Rooney Testifies on Expansion of Regulatory Crimes, Unjust Incarceration

Press Release

U.S. Representative Tom Rooney (FL-17), a former prosecutor in the U.S. Army JAG Corps and professor of constitutional and criminal law at West Point, today testified before the House Judiciary Committee on the massive expansion of regulatory crimes that carry federal criminal penalties, including incarceration. Rooney set forth a series of proposals to reduce over-criminalization and protect Americans from unjust imprisonment.

"As we look at criminal justice reform, I believe we must address the massive increase in the size, scope and complexity of the federal criminal code," Rooney said. "By delegating so much authority in rule-making, we have given unelected, unaccountable bureaucrats the power to define criminal behavior and set penalties that include incarceration. In other words, we have let bureaucrats turn regulatory offenses, even minor ones, into federal crimes that carry prison sentences."

Noting that there are hundreds of thousands of regulations, hidden in various sections of the federal code, that carry criminal penalties, Rooney asked, "How on earth can we expect individuals and small businesses to know these regulatory crimes, understand them, and comply with them?"

Full Testimony of U.S. Rep. Tom Rooney (FL-17) to the House Judiciary Committee

Thank you Chairman Goodlatte and members of the Committee for inviting us to share our ideas with you today.

As we look at criminal justice reform, I believe we must address the massive increase in the size, scope and complexity of the federal criminal code. While this expansion has led to a significant increase in the federal prison population, many of these new federal crimes were not written by Congress. They were written by federal regulators.

By delegating so much authority in rule-making, we have given unelected, unaccountable bureaucrats the power to define criminal behavior and set penalties that include incarceration.

In other words, we have let bureaucrats turn regulatory offenses, even minor ones, into federal crimes that carry prison sentences.

And they have obliged. The constitution lists three federal crimes -- treason, piracy, and counterfeiting. Today, there are more than 4,500 federal crimes. On top of that, there are now so many regulatory crimes, hidden in so many different sections of the federal code, that even CRS can't compile a list of them. In fact, they can't even tell us how many there are. Their best guess is about 300,000.

These "crimes by bureaucrat" are often vague, overbroad, obscure, and difficult to understand. Many have an inadequate mens rea requirement, and some have no mens rea requirement at all.

How on earth can we expect individuals and small businesses to know these regulatory crimes, understand them, and comply with them?

In this system, you could be incarcerated for committing a crime that we would not expect any reasonable, intelligent person to understand or even know even exists. You could go to prison under a law you had no intention to violate, and that governs actions a reasonable person would not have known were morally wrong.

Take Lawrence Lewis. Mr. Lewis started as a janitor in the D.C. school system and worked his way up to chief facilities engineer at a military retirement home. In 2007, a backed up sewage system threatened to flood an area where the sickest residents lived. Mr. Lewis and his staff diverted the system into an outside drain they believed was connected to the city's sewage-treatment system. Unfortunately, it instead emptied into a creek that ultimately led to the Potomac River.

Mr. Lewis was arrested for violating the Clean Water Act. Facing prison for, as he puts it, "backed up toilets," he pleaded guilty and received one year of probation. This hardworking father will live the rest of his life with a federal conviction on his background.

This should not happen under any logical criminal system. I believe we need to take four steps to reduce over-criminalization and protect Americans from unjust punishment and imprisonment:

* First, address the issue of mens rea. Require the government to prove beyond a reasonable doubt the state of mind specified under statute. If no state of mind is specified, set the default as "knowingly" for existing statutes until they're amended, and "willfully" for future statutes.

* Second, allow a mistake of law defense. Put into law that, in any federal prosecution, it is an affirmative defense that the defendant did not know -- and a reasonable person would not have known -- that the conduct was a crime.

These first two steps will help ensure that no one is convicted of a so-called crime that they did not intend to commit and a reasonable person would not know existed.

* Third, create a federal crime inventory. Require the Attorney General, working with various Departments, to compile an index of all federal criminal offenses, including rule violations that carry a criminal penalty. Make that available to the public. Then, if an offense is not listed in the inventory, no person can be prosecuted for it.

In the 21st century, it should not be impossible for our best legal researchers at CRS, let alone our constituents, to know what constitutes a crime. If the Department of Justice can't find it and include it in this list, then they can't prosecute you for it either.

* Fourth, restore the proper role of Congress in designating what is and is not a federal crime. For future statutes, require all agencies to submit to Congress for an up-or-down vote any regulation that defines a criminal offense.

Thank you for your time and for considering my proposals. I look forward to working with the Committee to move these ideas forward.

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