The FCJ and NACDL oppose the criminalization of business.
Businesses and their employees throughout America face an increasing threat of criminal sanction. In a misguided overreaction to isolated but highly publicized aberrant behavior, politicians on both sides of the aisle call for more criminal statutes, less precise criminal intent requirements and increasingly lengthy prison sentences. Specific manifestations of this trend are evident in several legislative and regulatory areas—including:
- the Foreign Corrupt Practices Act;
- the “honest services” fraud law and other “public corruption” offenses;
- the ongoing erosion of intent and knowledge requirements in criminal laws;
- the decline of the attorney-client privilege;
- the increase of inflexible charging and sentencing practices;
- the failure of the government to turn over exculpatory evidence to the defense; and
- the abuse of the federal grand jury process;
The trends are also evident in the continuing expansive application of vicarious corporate criminal liability for individuals and entities in the financial services sector, the pharmaceutical industry, and elsewhere.
In addition to the toll on our personal liberties, the trend of criminalizing lawful economic conduct imposes enormous costs that broadly impact corporate practices. Such laws create an overall climate of uncertainty, fear and intimidation that compels the business community to expend huge sums in order to practice “defensive commerce.”
NACDL, the bar association of the nation’s criminal defense practitioners, together with the Foundation for Criminal Justice (FCJ), a 501(c)(3) charitable nonprofit, work to stop or even reverse these trends and to ameliorate the harm they have caused through a meaningful criminal justice reform platform. NACDL’s White Collar Crime Project tracks relevant legislation, rules and enforcement trends and, in response to threats or opportunities, develops strategies, recruits experts, and coordinates responses from influential stakeholders. The project focuses on federal and state white collar crime policies as they implicate corporate entities as well as individuals in the criminal justice system. NACDL has demonstrated its capacity to achieve these objectives. The FCJ supports research, training and education to seek a fairer and more humane criminal justice system, including projects, such as grand jury reform and discovery abuse, that relate directly to the intersection of criminal justice policy and the business community.
NACDL and the FCJ seek funding to support the White Collar Crime Project and the overall mission to rein in overcriminalization and combat government abuse of the criminal justice process. In broad terms, support will enable NACDL to continue to pursue the following objectives:
- Build coalitions among diverse groups in support of a common effort to combat overcriminalization.
- Promote reforms designed to ensure that all criminal statutes and regulations clearly define the prohibited conduct and include an express criminal intent provision with respect to every element of an offense.
- Support state and federal discovery reform to ensure that all information favorable to an accused is promptly and completely disclosed by prosecuting entities.
- Seek fundamental reform of the grand jury process to ensure fairness and balance for targets, subjects and witnesses.
- Aggressively pursue the mission to rein in overcriminalization through high quality training and educational programs, including both live seminars and webinars.
- Build upon NACDL’s highly regarded amicus program to identify appropriate cases for intervention, and seek support for amicus briefs from groups representing a broad ideological spectrum.
- Seize every opportunity to cultivate public awareness of the problem of overcriminalization and abuse of the criminal process through aggressive and innovative media strategies.
- Respond promptly and comprehensively to proposed criminal legislation to ensure compliance with the principles essential to prevent overcriminalization.
- Continue to pursue a broad strategy to educate legislators, staffers, media and other opinion leaders in an effort to heighten awareness of and sensitivity to overcriminalization concerns.
- Oppose retrogressive sentencing practices that disproportionately impact the white collar area.
If your company or foundation is interested in providing support for NACDL’s reform work, please contact Foundation Manager Daniel Weir at (202) 465-7640 or firstname.lastname@example.org, or consider tax deductible contributions to the Foundation for Criminal Justice, a 501(c)(3) nonprofit organization that partners with NACDL to reform the criminal justice system.
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