elusive signals and increasingly interconnected databases. we have found in our exploiting

the value of the financial intelligence and threat finance. we found and worked to dismantle the infrastructure around him. over the past year we faced the sequestration and operational challenges as an integrated community. i must say i'm proud of the community and i will address the challenges and the great men and women we had in the intelligence community. as is an integrated intelligence community, we made decisions on decreasing the weapons, cutting entire programs and capabilities rather than just taxing for everyone to give the office base as we have traditionally done. as an integrated community we've made decisions to declassify more than 3,000 pages of documents deviously classified. the best way to deal with the misconceptions that resulted was ivy league to increase

transparency. that is to take away from this whole experience has been the need for transparency. as an integrated intelligence community we face will eve faces in the challenges and now we approach the problems by bringing together individuals and different backgrounds from across to analyze the case and planned the management. we put our best and most appropriate resources up against the toughest challenges. now, none of this is to say or do overdo it on the cheerleading business to say that we are perfect. we certainly aren't. no complex organization can pose out thousands of human beings is ever going to be perfect. we have some serious challenges in front of us and so, to meet these challenges we have to reshape our capabilities. we are developing the systems in space and i think that is all i would say about it come up with thibut this is abig idea for in.

and we are now using the cross community groups baking them integral to the whole system. the other major idea that i have to mention here is, which i don't think would have happened in the absence of the way that we are configured today is what is called eyesight. the intelligence community enterprise and for the first time ever we will integrate in a single enterprise the entire ic. this will take integration to the next level. and the objective here is for all of the intelligence agencies on the network and the infrastructure. and apart from the efficiencies that would be proven from this, saving money, reducing our dependence on a large cadre of it contractors it will both

promote integration sharing and security with the security enhancements that we intend to build into this added a jumper to give the bumper sticker is to tag the people speak and audit the data and we can audit with whom we are sharing that data. of course this has obvious implications in the revelations. so, i started doing things like this for me is kind of genetically and typical and i'm sure the young jim clapper 150 years ago would be shocked at the way that we detail and now publicly talk about 2014. that this is indicative of the

huge changes that are taking place with respect to transparency. we depend on the trust of the public and our foreign and domestic partners and elected representatives and the congress. in the congress. we can't do our job without that. and so, i believe that we are headed down this path regardless of the leaks in the past year. and i know that we are going to have to continue to be transparent as we go forward. but in truth, we will never reach the intelligence alone. as we push forward with integratiointegration we will me mistakes and fall short, but we will profit from and get better. so this intelligence integration is as i say a journey in progress. so, to conclude i want to thank the 9/11 commissioners again, those that are here and those that aren't for inviting me to speak and spend sometime with

you and more importantly giving a compass to find our way forward in our integration journey. and i'm proud and humbled to represent the community and the men and women and that this morning. so, to the commissioners, thank you for what you did in the community ten years ago and thank you for what you continue to do in that spirit and thanks for your wisdom. thanks very much for having me. [applause]

george tell law school professor. this is an hour. >> task force will be in border. we have to get this hearing in before the vote start between

11:30 and noon even though the notice is for 1030 the time for opening statements will burn up the time between now and 1030 so we can get to the witnesses. i would like to welcome everyone to today's hearing on the judiciary committee's overscriminalization task force. tenth and final hearing will focus on the abundance of criminal federal offenses on the books and the role of the judiciary committee's jurisdiction oil like their of on their house rules plays on this issue. over the past year the taskforce has examined many important topics in this area, and valuable perspectives on a number of highly qualified witnesses two of which rejoin us for today's hearing. i anticipate they will be able to provide this body with meaningful insight into the subject of today's hearing and i appreciate their continued cooperation in furtherance of the goals of the task force despite the fact that it is generally a police power.

recent studies have concluded the number of federal criminal offenses on the books has grown from less than 20 which were directly related to the operation of a federal government in the years following the nation's founding to cannon house office building thousand today which cover many types of conduct intended by the framers to be left to the individual states. at the current rate the congress passes an average of over 500 new crimes every decade. the search is highlighted by a particularly telling statistic. the criminal provisions enacted since the civil war enacted since 1970. the sheer number of federal crimes leads to a number of concerns, issues of notice and fairness were legal practitioners not to mention the general public, have difficulty determining if certain conduct violates federal law and if so under which statutes. the disorganization,

decentralization and duplicative nature of the federal question becomes -- needs to be addressed. i introduced legislation to do just that in the criminal code not -- modernization and simplification. this would cut more than a third of existing criminal code reorganizing to make it more user-friendly, consolidate criminal offenses from other titles so tightly to include all major criminal provisions. there are likely number of reasons for this rapid expansion of federal criminal law including fact that many drafted hurriedly in response to pressure from the media or the public and as a result often duplicative offenses are on the books and omit critical elements such as valid criminal intent. additionally under the current interpretation of house rules it is possible for new criminal legislation to make its way to the house floor without ever

receiving proper scrutiny from the judiciary committee. this committee is comprised of lawmakers and professional staff with expertise in drafting criminal provisions and the ability to avoid redundancies through situational awareness of the entire body of federal criminal law. as we move toward wrapping up the business of the task force in addition to other potential recommendations we should consider pursuing an amendment to the rules clarifying the jurisdiction of the committee with respect not only to criminal law enforcement but criminalization and criminal offense legislation as well. i would like to thank our witnesses for appearing today and but like to thank the members of the task force for their service over the past year. in the coming month i hope we can begin to come to get it to address many of the concerns with overscriminalization that have been identified, before introducing mr. scott for his opening statement, i would like

to ask unanimous consent to include a memorandum dated july 21, 2014, from the office of the house parliamentarian and the crs report entitled subject updated criminal offenses enacted from 2008 to 2013 dated july 7th, 2014, into the record and without objection is so ordered and is now my pleasure to introduce the gentleman from virginia, mr. scott. >> we have created the task force and recognition of the need to address the explosive growth of the federal prison population in a dramatic expansion of the u.s. criminal code. for five decades congress has addressed the problems by adding a criminal provision to the federal code. you have done this in a knee-jerk fashion charging ahead with the same sales, tough policy in addressing crime of the day.

instead of legislating thoughtfully with the benefit of evidence based research. when it comes to criminal wall only those matters that cannot be handled by the states need to be addressed by the federal government. what valid purpose is served by creating crimes that the federal level if they duplicate crimes and forced through other states. why should there be a federal carjacking statute. state and local law enforcement investigators and prosecutors carjacking effectively 3 years long before congress made it a federal crime. in testimony before the task force judge eileen kelly reminded us of the following recommendations made by the judicial conference in 1995 regarding five types of criminal offenses deemed appropriate for federal jurors fiction. for offenses against the federal government or its inherent interests, criminal activity with multinational aspects, criminal activity involving

institutional enterprises most effectively prosecuted using federal resources or expertise, high level widespread state or local corruption and criminal cases raising highly sensitive issues. we have ignored these recommendations. the congressional research service and library of congress informed us that 403 criminal provisions were added to the u.s. code in 2011 and 2013 for an average of 67 new crimes the year. of those 403 new provisions, 39 and not even referred to the judiciary committee for the past several years we estimated that 4500 federal crimes and the new estimates is approximately 5,000. in addition to 5,000 crimes in the u.s. code there are 3,300,000 federal regulations enforced with criminal penalties but several witnesses have testified many of the

regulations lack adequate criminal intent, to protect those who do not intend to commit wrong or criminal acts from prosecution witnesses have suggested legislating the rule for statutory construction as an appropriate fix for existing statutes and regulations. also heard concerns about federal agencies promulgation of regulations that carry criminal sanctions. time for congress to put an end to that practice, reclaim that authority and retain sole discretion determining which actions are criminal in which sanctions are appropriate when deprivation of one's liberty is at stake. regulations can still be enforced with civil penalties but when criminal penalties are considered congress should be involved. a result of decades of criminalizing more and more activities has been the growth

of the federal prison population from 25,000 in 1980 to over 200,000 today making the united states the world's leader in incarceration, seven times additional damage international average. abuse center on states estimate incarceration rate over 350 per 100,000, the crime reduction value begins to diminish because it that point you have all the dangerous people locked up but also learn from the collateral consequences that 6500 -- 65 million americans are stigmatized by criminal convictions bombarded by over 45,000 collateral consequences of those convictions making reentry and job prospects dim. in spite of the research that 350 per 100,000 population yields diminishing returns and pure research center also said anything over 500,000 is counterproductive the united states leads the world conover

700 per hundred thousand because unnecessarily locking up people wastes money that can be put to better use, families are disrupted, making the next generation more likely to commit crimes lose 700 per 100,000 counterproductive and we lock up well over 700,000 for 500,000 counterproductive, we lock up 700. the testimony received during these hearings told us longer sentences are not the answer yet we continue to create more crimes, increase sentences and dad more mandatory minimums that specifically have been studied extensively and been shown to disrupt rational sentencing patterns, discriminate against minorities, waste taxpayers' money, do nothing to reduce crime and often require judges to impose sentences that violate common sense. a code is defined as a systematic compilation of laws, rules, regulations that are consolidated and classified according to subject matter.

our criminal code is not a criminal code by that definition. federal criminal offenses have spread all over 51 titles of the u.s. code making it virtually impossible for practitioners, not to mention ordinary citizens, to make any sense out of it. it is time not only to move all criminal provisions in to title 18 but also clean up and revise as recommended by witnesses in previous hearings. we need to consider how to proceed, we also need to proceed on whether this should be done by congress itself or by an appointed commission. it is times we consider evidence based research, make wiser policies in our sentencing policy. we are wasting billions of dollars in crime policy. it has been failing for the past week for decades. time to look for more realistic and reasoned approach to the issue of incarceration understanding is that not every offense requires a long sentence of incarceration.

while this is the final task force hearing there's much more to do and i look forward to working with you in drafting a consensus report, presented to the full committee and taking necessary actions to improve our criminal justice system. >> the time of the gentleman has expired. without objection all members opening statements will be placed in the record at this point. it is my pleasure to introduce the witnesses, first is dr. john baker, the visiting professor at georgetown law school, visiting fellow at 400 college university of oxford and emeritus professor of law at a s o u law school who also teaches short courses on separation of powers for the federalist society for supreme court justice antonin scalia. dr. baker previously worked as a federal court clerk and assistant district attorney in new orleans and has served as a consultant to the u.s. department of justice, u.s. senate judiciary subcommittee on separation of powers, white

house office of planning, hsaid, he was a full bright scholar in the philippines and bright specialist in choice. he served in federal district courts and district attorney in new orleans will for joining l s u 1975. while a professor he has been a consultant of the state department and justice department. he served on the aba task force which issued the report on the federalization of crime. received his bachelor of arts degree from the university of dallas, j.d. from the university of michigan law school and his ph.d. in political fallout from the university of london. mr stephen benjamin is president of the national association of criminal defense lawyers, a professional bar association founded in 1958. its members include private criminal defense lawyers, public

defenders, active-duty u.s. military, defense counsel, while professors and judges committed to preserving fairness with america's criminal justice system, he is in private practice and the virginia firm of benjamin and deport, serves as special counsel of the virginia senate courts of justice committee and is a member of the virginia board of forensic science indigent defense commission. served as president of the virginia association of criminal defense lois. of the like to ask each of you to confine your remarks to five minutes. without objection, your full written statements will be placed in direct and dr. baker, you are first. >> mr. chairman, ranking member and members, have testified here

twice before and appreciate -- >> i testified here twice before and thank the committee for allowing me to come back. i coming back on the issue i started on on my own which was counting federal crimes and i have to concur with everything i heard about the problem of federal courts and i began with the numbers. numbers are not everything but they tell us certain story. i want to do three things quickly, one, talk a little about what the numbers are, where are we going with the numbers and what is the significance of these number is? when i testified on november 13th i mentioned tremendous number of federal crimes and the unknown number of federal regulatory offenses. after that this task force as the congressional resource service to conduct a count from 2008-2013 which is where my last

count left off. they came up with a number of 103 new federal crimes. that is not counting regulatory offenses. that is just from the u.s. code. is important to say that the counts from c r s, my count and the department of justice count have used fundamental these the same methodology and that is important for consistency costs. what is significant, second point, about where we are going, it seems to me, is what this says about the average number of crimes and the total number of crimes. when i did the count in 2008. there were 4,450 crimes and least. crs noted we have an additional 4 and did 3 crimes. that brings us to 3,854 crimes, almost 5,000 crimes. it means that the essentially

congress is passing 500 new crimes a decade. task force i served on back in the 90s, the notation was since the civil war, 40% of all federal crimes since the civil war have been passed since 1970. from 1970 until 1996. when you read what has gone on since 1996 we are close, approaching 50% of all federal crimes ever enacted in this country, enacted since 1970. that was the beginning of the war on crime which -- we haven't been winning that war too well. what does this mean for the future? the rate of crimes appears possibly to be increasing. it used the 55 crime the embassy's count shows 67.something per year.

that number may be skewed because in 2008 congress passed 195 crimes. what is the significance of calls this. if you talk to an assistant u.s. attorney and i have debated a number of former assistant u.s. attorneys they will tell you is the numbers mean nothing. they don't use all these crimes, they don't mean that much to the prosecutor or the judges, only so many cases she can bring in federal court but whether they are really important is in law enforcement, we have plenty of law enforcement agencies that do searches and seizures and arrests in cases that never even get an indictment much less trial. given the broad array of crimes there is virtually nothing you can't databases for probable cause on which is the basis for arrests, search and seizure. there's a lot of concern in this

country rightly about privacy but what people ought to be focusing on the fact that surveillance is not just a matter of, quote, privacy but a matter of the police power. the federal government which the supreme court stated twice in recent years has no general police power. in reality it has complete police power and we are going to see it in the surveillance. the people who have been focusing on nsa would think about drones. there is nothing drone can't search, basically, because every possibility come of with the basis of it. and some of the federal agencies will conduct raids that will never result in an indictment or if it does result in an indictment will not result in those crimes. it is easy to come up with the charge and money-laundering charges and go out and sees somebody's property. that is the reality of where the

real power is. i think this task force has done an amazing job of bipartisanship, coming together and identifying the problem. now is necessary for your colleagues in both houses to understand what the problem is, taking this tremendous power and dumping it in the executive branch with various agencies, the reality have their own agendas. not saying they're bad agendas that they are agendas and there is lack of control over what is happening in the field. thank you for allowing me to make this statement. >> thank you. mr. chairman and members of the task force. my name is steve benjamin and dime immediate past president of the national association of criminal offense lawyers, this country's preeminent bought association advancing the goals of justice and due process for persons accused of crime. i commend the house judiciary committee for creating the rivers of the criminals asian task force and congratulate the

task force for to impressive work over the past year. i'm especially grateful for the leadership and support of two members of my own congressional delegation, task force ranking member scott whose work on this critical issue demonstrates the danger of overcriminalization transcend the traditional ideological divide. this problem is real and affects us all. the sheer number of federal offenses, 4800 at last count, with 449 new enactment since 2008 competes only with the number of prisoners, a number greater than any nation on earth as the most visible consequence of overscriminalization but the consequences of this problem extend far beyond the number of those imprisoned or stigmatized. one such consequence is the difficulty of being a law-abiding citizen because criminal law is enforced by punishment, fairness and reason require adequate advance notice of conduct that is considered

criminal. adequate notice of prohibited conduct permits people to conform their conduct to the law and at the same time justifies punishment when they cross the clearly drawn line. notice this is especially important a legal system that presumes knowledge of the law before punishing someone for breaking the law we should least ensures that the lot is knowable. this is especially true where the conduct is not wrongful in itself and the offense requires no criminal intent. criminal laws must be accessible not only to laypersons but also to the lawyers whose job it is to identify those laws and defies their clients. problem however is the federal statutory crimes in the 10,000 to 300,000 federal regulations that can be enforced criminally ask added throughout 51 titles and the coding 50 chapters of a see a far. there is no position on whether all criminal statutes should be organized into a single title.

common sense would dictate most criminal provisions should reside in a single title as clear evidence exists that a particular criminal provision belongs elsewhere. fair notice goes beyond being able to locate criminal statutes within the cut. includes clarity in drafting precise definition and specificity in scope. with rare exception the government should not be permitted to punish a person without having to prove she acted with wrongful intent. in criminal law should be understandable. when the average citizen cannot determine what constitutes unlawful activity in order to conform her conduct to the law, that is an fairness in its most basic form. unfortunately when the decision criminal offenses congress has failed to speak clearly and with specificity, failed to determine the necessity of new criminal provisions and failed to assess whether targetted conduct is already prohibited or better addressed by state law. the cause of these failures is not clear but solutions are.

moving forward congress should approach new criminalization with caution and ensure the drafting and review of all criminal statutes and regulations is done with deliberation, a precision and by those with specialized expertise. given unique qualifications in the judiciary committee and their counsel which alone possess special competence and broad perspective required to properly drafted design criminal laws this congressional evaluation should always include judiciary committee consideration prior to passage. this practice could be guaranteed by changing congressional rules to require every bill that would have to modify criminal offenses of penalties to be subject to automatic sequential referral to the relevant judiciary committee. members of this committee are far better suited take on this critical role and encourage other members to always seek judiciary committee review of any bills containing new or modified criminal offenses. hopefully such oversight would stem the tide of criminalization and result in clearer, more

specific understandable criminal offenses with meaningful criminal intent requirements and reduce the number of times criminal lawmaking authority would be delegated to unelected regulators. these comments are limited to the issues on this invited to address. the problems of overscriminalization are pervasive and the measures necessary to reform go much further than reorganization or committee oversight. further discussion of course is contained in my written testimony. i thank you for your bi-partisan commitment to the task of ensuring our nation's criminal laws are not themselves a threat to liberty and continue to support and assist you however we can. thanks very much, mr. benjamin. the chair is going to reserve his questioning to the end of the questions assuming we still have time before the bell rings and the chair at this time recognizes the gentleman from alabama, mr. bachus.

>> i thank the chair. i was looking at mr. benjamin's testimony, both of your testimony, but i think we are to the point of where we are ready to act hopefully. we know the problem. has been reinforced several times. we have gotten the message and the key is what do we do? on page 9 of your testimony, mr. benjamin, you suggest four things, and i know congressman scott mentioned one or two of these. one is changing congressional recess to require every bill that would add or modify criminal offenses or penalties be subject to automatic referral to the relevant judicial committee. i think that is very important. as you say this is the committee

with expertise. 2, an act of statutory law establishing the 5 criminal intent requirement to be read into any criminal offense that currently lacks one. 3, it says this requirement should be protected enough to prevent unfair prosecution and should apply retroactively to all or nearly all existing laws. that is a radical idea but i believe in that and i think there ought to be something where you can go before a judge and present some evidence before a board, particularly some of these environmental crimes. i could mention several cases where people discover hazardous waste on their property and reported it but they couldn't

afford to dispose of it fast enough and a lot of these cases, i talked to a former congressman, energy and commerce, dealing with this and he said we had a lot of these cases in the 80s and >> host:s and we kept trying to do something but couldn't figure out what to do. maybe that is because if wasn't judiciary. next thing for and i ask your reaction, strict liability. your association urgeds reliability not be imposed as a general matter where strict liability is deemed necessary, the body only employed only after four they -- full deliberation and then only if explicit in the statute. we ought to say if it is not explicit in the statute there is no strict liability.

the fourth one is i did not know of this, and i say this to members of the panel, the bottom of the page, the supreme court is cautioned against the imposition of strict liability in criminal law and has stated that all but nine or ten penalties may be constitutionally impermissible without any intent requirement. we said several times in our deliberations that without an intent requirement, i could see a minor fine but when you are talking about putting someone in jail for a year ended a that is pretty scary but i would just say i would ask both of you to give us five or six specific statutes that we can do or your associations and even draft some just as up model and we could look at them. i think that would be

particularly helpful. i really appreciate your testimony and dr. baker, you have been here before, this to me is especially important because i think we have seen travesties of justice, we have seen people with no criminal intent and if anything else the government can use that power to force them to do things just with the threat. they don't have to get a conviction. it could be used in a way that we see some countries around the world that use the digital process to put people in jail but stand in their way of whatever their goal is and i hate zach in certain cases people with agendas have done that. that is a shame because that is not american, that is not

constitutional. my time is up. >> the time of the gentleman is expired. gentleman from virginia, mr. scott. >> thank you. dr. baker, what problems could occur if we deferred to states for prosecution of virtually all cases that do not have a bonafide federal nexus? >> even today most cases, the overwhelming number of cases are still prosecuted at the state level. is more or less on a selective basis that prosecutors take cases. sometimes there are conflicts between local law enforcement people in terms of where the jurisdiction is, fighting over some cases, high-profile cases. other times it is cooperation based on money. when i was prosecuting in new orleans we had long distances than federal if you can believe

that and so all of the federal drug cases, federal agents would steer into our courts because the longer sentences, some states the drug people will steer the case still in to state courts if there is the cover provision on search and seizure so law-enforcement people are practical. >> the general answer you have to be specific place by place. i am not sure what you are trying to -- >> would it overwhelm the state? >> as a general matter we like to defer to the states. one of the previous witnesses said in ascertaining when you go through the list of things you ought to consider, the differential and penalties was not on their list of things that were legitimate to consider. do you agree with that? >> no. >> you can pick and choose your

jurisdiction based -- >> absolutely. we did it. >> you did. >> and then we did it in richmond and people brag that project exile worked. >> i have an article against project exile. >> without pointing out that in richmond the crime rate went down because of project exile but in other cities in virginia the didn't have project exile the crime rate went down more. >> exactly. i point that out in my article. >> mr. benjamin, you mentioned notice. how do you get -- obviously you hadn't noticed you had criminal intent. how else would you get notice out there so people know that they are committing a crime? >> you make the laws accessible. now if someone wants to

determine in advance whether proposed conduct is criminals they have got to hire a lawyer to answer that question and the lawyer has got to find the statue to within the 51 titles of the code. is nearly impossible task and that is why we always hedge our bets. few lawyers are going to say you can do that. it is because the law permits such uncertainty. it is so ambiguously written that it is impossible to know even by lawyers whether proposed conduct is lawful or unlawful. >> is that why the rule of lenity is important? >> yes. >> can you say a word about the overlapping crimes in state and federal and what it does for the so-called trial penalty? >> i certainly can. the trial penalty is the penalty for going to trial. meaning that if you -- let me back up because i think it is a

unique and cherished american value consistent with freedom and liberty that if the government accuses us of a crime and threatens to take away our freedom we have the right to stand up to the government and not only deny it but make them prove it. but we have completely lost that right because if we go to trial either because we want to make the government prove their allegations oil we want to challenge the constitutionality of the dubious statute or because we are innocent, we can no longer do that because if we lose our bid to challenge the government then we face staggering, mandatory minimum sentences that can be stacked by the prosecution to beat us into guilty pleas. that is not how our system was

designed. >> r their problems in consolidating all of our codes into tightly king or would it be better to have the spread of around where the subject matter crime goes with the subject matter like agriculture code? >> first of all when the proposed federal criminal code in thes came before the judiciary committee the real problem was in organizing the code people didn't pay attention to all the many provisions. in one sense it was the code but another sense the federal government should not have a code because the code is a comprehensive statement of criminal law and if you believe as i do constitutionally the congress has only limited powers and has to justify it on particular enumerated powers than the idea of a comprehensive criminal code is very difficult to create with out in effect

expanding federal power. my main concern about a general code like that would even with an attempt to limit federal power it would end up expanding federal power. >> the gentleman's time is expired. the gentleman from michigan. >> thank you, mr. chairman. i want to thank both of the gentlemen, this is our tenth hearing, both of you have been here before so this is a good place and a good point to begin with is how do you see the cumulative effect in understanding that we have been out of these ten hearings this year and last year? dr. baker, why don't you start off on that?

>> if i compare to federal criminal files i sat through when i was a law clerk and federal trial today the biggest thing that strikes me is the imbalance of power and how the power has shifted so dramatically toward federal law enforcement to the point where not everyone but there is a certain arrogance that pervades the prosecutors and it goes with the territory. when you give anybody too much power they are going to use it and i don't mean they are using it for what they perceive to be bad things. they believe what they are doing is the right thing. when they then resign and become criminal defense attorneys they get a different perspective and realize that maybe we were a little too aggressive and i can tell you i have been on panels with former -- they have said that now that they are in the defense side. the reality is there are three

perspectives, a prosecutor, defense and judge or jury and they are not the same perspectives and there has to be a balance between the two sides and at this point the balances too legend favor of federal prosecutions. >> still, state crimes are far more numerous than federal. >> they do but here is the difference. you know from beach wait, i am from new orleans, people trying to prosecute and arrests are running around trying simply to deal with the violent crimes that they have to. few prosecutors in major cities have time to go looking for things. they can't find what has already been done. that is not the case in federal court. in federal court you convene a grand jury and go out looking, you have the defendant a potential target and figure out what has this person -- what can we nail him on. that is not the way local

prosecutors work. >> attorney benjamin, will you weigh in on this discussion please? >> i agree with dr. baker. the most striking aspect of the current state of the criminal justice system and the biggest most dramatic change from when i first began 35 years ago to defend criminal cases is the overbalance of power. federal criminal defense now is all about negotiating a resolution. that is all it is. it is no longer about guilt or innocence. kilt is presumed that least by the prosecution and they have the tools available to compel the guilty plea so that that is not even a question. it is all about sneaking out, cooperating, doing whatever you have to to get the leniency,

fair treatment that you seek. >> so what then do we bring to powerful judiciary committee and the house of representatives in terms of these ten hearings that we have had this year and last year? what can we take? i want to commend the chairman and ranking members for having put this together but where do we go from here? >> i think the immediate thing is reform of the men's ray a problem. the immediate band-aid that is necessary is a default rule of m menraia and the rule of construction that applies me a sraea to all statutes.

>> no, uniform standards. clearly defined across the board. >> what would you add, dr. baker accused the >> i have been involved in trying to draft the statute. it is not easy to draft because of the way first of all federal crimes are tracked and how differently they are. i would add to those two things which i endorse, cleared definitions of what is a crime, what is a felony, what is a misdemeanor and away to deal with strict liability is simply to say nine criminal offense, this is in the model penal code but not many states adopted. i mentioned did in earlier testimony. you have a provision for non criminal offenses and strict liability is limited to those.

so if you think you need to be prosecuted, fine but the stigma of crime is not on their plea >> the time of the gentleman has expired. gentleman from georgia, mr. johnson. >> as i listen to the testimony and did a little reading i was impressed with the fact that dr. baker, in your paper you cite statistics showing that in 1983 it was estimated that there were 3,000 or so criminal offenses in the code, and in 1998 use cited doj figures of 3300 as of 1998. >> those were two different studies and it is noted one was by doj, the other windfalls the

same person that there were different methodologies used and that is why the different numbers. >> i see, but that does not indicate that there was no growth in the number of -- >> there was growth and actually -- >> may or may not have been 300. >> it was more than that. >> okay, all right. that is the modest assessment, 3300 as of 98. that was 300 more than 1983 and between 1998 and 2008, that ten year period saw a rise to 4450 according to your -- >> the 1990 figure which i explain in there is not a reliable figure because it did not follow the methodology. >> you think it was higher? >> was much higher. doj methodology which i used, which has been by e-mail told to

me by the person who conducted it -- i use the same methodology doj did. we explain the methodology to crs to basically followed that but what happens in 1998, they did not wait particular statutes to the various crimes within one statutes. they simply counted the statutes. >> so between 2008 and 2013 you cited additional 403. >> that is the crs report and the skewed years 2008 with 195 crimes. >> it puts us according to the reports close to 5,000 offenses and it marks like from 1983 through 2008 was an explosion in

the number of human beings we have in prison in this country. at the same time we have had the growth of i would say the conservative movement in the country which has called for less government, less taxes, which when you put on top of that fact that you are needing more prisons, more jail space, more prisons, you have seen a growth in the private prison industry. and in fact, 1983, 2,013, close to 5,000, 1984, it should be noted, is when the corrections corp. of america, which is the largest private prison for

profit corporation, that is the year that that was founded, and experience exponential growth, and to the point where they, along with -- there's another big one, g p c or something like that, those corporations, publicly held, corporations selling stock on wall street, what connection do you see to the growth of private prison industry and the number, and the amount of contributions the companies make to legislators on the federal level, and growth in the prison, and in lobbying and

the growth in statutess putting people in prison? >> i can draw a connection between growth and certain things. i represented the sheriff in louisiana who built largest public prison system and the whole thing was funded by federal dollars. >> in the business of taking federal prisoners because the federal rate was much higher than the state rate. there's a definite connection in the growth of prisons but on the conservative side especially in texas and louisiana they are understanding that this is bankrupting the state's. now you have some conservatives flipping and calling for reduction even in state criminal penalties and state prison sentences because they realize the growth of it, the expense is unsustainable. >> the gentleman has expired.

>> one last statement, i would imagine, we see a rise in lobbying costs that are incurred by the private prison industry, thank you, mr. chairman. >> the gentleman from new york, mr. jefferies. >> thank you, we thank the witnesses for your presence and continued contributions to the efforts of this panel. attorney benjamin, you mentioned something, you agreed with that, federal criminal defense has simply become negotiation efforts toward resolution. that seems fundamentally inconsistent with the notions that have always served to curve our criminal justice system, the presumption of innocence. if there's a presumption of

innocence it seems to me it cannot be the case that once someone is being investigated and/or is indicted by our government, the only real option available to someone who in theory should be presumed innocent it is to negotiate the most favorable resolution which ultimately will result in some form of sanction and/or jail time. so the question becomes how do we unpack this dynamic in a way that allows the task force, the house, the congress to make a meaningful impact? i would suggest i would like to get the observations of both of you that it seems to me there has got to be some way to rein in the inappropriate exercise of prosecutorial decisionmaking, at the term arrogance that exists,

perhaps among some prosecutors, operating in good faith though i may not agree with the decisions that they make. but who as it currently exists has the capacity to oversee prosecutorial behavior and/or decisionmaking and what decisions when inappropriate policy decisions are made? >> the power to rein in federal prosecutors resign in the attorney general, the u.s. attorney, the reality is rarely will ease individuals want to interfere with a career prosecutor who has been doing this all their lives, the answer is to take a look at the tools that are being used to produce this result and i think the

biggest problem is the existence and expansion of the use of mandatory minimum sentences. that is what gives the unfathomable power to federal prosecutors because they can, in their charging decisions, 10, 20, 30 lifetime mandatory sentences. it takes the judge completely out of it. if somebody is convicted what we say to our clients, maybe you have a tryable case but if you lose you will get a life sentence. >> appreciate that observation. i want you to respond but also i want to add this observation, federal prosecutors have absolute immunity as i understand it. in the context -- >> weiser's and that getting out of the prosecution. sometimes they get involved in investigation.

>> in the context of the prosecution they got absolute immunity. law enforcement has qualified immunity. is that something we should explore? >> as a fallen prosecutor i liked it when i had it. i haven't given it enough. i think there's a reason for in unity. whether it should be qualified and more like law-enforcement the assumption is the prosecutor is under the control to some extent of the judge in a way that law-enforcement is not. >> that is the assumption that the testimony is that is no longer the case. federal judges to some degree lost control. i am trying to figure out -- >> responsibilities with the president and attorney general. the political reality is i don't care what party you are talking about, it depends on a

particular u.s. attorney, and whether they got a senator protecting them. >> one last observation. the problem is to rectify the damage that has been done and also figure out moving forward we can prevent a return to the cycle of endless criminal statutes. it is often the case elected officials reacted the passions of the public and that is the constitutional charge to the house of representatives but in the criminal context when he responded passions of the public as it relates to a particularly heinous crime that results in doing things that in retrospect aren't in our best interests and i encourage all of us, those contributing to the separatists, think about the dynamic as we move forward. >> thank you, the time of the

gentleman has expired. let me recognize myself with five minutes to wrap up and more comments looking at the last year and will we have been able to discover. first of all i want to thank the witnesses for appearing. two authorizations of this task force have only scratched the surface of what needs to be done because literally the congress and a lot of the agencies have been putting more and more layers on the onion and beginning to start to peel off the ones on the outside and that just adds more questions. looking at how we got to is this, in order to stop this from getting worse, we do have to vigorously pursue a change in house rules. some of the lapses that a lot of committees that don't know very

much about the criminal law to make criminal law is the fact that the judiciary committee has not been very vigorous in its jurisdiction. the parliamentarians, we lose jurisdiction, we didn't claim it. it is much harder to get it back and they will forget about us when they refer bills. exchanges of letters, further legislation is necessary. we are going to need help in developing a default mens rea statutes. default means when there's not a specific criminal intent in a statute, there will be one. if there is a specific criminal intent the default statutes would not apply and at least you have to have a criminal intent as one of the elements in terms of obtaining an indictment or

conviction. in order to get at the proliferation of criminal penalties, some of them are statutory, some are done administratively. i would like to see the judiciary committee draft and get past and enacted into law a sunset provision of all administrative criminal penalties. it should be a fairly long sunset and the committee can then ask each agency to come in and justify which of those criminal penalties they wish to have continued to and why. and if they can justify that, in order to get at reenactment through the congress, then those administrative penalties would simply vanish and we wouldn't have to worry about the many

more. i think a way to start on the anti duplication provisions is to start scrubbing the bill that i introduced in this congress and the two preceding congresses which was designed to reorganize the coat and at least put some sense in it so that people would look and see what activities were criminal in nature without having to go to a lawyer who could never give them a definitive answer because no matter how hard the lawyer tries they will never be able to find what statutes are involved in that. i know that in a few days we have left in this congress, none of this is going to be accomplished. however, i would hope that as we prepare to start the next congress we will be able to in a bipartisan manner which is

certainly permeated this particular task force, to take a peach of these areas to figure out what to do and what we can get enacted into law and i think the american public, while they will not see an immediate change in how we approach criminal issues, there will be some things that will be long term that we will deal with many of the results of overcriminalization. i want to thank members of this task force for putting in a lot of time, doing a lot of good work. remember we have got probably the first two layers of of the and yen but there are many more players yet to go so without objection, the subcommittee hearing is adjourned. [inaudible conversations]

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