NACDL’s White Collar Crime Policy Department is on the front lines combating new and unnecessary criminal laws and pushing for meaningful criminal justice reform. NACDL white collar advocacy focuses primarily on the problems of:
- Vicarious corporate criminal liability,
- Disproportionate and insufficiently flexible sentencing.
In support of this effort, NACDL serves as a leader in a politically diverse coalition of bar, non-profit, and business groups who advocate for a sound and just criminal justice system.
Developing resources and education opportunities for the white collar criminal defense bar is also a top priority. Through cutting edge white collar CLE programs, an active white collar crime discussion community, and an engaged white collar defense committee, NACDL brings together the best-informed criminal defense attorneys to share information and strategy. Exclusive for NACDL Members, NACDL maintains a briefs and motions bank dealing specifically with white collar crime. The White Collar Department also conducts webinars and publishes cutting-edge policy analysis on emerging issues in white collar enforcement.
Detailed information about NACDL’s white collar initiatives and links to resources can be found on the following pages.
- Overcriminalization Reform
- Federal Discovery Reform
- Conspiracy Reform
- Computer Fraud and Abuse Act (CFAA)
- Forfeiture Reform
- Prosecutorial Misconduct
- Foreign Corrupt Practices Act (FCPA)
- Advocacy Letters & Testimony
- White Collar Amicus Briefs
- Federal Legislation
- Mens Rea Pending State Legislation
- Priority Federal Legislation
- White Collar Sentencing
- White Collar Issue Areas
- White Collar Education
- White Collar Discussion Group (members only)
- NACDL Legal Resource Center
- White Collar On The Web
- White Collar Crime Prof Blog
Tiffany May Joslyn White Collar Crime Policy Externship/Internship
The National Association of Criminal Defense Lawyers is looking for an enthusiastic and productive law student intern with a commitment to criminal defense issues to engage in a variety of projects related to federal policy analysis, nonprofit advocacy, and criminal defense scholarship. The Tiffany May Joslyn White Collar Crime Policy Internship was created in memory and honor of Tiffany Joslyn’s significant contributions to the cause of criminal justice reform, particularly in the areas of white collar and regulatory crime, overcriminalization, and the erosion of due process protections in the criminal justice system. This internship will afford a law student specifically interested in the area of white collar crime and policy with the opportunity to work directly with and learn first-hand from leaders in the field at NACDL. Learn more about this opportunity.
On May 26, 2016, NACDL co-hosted a free law and policy symposium with the U.S. Chamber of Commerce’s Institute for Legal Reform entitled The Enforcement Maze: Over-Criminalizing American Enterprise. The day-long symposium featured key leaders from industry, academy, law, and policy across the political spectrum. Together they addressed the rise of overcriminalization, the inappropriate criminalizing of civil and regulatory matters, why laws need criminal intent requirements, fundamental flaws with the plea bargaining process, criminal discovery abuses and inadequacies of the grand jury process, as well as the use of certain pressures associated with enforcement against business and corporate individuals. For more information, see videos and commentary about the symposium.
At its spring 2015 meeting in Las Vegas, NACDL’s Board of Directors unanimously approved a resolution on criminal conspiracy law reform. The resolution is guided by a position paper drafted by NACDL’s Conspiracy Reform Subcommittee and adopts the recommendations therein. Before approving the resolution, the Board received a presentation by Subcommittee Co-Chairs Steven Morrison and John Cline on the flawed nature of existing criminal conspiracy law and the critical need for reform. The presentation focused on how existing conspiracy law results in possible constitutional violations, evidentiary unreliability, and false convictions. The Co-Chairs also presented the recommendations contained in the position paper, which would address, among other things, the overt act requirement, jury instructions, Pinkerton liability, and more. Read the Board resolution.
On November 17, 2014, at the National Press Club in Washington, DC, NACDL officially released its latest report, Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases, a major study produced jointly with the VERITAS Initiative at Santa Clara Law School. Complete copies of the report, executive summary, and fact sheet are available at www.nacdl.org/discoveryreform/materialindifference. Watch C-SPAN3's video coverage of the launch event.
Cross-Examination Trial Pack
NACDL’s new Cross-Examination Trial Pack includes three of our best-selling Cross-Examination resources: “Damage Control: Situational Cross-Examination Techniques Trial Guide”, "Ultimate Cross 2.0: Audio Recordings & Written Materials" and "Sample Cross-Examination Questions."
This masterful collection of cross-examination resources provide countless tips, techniques and strategies for a variety of criminal case-specific scenarios. Learn to cross-examine a variety of trial witnesses!
Death Investigation: Forensic Pathology in the Courtroom and Cause & Manner of Death (2022)
This unique program provides criminal defense lawyers with an accurate and clear overview of forensic pathology and the countless factors to consider in a death investigation and will methodically explain what happens during an autopsy to determine cause and manner of death.
You'll uncover the different types of medicolegal death investigations, what to request from your MDI expert, quality benchmarks for accreditation and certification, guidelines and standards, common terminology and frequently asked questions.
The Psychology of Persuasion & Storytelling for Criminal Defense Lawyers
This Trial Resource Guide is a masterful collection of practical tips, techniques and strategies focused solely on using the arts and sciences of persuasion to improve your storytelling skills at trial.
You'll learn how to master the ability to communicate with juries, deliver powerful openings and closings, perform convincing cross-examinations, use effective courtroom choreography and non-verbal communication, identify and develop the optimal theme and theory for your case, and offer compelling arguments during mitigation and sentencing.
Zealous Advocacy in Sexual Assault & Child Victims Cases (2022)
Defending charges of sexual assault and child abuse can be daunting — but with the right tools, it doesn’t have to be.
Every year, NACDL identifies the hottest topics and most pressing issues when defending these cases, and brings-in nationally-renowned lawyers and experts to help you prepare for battle. This year’s 13th Annual Defending Sex Cases training program is our best yet; packed with topics and speakers you won’t want to miss!
Taking the Profit Out of Crime: Forfeiture
Part I: The Basics
According to the government, the goal of forfeiture is to take the profit out of crime. The government seeks to take private assets – including cash and real property – that it claims constitute the proceeds of criminal activity. Steven L. Kessler discusses some of the basics every attorney should know about forfeiture.
What Does It Mean to ‘Exert Pressure’ Under McDonnell?
McDonnell v. United States provided a small dose of clarity to the issue of “official acts” under federal anti-bribery law, but confusion remains regarding some issues, such as what it means to “exert pressure.” The ambiguity left in McDonnell’s wake means that criminal defense lawyers will be responsible for waging the fight to clarify the boundaries of corruption prosecutions.
Saving Hippocrates: The Supreme Court and the CDC Add to the Defense Arsenal
in Doctor-Prescribing Prosecutions
Doctors can breathe a partial sigh of relief after the decision in Ruan v. United States; the U.S. Supreme Court held that prosecutors must show more than mere negligence or malpractice to make a felon out of a physician. In addition, new guidance from the Centers for Disease Control and Prevention on opioid prescribing promises to make it much harder to prosecute – and easier to defend – doctors.
- Taking the Profit Out of Crime: Forfeiture
Lessons Learned From the Government’s Dismissal of a 93-Count Superseding Indictment
Against a Company and Dozens of Individuals
The Story of United States v. Rocket Learning, LLC
A post-indictment dismissal is rare. The authors walk readers through United States v. Rocket Learning, pointing out that the government’s retreat in the fraudulent billing case was bittersweet because a profitable business is defunct, and dozens of employees are still picking up the pieces of their lives.
- The Trump Appointees and the Federal-State Balance in the Prosecution of Crime
White Collar Crime Policy: Federal Restitution Law: What to Watch For and What to Avoid
Cases that end in conviction are often accompanied by an order of restitution. A restitution order can be a burden on a person for years even after a prison sentence has been served and a term of probation has been completed. Practitioners should pay attention to several key issues in order to zealously advocate for their clients – even after conviction and sentencing.
‘Property’ Fraud in the Intangible Age
Federal statutes should provide a person of ordinary intelligence fair notice of what is prohibited, but the term “property” is undefined by the federal fraud statutes. The internet, untethered digital currency, and the metaverse are raising questions about the traditional understandings of things and possessions. Legislators need to provide greater clarity about how older statutes apply to newer concepts.
When Silence Is Not So Golden
Public Statements Clauses and Interference With a Defendant’s Right to Present a Vigorous Defense
Andrew S. Boutros and Jay Schleppenbach discuss the proliferation of clauses in corporate deferred prosecution agreements and settlement agreements barring company representatives from publicly denying the factual basis of the plea or deferred prosecution agreement. Do these so-called “public statements clauses” interfere with the right to present a defense?
Non-Prosecution, Deferred Prosecution, and Pretrial Diversion Agreements: Just Say No to Pleas
Deferred prosecution agreements are almost exclusively used in corporate prosecutions, but they are occasionally offered to individuals. Non-prosecution agreements, on the other hand, may be easily obtained for fact witnesses when defense counsel does not want to take the chance that a client is more culpable than originally thought. What are the most critical factors that influence prosecutors to enter into an NPA or a DPA?
Long Overdue: Fifth Amendment Protection for Corporate Officers
Professor Tracey Maclin examines and challenges the collective entity rule, which is the Supreme Court’s long-standing view that an individual who works for a company is not protected by the Fifth Amendment when compelled to produce incriminating records that belong to the company. Maclin says the collective entity rule defies the text of the Fifth Amendment, the common law history of the privilege, and the Court’s Fifth Amendment precedents.
- Perspective: Takeaways From the Elizabeth Holmes Verdict
More Bite Than Just Bark: Using Model Rule 4.2’s No-Contact Rule
to Limit the Government’s Contact With Employees of a Represented Company
Andrew Boutros and John Schleppenbach provide practical guidance for white collar practitioners concerning when ABA Model Rule of Professional Conduct 4.2 prohibits the government from contacting and trying to interview employees of a represented corporation. The government may disagree with defense counsel’s interpretation of the rule. At the very least, however, providing notice of corporate representation should open a dialogue that prevents unpleasant surprises with regard to contacts with corporate employees.
Get Smart! The Smartphone Conundrum in Internal Investigations
Whether a defense attorney in an internal investigation represents an employer or an employee, it is imperative that the attorney is prepared for the issues that arise when collecting data from a personal smartphone. The authors outline the nearly infinite universe of potentially collectible data that exists within smartphones. Also, they provide an overview of the rights and interests of the employer and employee. Finally, the authors provide a cautionary note about the scope of internal investigations in which a private company becomes a de facto arm of the government.
Decoding the Crypto Space: Understanding Cryptocurrency in Today’s Criminal Defense Practice
The government’s attempts to regulate cryptocurrencies with existing statutes and traditional law enforcement approaches have resulted in confusing and inconsistent outcomes. Attorneys have faced difficulty in advising clients on how to lawfully use, purchase, and sell cryptocurrencies, particularly in light of the uncertainty concerning how to define and determine which agency has jurisdiction over digital currencies and transactions. What are the trends in prosecution and regulation?
- Lessons Learned From the Government’s Dismissal of a 93-Count Superseding Indictment
Sentencing: The Trial Practice for the 21st Century
Because 90 percent of all federal cases end in a plea deal, criminal defense lawyers have become sentencing lawyers rather than trial lawyers. Defense lawyers should not abandon vigorously defending their clients before juries. The authors suggest, however, that lawyers must begin to view trial preparation through the lens of sentencing.
The DOJ’s Mixed Record on Cases Against Traders
DOJ has had mixed success in the prosecution of traders. Where is the dividing line between illegal activity and savvy trading? Susan Brune and Erin Dougherty review the major categories of recent prosecutions and highlight the key issues that have presented obstacles to conviction – and opportunities for the defense.
- Shifting the ‘Burden of the Defense’ in White Collar Conspiracy Prosecutions
Reconsidering Joint and Several Restitution
Does a common feature of restitution orders – joint and several liability – violate the Excessive Fines Clause? There is “no general federal right to contribution” between co-defendants under restitution orders. This seemingly creates an Eighth Amendment problem in that a defendant can be held jointly liable for a co-defendant’s restitution yet has no right to collect contribution from the co-defendant.
Defending a Client in a Mandatory Self-Disclosure World
Representing Federal Government Contractors in Parallel Criminal, Civil, and Administrative Investigations
Federal contractors often face a “three-headed monster” of parallel criminal, civil False Claims Act, and administrative investigations. Each investigation involves different procedures, different obligations, and different potential sanctions. Sara Kropf and Margaret Cassidy provide practical approaches to developing strategies to help manage risk.
- Understanding Bitcoin in Criminal Defense Cases
- Sentencing: The Trial Practice for the 21st Century
News of Interest
- "Justice Department Promises to Crack Down as Corporate Crime Cases Decline,"
- "Federal Court Says Warrantless Seizure Of Vehicles Over Unpaid Fees Violates The Constitution,"
- "Report Shows Kansas Law Enforcement Seized $21 Million From People, Most Of Whom Were Never Charged With Crimes,"