Friday, October 26, 2012

ABA Fall Meeting -Opening Session & Overcriminalization Panel

The ABA Fall Institute opened with welcoming remarks from William Shepherd (Holland & Knight), chair of the Criminal Justice Section, and Laurel Bellows, President of the American Bar Association. 

The opening address was given by Edwin Meese III, former U.S. Attorney General. He talked about how to make our system “effective, efficient, and just.” He noted that the National Association of Criminal Defense Lawyers (NACDL) is aligned with the Heritage Foundation on this important issue of overcriminalization. He spoke about the improper use of the criminal law and process for political reasons and social regulation, emphasizing the misuse of limited resources. He gave some frightening examples of how ordinary law-abiding citizens were caught up in the criminal process.  He said that the estimate today is that there are over 5,000 criminal statutes and then there are also regulatory offenses, and his estimate is over 300,000 federal criminal penalizing statutes and regulations.  He noted the lack of a meaningful mens rea in many of these statutes.  He mentioned how overcriminalization problems in the United States also involve cases in international law. He suggested that we need education  (educating the public and legislators) and also legislators should not be able to delegate criminal responsibility to an agency for the creation of a crime.  The legislature should also make crimes clear with a necessary ingredient being the mens rea. In this regard he advocated for an innovation of using mistake of law, something that is being experimented with in New Jersey. Finally, placing all criminal laws in Title 18 is something that he thinks will assist.

This opening address was a lead into a discussion of the next panel on the topic of Overcriminalization,
a panel moderated by Professor Sara Sun Beale. She started with questions of asking whether we have a problem of Overcriminalization and if so, what do we should do about it. The first speaker was Melodee Hanes, Acting Administrator, Office of Juvenile Justice & Delinquency Prevention, U.S. Department of Justice.  She said that U.S. detains youth five times more than the next industrialized country. She noted that Japan does not detain their youth; they resolve issues in an alternative method. Community based alternatives are needed.  Professor Roger Fairfax (George Washington) discussed the “smart on crime” philosophy. Charles J. Hynes, District Attorney of Kings County, Brooklyn, New York, who created 29 new alternative programs, including a re-entry program, noted the need for criminal law reform.The last speaker was Professor Luis Chiesa (Pace Law School), who offered a comparative perspective from a civil law view. He suggested using rules of construction similar to European courts and others.  This international perspective added another dimension to this discussion.

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