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This Would Be 'Truly Other-Worldly' For The Founding Fathers To Have Seen: Jonathan Turley
Forbes Breaking News
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5/13/2025
At Wednesday's House Judiciary Committee hearing, attorney Jonathan Turley discussed over-criminalization.
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00:00
Time has expired.
00:01
Chair recognizes Professor Turley for your five minutes.
00:05
Thank you, Chairman Briggs.
00:06
Ranking Member Biggbeth, Chairman Jordan.
00:08
Mic, microphone, please.
00:10
Thank you, Chairman Briggs, Ranking Member Biggbeth,
00:14
Chairman Jordan, Ranking Member Raskin,
00:17
for the pleasure of and honor of speaking to you today
00:20
about criminalization of federal law.
00:23
It was exactly 27 years ago, on May 7, 1998,
00:28
that I appeared in this room to testify
00:31
on over-criminalization of federal law.
00:34
And I note this for two reasons.
00:37
One is my birthday was just yesterday,
00:39
and I didn't think I could feel any older then,
00:42
so I thank you for making me feel very, very old.
00:46
The second is to, it's something of a marking point,
00:51
a navigational beacon on how little success we have had
00:55
over 27 years.
00:58
We are facing the same crisis of over-criminalization.
01:03
There are an estimated over 5,000 federal crimes
01:07
and hundreds of thousands of regulatory crimes.
01:10
This would have been unimaginable for the framers.
01:13
After all, in the Constitution,
01:14
there was only three crimes mentioned,
01:16
treason, piracy, and counterfeiting.
01:19
When Congress got to the point
01:20
of actually creating criminal code,
01:22
they came up with 23.
01:23
They seemed to think that was sufficient.
01:26
It would be truly otherworldly for them
01:30
to know what happened to the federal criminal code,
01:33
particularly because they believed that police powers
01:35
largely rested with the states.
01:37
The danger is that it erases the line
01:41
between criminal and civil conduct.
01:42
And that danger is that criminal law
01:46
not just is meant to create a stigma
01:49
because it's supposed to reflect an intent
01:51
of harmful or even evil intent,
01:56
but it also creates all types of costs
01:58
for our legal system.
01:59
And the framers talked about that.
02:01
Madison talked about it in Federalist 62.
02:04
And what they said is that you can't make criminal laws
02:08
where citizens just have to guess what is criminal.
02:12
It has to be the brightest of bright-line rules.
02:15
And instead, we have become a nation
02:18
of mattress tag felons,
02:20
where everything that you do
02:22
can also be treated as a felony.
02:25
And while we say ignorance is no excuse,
02:30
the problem is that Congress has created a system
02:32
where you have to be ignorant of the crimes
02:34
because nobody, including Congress,
02:36
knows what the crimes are.
02:38
So it's hardly surprising that the citizens do not.
02:42
One out of every 47 adults
02:44
are now reportedly under some form
02:45
of correctional supervision.
02:47
That is also a cost.
02:49
The proliferation of crimes is moving a huge percentage
02:52
of citizens into the criminal justice system.
02:55
It also allows prosecutors to overcharge,
02:58
also to coerce plea bargains.
03:01
And citizens are faced with near bankruptcy,
03:05
if not direct bankruptcy,
03:07
in fighting a criminal case.
03:09
The Supreme Court has tried its best
03:11
to try to reinforce the narrow meaning of crimes.
03:15
But as Oliver Wendell Holmes said,
03:17
if my fellow citizens want to go to hell,
03:19
I will help them.
03:20
It's my job.
03:22
And the point is,
03:23
as was raised in a couple of cases by the justices,
03:27
Congress is allowed to do stupid things.
03:29
And Congress isn't sending anyone to hell.
03:33
It's created hell for the entire citizenship of this country
03:38
because no one knows what is a crime anymore.
03:42
And anyone can be charged as a felon.
03:44
And that's wrong.
03:46
Now, this is a problem of Congress's making,
03:49
and Congress will have to solve it.
03:51
I've suggested some ideas in my testimony,
03:53
including, as was stated earlier,
03:57
an effort to get agencies,
03:58
preferably through an executive order,
04:00
to either name all of the crimes under their jurisdiction
04:04
or explain why they cannot do so.
04:06
I've also encouraged the creation of a committee
04:08
with a counterpart in the executive branch
04:10
that can act more swiftly to reduce these.
04:13
I actually believe there's one reason to be optimistic here.
04:16
With the advantage of AI,
04:18
and my colleague has used it brilliantly with his algorithm,
04:22
it may be possible today,
04:24
when it was not possible 27 years ago
04:26
when I spoke to this committee last on this subject,
04:30
it may be possible for us to actually do something about this,
04:33
using AI and properly written algorithms
04:36
to identify the number of crimes
04:38
and to do something about them.
04:40
I hope that we're all up to that task
04:43
because this is perhaps the darkest legacy
04:46
of the United States Congress.
04:48
It has failed the American people.
04:51
It has used criminalization
04:52
as a way of putting an exclamation point
04:54
on their issues.
04:57
That has to end,
04:59
and I hope some of my suggestions may help,
05:01
and I have the honor, again,
05:03
of speaking with you today,
05:04
and I'd be happy to answer any questions.
05:07
Thank you, Professor Turley.
05:09
We're thrilled that you would spend the birthday eve with us,
05:14
as you did so many years ago.
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