This Would Be 'Truly Other-Worldly' For The Founding Fathers To Have Seen: Jonathan Turley

Forbes Breaking News

At Wednesday's House Judiciary Committee hearing, attorney Jonathan Turley discussed over-criminalization.

Transcript

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.

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