The Enforcement Maze: Overcriminalizing American Enterprise

On May 26, 2016, NACDL co-hosted a free law and policy symposium with the U.S. Chamber of Commerce’s Institute for Legal Reform entitled The Enforcement Maze: Over-Criminalizing American Enterprise. The day-long symposium featured key leaders from industry, academy, law and policy across the political spectrum. [Released August 2018]

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Together they addressed the rise of overcriminalization, the inappropriate criminalizing of civil and regulatory matters, why laws need criminal intent requirements, fundamental flaws with the plea bargaining process, criminal discovery abuses and inadequacies of the grand jury process, as well as the use of certain pressures associated with enforcement against business and corporate individuals. House Judiciary Chairman Bob Goodlatte gave the morning keynote address; keynote lunch address was given by former Deputy Attorney General David Ogden; and Senator Orrin Hatch gave closing remarks. Most of the symposium’s panelists prepared original scholarship for this symposium that has been compiled into a compendium published in August 2018.

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This Symposium was produced as a joint project of the National Association of Criminal Defense Lawyers, and the U.S. Chamber of Commerce Institute for Legal Reform.

As a follow up to the symposium, on August 7, 2018, NACDL released a compendium of original scholarship by symposium panelists on subjects ranging from deferred prosecution agreements to discovery, and from federal conspiracy law to grand jury reform, and so much more. The compendium also includes remarks delivered by House Judiciary Chairman Bob Goodlatte (VA), former Deputy Attorney General David Ogden, and U.S. Senator Orrin Hatch (UT).

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Morning Keynote Address

  • The Honorable Bob Goodlatte, U.S. House of Representatives (R-VA 6th District) and Chairman, House Committee on the Judiciary

 

The Rise of Overcriminalization

This panel discussed the inappropriate criminalization of what are truly civil or regulatory/administrative problems/disputes as well as inadequate criminal intent requirements and the problem with strict liability crimes.  

  • Reginald J. Brown, Partner and Chair, Financial Institutions Group, Wilmer Cutler Pickering Hale and Dorr LLP
  • John F. Lauro, Principal, Lauro Law Firm
  • Kate C. Todd, Senior Vice President and Chief Counsel, U.S. Chamber Litigation Center

Moderated by: John D. Cline, Principal, Law Office of John D. Cline

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Bearing Down

This panel addressed over-charging/overzealous enforcement and the pressures on businesses and individuals under investigation and engaging in plea bargaining, including collateral consequences for companies (debarment, exclusion) and for individuals (jail, loss of licenses). 

  • John H. Beisner, Partner, Skadden, Arps, Slate, Meagher & Flom LLP
  • Beth J. Hallyburton, Assistant General Counsel, GlaxoSmithKline
  • Kurt Mix, Former Deepwater Drilling Engineer, BP America
  • Barry J. Pollack, Member and Chair, White Collar & Internal Investigations Practice, Miller & Chevalier

Moderated by: Harold H. Kim, Executive Vice President, U.S. Chamber Institute for Legal Reform

 

The Symbiotic Relationship Between Overcriminalization and Plea Bargaining

This TED Talk-inspired presentation discussed the manner in which these two phenomena relied on each other to come to dominate our modern criminal justice system. 

  • Lucian E. Dervan, Associate Professor of Law, Southern Illinois University School of Law

 

Special Remarks and Luncheon Keynote Address

Special Remarks by: Lisa A. Rickard, President, U.S. Chamber Institute for Legal Reform

Keynote Address 
  • The Honorable David W. Ogden, Partner, Wilmer Cutler Pickering Hale and Dorr LLP and Former Deputy Attorney General of the United States

 

A Lack of Balance in the System: Criminal Discovery & Grand Jury Inadequacies & Abuses

This discussion featured two legal experts and explore the inadequacies and abuses of two important facets of criminal procedure that combine to create an unfair playing field for persons and entities. 

  • Ross H. Garber, Partner, Shipman & Goodwin LLP
  • Timothy P. O’Toole, Member and Chair, Pro Bono Committee, Miller & Chevalier

 

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The Shadow Regulatory State: A Look at Federal Deferred Prosecution Agreements

This TED Talk-inspired presentation discussed the ways in which federal prosecutors have increasingly pressured corporations to enter into deferred- or non-prosecution agreements that entail not only hefty fines but significant changes to business practices, with no showing of wrongdoing or judicial supervision. 

  • James R. Copland, Senior Fellow and Director, Legal Policy, The Manhattan Institute

 

The New Prosecutorial Focus: Individuals in the Age of Overcriminalization

This panel explored the impact of the recent “Yates Memorandum” – a directive from Sally Quillian Yates, Deputy Attorney General of the United States, regarding individual accountability for corporate wrongdoing. 

  • Lisa A. Mathewson, Principal, The Law Office of Lisa A Mathewson
  • Matthew S. Miner, Partner, Morgan, Lewis & Bockius LLP
  • Ellen S. Podgor, Gary R. Trombley Family White-Collar Crime Research Professor and Professor of Law, Stetson University College of Law

Moderated by: Barry Boss, Co-Chair, Criminal Defense & Internal Investigations, Cozen O’Connor

 

The Public Policy Consequences and the Road to Recovery

This panel addressed the erosion of respect for criminal law, costs incurred by taxpayers, over-incarceration, and the squashing of business ingenuity and growth, and will explore solutions to these problems. 

  • Christopher Bates, Counsel to Senator Orrin Hatch, Senate Committee on the Judiciary
  • Douglas A. Berman, Robert J. Watkins/Procter & Gamble Professor of Law, The Ohio State University Moritz College of Law
  • Joseph Luppino-Esposito, Policy Analyst, Center for Effective Justice & Right on Crime
  • Shana O’Toole, Director of White Collar Crime Policy, National Association of Criminal Defense Lawyers

Moderated by: Jonathan Bunch, Vice President & Director of External Relations, The Federalist Society

 

Afternoon Keynote Address

  • The Honorable Orrin Hatch, U.S. Senate (R-UT), Chairman, Senate Finance Committee and Former Chairman, Senate Judiciary Committee

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