Upon our initial review of the bill, prior to its passage, we identified over two dozen new and troubling federal criminal offenses that would further explode the federal criminal code. This bill was never referred to either chamber’s Judiciary Committee before its enactment and, thus, none of these criminal offenses were considered by a full Judiciary Committee. Further, this bill will allow un-elected officials to enact new, broad regulations for the financial sector, many of which will be directly tied to criminal enforcement provisions and thus will be criminally punishable. In addition, and perhaps most troubling, the overwhelming majority of the criminal offenses contained in the bill lack adequate mens rea, or criminal intent, requirements and, consequently, will fail to protect innocent or inadvertent actors from being criminally prosecuted or punished.
The below document, titled "NACDL on H.R. 4173 - Recommendations," was issued prior to the Act's enactment. The recommendations sought to improve the quality of some of the criminal offenses included in bill and to make the overall bill more consistent with the fundamental principles of the American criminal justice system. Because some provisions were beyond salvage, the recommendation was to strike them in full. In many instances, however, the particular provision could have been improved by adding more protective mens rea requirements, limiting the scope of conduct covered by the offense, or both. Finally, where an offense allowed for the unlimited creation of additional offenses through the authorization of regulatory criminalization, the recommendation was to limit the punishment for violations to a civil penalty.
Pictured: NACDL Member Andrew Wise exploring the overcriminalization problems with the Dodd-Frank Act on March 24, 2011, at a Capitol Hill education event.
Resources on H.R. 4173
A Windfall for Overcriminalization, A Case for Reform (one pager on Dodd-Frank Wall Street Reform & Consumer Protection Act [HR 4173.EAS])
NACDL on H.R. 4173 - Recommendations (recommendations for reforming Dodd-Frank Wall Street Reform & Consumer Protection Act [HR 4173.ENR])
Criminal Provisions in H.R. 4173 (list of the criminal provisions in Dodd-Frank Wall Street Reform & Consumer Protection Act [HR 4173.ENR])
Dodd-Frank Wall Street Reform & Consumer Protection Act, HR 4173.ENR (Enrolled Bill, HR 4173.ENR, Final as Passed Both House and Senate)
HR 4173.EAS (Version of bill that served as the base-text for the Conference Committee)
Tiffany M. Joslyn, Criminal Provisions in the Dodd-Frank Wall Street Reform & Consumer Protection Act, Federalist Society New Federal Initiatives Project (December 2010) [PDF Version]
Pattern Cross-Examination for DNA and Biological Evidence: A Trial Strategy Guide
NACDL’s Pattern Cross-Examination for DNA and Biological Evidence will assist criminal defense practitioners in scoring points when cross-examining forensic experts in cases involving DNA and biological evidence. This resource contains thousands of questions that will help defense lawyers cross-examine challenging witnesses without reinventing the wheel with each new case. It includes pattern questions that can be used to dominate prosecution DNA experts and level the playing field at trial.
Cross-Examination of the Analyst in Drug Prosecutions (2nd Ed.) By James M. Shellow
Now in its second edition with some new material, James M. Shellow’s book offers what its title promises: ways of thinking about cross-examining the forensic analysts in drug cases. But the book is so much more than that. It offers a look inside the mind of one of the finest cross-examiners and defense lawyers the United States has produced in the last seventy years. This small book can inspire and direct you in making big changes in the way you defend your clients and think about the entire project of trying any case.
Justice For All, Justice Now White T-Shirt (Women’s)
This custom, vintage-faded NACDL t-shirt is 50% polyester, 25% cotton, and 25% rayon weighing 5.2 oz. and is lightwieght, flexible and soft, providing maximum comfort. It features the "Justice For All, Justice Now" slogan and Lady Liberty image on the front, with the NACDL logo on the back. Currently available in both men's and women's sizes in both black and white colors. View the full line-up of colors and sizes on our online store, as well as our other popular and best-selling t-shirt designs at: nacdl.org/store.
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Whether it is insanity, impairment, a disorder, or adolescent brain development; mental health and intellectual competence issues affect pretrial supervision, trial and sentencing, and your chances of successfully advocating for your impaired client. This training provides ideas and proven solutions to assist you in advocating for your client during trial, whether it be insanity defenses, jury selection, cross of expert witnesses, persuasion, or mitigation at sentencing.