The Champion

Sept-Oct 2013 , Page 05 

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From the President: NACDL’s Mission and the White Collar Department

By Jerry J. Cox

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NACDL’s Mission and the White Collar Department

NACDL’s extensive work in the area of white collar crime policy is a significant catalyst for criminal justice reform in all areas of the association’s agenda. NACDL’s White Collar Committee and professional staff have succeeded in so many arenas where less than a decade ago progressive reform was simply unthinkable. Through significant coalition building and outreach to Capitol Hill and federal agencies, this association’s efforts through its White Collar Department are yielding important developments, only a few of which I have room to discuss here.

The white collar initiative extends beyond what many think of when they hear “white collar” crime. For example, it is the White Collar Department that has for years played a key role in developing and growing a coalition of leading influential organizations across the political spectrum to combat the crisis of overcriminalization in America. NACDL’s efforts were instrumental in the House Judiciary Committee’s unanimous creation of a bipartisan House Overcriminalization Task Force whose sole purpose is to address this crisis. Thus far, the task force has held two congressional hearings and only one organization has been invited to testify at both — NACDL.

When the House Overcriminalization Task Force was created, congressional leadership made clear an interest in addressing a host of critical issues — from the explosion in regulatory offenses to the unfairness of mandatory minimums, and from the failure to respect federalist principles to overincarceration.

Anyone who attended or who has watched the webcasts of this task force’s hearings on Capitol Hill (available at www.nacdl.org/overcrim) knows that these legislators are focused like a laser beam on the issue of the erosion of the mens rea requirement in federal criminal law. And they cannot stop citing as authority for that point the seminal study on the issue conducted by the White Collar Department and the Heritage Foundation — Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law. This study of the 109th Congress exposed with concrete data what had previously been a perceived, but not empirically supported, trend.

NACDL’s partnership with other groups on common causes has become a critical component of achieving the association’s mission. Ten years ago, not many could have imagined an NACDL and Heritage Foundation co-sponsored Gideon at 50 event. Yet last March, just such an event featured speakers such as former U.S. Attorney General Edwin Meese III standing up for the promise of Gideon side by side with NACDL Immediate Past President Steven D. Benjamin and Executive Director Norman Reimer.

The White Collar Department has spearheaded efforts to codify Brady to ensure fairness in disclosure in criminal cases — efforts that led to the introduction of bipartisan legislation in the U.S. Senate last year. And the association’s white collar staff is in the final stages of what promises to be a landmark study on the quality of federal judicial review of Brady claims and the arbitrary nature of the materiality standard.

Just this year, there is further, significant evidence of the progress being made to bridge the partisan gap on criminal justice issues. In March, Senate Judiciary Chairman Patrick Leahy (D-VT) and Sen. Rand Paul (R-KY) introduced the Justice Safety Valve Act of 2013 to vastly expand the flexibility of judges to impose sentences below mandatory minimums. This is further evidence that the impact of NACDL’s White Collar Department stretches beyond Wall Street to Main Street.

Of course, we must not focus solely on the positive developments achieved and in progress, but also the negative developments that have been thwarted through the hard work of the White Collar Committee and professional staff. For example, in 2010, the Supreme Court ruled in the Skilling case that the offense known as ‘honest services fraud’ was narrower in scope than the manner in which prosecutors had been stretching it for 20 years. Not only did NACDL contribute mightily to the amicus effort in this and other “honest services fraud” cases, but the White Collar Department has also played a key role in successfully opposing multiple congressional initiatives to legislatively reverse the Supreme Court’s ruling in that case.

The many reforms for which NACDL has worked tirelessly over many years will not happen overnight, but the wheels have been set in motion. This column only begins to scratch the surface of the role that NACDL’s white collar initiative has played in the reforms that are critical to achieving a fairer and more humane criminal justice system. The work in this area has generated enormous synergies that advance NACDL’s reform agenda across the entire criminal justice system.

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