The One-Day Over-Criminalization Event You've Been Waiting For!

If you're interested in criminal justice reform, here's an event you shouldn't miss.

prison prisoner crime criminalThere’s an excellent event coming up in Washington, D.C. that folks should know about. One week from today, the U.S. Chamber of Commerce and the National Association of Criminal Defense Lawyers, two groups you normally think of as working together, are hosting a joint one-day symposium on over-criminalization.

The event, called “The Enforcement Maze: Over-Criminalizing American Enterprise,” is a nice one-day mini-course on much of what’s wrong from a policy standpoint with our federal criminal justice system. And, worst case, it’s at the U.S. Chamber, so the continental breakfast is likely to be pretty good.

There’s a lot that’s been written on over-criminalization these days, and folks from the Koch brothers to the ACLU are active in the space.

What, exactly, we mean by over-criminalization is starting to become a little fractured – there are a cluster of problems that are more or less linked: mass incarceration; abusive police tactics; sentencing reform generally; sentencing reform for federal drug cases specifically; reform of mandatory minimums; civil forfeiture reform; reducing the collateral consequences for a criminal conviction (e.g., “ban the box” measures that make it easier for people to rebuild their lives after a conviction); tightening overbroad federal statutes; and reforming the mens rea requirements for many kinds of crimes, particularly white-collar crimes.

People concerned about over-criminalization range from those interested in social justice for poor people and people of color, to libertarians (remember Rand Paul talking about over criminalization in the Republican debates?), to entities like the Chamber of Commerce who are worried about the Department of Justice becoming the regulator of choice for many kinds of business.

In the midst of this attention, some reform efforts are moving.

President Obama has done good work on clemency. When Eric Holder was attorney general, there were some changes in prosecutorial charging decisions that – assuming all the U.S. Attorney’s Offices are following them – could be meaningful for some people. In Congress, there’s a sentencing reform bill that’s getting some traction, even in an election year and even on an issue as challenging as making the world better for people who have committed crimes. It’s far from done, but progress is progress.

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Unfortunately, it looks like mens rea reform isn’t going to happen in Congress this year – which is really not good – but there’s always next year. Perhaps a President Trump would make it a priority? Someone should ask John Miller.

These changes are good. They don’t go anywhere near as far as they need to, but they are at least motion in the right direction.

In the midst of this advocacy and imperfect action comes the Symposium.

The Chair of the House Committee on the Judiciary will open the event, and, presumably, talk about what’s going on in Congress and the need for more reform.

There are a number of panels on problems with the law that, I have to assume, will be highlighting high-profile cases where things went wrong. John Lauro, for example, is speaking and is sure to talk about the WellCare prosecutions.

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For lawyers working in these fields, these may be terribly familiar, but for others they could be tremendously useful to see just how bad things can be in practice. Real people with real lives are being affected and it’s important to see that.

David Ogden will give the Keynote, and, perhaps most interesting from my point of view, a panel will talk about the possibilities of reform on the horizon, including a counsel to Orrin Hatch, Doug Berman, who writes the most important sentencing blog in the country, and Shana O’Toole, NACDL’s one-woman tornado of reform activity in the white-collar space.

Over-criminalization is a huge issue. Some fear that its moment may be passing. Surely the election will be a huge distraction that will shuffle the deck of where things are in Washington next year. But the issue isn’t going away, and there’s no better one-day event to see what’s going on than the symposium coming up.


Matt Kaiser is a white-collar defense attorney at KaiserDillon. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. His twitter handle is @mattkaiser. His email is mkaiser@kaiserdillon.com He’d love to hear from you if you’re inclined to say something nice.