Tuesday, October 26, 2010
Held at the Georgetown Conference Center, the Journal of Law, Economics and Policy, the Law and Economics Center at George Mason University School of Law, NACDL, and the Foundation of Criminal Justice joined together last Thursday for a conference entitled Covercriminalization 2.0: Developing Consensus Solutions. An introduction to this conference by Norman Reimer, Executive Director of NACDL, was followed by a keynote address by former Deputy Attorney General and now Senior Vice President - Government Affairs, General Counsel & Secretary for PepsiCo, Inc., Larry Thompson. He said, prosecutors need to ask questions such as: "Is a corporate criminal prosecution really necessary? Does it serve the goals of deterrence and retribution?"
The day was spent coming up with solutions to the problem of overcriminalization and many ideas were offered. Four key presentations were offered by Professor Roger Fairfax (GW) who spoke about "smart on crime" solutions"; Professor Larry Ribstein (Illinois) who spoke about agency costs and monitoring prosecutors; Professor Darryl Brown (Virginia) who spoke about regulation or criminalization; and Professor Geraldine Szott Moohr (Houston) who looked at how to restore the mens rea.
There were a host of commentators. For example, Cynthia Orr had an incredible Powerpoint that showed the small list of crimes that existed in the early days of this country. She talked about the response to the problem de jour. Solomon Wisenberg, gave his confession of a former prosecutor (see here). Paul Rosenzweig looked at whether elections can make a difference in monitoring prosecutors.He cited to Professor Ron Wright's article How Prosecutor Elections Fail Us, 6 Ohio State J. Crim.. L. 581 (2009) and also looked at what prosecutors were saying in the elections. Glenn Lemmi spoke about the responsible corporate officer doctrine. Professor Lucian Dervan (Southern Illinois) looked at the role of plea bargains. Overcriminalization allowed novel theories to go untested, he noted. Professor Sara Sun Beale noted that guns, drugs, immigration are the bulk of cases and we need to keep our eyes on these big areas. Professor Kate Stith and Carmen Hernandez brought in sentencing considerations.
Three judges wrapped up the day (Hon. Frederic Block, Cormac Carney, and Jed Rakoff). Discussion turned to sentencing issues that cause overcriminalization problems, although there were many other points mentioned.
The papers that are produced from this day are likely to be well read as it was an incredible day with many ideas to move the overcriminalization discussion forward. The Journal of Law, Economics, and Policy will be the proud sponsor of the articles from this issue.