U.S. Criminal Defense Bar Critical of Overcriminalization by Congress in the Dodd-Frank Wall Street Reform & Consumer Protection Act
Washington, DC (June 28, 2010) – In a careful review of the pending financial regulation reform legislation, the National Association of Criminal Defense Lawyers (NACDL) has identified dozens of new and troubling federal criminal offenses. These new offenses, if enacted into law, will further explode the federal criminal code, which already contains an estimated 4,450 criminal offenses.
This financial reform legislation, agreed to in conference last Friday, has not been referred to either chamber’s Judiciary Committee—the Committees that have express jurisdiction over the federal criminal law. And, given the plan for passage, no full Judiciary Committee will ever review all the criminal offenses in the bill. Further, this bill allows unelected 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 this 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. This legislation is a textbook example embodying the central problems identified by NACDL and The Heritage Foundation in our joint, groundbreaking report released just last month entitled Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law.
“The problems with this financial reform legislation are neither new nor surprising,” explained NACDL Director of White Collar Crime Policy Shana-Tara Regon, adding that “this bill is simply the latest attack on the fundamental principles of our system of criminal justice – fair notice and due process.” Faced with public pressure to do something to “fix the system,” Regon explained that “sadly, Congress’s default mode is, once again, to respond to a policy challenge by rushing to create new, and defective, federal criminal offenses.”
Resources on HR 4173, the “Dodd-Frank Wall Street Reform & Consumer Protection Act”
A Windfall for Overcriminalization, A Case for Reform (NACDL one-pager on Dodd-Frank Conference Report [HR 4173])
NACDL on HR 4173 - Recommendations (recommendations for reforming Dodd-Frank Conference Report [HR 4173])
Criminal Provisions in HR 4173 (list of the criminal provisions in Dodd-Frank Conference Report [HR 4173])
Dodd-Frank Conference Report (final version of the bill agreed to by the Conference Committee)
HR 4173eas (version of bill serving as base-text for the Conference Committee)
For the above materials and more information, visit www.nacdl.org/whitecollar.