The Countdown to the Convention series previews some of the outstanding panels and events at our upcoming 2015 National Lawyers Convention. Join us November 12-14, 2015 in Washington, DC for three days of debates, discussions, and networking with preeminent legal minds. 16 days to go...
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It is with great anticipation that I will be participating in the Federalist Society’s 2015 National Lawyers Convention. That so many leading scholars, practitioners, and jurists will also be participating is great testament to the importance and stature of both the Federalist Society and the Convention. I am most honored to be included.
Given my background, it should come as no surprise that I think it important that we all take steps to further engender respect and appreciation for the rule of law. Criminal prosecution is, of course, one essential tool used to preserve and promote the rule of law, under which our Nation has become a beacon of hope and fairness to the world. Besides its obvious objectives—to ensure the safety of the citizenry and incapacitate the morally depraved—prosecution can also be essential in protecting the integrity of our free market economy.
But it is on this latter issue that a practice of significant concern has emerged over the last decade or two, and accelerated greatly under the current Administration. Prosecution, or the threat of it, has increasingly been used against corporations to achieve regulatory objectives. Often, the statutes under which corporations are prosecuted contain vague standards and do not require a showing of criminal intent. This trend undermines, not promotes, the free-market principles upon which this Nation was founded, implicates separation of powers concerns, and vests too much power in the regulatory functions of government. Often, these prosecutions are founded on violations of inscrutable regulations, but pursued under criminal statutes of general application, such as the federal False Statement statute (18 USC § 1001). Thus, it is encouraging to see, in the pending Senate Sentencing Reform legislation, provisions designated to identify and capture the full range of criminal enforcement provisions in federal law, which today is unknowable.
In any event, Congress need not sit idly by. It can reign in regulatory prosecutions by revising statutes to permit regulatory, but not criminal, enforcement. It can also ensure those criminal statutes that do remain include very clear elements and, in all cases, require a showing of criminal intent. Doing so will make criminal prosecution more effective, more efficient, and most importantly, more closely tethered to basic principles of fairness and transparency.
Recently, the Department of Justice issued a memorandum outlining a new policy directing the nation’s federal prosecutors to focus on individuals in corporate prosecution cases.
As one who has questioned the over-use of criminal sanctions against corporations and other institutional entities, the idea of holding individual wrong doers—who actually think and therefore can form criminal intent—accountable for business crimes makes sense as a policy matter. However, that’s the easy part.
Determining whether a given individual committed an offense, including by acting with criminal intent, is much more difficult. On that, the DOJ policy as currently constituted, may however make it more difficult for companies and their counsel to successfully ferret out the evidence needed to make that determination. Individual executives with the best direct knowledge of possible wrongdoing have good reason to elect not to be questioned by company counsel where the product of that conversation may be destined for prosecutor files. DOJ may want to consider further how a policy of targeting individual corporate wrongdoing is best reconciled with larger business crime enforcement goals and objectives.
I look forward to discussing these and many more important issues at the Convention next month.