Of Conduct/Over-Federalization of Criminal Law
7/22/09 - On Wednesday, July 22, Representative Robert C. “Bobby” Scott (D-Va.), chair of the House Subcommittee on Crime, Terrorism and Homeland Security, convened a hearing on overcriminalization of conduct and over-federalization of the criminal law.
In his opening statement, Chairman Scott posed a series of questions, setting the tone for the day’s hearing:
Do we need to enact more laws at the federal level on a particular subject? That is, is there a valid purpose that is served by creating the crime on the federal level, particularly if it duplicates crimes at the state level? Or would it be better to just provide resources to the states to enforce their own laws?
Echoing these concerns, Rep. Louie Gohmert (R-Texas), subcommittee ranking member, noted, “Part of this trend toward over-federalization and overcriminalization is the growing expectation that comes Congress is the arbitrar of criminal conduct. Unfortunately, Congress has responded to this pressure with zeal…”
The subcommittee heard testimony from four experts: Honorable Richard Thornburg, former U.S. Attorney General; Timothy Lynch, director of the Project on Criminal Justice at the Cato Institute; Stephen Saltzburg, professor from George Washington University Law School; and James Strazzella, president of Temple University Beasley School of Law; and two personal impact stories from Kathy Norris and Krister Evertson. All members of the panel voiced concern regarding the system’s current state.
Thornburg spoke to the common goal of the criminal justice system: “to have criminal statutes that punish actual criminal acts, and do not seek to criminalize conduct that is better dealt with by the seeking of civil and regulatory remedies, the maintenance of mens rea, [the requirement that crimes are defined to include an intent to commit the crime so that people know the conduct they are engaging in is unlawful] and the potentially detrimental consequences of over-criminalization.” Lynch reiterated Thornburg’s push for a reevaluation of the federal penal code.
Stephen Saltzburg, addressed the detrimental effects of mandatory minimum sentences: “Not only are mandatory minimum sentences often harsher than necessary, they too frequently are arbitrary, because they are based solely on ‘offense characteristics’ and ignore ‘offender characteristics.’”
Expert testimony was followed by two personal stories about individuals convicted and sentenced for unwittingly breaking the law. The subcommittee heard from Kathy Norris, whose husband spent 17 months in federal prison because he used the wrong paperwork for imported orchids, even though the flowers are legal to grow and own.
The subcommittee also heard from Krister Evertson. Evertson, who had been working on clean-energy fuel cells for decades, legally sold some part of his fuel-cell materials to raise cash. After a series of charges against him by the government and a long legal battle, he was ultimately convicted for allegedly illegally transporting chemicals the half mile from his home to the facility where he stored the material. He was also convicted of improperly disposing of hazardous waste, even though the Environmental Protection Agency (EPA) witness testified that the materials became hazardous waste [only] when the EPA disposed of them. Evertson served 21 months in prison.
To read testimony and view the webcast of the hearing, please follow this link: http://judiciary.house.gov/hearings/hear_090722_2.html