NACDL - Inside NACDL: White Collar Crime Issue

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

This special issue of The Champion, which coincides with NACDL’s Fifth Annual White Collar Seminar, is a perfect occasion to highlight the Association’s white collar crime policy initiatives.

Issues of general concern to the defense bar are increasingly apparent in white collar crime enforcement policies. While this may not have been the case a generation ago, an incendiary combustion of political opportunism and media fascination has taken the “war on crime,” with all of its potential abuses, from Main Street to Wall Street. Governmental excess is now just as likely to occur in the boardroom as it is in any other venue. And the impact of those enforcement policies often falls most harshly on vulnerable mid-level managers, rank-and-file employees, and sometimes shareholders.

The source of this excess is rampant overcriminalization — an unprecedented resort to criminal sanction as a routine regulatory tool.¹ The federal code now has more than 4,500 criminal provisions, as well as untold numbers of federal regulatory criminal provisions. Worse, these criminal provisions have inconsistent, often minimal mens rea requirements.² The root cause of this phenomenon is an approach to legislation in which criminal penalties are thrown into bills with scant thought and even less deliberation. Now in its fifth year, NACDL’s white collar crime program tracks and coordinates responses from NACDL and other key stakeholders to legislation and other facets of white collar crime enforcement, including substantive law, procedural rules, asset restraint and forfeiture, and sentencing. NACDL focuses on the effect of federal, state, and local white collar crime policies as they implicate corporate entities and individuals in the criminal justice system.

NACDL’s white collar crime reform efforts hinge on collaboration, vigilance, and support from the nation’s criminal defense bar. NACDL serves as an indispensable catalyst for collaboration across a wide variety of business and bar organizations — a nimble partner in reacting to legislative initiatives and an invaluable resource for practitioners. For example, the establishment of a Federal Enforcement Working Group fostered cross-organizational communication that garnered broad support for legislative action. In addition, NACDL played a pivotal role in founding and supporting the Coalition to Preserve the Attorney-Client Privilege, which successfully achieved important reforms in Department of Justice policy related to corporate charging practices.³ Among the extraordinary array of allies in this effort were the following: NACDL, the U.S. Chamber of Commerce, the Association of Corporate Counsel, the American Bar Association, the Financial Services Roundtable, the National Association of Manufacturers, the American Civil Liberties Union, and the Heritage Foundation. While groups such as these will likely never agree on certain issues, NACDL’s ability to forge diverse and powerful coalitions on core concerns related to overcriminalization and prosecutorial abuse ensures that articulate voices of reason can be heard irrespective of the prevailing political tide.

Vigilant attention to developments on Capitol Hill and the capacity to respond swiftly and efficiently to ill-conceived legislative initiatives are key aspects of NACDL’s white collar program. NACDL identifies and analyzes proposed legislation that criminalizes, or further penalizes, economic conduct. This approach has succeeded in preventing or blunting new forays into overcriminalization. Within the past year alone, NACDL’s principled advocacy has elevated congressional understanding and helped slow the onslaught of new criminal sanctions. While advocacy with respect to specific legislation is critically important, NACDL’s capacity to educate and inform helps to raise awareness. Two recent initiatives are illustrative:

NACDL and a coalition that includes the American Bar Association, American Civil Liberties Union, Cato Institute, Constitution Project, Federalist Society, Heritage Foundation, and Washington Legal Foundation worked tirelessly over many months to advocate for and plan a hearing on overcriminalization. On July 22, 2009, the House Judiciary’s Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on overcriminalization of conduct and overfederalization of criminal law. The hearing, which included testimony from two victim witnesses, signifies a watershed moment. For the first time, there is bi-partisan congressional awareness that reform of the nation’s federal criminal code is overdue and that mindless expansion of federal criminal jurisdiction must be curtailed.⁴

The third and most critical component of NACDL’s white collar crime initiatives is support for the criminal defense bar. A generation ago, only a handful of defense attorneys dealt with white collar crime. Now, with the proliferation of criminal enforcement on the state and federal levels, some involvement in white collar defense is almost inevitable. Further, as a result of the expansion of proscribed conduct and the enormous costs of defense, even public defenders and assigned counsel inevitably must deal with white collar crime prosecutions. From its inception, educating and equipping front-line white collar criminal defense practitioners was a preeminent goal of the white collar crime program. NACDL’s accomplishments in this area are noteworthy. The program has enabled NACDL to establish a listserv⁵ that provides direct support to approximately 3,000 self-identifying white collar practitioners. It allows practitioners to tap into the expertise of colleagues to learn the most effective means of addressing issues that arise in the context of white collar prosecution.

In addition, NACDL’s annual white collar seminar, “Defending the White Collar Case: In and Out of Court,” addresses cutting edge issues and features an unparalleled faculty. Hundreds of white collar practitioners have participated in the training programs. The advent of a new partnership for the 2009 seminar with Fordham University Law School and the Stein Center for Law and Ethics reflects NACDL’s commitment to foster the most skillful, ethical, and effective advocacy in the white collar area.

An additional component of NACDL’s support for the white collar defense bar is the initiation of regular training programs on topical issues. NACDL recently conducted a series of in-house seminars covering such important topics as pre-conviction restraint of assets, Fifth Amendment rights and parallel proceedings, and the use of the Classified Information Procedures Act in white collar prosecutions. These programs are available for national distribution on the NACDL Web site.

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NACDL also compiles and indexes a brief bank⁶ to support members who are litigating an array of white collar issues. This invaluable tool enables practitioners across the nation to build on successes and elevate the standards of practice throughout the white collar bar. In addition, this resource capacity facilitates efforts to coordinate with the extensive amicus curiae program through which NACDL posts amicus briefs filed by the Association on the many important white collar cases at the federal appellate and Supreme Court levels. The issues covered in these briefs embrace virtually every dimension of overcriminalization and prosecutorial excesses in an array of contexts, including the investigatory, evidentiary, procedural, substantive, jury instruction, and sentencing phases of white collar prosecution.

Finally, as readers of The Champion well know, NACDL regularly publishes columns and articles addressing white collar crime topics. And this annual white collar crime issue not only provides a fascinating range of topical articles, but serves also as tangible evidence of NACDL’s resolute commitment to support the white collar defense bar.

Notes

Of course, overcriminalization is by no means limited to the white collar arena. NACDL’s recently published report on the deplorable state of the nation’s misdemeanor courts shows how the same phenomenon squanders precious public resources and causes pervasive injustice in other contexts. See Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts (misdemeanor) and NACDL’s Report on Misdemeanor Courts: Overcriminalization Gone Mad, The Champion, May 2009 at 5.) and NACDL’s Report on Misdemeanor Courts: Overcriminalization Gone Mad, The Champion, May 2009 at 5.
For an excellent analysis of the evisceration of mens rea requirements, read Harvey Silverglate’s article in this issue of The Champion.
The current DOJ charging policy, articulated in the waning days of the prior administration, is a significant improvement over the prior policy. But NACDL continues to work to improve the policy and to preserve the attorney-client privilege, not only in the context of DOJ enforcement, but also with respect to other regulatory agencies with prosecutorial enforcement authority. See Attorney-Client Privilege and the Value in Coalition-Building, The Champion, September 2008 at 7.
Overcriminalization of Conduct: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 111th Cong. (2009) (statement of John Wesley Hall, President, National Association of Criminal Defense Lawyers).
To subscribe to the white collar crime listserv, go to listserv..
NACDL members can access the brief bank at www.nacdl.org. Click the Resource Center button on the left side of the page. Click the Resource Center button on the left side of the page.