Perhaps it was only because ‘tis the season, but there was some rare harmony on Capitol Hill at the House Subcommittee on Crime, Terrorism, and Homeland Security on Tuesday morning. Edwin Meese, former attorney general and Chairman of the Center for Legal and Judicial Studies here at Heritage, gave testimony, which elicited many thanks from John Conyers (D-MI).
Chairman James Sensenbrenner (R-WI) seemed genuinely shocked that the witness called by the Democrats, Stephen Saltzburg, gave him high praise for introducing the bill at hand. “We really are off to a good start,” Sensenbrenner said.
So was it gold, frankincense, or myrrh that brought about these glad tidings, you ask?
Not quite. But the criminal code reform proposed by Sensenbrenner has brought both sides of the aisle together to frankly discuss the issues of the federal criminal justice system and the rise of overcriminalization. The proposed bill would alter Title 18 of the United States Code, where most of the federal criminal laws reside. Of course, as we’ve detailed in the past, pinpointing the location of all federal criminal laws is not easy. Nonetheless, all of the committee members who spoke were heartily engaged in the issue, and were enthusiastically making suggestions and asking questions as to how to best resolve the issues at hand.
As Meese explained in his testimony, it is important that all federal criminal laws are brought together into one coherent section of the Code and that they are reviewed to ensure they are not obsolete or superfluous. Meese also stressed the importance of bringing the power of criminal law back into the hands of Congress and disallowing administrative agencies from promulgating regulations that have the same effect as a criminal statute. Congress should no longer act as though the country lay in sin and error, pining ‘til the EPA or other agency wrote a regulation to better the world. Writing laws is clearly within the realm of legislative power.
Additionally, Meese explained the importance of writing laws with clearer criminal intent (mens rea) terms so that only those truly blameworthy of a bad act will be prosecuted. A large part of Tuesday’s discussion related to the proposed change of “willfully,” which has generally given the accused more intent protection, to “knowingly,” which doesn’t necessarily require that the individual act with the intention of breaking the law.
The committee also discussed the idea of sequential referral, a reform that was proposed in Heritage and NACDL’s Without Intent report, which would require any proposed criminal offense to pass through the judiciary committees of both chambers of Congress as a means of trying to unify the criminal code and set basic standards for mens rea and other elements of culpability.
While this all may sound academic, the problem of overcriminalization has tragic, real world consequences. In a recent installment of the Wall Street Journal’s continuing in-depth series on overcriminalization in America, authors Gary Fields and John R. Emshwiller relay the heart-wrenching story of Lawrence Lewis, a maintenance engineer who pled guilty to illegally dumping into the Rock Creek in Washington, D.C. When the sewage system of the military retirement home that he worked at would back up, Lewis would drain the waste into what he believed was a drain connected to the sewage line in order to prevent a backup which could create dangers for the health and safety of the residents. The drain actually flowed directly into Rock Creek.
Although Lewis was unaware of this problem—and believed that he was doing the right thing—the Clean Water Act did not require him to have the intent of illegally dumping in order to be found guilty, so his lawyer advised him to simply plead guilty. Now, after trying to live a crime-free life, and teaching his daughter about the mistakes of their family in the past, Lewis has to regularly check in with a probation officer and is subject to unannounced police searches of his home. General Meese called Lewis’s case “a graphic example” of what is happening in the federal system.
So rest not ye merry, gentlemen and ladies of the subcommittee, for there is still plenty of work to do to halt overcriminalization and overfederalization of the criminal law. But Tuesday’s discussion might be enough to keep coal out a few Congressional stockings.