Washington Legal Foundation to Release Federal Erosion of Business Civil Liberties Timeline

The Washington Legal Foundation will release the third edition of its Federal Erosion of Business Civil Liberties timeline tomorrow morning in Washington, D.C.

Speaking at the press conference will be Jay B. Stephens, a former vice president at Raytheon and chairman of the Foundation’s Legal Policy Advisory Board.

Jay Stephens Senior Vice President Raytheon

Jay Stephens
Former Vice President
Raytheon

Also speaking will Norman L. Reimer executive director of the National Association of Criminal Defense Lawyers and Mark S. Chenoweth, the Foundation’s general counsel.

The two page timeline summarizes what the Foundation calls “the growing trend to criminalize normal business behavior.”

In addition to the timeline, the Foundation will be posting columns on each of the six subject areas.

Mens Rea, Public Welfare Offenses and the Responsible Corporate Officer Doctrine by Matthew Kaiser of Kaiser LeGrand & Dillon.

Environmental Protection Agency Criminal Enforcement Policies by Barry Hartman of K&L Gates.

Department of Justice Criminal Enforcement Policies by Mike Volkov of the Volkov Law Group.

Attorney Client Privilege and Work Product Doctrine by Larson Frisby of the American Bar Association.

Deferred and Non Prosecution Agreements by Joe Whitley of Baker Donelson.

And The Proliferation of Criminal Laws and Sentencing Developments by David DeBold of Gibson Dunn & Crutcher.

The timeline itself is a nutshell history of each of the subjects — required reading for anyone interested in the subject of corporate crime.

For example, from the Deferred and Non Prosecution timeline we learn that in 1993 the Department of Justice entered into the first deferred prosecution agreement with a corporation Armour of America.

The timeline says that the first non prosecution agreement with a corporation was the 1992 one with Salomon Brothers.

The timeline takes a tongue in cheek approach to various DPA conditions — for example, “February 2006 — FirstEnergy DPA requires $1 million donation to Habitat for Humanity” and “September 2007: DPAs with five medical supply companies allow US Atty to appt. monitors, including his former boss, Atty Gen. Ashcroft, who will be paid $52 million in fees.”

But the Foundation is serious about attacking what it believes to be the “overcriminalization of normal business behavior.”

As DeBold writes in his piece, for many companies, “the threat of a criminal conviction carries so many negative collateral consequences — indictment alone doomed Arthur Andersen — that the only safe option is to pursue a non-prosecution or deferred-prosecution agreement with the government.”

“That development, also chronicled on the WLF Timeline, makes for superb irony.  One of the central purposes of the Sentencing Reform Act, which created the Sentencing Commission, was to improve consistent treatment of violators through transparent and principles-based sentencing, with appellate review available to police even-handed application of the law.  But as more and more business conduct is criminalized, companies find themselves negotiating settlements with the Department of Justice outside of the usual criminal-justice process in order to avoid a criminal record.  Companies therefore find themselves paying huge penalties, not much different from the fines a judge might impose following a guilty plea or trial.  The critical difference is that these dispositions occur with little or no court involvement, meaning less oversight for consistency and transparency. This application of the law of unintended consequences is not a crime — at least not yet — but it certainly is one of the many unfortunate byproducts for our commercial sector of having too many criminal laws with ever-increasing penalties.”

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