I am proud to be part of an organization that promotes fairness for all persons accused of crime, regardless of the status of the accused, or the nature of the alleged crime. NACDL supports lawyers from every realm of the criminal defense profession, and promotes reform throughout the entire spectrum of the criminal justice system. This white collar crime issue of The Champion is a perfect opportunity to note that, reflecting NACDL’s blue and white logo, NACDL seeks a rational and humane criminal justice system for all people of all colors and creeds, whether they are accused of blue collar crime or white collar crime.
Regardless of whom defense lawyers represent, the issues and injustices are universal. And the work that we do, as lawyers and as reformers, is immeasurably enhanced by our steadfast adherence to core principles that apply regardless of the nature of the crime or the status of our client. Those who may view NACDL’s involvement in white collar criminal defense reform issues as a disconnect with the Association’s core values overlook the common denominators that unite us as an organization uniquely positioned to promote reform. Indeed, NACDL’s reform agenda reflects that universality of purpose.
Consider some of the key issues that we have pledged to tackle. Discovery abuse is not limited to white collar cases, nor is it limited by jurisdiction. It is a pervasive problem in American justice that contributes to unjust prosecutions and erroneous convictions. The criminal justice system is already stacked against the defendant. With all the tools available to them — from grand juries to mandatory sentences — prosecutors should at least be willing to divulge information indicating that the wrong person is facing the might of the government. If they are going to take away someone’s liberty, shouldn’t they want to make sure they got it right? Codifying the Brady rule without a requirement of materiality and with a pretrial disclosure deadline is simply the right thing to do and would result in proceedings that meet the standards of justice.
NACDL recently adopted draft legislation to reform the federal discovery rules to ensure that exculpatory evidence is promptly and completely provided to the defense. But NACDL will not limit its efforts to remedy the practice of withholding favorable evidence to federal prosecutions. Rather, we will pursue a nationwide reform effort to once and for all take the gamesmanship out of the criminal justice system.
Another universal concern is judicial independence and the need to protect the criminal process from the corrupting effects of money in judicial elections. Whatever chance we as defense lawyers have in any kind of case to ensure fairness is hopelessly doomed when the presiding judge is institutionally inhibited from providing an impartial forum. Yet the flood of money into judicial elections breeds exactly that kind of institutional inhibition. The powerful interests that try to sway judicial elections, usually motivated by corporate interests that have nothing to do with criminal justice, inevitably exploit judges’ rulings in criminal cases. They will turn a judge’s good faith ruling — upholding a fundamental constitutional principle by ruling in favor of an accused person — into a ridiculous and destructive caricature.
NACDL is determined to neutralize the tactics that often turn the commitment to impartiality into road kill in the judicial money wars. The Task Force on Judicial Independence will guide the Association’s efforts to end these practices and to equip front line lawyers with tools to help lawyers seek recusal of judges who gain their office by committing during election campaigns to pro-prosecution rulings and pledging to impose harsh sentences. This reform effort will get a huge boost on October 20th when NACDL, in partnership with DePaul University, convenes its first symposium on judicial independence in Chicago.1
Yet another area in which NACDL has led reform efforts has been the Association’s continued efforts to combat overcriminalization. This is certainly one of the signature issues associated with the white collar crime reform agenda. But increasingly, NACDL has succeeded in making the case that overbroad application of criminal sanctions is by no means limited to corporate America. It is a universal fixation that is as prevalent in town and village courts across the country as it is in federal court. Indeed, as NACDL’s recent projects have shown, overcriminalization is turning the nation’s misdemeanor courts into conviction mills, primarily victimizing the poor and minorities.2
One specific aspect of overcriminalization that has been a singular concern for NACDL is the tendency to eviscerate the intent requirements in federal statutes. NACDL’s groundbreaking report, “Without Intent,” which was the product of a unique partnership with The Heritage Foundation, demonstrates how federal lawmaking has drifted away from the moral anchor of including a clear mens rea element in criminal statutes.3 But this phenomenon is by no means limited to federal laws or white collar crime. NACDL recently coordinated a broad group of amici in the successful attack on Florida’s drug laws, which completely eliminated an intent requirement.4
The Florida case is the best evidence of how adherence to core principles unites us as a profession. Overreaching by the political branches of government inevitably affects everyone. When core principles are ignored to go after a Wall Street corporate target, the bad precedents will eventually be deployed against the poor and disadvantaged on Main Street. When vague and expansive laws are crafted to empower prosecutors to pursue street crime with lower thresholds of proof and ever-increasing penalties, the ensuing abuses will inevitably be extended to the alleged white collar offenders.
That is why it is so important for NACDL to be vigilant in promoting reforms across the broad spectrum of the criminal justice system. And, in a nation that has the largest prison population of any nation on the planet and brands tens of thousands with a criminal conviction every year, NACDL is prepared to take on one of the gravest and most universal injustices in our system: the regime of crippling legal barriers that accompany a criminal conviction. The defense — the entire defense bar — can no longer close its eyes to the devastating long-term consequences of even the most minor criminal convictions. For that reason NACDL has established a Task Force on the Restoration of Rights and Status After Conviction.5
This task force will conduct a national inquiry to study the various relief mechanisms for achieving the restoration of rights and overcoming the barriers that condemn the formerly convicted to permanent disadvantage. NACDL will find out what works, what does not work, and we will craft a reform agenda that will dismantle the regime of sanctions that condemn convicted persons to functional exile. Make no mistake about it, these sanctions are as severe, punitive, and life-altering for the white collar offender as they are for the poor inner-city young drug offender who has never had a chance in life.
No matter what kind of case we defend, the government has limitless advantages and resources. As defenders of every accused person, we start from behind and often must fight blindfolded, with our hands tied behind our backs. The struggle against injustice in our criminal justice system unites us in a common mission. Our victories in any particular aspect of the criminal law inevitably benefit all accused persons, just as our setbacks inevitably harm everyone. That’s why I am proud to be part of an organization that is truly colorblind in its pursuit of justice and its advocacy for reform.
1. Visit http://www.nacdl.org for more information.
2. ALISA SMITH & SEAN MADDAN, NAT’L ASS’N OF CRIM. DEF. LAWYERS, THREE-MINUTE JUSTICE: HASTE AND WASTE IN FLORIDA’S MISDEMEANOR COURTS (2011). The report is available on NACDL’s website at http://www.nacdl.org/flmisdemeanor. Also see MINOR CRIMES, MASSIVE WASTE: THE TERRIBLE TOLL OF AMERICA’S BROKEN MISDEMEANOR COURTS (http://www.nacdl.org/misdemeanor).
3. WITHOUT INTENT: HOW CONGRESS IS ERODING THE CRIMINAL INTENT REQUIREMENT IN FEDERAL LAW. The report is available at www.nacdl.org/withoutintent.
4. Read about Florida’s attempt to eliminate the intent requirement in drug possession cases in “Inside NACDL” on page seven of this issue of The Champion.
5. The task force is comprised of co-chairs Rick Jones and Vicki Young, and members Lawrence Goldman, Elissa Heinrichs, Margaret Love, Penelope Strong, Christopher Wellborn, and Geneva Vanderhorst.