Professor Dervan Testifies on Capitol Hill Regarding Overcriminalization, Regulatory Crimes, and Plea Bargaining

Professor Dervan Testifies on Capitol Hill Regarding Overcriminalization, Regulatory Crimes, and Plea Bargaining




I was pleased to have the opportunity to testify yesterday before the House Committee on the Judiciary, Overcriminalization Task Force. The focus on the hearing was potential solutions to overcriminalization, particularly regulatory overcriminalization.




Below is a portion of my testimony:
" I commend the Task Force for its work,
shining a light on the issue of overcriminalization and working to correct this
fundamental problem in our criminal justice system.
Before beginning a discussion of the possible
solutions to the numerous problems associated with overcriminalization that
have been identified by this Task Force during prior hearings, I think it is
also important to consider once again the far reaching consequences stemming
from the phenomenon of overcriminalization.
As reported by the American Bar Association in a 1998 study, forty-percent
of the criminal laws passed since the Civil War were enacted after 1970. Since the release of this ABA report, it is
estimated that the federal government has created hundreds of additional
criminal statutes and untold numbers of additional criminal regulatory
provisions.
One of the most visible results of overcriminalization
in the last forty years has been the growth in the size of the American prison
population. In a report released in
March 2009, the Pew Center on the States concluded that 2.3 million adults in
the United States were in prison or jail.
This represented 1 out of every 100 adults. Further, when adults in the United States who
were on probation or parole were included, the total number under correctional
control reached 7.3 million, or 1 out of every 31 adults. Finally, as noted in a 2011 study, an
estimated 65 million adults in the United States, which represents more than 1
in 4, have a criminal record. Given
these statistics, it should come as no surprise that the United States has the
worlds largest prison population.
Though we represent only 5% of the worlds population, we have “almost a
quarter of the worlds prisoners.”
It is also important to remember in this
context that the consequences of conviction do not end when a prison sentence is
completed. There are hundreds of
collateral consequences that can flow from a misdemeanor or felony conviction,
regardless of whether a prison or jail sentence is ever served. Further, such collateral consequences can impact
not only the convicted but their family and community as well. The breadth and significance of these
collateral consequences cannot be understated, and I believe this is an
important issue that this Task Force should consider addressing at a future
hearing.

As evidenced by the work of this Task Force,
there is now a deep and bipartisan appreciation for the significance of
overcriminalization in our criminal justice system. Therefore, let us consider several solutions
that might be adopted by Congress to both reduce the negative impacts of past
overcriminalization and prevent a return to overcriminalization in the future. While this hearing is focused on solutions to
regulatory crime, it is important to note that the solutions I propose below
are applicable to all criminal offenses in the federal system and should be
considered potential solutions to the broader issue of overcriminalization, not
just regulatory overcriminalization.

Adopt a
Default Rule for Mens Rea

First, mens
rea is a cornerstone of our criminal justice system and conveys the idea
that individuals should be prosecuted where they have acted with a guilty
mind. As Justice Jackson wrote in Morissette v. United States in 1952, “The contention
that an injury can amount to a crime only when inflicted by intention is no
provincial or transient notion. It is as
universal and persistent in mature systems of law as belief in freedom of the
human will and a consequent ability and duty of the normal individual to choose
between good and evil.” Today, as a result of overcriminalization,
there are many federal offenses for which there is no mens rea or only weak mens
rea. Where adequate mens rea is lacking, innocent and
mistaken conduct can be criminalized under circumstances in which Congress never
intended a persons liberty to be put in jeopardy.

To correct this problem, Congress should
adopt a default mens rea rule. Such a rule would correct unintentional
omissions of a mens rea term in
existing and future legislation and ensure that those without a guilty mind are
protected from unwarranted prosecutions.
When adopting such a default rule, the Task Force should carefully
consider the appropriate level of mens
rea for incorporation as the default.
While many current federal criminal statutes utilize the lower-level mens rea standard of “knowingly,” this
term generally only requires proof that the defendant had “knowledge of the
facts that constitute the offense.”
Therefore, the utilization of the term “knowingly” will likely fail to
achieve the Task Forces goal of preventing application of regulator crimes and
other offenses to individuals unless they intentionally engaged in inherently
wrongful conduct or acted with knowledge that their conduct was unlawful. A stronger and more appropriate term for
utilization would likely be the term “willfully,” which would require some
proof that the individual was aware his or her “conduct was unlawful.”

Adopt a
Default Rule Applying Mens Rea to All
Material Elements of an Offense

In addition to adoption of a default mens rea rule as described above, consideration
must be given to codification of rules of construction that will assist in
protecting the constitutional rights of defendants. As one such example, the Task Force should consider adoption of a provision requiring
courts to apply any mens rea term
contained in or applicable to a statutory or regulatory offense to all material
elements of that offense.

There are several advantages to adopting such
a rule. First, this type of provision
will assist in clarifying ambiguities if a default mens rea rule is adopted.
Second, such a provision will assist in preventing costly litigation
regarding existing statutes that already contain a mens rea requirement but which are vague as to whether the mens rea applies to each of the material
elements of the offense. Third, adoption
of a default rule will assist in creating greater uniformity amongst the
various courts and their interpretations of statutes containing ambiguities as
to the mens rea element. Finally, such a provision will further the
goals of this Task Force by helping to ensure that individuals are not
prosecuted where they have not acted with a guilty mind.
. . .

It is important to note, of course, that
Congress could still limit the application of a particular mens rea term in a particular statutory or regulatory offense. In such cases, the specific legislation would
simply need to include a clear indication of Congressional intent to limit the
applicability of the mens rea term. The default rule as described above would
only apply in those cases where no such indication was present.

Adopt a
Codification of the Rule of Lenity

As
a second rule of construction, the Task Force should consider codifying the Rule
of Lenity, a doctrine with a long and respected history in American law. The Rule of Lenity states that “ambiguous
criminal laws [are] to be interpreted in favor of the defendants subjected to
them.” Recently, in the case of United States v. Santos, Justice Scalia remarked
regarding the Rule of Lenity:
This venerable
rule not only vindicates the fundamental principle that no citizen should be
held accountable for a violation of a statute whose commands are uncertain, or
subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the
party that can best induce Congress to speak more clearly and keeps courts from
making criminal law in Congresss stead.

Unfortunately,
the application of the Rule of Lenity by lower courts has not been
consistent. Therefore, the codification
of this important doctrine is necessary to ensure its uniform application
consistent with the doctrines that the government must sustain its burden of
proof and defendants are presumed to be innocent. Importantly, codification of the Rule of
Lenity alone is not sufficient to correct the problems emanating from
overcriminalization. Rather,
codification of the Rule of Lenity should be viewed only as an additional
safeguard in combination with the above proposed solutions.

Additional
Possible Solutions

In addition to the above three solutions to
the issue of overcriminalization and its impact on statutory and regulatory
offenses, I believe consideration should also be given to several other ideas. These include passage of a Congressional rule
requiring every law that adds or modifies criminal offenses or penalties be
subject to automatic referral to the relevant judiciary committee, enactment of
a law that would require the federal government to produce a public report that
assesses the justification, costs, and benefits of any new criminalization, and
enactment of a law that would require Congress to approve any new or modified
regulatory criminal offenses or penalties proposed by the Executive Branch.

Plea
Bargaining

In
closing, I would like to address one additional issue.

Today,
almost 97% of criminal cases in the federal system are resolved through a plea
of guilty. As the number, breadth, and
sentencing severity of federal criminal statutes increased over the last
century because of overcriminalization, prosecutors gained increased ability to
create overwhelming incentives for defendants to waive their constitutional
right to a trial by jury and plead guilty.
The power of the prosecution in this context has been made even greater
by the presence of vague and esoteric regulatory offenses that require little
or no mens rea. At the same time, the financial and emotional
costs to defendants and their families of proceeding to trial have grown into
often insurmountable obstacles.

Consider
the examples already described in testimony before this Task Force.

In
Mr. Lewiss testimony regarding allegations he committed a felony violation of
the Clean Water Act related to a blocked sewage line at work, he offered the
Task Force a clear glimpse at the options he believed he had after been accused
of a crime. He stated, “I wound up
pleading guilty to a federal misdemeanor because the prosecutors said that if I
pled guilty, they wouldnt oppose probation.
As a single dad, I was worried that if I went to prison there would be
nobody to raise my children or care for my mother.”

Ms.
Kinders testimony regarding allegations that she had committed a felony
violation of the Lacey Act related to the harvesting of paddlefish from the
wrong side of the Ohio river also included a discussion of plea bargaining. She stated, “We felt, and we still feel now,
that we did nothing wrong. But, on
January 17, 2012, we made the painful and humiliating decision to plead guilty
because we didnt think we had a choice.
We were facing a maximum penalty of up to five years in prison, a
$250,000 fine, or both, on each of four counts…
We couldnt suffer the emotional and financial trauma of a trial, and we
didnt want to risk losing our freedom as well as our property.” As a result, Ms. Kinder pleaded guilty to a
misdemeanor.

In
each of these cases, one is offered insights into the various issues that
prevent individuals from challenging criminal allegations today and exercising
their constitutional right to put the government to its burden of proof at
trial. These challenges include steep
sentencing differentials and penalties for proceeding to trial, along with
significant financial and familial considerations.

As
the examples offered by the witnesses before this committee demonstrate, we
must recognize that a symbiotic relationship exists between overcriminalization
and plea bargaining. Plea bargaining and
overcriminalization have perpetuated each other. Plea bargaining has shielded
overcriminalization from scrutiny. At
the same time, overcriminalization has provided the laws that allow prosecutors
such wide discretion in selecting charges and creating significant incentives
for defendants to plead guilty. This
relationship has lead us to our current state and created an environment in
which we have jeopardized the accuracy of our criminal justice system in favor
of speed and convenience.

And
this is not only occurring in regulatory cases.
It is occurring in all manner of criminal cases throughout the country.

Consider
for example, the nationally publicized case of Brian Banks. In 2002, Banks, who was sixteen years old at
the time, was a top college football prospect.
His world came crashing down, however, when he was wrongfully accused of
sexual assault and kidnapping by an acquaintance. After his arrest, Banks was offered a
choice. If he pleaded guilty, the
government would recommend a three year sentence. Should he proceed to trial, he could risk
receiving a sentence of 41 years to life.
Banks, who some reports indicate was given only 10 minute to decide his
fate, took the plea offer. After serving
five years in prison, Banks was contacted by the accuser who admitted that she
had lied about the incident. She
allegedly refused to inform authorities of the falsity of her original
allegations, however, because of a large financial settlement previously
awarded to her in the case. After
secretly taping the accusers admission that the assault had not occurred, Banks
was exonerated in 2012.

Consider also the case of Ada JoAnne
Taylor. In 1989, Taylor and five others were
accused of killing a sixty-eight-year-old woman in Beatrice, Nebraska. The options offered to Taylor were starkly
different. If she pleaded guilty and
cooperated with prosecutors, she would be rewarded with a sentence of ten to
forty years in prison. If, however, she
proceeded to trial and was convicted, she would likely spend the rest of her
life behind bars. The choice was
difficult, but the incentives to admit guilt were enticing. A sentence of ten to forty years in prison
meant she would return home one day and salvage at least a portion of her
life. The alternative, a lifetime behind
bars, was grim by comparison. After
contemplating the options, Taylor pleaded guilty to aiding and abetting
second-degree murder. In reality,
however, she was innocent. After serving nineteen years in prison, Taylor was
exonerated after DNA testing proved that neither she nor any of the other five
defendants in her case were involved in the murder.

Through
academic study, we now know that the actions of Brian Banks, Ada JoAnne Taylor
and many others are not anomalies. Factually
and morally innocent people facing tough circumstances, such as penalties for
proceeding to trial or a realization of the financial costs of challenging an
indictment, will falsely confess to something they have not done. As an example, in a recent article written by
Dr. Vanessa Edkins (Assistant Professor, Department of Psychology, Florida
Institute of Technology) and myself and published in the Journal of Criminal Law and Criminology, we discovered that more
than half of the innocent participants in our study were willing to falsely
admit guilt in return for a perceived benefit.

As
we now know the true power of plea bargaining from both actual criminal cases
and from academic research, we must begin to examine the impact that
overcriminalization has had on this most fundamental aspect of the American criminal
justice system. I hope, therefore, that
this Task Force and the Committee on the Judiciary will next turn its attention
to modern day plea bargaining, one of the many outgrowths of the
overcriminalization phenomenon.

Along
with plea bargaining, there are many other issues currently being debated in
the legal academy and legal profession that are appropriate for this Task
Forces review. Those might include
issues related to collateral consequences of conviction, mandatory minimum
sentences, forfeiture provisions, and conspiracy laws. While those are not the topics of todays
proceedings, I think they are topics ripe for investigation and analysis at
future hearings considering overcriminalization and the state of the American
criminal justice system.
Thank
you for the opportunity to testify today.
I welcome any questions the Task Force might have regarding my remarks."



The work of this bipartisan Task Force and theoverwhelming interest in finding a solution to the issue of overcriminalization give me great hope that meaningful reforms are on the horizon.

A copyof my full written testimony may be found here, along with a video link to the hearing.