At Wednesday's House Judiciary Committee hearing, attorney Jonathan Turley discussed over-criminalization.
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00:00Time has expired.
00:01Chair recognizes Professor Turley for your five minutes.
00:05Thank you, Chairman Briggs.
00:06Ranking Member Biggbeth, Chairman Jordan.
00:08Mic, microphone, please.
00:10Thank you, Chairman Briggs, Ranking Member Biggbeth,
00:14Chairman Jordan, Ranking Member Raskin,
00:17for the pleasure of and honor of speaking to you today
00:20about criminalization of federal law.
00:23It was exactly 27 years ago, on May 7, 1998,
00:28that I appeared in this room to testify
00:31on over-criminalization of federal law.
00:34And I note this for two reasons.
00:37One is my birthday was just yesterday,
00:39and I didn't think I could feel any older then,
00:42so I thank you for making me feel very, very old.
00:46The second is to, it's something of a marking point,
00:51a navigational beacon on how little success we have had
00:55over 27 years.
00:58We are facing the same crisis of over-criminalization.
01:03There are an estimated over 5,000 federal crimes
01:07and hundreds of thousands of regulatory crimes.
01:10This would have been unimaginable for the framers.
01:13After all, in the Constitution,
01:14there was only three crimes mentioned,
01:16treason, piracy, and counterfeiting.
01:19When Congress got to the point
01:20of actually creating criminal code,
01:22they came up with 23.
01:23They seemed to think that was sufficient.
01:26It would be truly otherworldly for them
01:30to know what happened to the federal criminal code,
01:33particularly because they believed that police powers
01:35largely rested with the states.
01:37The danger is that it erases the line
01:41between criminal and civil conduct.
01:42And that danger is that criminal law
01:46not just is meant to create a stigma
01:49because it's supposed to reflect an intent
01:51of harmful or even evil intent,
01:56but it also creates all types of costs
01:58for our legal system.
01:59And the framers talked about that.
02:01Madison talked about it in Federalist 62.
02:04And what they said is that you can't make criminal laws
02:08where citizens just have to guess what is criminal.
02:12It has to be the brightest of bright-line rules.
02:15And instead, we have become a nation
02:18of mattress tag felons,
02:20where everything that you do
02:22can also be treated as a felony.
02:25And while we say ignorance is no excuse,
02:30the problem is that Congress has created a system
02:32where you have to be ignorant of the crimes
02:34because nobody, including Congress,
02:36knows what the crimes are.
02:38So it's hardly surprising that the citizens do not.
02:42One out of every 47 adults
02:44are now reportedly under some form
02:45of correctional supervision.
02:47That is also a cost.
02:49The proliferation of crimes is moving a huge percentage
02:52of citizens into the criminal justice system.
02:55It also allows prosecutors to overcharge,
02:58also to coerce plea bargains.
03:01And citizens are faced with near bankruptcy,
03:05if not direct bankruptcy,
03:07in fighting a criminal case.
03:09The Supreme Court has tried its best
03:11to try to reinforce the narrow meaning of crimes.
03:15But as Oliver Wendell Holmes said,
03:17if my fellow citizens want to go to hell,
03:19I will help them.
03:20It's my job.
03:22And the point is,
03:23as was raised in a couple of cases by the justices,
03:27Congress is allowed to do stupid things.
03:29And Congress isn't sending anyone to hell.
03:33It's created hell for the entire citizenship of this country
03:38because no one knows what is a crime anymore.
03:42And anyone can be charged as a felon.
03:44And that's wrong.
03:46Now, this is a problem of Congress's making,
03:49and Congress will have to solve it.
03:51I've suggested some ideas in my testimony,
03:53including, as was stated earlier,
03:57an effort to get agencies,
03:58preferably through an executive order,
04:00to either name all of the crimes under their jurisdiction
04:04or explain why they cannot do so.
04:06I've also encouraged the creation of a committee
04:08with a counterpart in the executive branch
04:10that can act more swiftly to reduce these.
04:13I actually believe there's one reason to be optimistic here.
04:16With the advantage of AI,
04:18and my colleague has used it brilliantly with his algorithm,
04:22it may be possible today,
04:24when it was not possible 27 years ago
04:26when I spoke to this committee last on this subject,
04:30it may be possible for us to actually do something about this,
04:33using AI and properly written algorithms
04:36to identify the number of crimes
04:38and to do something about them.
04:40I hope that we're all up to that task
04:43because this is perhaps the darkest legacy
04:46of the United States Congress.
04:48It has failed the American people.
04:51It has used criminalization
04:52as a way of putting an exclamation point
04:54on their issues.
04:57That has to end,
04:59and I hope some of my suggestions may help,
05:01and I have the honor, again,
05:03of speaking with you today,
05:04and I'd be happy to answer any questions.
05:07Thank you, Professor Turley.
05:09We're thrilled that you would spend the birthday eve with us,
05:14as you did so many years ago.